United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

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

Docket No. 17-1657
Issued: January 4, 2018

Case Submitted on the Record

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

JURISDICTION
On July 25, 2017 appellant filed a timely appeal from a June 26, 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 over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish right carpal tunnel
syndrome causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On May 3, 2017 appellant, then a 54-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed carpal tunnel syndrome as a result of using his
right hand all day at work. The claim form did not indicate whether he stopped work.

1

5 U.S.C. § 8101 et seq.

In an April 21, 2017 report, Thomas Shaver, a certified physician assistant, noted that
appellant sought medical treatment for new complaints of right wrist/hand numbness and pain,
which he had experienced for the past two months with no recent injury. He noted that appellant
worked as a mail carrier and related that approximately 10 years ago he sustained a right wrist
injury. Mr. Shaver reviewed appellant’s history and conducted an examination. He reported
positive Phalen’s and carpal tunnel tests. Mr. Shaver diagnosed right carpal tunnel syndrome
and right wrist pain.
Appellant underwent an electromyography (EMG) and a nerve conduction velocity
(NCV) study by Dr. John Chapin, a Board-certified psychiatrist and neurologist. In an April 28,
2017 report, Dr. Chapin noted an abnormal study. He reported median neuropathy at appellant’s
right wrist consistent with carpal tunnel syndrome and mild ulnar neuropathy present at the right
elbow.
In a May 3, 2017 report, Dr. Scott B. Hutson, a Board-certified orthopedic surgeon,
indicated that appellant had not improved since he was last seen on April 21, 2017. He noted
that appellant occasionally wore a brace during the day, which helped to decrease his symptoms.
Dr. Hutson reported that appellant was highly symptomatic and had positive NCV studies. He
reviewed appellant’s history and provided findings on examination. Dr. Hutson diagnosed right
carpal tunnel syndrome.
Dr. Hutson further related in a May 4, 2017 attending physician’s report (Form CA-20)
that appellant was a mail carrier who complained of numbness, tingling, and pain in his right
hand. He checked a box marked “No” indicating that appellant did not have a history of
preexisting injury or disease. Dr. Hutson reported findings of right carpal tunnel syndrome. He
checked a box marked “Yes” indicating that appellant’s condition was caused or aggravated by
an employment activity. Dr. Hutson noted that he had attached a chart note and that appellant
was restricted from work at that time.
In a May 4, 2017 chart note, Dr. Hutson indicated that appellant complained of having
trouble with his right wrist for a while and that around March 1, 2017 his right wrist started
going numb while sleeping. He related that an April 28, 2017 NCV study showed abnormal
findings. Dr. Hutson diagnosed right wrist pain and right carpal tunnel syndrome. He checked a
box marked “No” indicating that appellant had not been treated for a similar condition and did
not have preexisting impairment to the injured area. Dr. Hutson recommended right carpal
tunnel release surgery.
Appellant explained in a May 16, 2017 statement that, on or around March 1, 2017, he
began to experience numbness in his right hand at night. He sought medical treatment from his
treating physician and began to use an arm brace. Appellant indicated that he saw a specialist
who diagnosed carpal tunnel syndrome and informed him that it was caused by using his right
hand to perform repetitive tasks, like the duties he performed at work. Appellant noted that
approximately 8 to 10 years ago, he had a previously accepted claim for a right hand injury.
By letter dated May 18, 2017, OWCP advised appellant that the evidence submitted was
insufficient to establish an occupational disease claim. It requested that he respond to an
attached development questionnaire in order to substantiate the factual element of his claim and
submit additional medical evidence to establish a diagnosed condition causally related to his
2

employment. Appellant was afforded 30 days to submit the additional information. A similar
letter was sent to the employing establishment.
On May 23, 2017 appellant responded to OWCP’s development questionnaire. He stated
that he cased mail for an average of one and a half hours a day, started his vehicle about 50 times
a day, open and shut a sliding vehicle door all day long, open and shut mailboxes six hours a day,
and fingered through 750 to 2,000 pieces of mail a day all with his right hand for the past 25
years. Appellant noted that he worked 5 days a week, 8 hours a day for 25 years. He indicated
that his hobbies and activities outside of his federal employment included hiking, bicycle riding,
motorcycle riding, and fishing. Appellant related that he used his computer to pay bills and buy
products when needed. He further explained that he started to experience numbness in his right
hand at night beginning on or around March 1, 2017. Appellant indicated that it woke him up
approximately three times per night. One night his hand and part of his arm “felt dead,” which
was when he sought medical treatment. Appellant reported that he began wearing a wrist brace,
which helped a little. He noted that approximately 8 to 10 years ago he had a previously
accepted claim for his right hand.
By decision dated June 26, 2017, OWCP accepted the alleged employment factors and
that appellant had been diagnosed with right carpal tunnel syndrome. It denied his claim,
however, because the medical evidence of record failed to establish that his diagnosed carpal
tunnel condition was causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
2

Supra note 1.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4
M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

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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 employee.7
ANALYSIS
Appellant has alleged that he developed right wrist carpal tunnel syndrome as a result of
his federal employment duties. OWCP accepted his employment factors as factual and that he
had been diagnosed with right carpal tunnel syndrome. However, it denied appellant’s claim
because the medical evidence of record failed to establish causal relationship between his
diagnosed medical condition and the accepted factors of his federal employment.
The Board finds that appellant has not met his burden of proof to establish that his right
wrist carpal tunnel syndrome was causally related to the accepted factors of his federal
employment.
In support of his claim, appellant submitted a series of notes and reports by Dr. Hutson
dated May 3 to 4, 2017. Dr. Hutson related that appellant worked as a mail carrier and
complained of numbness, tingling, and pain in his right hand. He indicated that an April 28,
2017 NCV study had abnormal findings. Dr. Hutson reported findings and diagnosis of right
carpal tunnel syndrome. He checked a box marked “yes” indicating that appellant’s condition
was caused or aggravated by an employment activity. The Board has held, however, that when a
physician’s opinion on causal relationship consists only of checking “yes” to a form question,
without explanation or rationale, that opinion is of diminished probative value and is insufficient
to establish a claim.8 Accordingly, Dr. Hutson’s reports are insufficient to establish appellant’s
claim.
Dr. Chapin’s April 28, 2017 EMG/NCV study report is likewise insufficient to establish
causal relationship. The Board has held that reports of diagnostic tests are of limited probative
value as they fail to provide an opinion on the causal relationship between appellant’s
employment duties and the diagnosed condition. For this reason, this evidence is insufficient to
meet his burden of proof.9
Appellant also received treatment from Mr. Shaver, a certified physician assistant, who
noted a diagnosis of right carpal tunnel syndrome in an April 21, 2017 report. His report is of no
probative value, however, because physician assistants are not considered “physicians” as
defined under FECA.10

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

9

See A.B., Docket No. 17-0301 (issued May 19, 2017).

10

5 U.S.C. § 8102(2) of FECA provides that the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.404; Roy L. Humphrey, 57 ECAB 238 (2005). See also D.B.,
Docket No. 17-0448 (issued October 12, 2017) wherein the Board held that reports from physician assistants are not
considered medical evidence as these practitioners are not physicians under FECA.

4

Causal relationship is a medical question that must be established by probative medical
opinion from a physician.11 The mere fact that work activities may produce symptoms
revelatory of an underlying condition does not raise an inference of an employment relation.12
Such a relationship must be shown by rationalized medical evidence of causal relationship based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.13 As appellant has not provided such rationalized medical
evidence in this case, he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right carpal
tunnel syndrome causally related to the accepted factors of his federal employment.

11

W.W., Docket No. 09-1619 (June 2010); David Apgar, 57 ECAB 137 (2005).

12

See P.J., Docket No. 17-0570 (issued October 26, 2017).

13

Patricia J. Bolleter, 40 ECAB 373 (1988).

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ORDER
IT IS HEREBY ORDERED THAT the June 26, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 4, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Los Angeles, CA, Employer
__________________________________________

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

Docket Nos. 11-1183 &
11-1204
Issued: February 8, 2012

Case Submitted on the Record

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

JURISDICTION
On April 19, 2011 appellant filed a timely appeal from a December 13, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP) under File No. xxxxxx072 finding an
overpayment of compensation for the period March 18, 2007 to October 13, 2009 in the amount
of $183,404.45, for which he was at fault due to forfeiture and affirming the termination of his
compensation due to the forfeiture. This was docketed as appeal No. 11-1183. On April 20,
2011 appellant filed a timely appeal from a February 24, 2011 OWCP decision under File No.
xxxxxx247 affirming a forfeiture determination for the period October 11, 2005 to March 17,
2007 and finding a $113,313.08 overpayment of compensation for which he was at fault. This
was docketed as appeal No. 11-1204. 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 the
claims.

1

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited his right
to compensation for the period October 11, 2005 to October 13, 2009 as he knowingly failed to
report his employment activities; (2) whether OWCP properly determined that appellant received
a $296,717.53 overpayment of compensation for the period October 11, 2005 to October 13,
2009 based on his forfeiture of compensation; (3) whether OWCP properly found that appellant
was at fault in creating the $296,717.53 overpayment, such that it was not subject to waiver; and
(4) whether OWCP properly terminated appellant’s compensation effective April 20, 2010 as he
was convicted of compensation fraud.
On appeal, appellant asserts that he was not convicted of compensation fraud under 5
U.S.C. § 8148, that OWCP’s overpayment proceedings violated the double jeopardy clause of
the Constitution of the United States, that OWCP does not have the right to collect overpaid
compensation and that it miscalculated the period and amount of the forfeiture.
FACTUAL HISTORY
This is appellant’s second appeal before the Board in this case under File No. xxxxxx072.
By decision and order issued February 15, 2011,2 the Board affirmed a February 19, 2010
OWCP decision finding that the selected position of contract administrator properly represented
his wage-earning capacity as of February 26, 2009.3 The law and facts of the case as set forth in
the prior decision and order are incorporated by reference.
Under File No. xxxxxx072, OWCP accepted that on August 22, 2005 appellant, then a
34-year-old assistant chief counsel, sustained herniated L4-5 and L5-S1 discs with consequential
erectile dysfunction in a traumatic fall. Under File No. xxxxxx247, it accepted lumbar and
cervical strains, a lumbar strain and aggravation of a displaced lumbar disc sustained in a
traumatic incident on January 17, 2007. Appellant stopped work on January 17, 2007 and did
not return. The two referenced claim files have been combined by OWCP.
By decision dated January 17, 2007 under File No. xxxxxx247, OWCP granted appellant
a schedule award for six percent permanent impairment of each lower extremity. The period of
the award ran from October 30, 2006 to March 16, 2007. Appellant received compensation for
temporary total disability beginning March 4, 2007.4

2

Docket No. 10-1066 (issued February 15, 2011).

3

On February 26, 2009 in File No. xxxxxx072, OWCP reduced appellant’s wage-loss compensation effective that
day under sections 8106 and 8115 of FECA, based on his ability to earn $1,646.00 a week in the selected position of
contract administrator. After a request for a review of the written record and a reconsideration request, OWCP
affirmed the February 26, 2009 decision on July 13, 2009 and February 19, 2010.
4

In a January 17, 2008 decision, in File No. xxxxxx247, OWCP finalized as modified a June 22, 2007
preliminary overpayment finding that appellant received a $3,064.72 overpayment from March 4 to 17, 2007 as he
simultaneously received a schedule award under File No. xxxxxx247 and total disability compensation under File
No. xxxxxx072. This matter is not before the Board on the present appeal.

2

In a Form EN1032 dated June 16, 2006 under File No. xxxxxx072, appellant stated that,
from June 7, 1998 to August 22, 2005, he worked as a prosecutor at the employing establishment
earning $2,088.50 a week or $108,602.00 a year. He answered “no” to Question 2: “Were you
self-employed or involved in any business enterprise in the past 15 months?” Under File
No. xxxxxx072, in a Form EN1032 dated June 8, 2007, appellant stated that he worked from
October 2006 through January 17, 2007 as a prosecutor at the employing establishment, with
gross earnings of $2,001.00 a week and actual earnings of $1,349.00 a week. He indicated that
he had no other employment activities or related income. The EN1032 forms advised appellant
that a false or evasive answer to any question or the omission of an answer may be grounds for
forfeiting compensation and that a fraudulent answer may result in criminal prosecution.
A November 2007 grand jury indictment against appellant filed in the United States
District Court for the Central District of California lists four counts of making false statement to
obtain federal employees’ compensation, in violation of 18 U.S.C. § 1920. Appellant was
alleged to have failed to report income in excess of $1,000.00 from an alleged criminal enterprise
begun in 2003, in which he accepted bribes in exchange for filing false immigration and
employment documents.
On June 27, 2008 appellant was arrested and incarcerated due to the charges listed in the
grand jury indictment. He was released to home detention on July 18, 2008 and remanded to
custody on August 18, 2008.
In Forms EN1032 completed on June 7, 2008 and September 7 and October 13, 2009
under File No. xxxxxx072, appellant listed that he had no employment, self-employment or
earnings from employment activities during the 15-month period prior to completing the forms.5
OWCP calculated that from October 11, 2005 to October 13, 2009, appellant received a
total of $296,717.53 in temporary total disability compensation: $113,313.08 from October 11,
2005 to March 17, 2007 under File No. xxxxxx247 and $183,552.37 from March 18, 2007 to
October 13, 2009.
On April 20, 2010 appellant appeared in United States District Court for the Central
District of California and was found guilty on four counts of making false statements to obtain
FECA benefits under 18 U.S.C. § 1920, a felony offense.6 The jury verdict was filed with the
court on April 20, 2010.7
By decision dated May 14, 2010 under File Nos. xxxxxx072 and xxxxxx247, OWCP
terminated appellant’s compensation benefits effective April 20, 2010 based on his April 20,
2010 conviction for making a false statement to obtain benefits under FECA. It found that he
5

Appellant’s benefits were suspended temporarily on September 28, 2009 as he failed to timely submit a Form
EN1032 as requested. Benefits were reinstated retroactively to September 28, 2009.
6

Title 18 of the United States Code is entitled “Crimes and Criminal Procedure.” 18 U.S.C. § 1920 appears in
Chapter 93 of Title 18, entitled “Public Officers and Employees.”
7

Appellant was also convicted of multiple counts of conspiracy, bribery, obstruction of justice, money laundering
and criminal forfeiture.

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was found guilty of violating 18 U.S.C. § 1920 by knowingly and willingly falsifying and
concealing material facts pursuant to an application for and receipt of FECA benefits. OWCP
further found that appellant failed to disclose employment activity and earnings from the
criminal enterprise on EN1032 forms dated June 8, 2007, June 7, 2008, September 27 and
October 13, 2009.
By decision dated June 30, 2010 under File No. xxxxxx072, OWCP found that appellant
forfeited his right to compensation for the period March 18, 2007 to October 13, 2009 as he
knowingly failed to report work activities on EN1032 forms dated June 8, 2007, June 7, 2008,
September 27 and October 13, 2009. By decision dated July 1, 2010 under File No.
xxxxxxx247, it found that he forfeited his right to compensation for the period October 11, 2005
to March 17, 2007, as he knowingly failed to report his employment activities.
By notices dated July 1, 2010, OWCP advised appellant of its preliminary determination
that he was overpaid $113,313.08 under File No. xxxxxx247 and $183.552. 37 under File No.
xxxxxx072, as his compensation was forfeit from October 11, 2005 to October 13, 2009 because
he knowingly failed to report employment activities and earnings from his criminal enterprise. It
found that, on EN1032 forms dated June 16, 2006, June 8, 2007, June 7, 2008, September 27 and
October 13, 2009, he knowingly failed to report his illegal work activities and the income
received therefore. OWCP found that appellant was at fault in creating the overpayments
because he did not provide information that he knew or should have known to be material.
In July 7, 2010 letters, appellant requested an oral hearing regarding the forfeiture
determination and a prerecoupment hearing regarding the overpayment determination. He later
agreed to a review of the written record on both issues as he could not attend the scheduled
hearings due to his incarceration.8 Appellant submitted a brief asserting that there was no
overpayment of compensation as he had not been convicted of compensation fraud. He
contended that OWCP’s proceedings violated the double jeopardy clause of the Constitution of
the United States. Appellant submitted an overpayment recovery questionnaire. He asserted that
his sole asset was $198.00 in cash. Appellant did not list any expenses.
The employing establishment submitted an October 25, 2010 brief explaining that
appellant’s April 20, 2010 conviction on four counts of violating 18 U.S.C. § 1920 met FECA
definition of compensation fraud under 5 U.S.C. § 8148.
By decision dated and finalized December 13, 2010, an OWCP hearing representative
affirmed OWCP’s May 14 and June 30, 2010 decisions and affirmed as modified the July 1,
2010 decision. The hearing representative found that OWCP miscalculated appellant’s
compensation for the period March 18, 2007 to July 5, 2008. The hearing representative noted
that from March 18, 2007 to March 15, 2008, appellant was issued 13 payments of $6,415.89,
8

On August 13, 2010 OWCP advised appellant that a video hearing would be held on October 18, 2010. In an
August 23, 2010 letter, appellant advised OWCP that he could not attend the scheduled hearing as he was
incarcerated. He asserted that he had not been convicted of fraud and requested a continuance. In a September 28,
2010 letter, OWCP advised appellant that he could request a review of the written record or a telephonic hearing.
Appellant responded by October 4, 2010 letter that he desired a review of the written record. On November 15,
2010 OWCP advised him that video hearings scheduled for December 3, 2010 would not be held as he could not
participate due to his incarceration.

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totaling $83,406.57. For the period March 16 to July 5, 2008, appellant received four payments
of $6,692.00, totaling $26,768.00. The hearing representative determined that from March 18,
2007 to July 5, 2008, appellant received $111,606.87 in compensation, not $111,754.79 as
previously calculated, a difference of $147.92. This modified the total amount of the
overpayment from $183,552.37 to $183,404.45.
By decision dated February 24, 2011, an OWCP hearing representative finalized the
July 1, 2010 notice, finding an $113,313.08 overpayment of compensation for the period
October 11, 2005 to March 17, 2007. The hearing representative further found that appellant
was at fault in creation of the overpayment as he forfeited his compensation by committing
compensation fraud, as he failed to report earnings from his criminal enterprise on EN1032
forms dated June 16, 2006 under File No. xxxxxx247 and June 8, 2007 under File
No. xxxxxx072. Therefore, the overpayment was not subject to waiver.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that an employee who “fails to make an affidavit or
report when required or knowingly omits or understates any part of his earnings, forfeits his right
to compensation with respect to any period for which the affidavit or report was required.”9
The Board has held that it is not enough merely to establish that there was unreported
employment or earnings. Appellant can only be subjected to the forfeiture provision of 5 U.S.C.
§ 8106(b) if he or she “knowingly” failed to report employment or earnings.10 The term
“knowingly” as defined in OWCP’s implementing regulations, means with knowledge,
consciously, willfully or intentionally.11 The Board has found that OWCP can meet this burden
of proof in several ways, including by appellant’s own admission to OWCP that he failed to
report employment or earnings which he knew he should report or by establishing that he has
pled guilty to violating applicable federal statutes by falsely completing the affidavits in the
EN1032 form.12
ANALYSIS -- ISSUE 1
The evidence of record establishes that appellant “knowingly” concealed his earnings and
employment activities from OWCP. The record reflects that, on April 20, 2010, appellant was
convicted in U.S. District Court on four felony counts of making a false statement to obtain
FECA benefits in violation of 18 U.S.C. § 1920, as he failed to report earnings and activities
related to a criminal enterprise he operated beginning in 2003, in which he received bribes from
immigrants in exchange for filing false immigration and employment documents.

9

5 U.S.C. § 8106(b).

10

Harold F. Franklin, 57 ECAB 387 (2006).

11

20 C.F.R. § 10.5(n).

12

Harold F. Franklin, supra note 10.

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The Board finds that appellant’s conviction in U.S. District Court constitutes persuasive
evidence that he knowingly omitted his earnings and activities when he completed the affidavit
on EN1032 forms June 16, 2006, June 8, 2007, June 7, 2008, September 7 and October 13, 2009
and that the provisions of 5 U.S.C. § 8106(b)(2) therefore apply to the periods covered by the
affidavits. The Board therefore finds that he has forfeited his compensation benefits received
during the period October 11, 2005 to October 13, 2009.
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [OWCP] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”13
ANALYSIS -- ISSUE 2
As noted above, OWCP regulations provide that OWCP may declare an overpayment of
compensation for the period of a given forfeiture of compensation. If a claimant has any
earnings during a period covered by a Form EN1032 which he knowingly fails to report, he is
not entitled to any compensation for any portion of the period covered by the report, even though
he or she may not have had earnings during a portion of that period.14 OWCP paid appellant
compensation in the amount of $296,717.53 for the period October 11, 2005 to
October 13, 2009: $113,313.08 for the period October 11, 2005 to March 17, 2007 and
$183,404.45 for the period March 18, 2007 to October 13, 2009. It properly found that appellant
forfeited his entitlement to compensation during this time because he failed to report
employment activities and earnings related to his criminal enterprise on EN1032 forms.
Therefore, there exists an overpayment of compensation in the amount of $296,717.53.
On appeal, appellant asserts that he was not convicted of compensation fraud under 5
U.S.C. § 1848. As stated, he was convicted of four counts of compensation fraud. Appellant
also contends that OWCP miscalculated the amount and period of the forfeiture. The Board
finds that OWCP’s mathematical and calendrical calculations are correct.

13

20 C.F.R. § 10.529. See also Harold F. Franklin, supra note 10.

14

Robert Ringo, 53 ECAB 258 (2001).

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LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.15 The only exception to this requirement is a
situation, which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
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.”16 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.
In determining whether an individual is “without fault,” section 10.433(a) of OWCP’s
federal regulations provide, in relevant part:
“A recipient who has done any of the following will be found at fault with respect
to creating an overpayment -(1) Made an incorrect statement as to a material fact, which he or she
knew or should have known to be incorrect; or
(2) Failed to provide information, which he or she knew or should have
known to be material; or
(3) Accepted a payment, which he or she knew or should have known to
be incorrect. (This provision applies only to the overpaid individual.)”17
ANALYSIS -- ISSUE 3
In this case, the Board finds that appellant was at fault under the second standard as he
failed to provide information, which he knew or should have known to be material. As explained
above, appellant was found to have knowingly omitted his earnings when he completed the
EN1032 forms in question. Under the standards for finding fault in the creation of an
overpayment, a claimant is at fault if he failed to provide information that he knew or should
have known was material or made an incorrect statement as to a material fact that he knew or
should have known was incorrect. The discussion of the evidence on forfeiture establishes that
appellant made incorrect statements as to a material fact that he knew or should have known was
incorrect. Appellant signed the EN1032 forms which required him to report earnings and
activities advised him in explicit language that he might be subject to criminal penalties if he
made a false statement or misrepresentation to obtain compensation. By signing the form, is
deemed to have acknowledged his duty to fill out the form properly, including the duty to
accurately report any employment or self-employment activities and income.18 The Board finds
15

5 U.S.C. § 8129(a).

16

Id. at § 8129(b).

17

20 C.F.R. § 10.320(b).

18

See P.M., Docket No. 07-2169 (issued March 3, 2009).

7

appellant’s failure to state his earnings and employment activities is an incorrect statement as to
a material fact that he knew or should have known was incorrect. Therefore, appellant is at fault
in creation of the $296,717.53 overpayment, such that it was not subject to waiver.
On appeal, appellant contends that OWCP’s overpayment proceedings violated the
double jeopardy clause of the Constitution of the United States. However, the Board does not
have jurisdiction to review Constitutional matters.19 Appellant also asserts that OWCP has no
right to collect overpaid compensation. As stated, section 10.529 of OWCP’s implementing
regulations authorize recovery of compensation paid during a period of forfeiture.20
LEGAL PRECEDENT -- ISSUE 4
Section 8148 of Title 5 of the United States Code, states, in part:
“(a) Any individual convicted of a violation of section 1920 of Title 18 or any
other Federal or State criminal statute relating to fraud in the application for or a
receipt of any benefit under [FECA], shall forfeit (as of the date of such
conviction) any entitlement to any benefit such individual would otherwise be
entitled to under [FECA] for any injury occurring on or before the date of such
conviction. Such forfeiture shall be in addition to any action the Secretary may
take under section 8106 or 8129.”
Section 10.17 of the implementing federal regulations provide, as follows:
“When a beneficiary either pleads guilty to or is found guilty on either Federal or
State criminal charges of defrauding the Federal Government in connection with a
claim for benefits, the beneficiary’s entitlement to any further compensation
benefits will terminate effective the date either the guilty plea is accepted or a
verdict of guilty is returned after trial….”21
Public Law 103-112, 107 Stat. 1089, enacted on October 21, 1993, prohibits individuals
who have been convicted of fraud related to their claims from receiving further benefits paid
under FECA. Subsequently, Public Law 103-333, enacted on September 30, 1994, added section
8148, which provides for: (a) the termination of benefits payable to beneficiaries who have been
convicted of defrauding the program; and (b) the suspension of benefits payable to beneficiaries
imprisoned as a result of a felony conviction.22

19

See Vittorio Pittelli, 49 ECAB 181 (1997) (finding that as an administrative body the Board does not have
jurisdiction to review a constitutional claim).
20

The Board does not have jurisdiction over manner of recovery as OWCP’s decisions did address recovery of
the overpayments. See 20 C.F.R. § 501.2(c). In any event, the Board’s jurisdiction is limited to those cases where
OWCP seeks recovery from continuing compensation benefits under FECA. D.R., 59 ECAB 148 (2007).
21

20 C.F.R. § 10.17.

22

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.12(a) (March 1977). See
5 U.S.C. § 8148. See also Terry A. Keister, 56 ECAB 559 (2005).

8

OWCP procedures require that, to support termination or suspension of benefits under
section 8148, the case record must contain: a copy of the indictment or information; a copy of
the plea agreement, if any; a copy of the document containing a guilty verdict; and/or a copy of
the court’s docket sheet. Further, this evidence must establish: (1) the individual was convicted;
and (2) the conviction is related to the claim for or receipt of benefits under FECA.23 The
effective date of termination in fraud cases under section 8148(a) is the date of conviction, which
is the date of the verdict or in cases of a plea agreement, the date the claimant made the plea in
open court (not the date of sentencing or when the court papers were signed).24 Due to the nature
of a termination involving fraud, no pretermination notice is required before issuing a final
decision.25
ANALYSIS -- ISSUE 4
The Board finds that OWCP properly terminated appellant’s compensation benefits on
the grounds that he was convicted of four federal felony counts of making unlawful statements to
obtain FECA compensation under 18 U.S.C. § 1920.
Under section 8148(a), a claimant who is convicted of fraud in obtaining compensation
benefits under 18 U.S.C. § 1920 or any other statute relating to fraud in the application for or a
receipt of any benefit under FECA, will have his compensation terminated. Such a claimant is
thereafter permanently barred from receiving any compensation under FECA. The fact of
overpayment is established by the conviction on April 20, 2010 in which appellant was convicted
of four counts of making false statements to obtain FECA compensation. Under the terms of the
statute, he forfeited his entitlement to compensation benefits following the April 20, 2010
conviction. For this reason, OWCP properly terminated appellant’s compensation benefits under
section 8148(a).
CONCLUSION
The Board finds that OWCP properly determined that appellant forfeited his right to
compensation for the period October 11, 2005 to October 13, 2009, as he knowingly failed to
report his employment activities. The Board further finds that OWCP properly determined that
he received a $296,717.53 overpayment of compensation for the period October 11, 2005 to
October 13, 2009 based on his forfeiture of compensation. The Board further finds that OWCP
properly found appellant at fault in creating the $296,717.53 overpayment, such that it was not
subject to waiver. The Board further finds that OWCP properly terminated his compensation
effective April 20, 2010 as he was convicted of compensation fraud.

23

Federal (FECA) Procedure Manual, supra note 22, Chapter 2.1400.12(d) (March 1977).

24

Id. at Chapter 2.1400.12(e)(1).

25

Jorge E. Sotomayor, 52 ECAB 105 (2000); see also id. at Chapter 2.1400.12(f)(2).

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 24, 2011 and December 13, 2010 are affirmed.
Issued: February 8, 2012
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Sioux Falls, SD, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
John S. Evangelisti, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0203
Issued: November 16, 2016

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 November 13, 2015 appellant, through counsel, filed a timely appeal from a June 25,
2015 merit decision and nonmerit decisions dated October 7 and November 9, 2015 of the Office
of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’
2
Compensation Act (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 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.

ISSUES
The issues are: (1) whether appellant has established a left shoulder or cervical condition
causally related to her federal employment; and (2) whether OWCP properly denied her requests
for merit review of the claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. The record establishes that appellant had
previously filed a traumatic injury claim (Form CA-1) for a March 28, 2007 injury when she
lifted a bucket of ice, which was accepted by OWCP for bilateral shoulder strains and
degenerative cervical intervertebral discs. By decision dated November 9, 2010, the Board
found that appellant had not established an employment-related disability from
May 6 to 23, 2009.3 In addition, the Board found that OWCP had properly determined in a
November 6, 2009 decision that the accepted bilateral shoulder strains and degenerative cervical
intervertebral discs had resolved. By decision dated June 20, 2011, the Board found that
appellant had not established a recurrence of disability commencing January 12, 2010.4
On July 2, 2012 appellant, then a 51-year-old food service worker, filed the current claim,
an occupational disease claim (Form CA-2) alleging that she sustained new left shoulder and
cervical degenerative conditions as a result of her federal employment. On the claim form, she
indicated that she became aware of the condition on January 12, 2010. Appellant submitted an
October 7, 2011 statement describing her work history related to the occupational disease claim,
noting that she became aware of the condition on January 12, 2010. She indicated that she
worked from September 18, 2006 and described her regular duties as a food service worker,
which included unloading trucks and filling soda machines with ice. According to appellant, she
was placed on light duty on September 7, 2007, which included a 20-pound lifting restriction, but
she continued to work beyond her restrictions. Appellant stated that she stopped working on
October 30, 2007, returned to light duty in November 2007, then had cervical surgery on
January 9, 2008. She reported that she returned to a light-duty cashier and grill relief position in
May 2008 and continued to do most of her regular duties except filling soda machines and
unloading trucks. In May 2009, appellant reduced her hours to four a day, underwent left
shoulder surgery in June 2009 and returned to light duty in December 2009.
In a November 18, 2014 decision, the Board found that the issue in the present case was
whether appellant has established causal relationship between any diagnosed condition and the
identified job duties, including work performed in September and October 2007, as well as work
from April or May 2008.5 As the Board noted, appellant had begun working as a food service
worker in September 2006 and was working light-duty positions as of September 2007, although
the exact work duties were not clear from the record.6 The Board reviewed the medical
3

Docket No. 10-0525 (issued November 9, 2010).

4

Docket No. 10-1749 (issued June 20, 2011).

5

Docket No. 14-0219 (issued November 18, 2014).

6

The Board did find that Dr. Jack Rook, a Board-certified physiatrist, indicated in his September 22, 2013 report
that he understood appellant’s work duties from April 2008 to June 2009 did not involve lifting buckets of ice.

2

evidence, including a July 14, 2012 report from Dr. Rook. The Board found that Dr. Rook did
not discuss in detail appellant’s work history or clearly explain causal relationship between job
duties and the diagnosed aggravation of cervical and left shoulder myofascial conditions.
Dr. Rook appeared to be referring to heavy lifting, but the nature and extent of such lifting was
not clear from the record. Appellant had indicated, for example, that she did not perform heavy
lifting such as lifting of ice buckets in the light-duty job performed in 2008. The Board affirmed
an October 10, 2013 OWCP merit decision denying the occupational claim.
On April 14, 2014 appellant, through counsel, requested reconsideration. In a March 4,
2015 statement, she discussed her work duties from May 2008 to May 2009. Appellant
described a typical workday in the cafeteria, including work as a cashier, cooking and serving
food, and stocking shelves.
Appellant submitted an April 2, 2015 report from Dr. Rook, who reported that he had
additional information regarding appellant’s work activities from September 2006 to
October 2007. Dr. Rook described appellant’s work duties as food preparation, cooking, serving,
pushing carts, loading food and other items, as well as filling soda machines with ice. He noted
that she was performing these duties in September and October 2007. Dr. Rook opined that
based upon the description of appellant’s job duties, he would again state within a reasonable
degree of medical certainty that the work activities that appellant performed after she returned to
work in September 2007 resulted in a worsening of her neck and left shoulder condition. He
further explained that the shoulder and cervical condition were particularly aggravated by
loading the ice machine on a daily basis. Dr. Rook reported this activity required contraction of
the shoulder muscles and the cervical paraspinal muscles. As to cervical degenerative disc
disease, he discussed hyperextension movement of the head and stretching of the annular fibers
which make up the cervical discs especially at the mid cervical level. With regards to a left
rotator cuff tear, Dr. Rook reported that repetitive reaching overhead required contraction of the
rotator cuff on a repeated basis. He also opined that repeated impact of the rotator cuff against
the acromioclavicular joint contributed to wear and tear and progressive inflammation of this
structure leading to the need for surgical treatment of the symptomatic rotator cuff tear.
Dr. Rook also indicated that other tasks performed by appellant required repetitive forceful
contraction of the rotator cuff, including cleaning industrial kettles, loading dishes into the
dishwasher, cleaning large industrial pots and pans, mopping floors using a large industrial mop,
and loading and unloading supplies.
In a letter dated April 29, 2015, OWCP requested that the employing establishment
submit comments regarding the reconsideration request. In a May 14, 2015 response, an
employing establishment human resources specialist asserted that appellant’s description of her
light-duty job duties from 2008 to 2009 was inaccurate. A May 11, 2015 statement from a
supervisor was submitted. The supervisor asserted that appellant worked as a cashier, sitting by
the cash register and conducting transactions.
On June 25, 2015 OWCP received a June 25, 2015 letter from counsel. Counsel argued
that work activities in September and October 2007 had worsened appellant’s condition. In
addition, appellant argued that work activities since April 2008 were corroborated by medical
and eyewitness evidence. Counsel resubmitted an August 25, 2015 statement from a coworker

3

asserting that in May 2008 appellant did work as a cashier, but also did other jobs such as
“working the grill.”7
By decision dated June 25, 2015, OWCP reviewed the case on its merits and denied
modification. It found that appellant’s March 4, 2015 statement has “in essence” indicated that
work duties from May 2008 to May 2009 had caused her cervical and left shoulder conditions.
According to OWCP, “Dr. Rook’s explanation is moot, because he discussed the impact of
duties performed prior to May 2008.”
On July 30, 2015 appellant, through counsel, requested reconsideration. She argued that
OWCP had misrepresented her argument, as her claim was also based on job duties performed in
2007. In addition, appellant indicated that, with respect to job duties from 2008 to 2009, there
were eyewitness statements corroborating appellant’s account of her physical duties at work.
By decision dated October 7, 2015, OWCP found the reconsideration request was
insufficient to warrant merit review of the claim. It found that appellant had not met the
requirements for a merit review. The claims examiner indicated that she could not find a witness
statement dated August 25, 2013 referenced by appellant.
Appellant, through counsel, again requested reconsideration on October 19, 2015. The
August 25, 2013 coworker statement was again submitted. By decision dated November 9,
2015, OWCP found the reconsideration request was insufficient to warrant merit review of the
claim.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.8
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (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 diagnosed condition is causally related to the
employment factors identified by the claimant.9 Since the Board’s jurisdiction of a case is
limited to reviewing the evidence which was before OWCP at the time of its final decision, it is
necessary that OWCP review all evidence submitted by a claimant and received by it prior to
issuance of its final decision. As the Board’s decisions are final as to the subject matter

7

The statement had originally been submitted on September 30, 2013.

8

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

9

Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

appealed, it is critical that all evidence relevant to that subject matter which was properly
submitted to OWCP prior to the time of issuance of its final decision be addressed by it.10
ANALYSIS -- ISSUE 1
In the present case, the June 25, 2015 OWCP decision finds that appellant’s occupational
disease claim was not based only on job duties from 2008 to 2009. As a result of this
determination, OWCP’s analysis of the detailed April 2, 2015 report from Dr. Rook is limited to
a finding that it was “moot” because he discussed job duties performed by appellant in 2007.
It is well established, as discussed above, that OWCP must consider all relevant evidence
that was properly submitted to OWCP at the time of its final decision.11 This includes evidence
that was received on the date the decision was issued.12 On June 25, 2015 OWCP received
information from counsel that clearly indicated her claim included the job duties she was
performing in September and October 2007. This is consistent with the prior development of the
claim. As the Board found in its November 18, 2014 decision, appellant had claimed that her job
duties in 2007 had contributed to a neck and left shoulder condition.
The Board therefore finds that this case shall be remanded to properly consider the
evidence of record and make appropriate findings upon a de novo review. These findings must
include a proper review of the April 2, 2015 report authored by Dr. Rook. After such further
development as is deemed necessary, OWCP should issue an appropriate decision. In view of
the Board’s finding, the nonmerit decisions dated October 7 and November 9, 2015 will not be
addressed on this appeal as they are now considered moot.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP.

10

William A. Couch, 41 ECAB 548 (1990).

11

Id.

12

K.K., Docket No. 15-1662 (issued December 2, 2015); Linda Johnson, 45 ECAB 439 (1994).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 25, 2015 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: November 16, 2016
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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1771
Issued: March 1, 2013

Case Submitted on the Record

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

JURISDICTION
On August 17, 2012 appellant filed a timely appeal from a February 21, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying reconsideration.
Because more than 180 days elapsed from the most recent merit decision dated January 26, 2012
to the filing of this appeal, the Board lacks jurisdiction to review the merits of the case.1
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 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

An appeal of a final adverse OWCP decision issued on or after November 19, 2008 must be filed within 180
days of the decision. See 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 15, 2004 appellant, then a 54-year-old rural carrier, sustained an injury while
lifting bundles of telephone books from a cart and moving them to the case area. He experienced
low back pain and numbness in his legs. OWCP accepted the claim for a lumbar strain.
On October 27, 2011 OWCP received a request for physical therapy effective October 17
through November 30, 2011. In a November 2, 2011 letter, it informed appellant of the medical
information required for a decision on therapy authorization. OWCP requested an updated
medical report describing the injury-related medical residuals found on current examination and
a medical explanation of the necessity for the requested treatment. Following the receipt of
additional information, it denied the request for physical therapy by decision dated
January 26, 2012.
In an appeal request form dated February 1, 2012 appellant requested reconsideration.
He submitted statements dated December 30, 2011 and February 1, 2012. Appellant noted an
initial injury in 1994, claim number xxxxxx387, was accepted for a herniated disc at L5-S1. He
stated that it was confusing to him that the injury was changed from a herniated disc at L5-S1 to
a lumbar strain.
In a December 27, 2011 medical report, Dr. Christopher Billingslea, an osteopath and
Board-certified family practitioner, stated that appellant has a long history of back problems
when he was originally injured in the early 1990s. He stated that appellant had ongoing back
pain which occasionally became worse and required physical therapy.
By decision dated February 21, 2012, OWCP denied appellant’s request for
reconsideration on the grounds no substantive legal questions were raised and no new or relevant
evidence was submitted to support the physical therapy request.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,3
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.4 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.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.

3

Under section 8128 of FECA, the Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

2

ANALYSIS
Appellant disagreed with OWCP’s January 26, 2012 decision, which denied his request
for physical therapy. The issue is whether his February 1, 2012 request for reconsideration met
any of the conditions of 20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for further
review of the merits.
In his February 1, 2012 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. He stated in a December 30, 2011 statement that it was confusing why
his initial injury in 1994, accepted for a herniated disc at L5-S1, was subsequently changed to a
lumbar strain. The Board notes that matters pertaining to the 1994 injury are not presently
before the Board.6 The present claim before the Board pertains to the 2004 injury.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but he did not submit any pertinent new and relevant medical evidence in this case. In
support of his request for reconsideration, appellant submitted a report dated December 30, 2011
from Dr. Billingslea. This report, while new, is not relevant to the issue of whether physical
therapy should be authorized in this case. Although Dr. Billingslea noted that appellant had
ongoing back pain which became worse and required physical therapy, he did not explain how
the need for therapy was due to the 2004 work injury. Thus, his report is not relevant to the
underlying issue.7
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). 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
constitute relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant contends that physical therapy should not be denied as all the
confusion stems from the fact that he has two claims for the same problem. As noted, the 1994
injury claim is not before the Board on the present appeal. Appellant also submitted evidence on
appeal. However, the Board may only review evidence that was in the record at the time OWCP
issued its final decision.8
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his case for
further review of the merits under section 8128.
6

Appellant should contact OWCP if he wishes to pursue matters pertaining to claim number xxxxxx387.

7

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000) (evidence which does not
address the particular issue involved does not constitute a basis for reopening a case for a merit review).
8

See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2013
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Pittsburgh, PA, Employer
)
___________________________________________ )
H.S., Appellant

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

Docket No. 07-582
Issued: June 14, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 27, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ hearing representative decision dated December 8, 2006 which
affirmed a September 19, 2006 decision, finding that appellant did not sustain an injury in the
performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury on June 20, 2006 while playing softball during a temporary-duty assignment.
FACTUAL HISTORY
On June 26, 2006 appellant, then a 51-year-old electronics technician, filed a traumatic
injury claim alleging that on June 20, 2006, while playing softball, he dove into third base and
sustained a low back injury. He noted that he further aggravated the injury on June 22, 2006
while playing softball again. Appellant stopped work on June 22, 2006. The employing

establishment controverted the claim. It noted that he was attending a one-week training class at
the National Center for Employee Development (NCED) training facility that ended at 6:30 p.m.
The employing establishment contended that appellant voluntarily engaged in the softball game
at approximately 8:00 p.m.
By letter dated July 13, 2006, the Office requested additional information.
Appellant submitted a copy of his travel advance request and an itinerary, excerpts from a
training manual, a position description for an electronic technician, a weekly fitness schedule and
a photograph of several employees who had won a volleyball tournament. He also submitted a
copy of the employing establishment’s agreement with the U.S. Public Health Service and
Federal Occupational Health (FOH) and a housing facility map of the location where he stayed
while in training/travel status.
Appellant alleged that his responsibilities included attending on-the-job training and
attending courses at the employing establishment facilities. While he was attending these
courses, he was in the performance of duty from the time he left his home until his return.
Appellant stated that the employing establishment sponsored a weekly softball tournament which
was held on the employing establishment facilities. He contended that the employing
establishment supported fitness activities and provided a running track, gymnasium, billiard
room, a lighted softball field as well as the equipment and allowed the games to be played on its
property. Appellant submitted medical evidence that included diagnostic reports and status
reports. In a June 26, 2006 duty status report, it was noted that he was playing softball at a
training facility when he dove into a base and hurt his back.
By decision dated September 19, 2006, the Office denied appellant’s claim finding that
he did not establish that the injury occurred while he was in the performance of duty. The
evidence established that appellant was in a travel status; however, the injury occurred while he
was playing in a softball game after his work duties had ended. The Office found that appellant
voluntarily deviated from the normal incidents of his trip for personal recreational reasons. The
Office also found that the evidence did not establish that the game was mandatory or sponsored
by the employing establishment.
On September 25, 2006 appellant requested an examination of the written record. He
contended that his activities were covered while he was at training. Appellant noted that the
softball game took place on a lighted field at the employing establishment premises, that the
employees drew names out of a hat to determine which team they would play and he had
participated in an employing establishment sponsored softball tournament. He also argued that
the activity was sponsored and all of the equipment was provided by the employing
establishment. Appellant alleged that the employing establishment provided a full line of
recreational activities as well as a state of the art fitness center and sponsored the softball
tournament.
On October 1, 2006 the Office received a copy of a schedule related to appellant’s
seminar for the week of June 19 to 22, 2006. By letter dated October 19, 2006, the Office
requested that the employing establishment provide additional information.

2

On November 17, 2006 Diane Casey, a case manager with the employing establishment,
noted that the performance of duty for an employee in travel status did not usually include
recreational or sightseeing trips. The recreational activity that appellant participated in was
optional for employees. Ms. Casey advised the Office that appellant had a lumbar strain
condition before the claimed injury which was related to an August 26, 2005 employment
injury.1
By letter dated November 18, 2006, appellant alleged that he was not injured while on a
recreational or sightseeing trip, but was in the performance of duty. He was injured while
playing in a softball tournament which was sponsored by the employing establishment.
Appellant enclosed copies of Board and court decisions. In a July 26, 2006 report, Dr. Megan J.
Borror, Board-certified in family medicine, noted that appellant had a disc herniation which
occurred on June 20, 2006 while playing softball.
By decision dated December 8, 2006, the Office hearing representative affirmed the
September 19, 2006 decision.
LEGAL PRECEDENT
Section 8102(a) of the Federal Employees’ Compensation Act provides for payment of
compensation for disability or death of an employee resulting from personal injury sustained
while in the performance of his duty.2 This phrase is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws; namely, arising out of and in the
course of employment.3 Whereas arising out of the employment addresses the causal connection
between the employment and the injury, arising in the course of employment pertains to work
connection as to time, place and activity.4
Under the Act, an employee on travel status or a temporary-duty assignment or special
mission for his employer is in the performance of duty and, therefore, under the protection of the
Act 24 hours a day with respect to any injury that results from activities essential or incidental to
his special duties.5 Examples of such activities are eating,6 returning to a hotel after eating
dinner7 and engaging in reasonable activities within a short distance of the hotel where the
employee is staying.8 However, when a claimant voluntarily deviates from such activities and
1

Claim No. 03-2042933.

2

5 U.S.C. § 8102(a).

3

See Bernard E. Blum, 1 ECAB 1 (1947).

4

See Robert J. Eglinton, 40 ECAB 195 (1988).

5

Ann P. Drennan, 47 ECAB 750 (1996); Janet Kidd (James Kidd), 47 ECAB 670 (1996); William K. O’Connor,
4 ECAB 21 (1950).
6

Michael J. Koll, Jr., 37 ECAB 340 (1986); Carmen Sharp, 5 ECAB 13 (1952).

7

Ann P. Drennan; Janet Kidd (James Kidd); William K. O’Connor, supra note 5.

8

Ann P. Drennan; Janet Kidd (James Kidd), supra note 5; Theresa B.L. Grissom, 18 ECAB 193 (1966).

3

engages in matters, personal or otherwise, which are not incidental to the duties of his temporary
assignment, he ceases to be under the protection of the Act. Any injury occurring during these
deviations is not compensable.9 Examples of such deviations are visits to relatives or friends
while in official travel status,10 visiting nightclubs and bars,11 skiing at a location 60 miles from
where an employee is undergoing training12 and taking a boat trip during nonworking hours to
view a private construction site.13 The fact that a recreational activity occurs at the site of a
conference, however, is not by itself sufficient to show that the employee was in the performance
of duty when his injury was sustained.14
In determining whether an injury arises in the performance of duty, Larson’s treatise on
workers’ compensation law states that recreational or social activities are within the course of
employment when: (1) they occur on the premises during a lunch or recreation period as a
regular incident of the employment; or (2) the employer, by expressly or impliedly requiring
participation, or by making the activity part of the services of an employee, brings the activity
within the orbit of the employment; or (3) the employer derives substantial direct benefit from
the activity beyond the intangible value of improvement in employee health and morale that is
common to all kinds of recreation and social life.15
These are three independent links, by which recreational or social activities can be tied to
employment and, if one is found, the absence of the others is not fatal.16 Accordingly, when an
employee is injured during a recreational or social activity, he or she must meet one of the
above-noted criteria in order to establish that the injury arose in the performance of duty.
ANALYSIS
Appellant alleged that he sustained a low back injury during a softball game on June 20,
2006 which was aggravated on June 22, 2006. He contends that the injury arose in the
performance of duty because he was on a temporary-duty assignment away from his regular
9

Karl Kuykendall, 31 ECAB 163 (1979).

10

George W. Stark, 7 ECAB 275 (1954); Miss Leo Ingram, 9 ECAB 796 (1958); Ethyl L. Evans, 17 ECAB
346 (1966).
11

Conchita A. Elefano, 15 ECAB 373 (1964).

12

Karl Kuykendall, supra note 9.

13

Mattie A. Watson, 31 ECAB 183 (1979).

14

See, e.g., Lindsay A.C. Moulton, 39 ECAB 434 (1988). The Board found that an employee attending a
conference at a ski resort did not die while in the performance of duty when he collapsed due to cardiac arrest while
skiing. The Board held that the employee’s participation in skiing was a personal, recreational activity available to
the employee at the worksite, that the skiing was not reasonably incidental to the purpose of the employee’s travel
and that the recreational activity that the employee engaged in did not meet the criteria of being within the
performance of duty.
15

A. Larson, The Law of Workers’ Compensation § 22.01 (2000); see Steven F. Jacobs, 55 ECAB 252 (2004).
See also FECA (Federal) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.8 (August 1992).
16

Steven F. Jacobs, supra note 15; Archie L. Ransey, 40 ECAB 1251 (1989).

4

place of employment. Appellant asserted that, while on such an assignment, he is covered 24
hours a day with respect to any injury that results from activities incidental to his temporary-duty
assignment. However, the fact that an employee is on a special mission or in travel status during
the time that a disabling condition manifests itself does not raise an inference that the condition
is causally related to the incidents of the employment. In the instant case, there is no evidence
that appellant’s lower back injury of June 20, 2006 and the subsequent aggravation on June 22,
2006 resulted from activities incidental to his employment, as his participation in a softball game
after duty hours has not been shown to have any relationship to his employment as an electronics
technician or to activities incidental to his employment as an electronics technician.
The Board notes that appellant’s injury did not occur during a lunch or recreation period
as a regular incident of his employment, but after his duty hours had ended. The employing
establishment did not either expressly or impliedly require appellant’s participation in that
activity, as supported by its June 27, 2006 statement in which it noted that appellant’s
participation was voluntary. As the employing establishment neither expressly nor impliedly
required appellant’s participation in the game, nor made the activity part of appellant’s services
while on temporary duty at that facility, the activity in question, a softball game, is not brought
within the orbit of the temporary-duty employment.
Appellant alleged that the game was sponsored by the employing establishment. The
Board notes that, when the degree of employer involvement descends from compulsion to mere
sponsorship or encouragement, the question becomes closer and it is necessary to conduct a
further inquiry.17 This inquiry focuses on the issue of whether the employing establishment
sponsored the event, whether attendance was voluntary and whether the employing establishment
financed the event. The record in this case establishes that the employing establishment did not
either expressly or implicitly require participation by employees or pay employees for
participating in the event, or otherwise finance the event. The record supports that the activity
was not one which appellant was compelled to attend. Participation in the evening softball game
was neither part of appellant’s job nor was it an activity for which he would be evaluated. It was
a voluntary activity after work. The Board has held that, if attendance at an event is voluntary
and there is no direct, substantial benefit to the employer, this outweighs the employer’s
sponsorship of the event when determining whether an activity occurred in the course of
employment.18
The Board notes that the employing establishment derived no substantial benefit from the
activity beyond the intangible value of improvement in employee health and morale that is
common to all kinds of recreation and social life. This fact is supported by the information
provided by appellant that the facility included a state of the art recreation center, as well as a
lighted softball field on the premises. While it is true that the employing establishment provided
facilities and equipment, it appears that this was to allow employees to maintain their fitness
routines while away from home, and for purely health oriented and morale reasons. As none of
the requirements for bringing injuries occurring during recreational activities within the course of
employment have been met, the softball game after work must be found to be a purely personal
17

Larson, supra note 15 at § 22.04(3); see also Anna M. Adams, 51 ECAB 149 (1999).

18

Barbara Roy, 42 ECAB 960 (1991).

5

pursuit. As such, the activity constitutes a deviation from the performance of duty of an
individual on temporary-duty assignment and the 24-hour-a-day coverage under the Act does not
apply.
Consequently, appellant’s low back condition on June 20, 2006 and the subsequent
aggravation on June 22, 2006 were not causally related to the incidents of his employment.
Under the circumstances of this case, appellant has failed to demonstrate that the employing
establishment required him to participate in the softball game or otherwise made the activity part
of his services as an employee. Thus, the evidence does not establish that the employing
establishment derived substantial direct benefit from the activity beyond the intangible value of
improvement in health and morale that is common to all kinds of recreation and social life.19
The Board further notes that cases cited by appellant in support of his claim are
inapposite. The Board’s decision in Mark E. Peterson20 does not pertain to whether the claimant
sustained an injury in the performance of duty but to whether he was entitled to a schedule award
for permanent impairment due to an accepted injury. The Board did not purport to make
findings on any performance of duty issue similar to appellant’s claim. Likewise, the case of
Elman v. United States,21 pertains to whether the claimant who has received benefits under the
Act may also file a claim against the United States under the Federal Tort Claims Act.22
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty while playing softball during a temporary-duty
assignment, causally related to factors of his federal employment.

19

Larson, supra note 15 at § 22.05(3).

20

Docket No. 94-2204 (issued July 15, 1996).

21

Docket No. 98-1186, slip op. (3d Cir. Apr. 27, 1999).

22

The determination of an employee’s rights or remedies under other statutory authority does not establish
entitlement to benefits under the Federal Employees’ Compensation Act. Dianna L. Smith, 56 ECAB ___ (Docket
No. 04-2256, issued May 6, 2005).

6

ORDER
IT IS HEREBY ORDERED THAT the December 8, 2006 decision of the Office of
Workers’ Compensation Programs’ hearing representative is affirmed.
Issued: June 14, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Eureka, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Norman F. Nivens, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-918
Issued: October 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 20, 2012 appellant, through her attorney, filed a timely appeal from a
September 23, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which terminated her compensation benefits. 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
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
and medical compensation effective September 24, 2011 on the grounds that she no longer had
any residuals or disability causally related to her accepted employment-related injuries.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 23, 2011 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant’s attorney contends that OWCP improperly terminated appellant’s
compensation benefits as she had residuals of her employment-related thoracic outlet syndrome
and the termination was not supported by the medical evidence.
FACTUAL HISTORY
On May 22, 2009 appellant, then a 28-year-old mail carrier, filed an occupational disease
claim (Form CA-2) which OWCP accepted for left shoulder and upper arm sprain. On
October 10, 2009 she filed a second occupational disease claim which OWCP accepted for left
brachial plexus lesions (Thoracic Outlet Syndrome) and mononeuritis of left upper limb.
Appellant was subsequently placed on the periodic rolls.
In a March 19, 2010 report, Dr. Mark T. Roback, an osteopath Board-certified in family
medicine, diagnosed left thoracic outlet syndrome secondary to upper somatic dysfunction of
appellant’s head, upper extremities, cervical and thoracic region. He noted that she was also
developing strains of the shoulders and upper arm. Dr. Roback stated that it was reasonable that
the osteopathic terms of somatic dysfunction of the upper extremities was more appropriate for
this case and this was just a question of semantics; however, they were essentially the same
entity.
To determine whether appellant continued to have residuals of her employment injuries
and whether she was capable of work, OWCP referred her to Dr. Aubrey A. Swartz, a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a July 23, 2010 report,
Dr. Swartz reviewed appellant’s medical records and a statement of accepted facts. Upon
examination, he found tenderness in the interscapular and infrascapular regions bilaterally,
audible and palpable crepitus with snapping in the left scapula, 4/5 strength in the left thumb
abductor and 5/5 on the right, negative Adson testing clinically and a positive Froment’s test in
the left hand and decreased intrinsic strength in the left hand. Dr. Swartz noted that appellant’s
subjective complaints were partially proportional to the objective findings and some subjective
complaints outweighed the objective findings. For example, appellant stated that she could not
walk her dog or do any housework; however she completed a physical capacities checklist
stating that activities of daily living in which she participated around the house included lifting
and carrying groceries, doing the laundry, gardening, driving, bending and lifting. It took her
longer with difficulty to vacuum, sweep, mop, dust, wipe and clean. Dr. Swartz opined that
appellant had some physical limitations but was not totally disabled with respect to her activities
of daily living or to gainful employment.
Dr. Swartz referred appellant to Drs. Marc Griffey and Adam Attoun, Board-certified
radiologists, for magnetic resonance imaging (MRI) scan tests. An August 30, 2010 MRI scan of
the left shoulder was unremarkable. Magnetic resonance imaging scans dated August 30, 2010
of the left and right scapula were unremarkable. In an MRI scan dated August 31, 2010, no
acute osseous abnormalities of the shoulders were identified. An August 31, 2010 MRI scan of
the temporomandibular joints (TMJs) was normal bilaterally.
In a September 14, 2010 report, Dr. Swartz reviewed the diagnostic studies and additional
medical records. He found no evidence of residuals referable to work-related injuries.
Dr. Swartz concluded that appellant had reached maximum medical improvement. He noted that

2

she may have developed a soft tissue strain with respect to the neck and left shoulder. With
respect to the issue of a thoracic outlet syndrome, Dr. Swartz stated that the diagnosis would
require angiographic studies, particularly to evaluate the subclavian vein and its relationship to
the first rib and the thoracic outlet and would be best done with a consultation by a
neurosurgeon.
In a May 21, 2010 MRI scan of the right shoulder, Dr. Stephen L. Viltrakis, a
Board-certified radiologist, diagnosed acromial osteophyte and acromioclavicular (AC) joint
inferior margin bony hypertrophic change which could create external impingement mechanism.
He also diagnosed supraspinatus and subscapularis tendinosis. Dr. Viltrakis indicated that he
could not exclude “hidden” lesion with biceps pulley complex injury.
On September 8, 2010 Dr. Roback diagnosed thoracic outlet syndrome and multiple other
issues, including a right shoulder derangement, which was not addressed. Upon examination, he
found a significant amount of muscle spasm of her left anterior scalenes and trapezius muscles
bilaterally. On October 19, 2010 Dr. Roback reiterated the diagnoses of left thoracic outlet
syndrome and right shoulder impingement. On December 3, 2010 he advised that appellant had
increased muscle density in the paraspinal muscles in the cervical region and anterior scalene
muscles bilaterally, left markedly more so than the right and more so than at her last visit. In
progress notes dated January 11, February 28 and June 16, 2011, Dr. Roback reiterated his
diagnosis of left thoracic outlet syndrome and advised her to remain off work.
By letter dated August 10, 2011, OWCP notified appellant that it proposed to terminate
compensation for wage-loss and medical benefits. It found the weight of the medical evidence
rested with Dr. Swartz and allotted 30 days for appellant to respond with additional evidence or
argument.
Appellant submitted two August 23, 2011 reports by Dr. Roback who reiterated that she
had left-sided thoracic outlet syndrome since December 2007 and her complaints were consistent
with this diagnosis. Dr. Roback reported that she developed similar symptoms in her right upper
extremity after a modification of her work duty in June 2009, for which she reported her
symptoms to her supervisor and opined that therefore her right upper extremity was also a direct
result of injuries obtained at her job site. He explained that while appellant was right-handed she
would use her left arm to deliver the mail. Dr. Roback advised her to remain off work.
By decision dated September 23, 2011, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective September 24, 2011.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 After it has determined that an employee has disability causally
related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.4
3

See Jorge E. Sotomayor, 52 ECAB 105, 106 (2000); Curtis Hall, 45 ECAB 316 (1994).

4

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

3

OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5 The right to medical benefits for
an accepted condition is not limited to the period of entitlement to compensation for disability.6
To terminate authorization for medical treatment, OWCP must establish that appellant no longer
has residuals of an employment-related condition, which requires further medical treatment.7
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.
On appeal, counsel contends that OWCP improperly terminated appellant’s compensation
benefits as it erroneously assumed that she no longer suffered from her accepted thoracic outlet
syndrome condition and argues that the termination was not supported by the medical evidence.
It is OWCP that bears the burden to justify modification or termination of benefits.8 OWCP
based its decision to terminate appellant’s benefits on reports dated July 23 and September 14,
2010 by Dr. Swartz, the second-opinion physician. On September 14, 2010 Dr. Swartz found no
evidence of residuals referable to work-related injuries and concluded that she had reached
maximum medical improvement. However, he indicated that appellant may have developed a
soft tissue strain which may well be with her with respect to the neck and left shoulder.
Dr. Swartz further indicated that the thoracic outlet syndrome diagnosis would require
angiographic studies, particularly to evaluate the subclavian vein and its relationship to the first
rib and the thoracic outlet and would be best done with a consultation by a neurosurgeon.
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
wage-loss and medical benefits effective September 24, 2011. The Board notes that the
September 14, 2010 report of Dr. Swartz was of record prior to the September 23, 2011
termination decision of OWCP. The Board finds that once OWCP received Dr. Swartz’s report,
it should have referred appellant to a neurosurgeon for the appropriate angiographic studies and
requested a supplemental report before issuing a final decision on appellant’s entitlement. As
OWCP failed to base its decision on a resolution of the opinion evidence, the Board finds that it
did not meet its burden of proof to terminate appellant’s benefits. Accordingly, OWCP’s
decision to terminate her compensation and medical benefits shall be reversed.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits effective September 24, 2011.

5

See Del K. Rykert, 40 ECAB 284 (1988).

6

See T.P., 58 ECAB 524 (2007).

7

See I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

See Curtis Hall, 45 ECAB 316 (1994).

4

ORDER
IT IS HEREBY ORDERED THAT the September 23, 2011 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 11, 2012
Washington, DC

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

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

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

5