United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, JAMES A. FARLEY
POST OFFICE, New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-603
Issued: June 8, 2007

Case Submitted on the Record

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

JURISDICTION
On December 27, 2006 appellant, through his attorney, filed a timely appeal from an
October 13, 2006 nonmerit decision of the Office of Workers’ Compensation Programs denying
his request for reconsideration. Because more than one year has elapsed between the last merit
decision dated July 22, 2005 and the filing of the appeal, the Board lacks jurisdiction to review
the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board. In a July 22, 2005 decision, the Board
found that appellant established a compensable factor of his federal employment.1 It found that a
1

Docket No. 05-224 (issued July 22, 2005).

September 24, 2002 arbitration decision which rescinded an April 25, 2002 letter of warning
issued by the employing establishment to appellant for failure to follow instructions on
March 27, 2002, demonstrated that the employing establishment acted abusively or
unreasonably.2 The Board, however, found that appellant failed to submit rationalized medical
evidence establishing that his emotional condition was caused by the accepted employment
factor. Accordingly, the Board affirmed as modified the Office’s April 23 and July 19, 2004
Office decisions denying appellant’s emotional condition claim. It also affirmed the Office’s
October 1, 2004 decision finding that the Office properly denied appellant’s request for
reconsideration. The Board found that the evidence submitted was duplicative and cumulative in
nature and, thus, insufficient to warrant a merit review of the claim.
By letter dated July 11, 2006, appellant, through his attorney, requested reconsideration
before the Office. He submitted duplicate copies of a grievance filed against the employing
establishment, the September 24, 2002 arbitration decision, medical reports of Dr. James R.
Booth, an attending Board-certified psychiatrist, dated April 5 and 18, 2002 and January 16,
February 25, March 31, May 5 and June 10, 2004, and a June 10, 2004 prearbitration settlement
agreement. Counsel argued that the noted medical evidence established that appellant sustained
an emotional condition while in the performance of duty.
In a decision dated October 13, 2006, the Office denied appellant’s request for
reconsideration. It found that the evidence submitted was irrelevant and repetitious in nature
and, thus, insufficient to warrant a merit review of the claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,3 the Office’s regulation provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.4 To be entitled to a merit review of an
Office decision denying or terminating benefits, 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, the Office will deny the application for reconsideration without reopening the
case for review of the merits.

2

The September 24, 2002 arbitration decision determined that the employing establishment’s failure to respond
properly to appellant’s claim that he was mentally ill at a predisciplinary interview and to recommend the
Employee’s Assistance Program or the Family Medical Leave Act was punitive rather than corrective in nature.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he 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
By letter dated July 11, 2006, appellant disagreed with the finding that he did not sustain
an emotional condition while in the performance of duty because the medical evidence of record
did not establish that the claimed condition was causally related to the accepted compensable
factor of his federal employment, namely a September 24, 2002 arbitration decision finding that
the employing establishment acted abusively or unreasonably in handling his emotional
condition claim. This was decided on the merits by the Board’s decision dated July 22, 2005.6
The relevant issue in this case is whether appellant’s emotional condition was causally related to
the accepted factor of his employment.
Appellant submitted the September 24, 2002 arbitration decision, Dr. Booth’s medical
reports dated April 5 and 18, 2002 and January 16, February 25, March 31, May 5 and June 10,
2004, and a June 10, 2004 prearbitration settlement agreement. The Board has held that
evidence that repeats or duplicates evidence already in the case record has no evidentiary value
and does not constitute a basis for reopening a case.7 The arbitration decision, Dr. Booth’s
reports and prearbitration settlement agreement were already of record at the time appellant
requested reconsideration and had been considered by the Office. The Board finds that the
evidence submitted is insufficient to reopen appellant’s claim for a merit review as it is
duplicative and cumulative of evidence already of record.
Appellant did not submit any relevant and pertinent new evidence not previously
considered by the Office in support of his request for reconsideration. Further, he did not show
that the Office erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by the Office. As appellant did not meet any of the
necessary regulatory requirements, the Board finds that the Office properly denied merit review.8
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
his claim pursuant to 5 U.S.C. § 8128(a).

6

See supra note 1.

7

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin,
35 ECAB 1090, 1093-94 (1984).
8

See James E. Norris, 52 ECAB 93 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the October 13, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2007
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Vista, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1202
Issued: March 8, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On May 24, 2018 appellant filed a timely appeal from a January 18, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 18-1202.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP.
By notice dated July 31, 2017, OWCP advised appellant of its preliminary determination
that he had received a $178,197.45 overpayment of compensation because he received
reimbursement of travel expenses for the period May 7, 2007 through June 15, 2012 when he had
reported false mileage. It noted that an investigation, initiated by the employing establishment’s
Office of the Inspector General (OIG) in 2012 regarding reimbursement payments made to
appellant for travel he claimed in connection to his workers’ compensation claim, revealed that he
had submitted 978 false mileage reimbursement claims for doctor visits he did not attend. OWCP
1

The Board notes that following the issuance of OWCP’s January 18, 2018 decision and on appeal, appellant
submitted additional evidence. However, section 501.2(c)(1) of the Board’s Rules of Procedure provides: “The
Board’s review of a case is limited to the evidence in the case record that was before OWCP at the time of its final
decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R.
§ 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for the first time on appeal. Id.

also made a preliminary determination that appellant was at fault in the creation of the
overpayment as he had accepted payments he knew or should have known were incorrect.
By decision dated January 18, 2018, OWCP finalized the fact and amount of the
preliminary overpayment determination and the finding of fault. It required repayment of the
overpayment in full.
OWCP paid appellant compensation for travel to doctor visits based on the submission of
OWCP-957 travel reimbursement forms. In determining that an overpayment occurred and the
amount of overpayment, OWCP indicated that an OIG investigation claimed to find that
appellant’s OWCP-957 forms contained mileage for doctor visits that he did not attend during the
period May 7, 2007 to June 15, 2012. Although the investigative report included two of
appellant’s OWCP-957 forms dated June 22, 2007 and June 29, 2012 as exhibits, the remaining
976 forms he submitted to OWCP to request travel reimbursements were not contained in the
record. The Board, therefore, cannot verify that appellant requested that he be paid for incorrect
mileage.
OWCP’s procedures provide that all evidence that was before OWCP at the time it
rendered its decision should be in the case record before the Board.2 To consider appellant’s appeal
in piecemeal fashion, as presented to the Board, could result in further inconsistent results.3 It is
the Board’s policy to avoid such an outcome.4
Accordingly, the case will be remanded to OWCP for reconstruction of the record,
including obtaining the OWCP-957 forms completed and signed by appellant for the claimed
reimbursement period. Following reconstruction of the record, OWCP shall issue a de novo
decision on the merits of the claim.

2

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a)
(June 2011).
3

See A.B., Docket No. 17-1480 (issued June 8, 2018).

4

Id.; see also William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the January 18, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: March 8, 2019
Washington, DC

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

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

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.O., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 15-462
Issued: April 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 24, 2014 appellant, through counsel, filed a timely appeal from a
November 6, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Because more than 180 days has elapsed between the last merit decision dated
August 15, 2013 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the November 6, 2014
nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal, counsel argues that the decision is contrary to fact and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. On April 16, 2001 appellant, then a 49-yearold group secretary, filed an occupational disease claim alleging that in August 2000 she first
became aware that her right wrist, arm, and hand conditions were due to her employment duties.
OWCP accepted the claim for right thumb tendinitis, which was later expanded to include right
bicipital tendinitis, right forearm tendinitis, right de Quervain’s tendinitis, right lateral
epicondylitis, bilateral carpal tunnel syndrome, right shoulder region localized primary
osteoarthritis and calcium deposit in right tendon and bursa. It authorized right carpal tunnel
surgery, which was performed on July 27, 2004.
Appellant filed recurrence and disability claims for various periods.2 On August 15,
2013 OWCP denied her claim for wage-loss compensation for the period December 30, 2012 to
March 23, 2013, and denied reconsideration on March 3, 2014. Appellant appealed to the Board.
By decision dated September 8, 2014, the Board affirmed the nonmerit OWCP decision dated
March 3, 2014.3 The Board found that it properly refused to reopen appellant’s claim for
reconsideration of the merits as appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). The facts and circumstances as set forth in the prior decisions are hereby
incorporated by reference.
Subsequent to OWCP’s March 3, 2014 nonmerit decision, it received the following
evidence. In a March 12, 2014 electrodiagnostic study, Dr. Michael E. Hebrard, an examining
Board-certified physiatrist, diagnosed right C5-6 radiculopathy based on the nerve conduction
study performed. The results of the study showed “right mid cervical paraspinal and the right
brachioradialis muscles showed increased insertional activity” and that there was increased
insertional activity in the muscles of the right biceps, right deltoid, and right triceps.
A March 17, 2014 x-ray interpretation of the right shoulder revealed no chronic
abnormality.
In a July 23, 2014 progress note, Dr. Hebrard noted that OWCP had accepted tendon and
bursa calcium deposit, de Quervain’s tenosynovitis, lateral epicondylitis, carpal tunnel
syndrome, bicipital tenosynovitis, acquired trigger finger, and localized primary shoulder
osteoarthrosis. He provided physical findings and noted appellant was medically retired.
A July 25, 2014 magnetic resonance imaging (MRI) scan showed intact glenohumeral
joint and biceps-labral complex, distal supraspinatus full thickness tear with eight millimeters of
retraction, and moderate lateral downsloping of the acromion causing mild bony impingement.
On October 23, 2014 counsel requested reconsideration on the grounds that new evidence
had been submitted since the March 3, 2014 nonmerit decision of OWCP.
2

By a December 12, 2005 decision, OWCP granted appellant compensation for six hours (three hours each for
November 8 and 22, 2004) out of 25 hours of disability claimed for intermittent periods between November and
December 15, 2004. In July 14, 2011, and January 12 and October 17, 2012 decisions, it denied compensation for
intermittent periods of disability commencing January 30, 2011.
3

Docket No. 14-1015 (issued September 8, 2014).

2

By decision dated November 6, 2014, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
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 it; or (3) constitute relevant and pertinent new evidence not previously considered
by OWCP.5 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.6 When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.7
ANALYSIS
OWCP accepted appellant’s claim for right thumb tendinitis, right forearm tendinitis,
right de Quervain’s tendinitis, right lateral epicondylitis, bilateral carpal tunnel syndrome, right
shoulder region localized primary osteoarthritis, and calcium deposit in right tendon and bursa.
Appellant filed claims for wage-loss compensation for the period December 30, 2012 to
March 23, 2013, which OWCP denied by decision dated August 15, 2013. The Board finds that
the refusal of OWCP to reopen appellant’s case for further consideration of the merits of her
claim, pursuant to 5 U.S.C. § 8128(a), did not constitute an abuse of discretion.
The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the
claim. In her October 23, 2014 application for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. Moroever, she did not advance
a new and relevant legal argument not previously considered by OWCP.
A claimant may, however, obtain a merit review of an OWCP decision by submitting
pertinent new and relevant evidence. The new evidence referenced by counsel includes a
March 12, 2014 report and July 23, 2014 progress note by Dr. Hebrard, a March 17, 2014 x-ray
interpretation, and a July 25, 2014 MRI scan. While these reports are new, they are not relevant
to establishing appellant’s disability from work for the claimed period. Dr. Hebrard’s report and
progress notes contain physical findings, but offer no opinion on disability for the period claimed
by appellant. Similarly, the x-ray interpretation and MRI scan also offer no opinion disability for

4

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that 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

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
6

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).

3

the period claimed by appellant as it is diagnostic in nature. The submission of evidence that
does not address the relevant issue involved does not constitute a basis for reopening a case.8
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 constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds counsel’s arguments are not
substantiated.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 6, 2014 is affirmed.
Issued: April 13, 2015
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees' Compensation Appeals Board
8

M.E., 58 ECAB 694 (2007); D’Wayne Avila, 57 ECAB 642 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Coppell, TX,
Employer
__________________________________________

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Appearances:
Tim Egbuchunam, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1161
Issued: January 12, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JURISDICTION
On April 27, 2015 appellant, through her representative, filed a timely appeal of a
March 11, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment in compensation
in the amount of $9,520.58 had been created because appellant received compensation for the
period August 19 to December 13, 2014 after she returned to part-time work for four hours per
day; and (2) whether OWCP properly found that appellant was at fault in the creation of the
overpayment and, therefore, was ineligible for waiver of the recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 19, 1995 appellant, then a 40-year-old flat sorter machine (FSM) operator, filed a
traumatic injury claim (Form CA-1) alleging that on July 18, 1995 she strained her right arm
joint muscle while placing buckets of mail in the all-purpose container (APC). OWCP accepted
a right shoulder strain and authorized right shoulder arthroscopy, which occurred on
July 8, 1998. OWCP paid appellant compensation. The record shows that appellant accepted
several modified job offers for both partial and full-time work.
By letter dated September 19, 2013, OWCP placed appellant on the periodic rolls for
temporary total disability with the first payment for the period August 20 to 24, 2013.
In a December 8, 2014 memorandum to file, OWCP noted that appellant called to inform
it that she had returned to work on September 8, 2014, but was still receiving wage-loss
compensation.
The record contains a January 5, 2015 worksheet computing an overpayment of
compensation for the period August 19 to December 13, 2014 based on appellant’s return to parttime work on August 19, 2014 and noting that she continued to receive compensation on the
periodic rolls through October 18, 2014. It noted that appellant had been paid a net of
$10,445.39 for the period August 24 to December 13, 2014 when she should have been paid
$1,398.94 for this period resulting in a net difference of $9,046.45. In attached computer
printouts appellant’s weekly pay rate was noted as $1,083.79. Under the comments section on
one computer printout and compensation termination form, OWCP noted that appellant had
called and provided notice that she had returned to work on September 8, 2014.
On February 2, 2015 OWCP informed appellant of its preliminary determination that she
received an overpayment in the amount of $9,520.58 because she received compensation for the
period August 19 to December 13, 2014 while receiving pay for working four hours per day.
OWCP found an overpayment in the amount of $9,520.58 for the period August 19 to
December 13, 2014. It calculated the overpayment by noting what appellant was paid for one
pay period and then multiplying that amount by the four pay periods covering August 24 to
December 13, 2014 ($2,611.35 x 4 = $10,445.40) and that appellant was paid $2,655.07 for the
period July 27 to August 23, 2014 which when divided by 28 days equalied $94.82392. OWCP
then multiped the $94.82392 by five days to find an overpayment of $474.12 for the period
August 19 to 23, 2014. Next it combined the $472.12 with the $10,445.40 to arrive at an
overpayment of $10,919.52 for the period August 19 to December 13, 2014. OWCP then
subtracted $1,398.94 (hours it noted were owed to appellant) from the $10,919.52 overpayment
resulting in a final overpayment of $9,520.58. OWCP found that appellant was at fault in the
creation of the overpayment because she should have been aware that she was not entitled to
receive compensation for total disability after returning to work part time. OWCP requested that
appellant complete the enclosed overpayment recovery questionnaire and submit supporting
financial documents. Additionally, it notified her that, within 30 days of the date of the letter,
she could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. Appellant did not respond, nor did she submit a completed overpayment
recovery questionnaire.

2

By decision dated March 11, 2015, OWCP finalized the preliminary determination that
an overpayment of compensation in the amount of $9,520.582 had been created during the period
August 19 to December 13, 2014. It finalized its finding of fault; thus precluding waiver of
recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
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, she
may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.3 20 C.F.R. § 10.500 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 her from earning the wages earned before the work-related injury.
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for a decision. The record is unclear as to
the exact date appellant returned to work, the hours worked, and the amount of the overpayment.
The record before the Board is devoid of any evidence regarding the number of hours that
appellant was working after her return to work. The only evidence of record pertaining to
appellant’s return to work are a December 8, 2014 memorandum, a January 5, 2015 manual
adjustment form computing the overpayment, computer printouts, and a compensation
termination form noting that appellant had called OWCP to say she had returned to work on
September 8, 2014. It is unclear from the record how OWCP determined that appellant returned
to work part-time on August 19, 2014. The record contains no evidence showing that appellant
actually returned to work on August 19, 2014, what her job was, or the number of work hours.
In addition, while the January 5, 2015 overpayment calculation and computer printouts note that
appellant returned to work four hours on September 8, 2014, the December 8, 2014
memorandum to file merely noted a return to work on September 8, 2014 without indicating the
number of hours she was working per day or pay period. As the evidence in the record appears
to indicate that appellant returned to work on September 8, 2014, it is unclear how OWCP
determined that appellant returned to work on August 19, 2014. In addition the record contains
conflicting calculations on the amount of the overpayment. The January 5, 2015 worksheet
computed the overpayment for the period in question as $9,046.94 while on February 2, 2015
OWCP calculated the overpayment to be $9,520.58.
OWCP did not adequately address the basis for the fact or amount of the overpayment in
this case due to the lack of evidence supporting its finding of a return to work on
August 19, 2014 and the differing calculations provided by OWCP regarding the overpayment.
Moreover, the record does not contain any evidence on the number of hours appellant was
working when she returned to work other than OWCP’s finding that she had returned to four
hours per day. Furthermore, OWCP calculated two different amounts of overpayment. The
2

OWCP noted overpayment amounts of $9,520.58 and $9,250.58 in its decision. The $9,250.58 amount appears
to be a typographical error as OWCP in its preliminary determination calculated the overpayment to be $2,950.58.
3

5 U.S.C. § 8116(a).

3

January 5, 2015 worksheet computed an overpayment of $9,046.45 while the February 2, 2014
preliminary notice determined the overpayment to be $9,520.58. Finally, OWCP does not
explain the basis for its finding that appellant was owed $1,398.94 which it deducted from the
overpayment. As the record is incomplete and unclear as to the number of hours that appellant
actually worked or the actual date she returned to work, the Board is unable to make an informed
decision regarding the amount of the overpayment.
The case will therefore be remanded to OWCP to provide documentation of appellant’s
exact date she returned work, the number of hours worked, and then issue an appropriate final
decision regarding any overpayment of compensation. After this and such further development
deemed necessary, OWCP should render a de novo decision.
As the amount of the overpayment is not yet established, it is premature to address the
issue of fault.
CONCLUSION
The Board finds that the case is not in posture regarding the period and the amount of the
alleged overpayment, fault, and waiver.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 11, 2015 is set aside and the case remanded for further
action consistent with this decision.
Issued: January 12, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE INTERIOR, FISH &
WILDLIFE SERVICE, TEXAS MIDCOAST
REFUGE COMPLEX, Angleton, TX, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-852
Issued: October 22, 2009

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 February 11, 2009 appellant filed a timely appeal from a January 22, 2009 decision of
the Office of Workers’ Compensation Programs regarding an overpayment of compensation.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly found a $34,582.97 overpayment of
compensation due to rescission of a schedule award; and (2) whether the Office properly denied
waiver of recovery of the overpayment.
On appeal, appellant’s attorney asserts that the Office erred by denying waiver of
recovery of the overpayment. Counsel stated that he did not contest the rescission of the
schedule award, the fact and amount of the overpayment or the list of allowable monthly
1

The Office issued July 9, 2008 decisions rescinding a schedule award. Appellant did not appeal these decisions.

expenses as determined by the Office hearing representative. He contends that in its waiver
calculation, the Office improperly included appellant’s wife’s salary in the household income
although she was no longer working. Counsel asserted that, if appellant’s wife’s former salary
were subtracted from the household income, appellant would meet the Office’s financial formula
for waiver.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By order issued March 21, 2008,
the Board remanded the case to the Office for reconstruction of the record.2 The relevant facts of
the case are set forth below.
The Office accepted that on or before December 30, 2005 appellant, then a 35-year-old
fire management officer, sustained chronic obstructive asthma due to exposure to smoke and dust
in the performance of duty. On July 10, 2007 it granted appellant a schedule award in the
amount of $34,582.97 for a 20 percent permanent impairment of the lungs. Appellant did not
receive additional wage-loss compensation after the schedule award payments ended in
August 2007. Following additional development, by decisions dated July 9, 2008, the Office
rescinded the schedule award, finding that appellant had no (zero) permanent impairment of the
lungs. It found that the schedule award was based on incorrectly administered pulmonary
function studies. The correct tests showed appellant’s lung function was within normal limits.
By notice dated July 16, 2008, the Office advised appellant of its preliminary
determination that an overpayment of $34,582.97 had been created in his case as the schedule
award was rescinded. It found that appellant was without fault in creation of the overpayment.
In a July 22, 2008 letter, appellant, through his attorney, requested a telephonic hearing
regarding the preliminary finding of overpayment. At the hearing, held on November 4, 2008,
counsel asserted that appellant was entitled to waiver of the overpayment based on his
detrimental reliance on the schedule award. Appellant used the funds to pay off a student loan
and car loan. The schedule award payments ended in August 2007. In October 2007, appellant
quit his job because he wished to stay home with his two-year-old child. He testified that his
wife was pregnant and due to deliver in February 2009. Appellant’s wife earned $6,875.00 a
month in gross income, $5,496.00 net.
Appellant submitted information regarding his income, assets and expenses. He stated
that he no longer had any of the compensation checks or funds in his possession. Appellant
explained that he repaid $7,162.92 in student loans at 5.5 percent interest and a $10,465.67 in car
loans at 4.76 percent interest. He listed $8,968.00 in monthly household income, including
$6,875.00 gross salary from his wife’s job, $1,659.00 in federal retirement benefits, $429.00 in
veterans’ benefits and $5.00 in dividends. Appellant listed $11,679.00 in monthly expenses, as
follows: $100.00 for gifts and charitable donations; $800.00 for food; $100.00 for automotive
repairs; $507.00 for automobile license fees, gasoline and insurance; $110.00 for clothing,
$50.00 for satellite radio; $100.00 for household sundries; $592.00 in medical expenses; $835.00
2

Docket No. 07-1983 (issued March 21, 2008).

2

in utilities; $343.00 for insurance premiums; $2,000.00 for a residential mortgage; $1,600.00 in
property rental; $300.00 for escrow payments; $198.00 for home maintenance; $563.00 for child
care; $1,150 for religious tithing; $500.00 in credit card payments; $50.00 for commuting tolls;
$70.00 for cosmetics and haircuts; $158.00 for professional licenses; $42.00 for education;
$20.00 for printer paper and toner; $100.00 for vacation savings; $1,391.00 in taxes. He also
noted $19,510.00 in bank accounts and stocks. Appellant asserted that as his monthly expenses
exceeded his monthly income by $2,716.00, he could repay only $17,292.00 of the overpayment.
He calculated that he could make monthly payments of $202.83 without financial hardship.
In letters dated December 10, 2008 and January 1, 2009, appellant stated that his wife had
been placed on bed rest due to pregnancy complications. She would be off work through
February 9, 2009 and planned to return to work on April 6, 2009. Appellant stated that his wife
would not receive any salary for December 2009 as she would not be working and had exhausted
her leave balance. He noted that their savings would be spent by the end of February 2009.
By decision dated and finalized January 22, 2009, an Office hearing representative
affirmed the preliminary findings of fact and amount of the overpayment and that appellant was
not at fault in its creation. The hearing representative found that appellant had a net income of
$7,191.24 and allowable monthly expenses of $6,852.00. The hearing representative disallowed
expenses for vacation savings, satellite radio and an unexplained insurance charge. Also, as
appellant did not work and stayed home to take care of his child, the hearing representative
disallowed the $563.00 monthly child care expense. The hearing representative therefore found
that appellant’s monthly income exceeded his expenses by more than $50.00. Therefore,
recovery of the overpayment would not defeat the purpose of the Act or be against equity and
good conscience. The hearing representative noted that appellant’s wife had stopped work and
did not plan to resume work until April 2009. The hearing representative found that this
“temporary change in the family income” was “insufficient to justify waiver” of the
overpayment. However, as appellant was “currently experiencing an unusual financial situation
with his wife’s pregnancy, the Office should not begin collecting the overpayment until
April 2009.” The hearing representative further found that appellant did not establish
detrimental reliance, as the interest rates on the loans he repaid with schedule award funds were
greater than the three percent interest charged by the Office on the overpayment debt. The
hearing representative directed recovery of the overpayment by collecting $202.00 a month from
appellant.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employee’s Compensation Act provides that the United States shall pay
compensation as specified for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.3 Permanent impairment to specified

3

5 U.S.C. § 8102(a).

3

members of the body may entitle a claimant to a schedule award.4 If the Office later rescinds a
claim, the amount of any compensation paid is considered an overpayment of compensation.5
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for bilateral lung disease sustained in the
performance of duty. It paid appellant a schedule award in the amount of $34,582.97 for a 20
percent impairment of both lungs. As set forth above, the Office properly rescinded the schedule
award as it was based on a misinterpretation of the medical evidence. Consequently, appellant
received an overpayment of compensation in the amount of $34,582.97. He did not appeal the
rescission of the schedule award.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.6 If the Office finds that the
recipient of an overpayment was not at fault, repayment will still be required unless
(1) adjustment or recovery of the overpayment would defeat the purpose of the Act or
(2) adjustment or recovery of the overpayment would be against equity and good conscience.7
Recovery of an overpayment will defeat the purpose of the Act if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom the Office seeks recovery needs substantially all of his or her current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed a specified amount as determined by the Office from data
furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents.8 Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.9 Recovery of an overpayment is also
considered to be against equity and good conscience when any individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
his or her position for the worse.10
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
4

Id. at § 8106(a).

5

George A. Rodriguez, 57 ECAB 224 (2005).

6

20 C.F.R. § 10.433(a).

7

Id. at § 10.434.

8

Id. at § 10.436.

9

Id. at § 10.437(a).

10

Id. at § 10.437(b).

4

determine whether or not recovery of an overpayment would defeat the purpose of the Act or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.11
ANALYSIS -- ISSUE 2
The Office determined that appellant was without fault in the creation of the
overpayment. Because he was not at fault, it may adjust later payments only if the adjustments
would not defeat the purpose of the Act or be against equity and good conscience.12 Appellant
furnished the Office with information regarding his finances. The Office determined that
appellant had allowable monthly expenses of $6,852.00 and a monthly net household income of
$7,191.24. This income included $5,496.00 in net income from appellant’s wife’s job. This
income ended in November 2008 when appellant’s wife stopped work due to pregnancy
complications. Appellant stated that, if his wife returned to work, she would not do so before
April 2009.
In its January 22, 2009 decision finalizing the overpayment and denying waiver, the
Office stated that, because appellant was “currently experiencing an unusual financial situation
with his wife’s pregnancy, the Office should not begin collecting the overpayment until
April 2009.” The Office’s procedures provide that an individual is deemed to need substantially
all of his or her current income to meet current ordinary and necessary living expenses if
monthly income does not exceed monthly expenses by more than $50.00, i.e., the amount of
monthly funds available for debt repayment is the difference between current income and
adjusted living expenses plus $50.00.13 While appellant’s wife was not working, the household
monthly income was reduced to $1,695.24, an amount far exceeded by $6,852.00 in monthly
expenses. The Office thereby acknowledged that it could not begin collecting the overpayment
while appellant’s monthly income was so reduced.
The Board has held that the Office must rely on a claimant’s current financial situation at
the time of the waiver determination.14 Past circumstances or assumed future conditions are not
a proper basis on which to decide a claimant’s eligibility for waiver.15 Appellant’s wife stopped
work in November 2008. This reduced appellant’s monthly household income to $1,695.24.
There is no indication of record that appellant’s wife resumed work or that the household income
otherwise increased. Yet, the Office denied waiver, based on appellant having a monthly
household income of $7,191.24. The January 22, 2009 waiver determination was thus improper.
The case will be remanded for the Office to obtain current financial information from appellant

11

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

12

20 C.F.R. §§ 10.436, 10.437; C.M. & J.M., children of J.M., 58 ECAB ___ (Docket No. 06-1597, issued
May 8, 2007).
13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6200.6(a)(3) (October 2004).
14

L.S., 59 ECAB ___ (Docket No. 07-196, issued February 14, 2008).

15

20 C.F.R. § 10.433.

5

and to determine whether waiver of recovery of the overpayment is warranted. After such
further development as the Office deems necessary, it should issue an appropriate decision.16
CONCLUSION
The Board finds that the Office properly found that appellant received an overpayment of
compensation in the amount of $34,582.97 and that he was not at fault in its creation. The Board
further finds that the case is not in posture for decision regarding waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2009 is affirmed, in part, regarding the fact and
amount of the overpayment. The January 22, 2009 decision is set aside, in part, regarding the
denial of waiver. The case is remanded to the Office for further action consistent with this
decision and order.
Issued: October 22, 2009
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

16

Recovery of the overpayment is not an issue in this case as appellant is not in receipt of continuing
compensation. With respect to recovery of the overpayment, the Board’s jurisdiction is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act. 20 C.F.R. § 10.441; see
Miguel A. Muniz, 54 ECAB 217 (2002).

6


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

)
)
)
)
)
)
)
)
)

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

Docket No. 13-815
Issued: August 21, 2013

Case Submitted on the Record

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

JURISDICTION
On February 22, 2013 appellant filed a timely appeal from the February 6, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
hearing loss in the performance of duty.
FACTUAL HISTORY
On October 24, 2012 appellant, then a 70-year-old driver and operator, filed a claim for
compensation alleging hearing loss due to his federal employment. He became aware of his
1

5 U.S.C. § 8101 et seq.

hearing loss on January 1, 1992 and realized it was causally related to his employment that day.
Appellant retired from the employing establishment on May 3, 1993.
By letter dated December 5, 2012, OWCP advised appellant of the evidence needed to
establish his claim. It also requested the employing establishment address appellant’s workplace
noise exposure.
In an October 24, 2012 statement, appellant noted from 1961 to 1965 he worked at the
Air Force Fire Department in the crash crew and was exposed to noise from jets. From 1965 to
1968 he worked at Portland Air Force Base Fire Department in the crash crew and was exposed
to noise from jets. From 1968 to 1970 appellant worked at Sandpoint Naval Air Station fire
department in the crash crew and was exposed to aircraft noise. From 1970 to 1975 he worked
in the Keyport Fire Department and inspected shops and was exposed to noise from trades
working in machine shops. From 1975 to 1993 appellant worked in the fire department as a
driver/operator and was exposed to noise from fire equipment, crane machines, shops, forge
shops, trades working on ships, needle guns, grinders, diesel engines and alarms. At each job, no
safety devices to protect against noise exposure was used or provided. Appellant’s hobbies
included shooting and he used double hearing protection.
The employing establishment submitted a notification of personnel action that appellant
voluntarily retired on May 3, 1993. Also submitted was a federal job application dated
September 17, 1965, and job descriptions for a firefighter and a firefighter driver/operator. The
employing establishment submitted medical records, including its audiograms taken under a
hearing conservation program from April 12, 1968 to August 24, 1992.2 An October 3, 2012
audiogram from the Conner Hearing Aid Clinic was also provided.
In a November 5, 2012 report, Dr. Gerald G. Randolph, a Board-certified
otolaryngologist, noted examining appellant on October 24, 2012 and having audiometric testing
conducted on that date. Testing at the frequency levels of 500, 1,000, 2,000 and 3,000 (Hertz)
Hz revealed the following: right ear 5, 5, 5 and 30 decibels; left ear 0, 0, 0 and 35 decibels.
Appellant reported noticing progressive hearing loss for six years. He did not experience
tinnitus. Appellant reported retiring from the employing establishment in 1993 and was
unemployed since 2004. Dr. Randolph noted physical examination revealed external auditory
canals and tympanic membranes were normal and air conduction was greater than bone
conduction bilaterally. He advised that audiometric testing revealed a bilateral high frequency
sensorineural hearing loss with speech reception thresholds of five decibels in both ears.
Dr. Randolph diagnosed sensorineural hearing loss bilaterally. He stated that industrial
audiograms were performed but he had not reviewed them. Dr. Randolph noted appellant’s
audiogram revealed hearing loss with an audiometric configuration entirely compatible with
hearing loss due to past noise exposure. He opined that pursuant to the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment,3 (A.M.A.,
Guides), appellant had zero percent (no) hearing loss in the right and left ear with binaural
2

The August 24, 1992 audiogram revealed, at the frequency levels of 500, 1,000, 2,000 and 3,000, the following
thresholds: left ear 0, 0, 0 and 15 decibels; right ear 0, 0, 0 and 20 decibels.
3

A.M.A., Guides (5th ed. 1993).

2

hearing loss of zero. Dr. Randolph noted that appellant was a borderline candidate for bilateral
hearing aids. He asked to review the industrial audiograms to see if the hearing loss would be
attributed to his workplace exposure to noise.
In a December 12, 2012 letter, the employing establishment submitted a summary of
appellant’s occupational exposure to noise from May 21, 1979 to May 3, 1993, for a firefighter
who worked in the background ship was exposed to 79 to 89 decibels continuously, background
and nonindustrial noise from 60 to 70 decibels of noise continuously, background industrial
noise from 70 to 95 decibels of noise continuously and tool use from 82 to 120 decibels of noise
intermittently.
In a January 7, 2013 letter, OWCP referred appellant to Dr. Randolph for further
evaluation. It provided Dr. Randolph with a statement of accepted facts, available exposure
information and copies of all medical reports and audiograms and requested that he provide an
addendum to his November 5, 2012 report. OWCP provided the employing establishment
audiograms from the hearing conservation program dated April 12, 1968 to August 24, 1992.4
In a January 21, 2013 report, Dr. Randolph noted that the earliest audiogram present in
appellant’s record was April 12, 1968 which revealed totally normal hearing in both ears. He
noted that appellant left federal employment in 1993 and the audiogram performed on
August 24, 1992 revealed that he had essentially normal hearing in both ears with no treatment
being indicated based on the audiogram. Since 1992 to the audiogram performed on October 24,
2012, appellant’s hearing had degenerated somewhat since the audiogram obtained in 1968 due
to causes other than his federal industrial employment. Dr. Randolph noted that the audiogram
performed on October 24, 2012 revealed zero percent ratable hearing loss in both ears utilizing
the A.M.A., Guides. He advised that appellant was a potential candidate for hearing aids;
however, he was not a candidate for hearing aid evaluation and fitting at the time he left federal
employment. Dr. Randolph found that the workplace exposure may have been of sufficient
intensity and duration to have aggravated appellant’s hearing loss if adequate ear protection had
not been used. He found no other significant contributing factors to appellant’s hearing loss
other than the aging process. Dr. Randolph reviewed findings from his earlier November 5, 2012
report that revealed an audiometric configuration compatible with hearing loss due to noise
exposure and the aging process after reviewing the earlier report, he diagnosed sensorineural
hearing loss, bilaterally which was unrelated to noise exposure at the employing establishment.
Rather, he opined that appellant did not have any hearing loss on audiograms performed on
August 24, 1992.
In a February 6, 2013 decision, OWCP denied appellant’s claim finding that the medical
evidence did not establish that the hearing loss was causally related to workplace noise exposure.
It found that Dr. Randolph determined that appellant’s hearing loss was not due to noise
exposure from his federal employment.

4

The Board has held that a program of annual audiometric examinations conducted by an employing
establishment may constructively establish actual knowledge of a hearing loss such as to put the immediate
supervisor on notice of an on-the-job injury. Jose Salaz, 41 ECAB 743 (1990).

3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that the injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
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) factual
statements 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 causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
ANALYSIS
It is not disputed that appellant was exposed to noise from 1975 to 1993 in the course of
his employment. The Board finds that the weight of medical evidence is insufficient to establish
that he has hearing loss causally related to his workplace noise exposure.
In a report dated November 5, 2012, Dr. Randolph diagnosed sensorineural hearing loss
bilaterally. He advised that audiometrics performed revealed a bilateral high frequency
sensorineural hearing loss. Appellant’s audiogram revealed hearing loss with an audiometric
configuration compatible with hearing loss due to past noise exposure but advised that he did not
have his industrial audiograms for comparison.
In an addendum report dated January 21, 2013, Dr. Randolph reviewed the employing
establishment’s audiograms and additional information regarding the duration and extent of
appellant’s workplace exposure to noise. He noted that the earliest audiogram of April 12, 1968
5

Gary J. Watling, 52 ECAB 357 (2001).

6

Solomon Polen, 51 ECAB 341 (2000).

4

revealed totally normal hearing in both ears. Dr. Randolph noted that appellant left federal
employment in 1993 and the last audiogram performed on August 24, 1992 revealed essentially
normal hearing in both ears. He advised that the hearing loss was not ratable in both ears and no
treatment was required based on the audiogram of August 24, 1992. Since 1992 to the
audiogram performed on October 24, 2012 appellant’s hearing degenerated somewhat due to
causes other than his federal industrial employment. Dr. Randolph noted the audiogram
performed on October 24, 2012 was not ratable for schedule award purposes. He diagnosed
sensorineural hearing loss, bilaterally, which was unrelated to noise exposure at the employing
establishment. Dr. Randolph found no other significant contributing factors to appellant’s
hearing loss other than the aging process. He opined that appellant’s current hearing loss was
not due to industrial noise exposure as the hearing loss occurred since appellant left federal
employment.
The Board finds that the medical evidence does not support that appellant has any hearing
loss causally related to workplace noise exposure. Dr. Randolph examined appellant, reviewed
audiological records and provided a reasoned opinion as to why the hearing loss was not due to
the employment. He found no basis in his most recent report to attribute appellant’s hearing loss
to his federal employment. There is no other medical evidence supporting appellant’s claim.
Thus, appellant has not met his burden of proof to establish that his hearing loss is causally
related to employment factors.
On appeal, appellant asserts that his hearing loss was causally related to workplace
exposure to noise and that Dr. Randolph, in his November 5, 2012 report supports this
contention. As noted above, the medical evidence did not establish that appellant’s hearing loss
is causally related to workplace exposure to noise. At the time of Dr. Randolph’s November 5,
2012 report he had not reviewed the industrial audiograms. After reviewing these audiograms,
he opined that, since 1993, appellant’s hearing loss was not compatible with hearing loss
aggravated by noise exposure.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that his hearing loss was caused or
aggravated by his federal employment.

5

ORDER
IT IS HEREBY ORDERED THAT the February 6, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Bellmawr, NJ, Employer
)
___________________________________________ )
T.H., Appellant

Docket No. 14-1884
Issued: January 20, 2015

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 25, 2014 appellant, through counsel, filed a timely appeal from the August 19,
2014 Office of Workers’ Compensation Programs (OWCP) nonmerit decision. As the last merit
decision was issued on February 20, 2014 more than 180 days from the filing of this appeal, the
Board does not have jurisdiction over the merits. 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 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 3, 2011 appellant, then a 45-year-old city letter carrier, filed a traumatic
injury claim alleging that on that date he slipped on a patch of black ice and cracked his left
elbow while in the performance of duty. He did not initially stop work. On March 31, 2011
OWCP accepted the claim for radial head fracture, left, and triangular fibrocartilage complex
(TFCC) tear left. On October 23, 2011 it expanded the claim to include left wrist sprain and
sprain of the left shoulder and rotator cuff. On February 6, 2012 appellant underwent authorized
arthroscopy with rotator cuff repair to the left shoulder. OWCP also accepted a June 2, 2012
claim for a recurrence of disability.
In a June 30, 2013 report, Dr. David Weiss, an osteopath, noted appellant’s history of
injury and treatment. He examined appellant and provided findings. Dr. Weiss utilized the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed.
2009) (hereinafter, A.M.A., Guides). He determined that appellant would qualify for seven
percent impairment due to a class 1 full thickness left rotator cuff tear with residual loss, four
percent impairment due to a radial head fracture to the left elbow, and 10 percent impairment due
to a left wrist TFCC tear. Dr. Weiss determined that appellant had 19 percent impairment to the
left arm.
In a January 22, 2014 report, an OWCP medical adviser noted appellant’s history of
injury and treatment. He noted that the accepted conditions were radial head fracture and TFCC
tear on the left. The medical adviser specifically noted that the accepted conditions did not
include rotator cuff or any shoulder injury. He indicated that Dr. Weiss’ recommendation for a
schedule award for rotator cuff tear should not be accepted. The medical adviser determined that
appellant sustained 14 percent impairment to the left arm.
On February 20, 2014 OWCP granted appellant a schedule award for 14 percent
impairment of the left upper extremity. The award covered a period of 43.68 weeks from June 2,
2013 to April 2, 2014.
In a letter dated May 21, 2014, appellant’s attorney requested reconsideration. He argued
that the schedule award for 14 percent impairment was incorrect as the medical adviser did not
have an accurate history of the claim since the medical adviser did not consider the impairment
to the left shoulder, despite OWCP accepting left rotator cuff tear and authorizing surgery.
In an August 19, 2014 decision, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant review of its prior decision. It
noted that the medical adviser explained why appellant was not eligible for an award due to the
rotator cuff tear. OWCP found that appellant’s attorney’s arguments did not warrant a merit
review as no new medical evidence was submitted.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
2

5 U.S.C. § 8128(a).

2

regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
Appellant’s attorney disagreed with the amount of the February 20, 2014 left arm
schedule award and requested reconsideration on May 21, 2014. He asserted that OWCP erred
in not considering impairment to appellant’s left shoulder region in issuing its schedule award
decision.
OWCP denied appellant’s application on August 19, 2014, finding that no new evidence
was offered warranting further merit review. Appellant’s attorney argued that the award for 14
percent impairment was incorrect, as the medical adviser did not consider the impairment to the
left shoulder, despite OWCP accepting the left rotator cuff condition and authorizing surgery to
repair the injured rotator cuff. OWCP denied merit review on the basis that no relevant new
medical evidence was submitted. However, as noted above, a claimant who advances a relevant
legal argument not previously considered by OWCP is entitled to a merit review of the claim. In
the August 19, 2014 decision, OWCP indicated that the argument regarding the rotator cuff tear
was not sufficient to warrant a merit review as no new medical evidence was submitted.
However, the Board finds that appellant’s attorney has, in fact, raised a relevant new legal
argument regarding the accepted conditions. The Board notes that the medical adviser did not
appear to be aware that the rotator cuff tear and surgery were accepted by OWCP. In fact, he
specifically noted that the accepted conditions did not include rotator cuff or any shoulder
injury.5 As this is not the case, appellant’s attorney presented a valid new and relevant legal

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

5

OWCP procedures provide that impairment ratings for schedule awards include those conditions accepted by
OWCP as job related, and any preexisting permanent impairment of the same member or function. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(d)
(February 2013).

3

argument. It is well established that the conditions accepted by OWCP should be identified so
the physician can properly assess the issue presented.6
The Board, therefore, finds appellant has advanced a relevant legal argument that OWCP
failed to correctly consider the relevant medical conditions.
Pursuant to 20 C.F.R.
§ 10.606(b)(2), appellant is entitled to a merit review of the claim. The case will be remanded
for a decision by OWCP on the merits of the claim. In light of the Board’s finding, it is
premature to address additional arguments on appeal.
CONCLUSION
The Board finds appellant is entitled to a merit review of the claim
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this decision.
Issued: January 20, 2015
Washington, DC

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

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

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

6

See, e.g., Gwendolyn Merriweather, 50 ECAB 411, 415 (1999).

4


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

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

Docket No. 20-1275
Issued: January 29, 2021

Case Submitted on the Record

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

JURISDICTION
On June 17, 2020 appellant, through counsel, filed a timely appeal from a May 11, 2020
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

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 appellant has met her burden of proof to establish bilateral shoulder
conditions causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On September 27, 2018 appellant, then a 58-year-old delivery barcode sorter clerk
(DBSC), filed an occupational disease claim (Form CA-2) alleging that she developed biceps
tendinitis, rotator cuff disease, and a bilateral shoulder injury due to factors of her federal
employment, including repetitive motions, heavy lifting, pulling, and pushing. She noted that she
first became aware of her conditions and their relation to factors of her federal employment on
June 7, 2017. Appellant indicated that shoulder injuries were extremely common in her job.3 She
did not stop work.
A March 5, 2018 duty status report (Form CA-17) with an illegible signature included a
diagnosis of bilateral shoulder tendinitis and rotator cuff syndrome based on a February 26, 2018
examination. The form report indicated that appellant’s conditions were caused by repetitive
lifting, pulling, and side-to-side sweeping. Recommendations for her work restrictions were
provided.
In a March 15, 2018 statement, appellant explained that she had been a mail processing
clerk for 20 years and claimed that the activities of her employment were the cause of thousands
of shoulder injuries. She made note of her previous claims for left shoulder injuries under OWCP
File Nos. xxxxxx599 and xxxxxx760, which she asserted were caused while working the DBCS
machines. Appellant indicated that her injuries were caused by the repetitive motions involved
with operating the machines, including heavy lifting, above-head lifting, loading and unloading
mail, moving large metal racks filled with mail, sweeping, loading mail, placing sleeves on trays
of mail, as well as pushing and pulling cases of mail. She informed her supervisor multiple times
that placing the sleeves on the mail aggravated her previous shoulder injuries and that it would be
better to use the sleeving machines, but claimed that her complaints were ignored. Appellant
asserted that the unnecessary manual sleeving, along with the other machine functions and
repetitive motions, had caused her to reinjure her shoulders. She also described a February 7, 2018
incident in which she was working a DBCS machine and injured her left shoulder while pulling a
full tray of mail that weighed about 15 pounds. Appellant received a second opinion, as well as
an injection, from her doctor and on February 28, 2018 she reported severe pain that prevented her
from completing her work.
In an undated medical report with no signature, appellant was evaluated for bilateral
shoulder pain and received information explaining that repetitive motion was a cause of biceps
tendinitis and rotator cuff disease, which was very consistent with her job. The medical report
3

Appellant previously filed a Form CA-2 on January 19, 2002 for a left shoulder injury under OWCP File No.
xxxxxx599. On April 4, 2002 OWCP accepted her claim for left shoulder impingement syndrome. On August 29,
2011 appellant filed a Form CA-2 for a bilateral shoulder injury under OWCP File No. xxxxxx760. On November 7,
2011 OWCP accepted this claim for a disorder of bursae and tendons in the shoulder, region, unspecified, bilateral.
Appellant’s claims have not been administratively combined.

2

provided that rotator cuff disease was a spectrum of disorders ranging from rotator cuff tendinitis
to full-thickness rotator cuff tears. Appellant underwent an injection and was referred to physical
therapy.
In a development letter dated October 22, 2018, OWCP informed appellant of the
deficiencies of her claim and advised her of the factual and medical evidence necessary to establish
her claim. It afforded her 30 days to respond. No additional evidence was received.
By decision dated December 4, 2018, OWCP denied appellant’s occupational disease
claim, finding that the medical evidence of record was insufficient to establish causal relationship
between her diagnosed medical conditions and the accepted factors of her federal employment.
On October 18, 2019 appellant requested reconsideration of OWCP’s December 4, 2018
decision and submitted additional evidence.
In a June 7, 2017 medical report, Dr. Reuben Gobezie, a Board-certified orthopedic
surgeon, evaluated appellant for complaints of shoulder biceps pain that she had experienced for
years. He diagnosed left shoulder biceps tendinitis, lumbar region radiculopathy, and right
shoulder biceps tendinitis and administered injections to treat her symptoms.
On December 2, 2017 Dr. Gobezie evaluated appellant for bilateral shoulder pain. He
diagnosed bicipital tendinitis, left shoulder and administered an injection to her left shoulder.
Dr. Gobezie advised that appellant undergo a left shoulder magnetic resonance imaging (MRI)
scan for further evaluation.
In medical reports dated from February 26, 2018 to and June 24, 2019, Dr. Robert
Gillespie, a Board-certified orthopedic surgeon, and Dr. Gobezie evaluated appellant for left
greater than right shoulder pain and noted that an MRI scan4 of her left shoulder did not reveal any
evidence of a rotator cuff tear and that she was told that she had a torn biceps. They diagnosed
chronic left shoulder pain and bilateral shoulder pain and explained that repetitive use was often
the cause of biceps tendinitis and rotator cuff disease, which was very consistent with her job.
Dr. Gobezie noted that rotator cuff disease was a spectrum of disorders ranging from rotator cuff
tendinitis to full-thickness rotator cuff tears. Appellant underwent injections and was referred to
physical therapy.
In a July 2, 2019 medical report, Dr. Irwin Mandel, a Board-certified orthopedic surgeon,
evaluated appellant for left shoulder pain she had experienced from repetitive motions over the
past two years. He diagnosed left long head biceps tendinitis and shoulder bursitis/tendinitis.
Dr. Mandel observed that appellant’s symptoms began in June 2017 when she was lifting at work
and injured her shoulder and opined that her conditions were work related and causally related to
her employment. He also provided home exercises to treat her associated symptoms.

4
Upon review of the MRI scan, Dr. Gobezie noted that it was a very poor quality and that visualization of the joint
was not clear.

3

By decision dated November 1, 2019, OWCP denied modification of its December 4, 2018
decision.
On April 9, 2020 appellant, through counsel, requested reconsideration of OWCP’s
November 1, 2019 decision and submitted additional evidence.
In a December 18, 2017 diagnostic report, Dr. Tim Chen performed an MRI scan of
appellant’s left shoulder and found mild supraspinous tendinosis with a new intermediate grade
articular-sided/interstitial tear at the anterior insertion, as well as mild acromioclavicular joint
osteoarthritis.
In a December 6, 2019 diagnostic report, Dr. Daniel Paulson, a diagnostic radiologist,
performed an MRI scan of appellant’s left shoulder and found a full-thickness full width tears of
the supraspinatus and infraspinatus with associated medial retraction.
In a December 12, 2019 medical report, Dr. Mandel reviewed appellant’s December 6,
2019 MRI scan of her left shoulder and noted her history of repetitive trauma to the left shoulder
with her work. He diagnosed a left full-thickness rotator cuff tear and biceps tear and dislocation.
In medical reports dated from January 2 to February 20, 2020, Dr. Timothy Nice, a Boardcertified orthopedic surgeon, reviewed the history of appellant’s left shoulder injury dating back
to June 2017. He noted that she had two previous left shoulder injury claims as well as her 20
years of federal employment where she performed repetitive transfers of mail into baskets.
Dr. Nice provided that over time appellant developed a chronic impingement syndrome and
ongoing pathology in her shoulder. He also reviewed her history of treatment with Drs. Gobezie,
Gillespie and Mandel. Dr. Nice indicated that appellant underwent an MRI scan on January 31,
2020 that revealed that she had sustained complete tears of the supraspinatus muscle and the
infraspinatus tendons with associated significant muscle atrophy. He also found a complete tear
of the biceps tendon and moderate osteoarthritis of the left glenohumeral joint as well as a joint
effusion with leaking of the subacromial and subdeltoid bursas. Dr. Nice noted a significant
change from appellant’s 2017 diagnostic studies and her most recent studies. He opined that her
chronic wear issues over the 20-year period with chronic impingement syndrome is the reason her
shoulder was in its current condition.
By decision dated May 11, 2020, OWCP denied modification of its November 1, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
5
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

4

to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.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) 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 identified employment factors.8
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP previously accepted on April 4, 2002 and November 7, 2011 that appellant
sustained left shoulder impingement syndrome and a disorder of bursae and tendons in shoulder,
region, unspecified, bilateral due to her employment duties as a DCBS clerk, under OWCP File
Nos. xxxxxx599 and xxxxxx760, respectively. On September 27, 2018 appellant filed the current
claim for various bilateral shoulder conditions caused by her repetitive duties as a DCBS clerk.

6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
9

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

10

M.V., Docket No. 18-0884 (issued December 28, 2018).

11

Id.; Victor J. Woodhams, supra note 8.

12

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

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In support of her claim, appellant submitted multiple medical reports from Drs. Gobezie,
Gillespie, Mandel and Nice in which they all noted appellant’s previous left shoulder injuries and
observed her federal employment duties that required her to perform multiple repetitive activities.
Specifically, Dr. Nice opined that her chronic wear issues over her 20 years of federal employment
with chronic impingement syndrome was the reason her shoulder was in its current condition.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.13 For example, if
a new injury case is reported for an employee who previously filed an injury claim for a similar
condition of the same part of the body, doubling is required.14 OWCP had previously accepted
that appellant had sustained shoulder conditions under OWCP File Nos. xxxxxx599 and
xxxxxx760; however, these cases have not been administratively combined with the present file.
As such, the Board is unable to review all of the factual and medical evidence under the present
case file, which relates to a similar condition and the same bodily member that is contested in the
present claim.
For a full and fair adjudication, the case must be remanded to OWCP to administratively
combine OWCP File Nos. [xxxxxx599, xxxxxx760 and the present case file.15 Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); D.M., Docket No. 19-0340 (issued October 22, 2019).
14

Id.; D.T., Docket No. 19-1375 (issued March 24, 2020); D.L., Docket No. 17-1588 (issued January 28, 2019).

15

K.T., Docket No. 17-0432 (issued August 17, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the May 11, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: January 29, 2021
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Juan, PR, Employer
__________________________________________

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

Docket No. 07-419
Issued: May 7, 2007

Case Submitted on the Record

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

JURISDICTION
On December 12, 2006 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated November 9, 2006. Under 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 sustained a recurrence of disability as of September 1,
2004 causally related to his accepted bilateral carpal tunnel, radiculopathy and degenerative
lumbar disc conditions.
FACTUAL HISTORY
Appellant, a 49-year-old laundry worker, filed a Form CA-2 claim for benefits in
February 2000, alleging that he developed a bilateral carpal tunnel condition causally related to
factors of his employment. He stated that he became aware that this condition was employment

related as of May 3, 1999. The Office accepted the claim for bilateral carpal tunnel syndrome,
cervical radiculopathy and lumbar degenerative disc disease.
On August 25, 2005 appellant filed a Form CA-2a claim for benefits, alleging that he
sustained a recurrence of his disability as of September 1, 2004 causally related to his accepted
carpal tunnel, cervical and degenerative lumbar disc conditions. He submitted a November 29,
2004 report from Dr. Nydia Brugueras, a specialist in internal medicine. Dr. Brugueras reviewed
appellant’s medical history and stated that she initially examined him on September 8, 2004,
when he related severe neck pain, dizziness, low back pain, parasthesis in each hand, frequent
dizziness, palpations, occasional chest pain, difficulty breathing and fatigue. On October 15,
2004 appellant related that he experienced continued neck and low back pain, in addition to
cardiological pain. Dr. Brugueras advised that, on November 29, 2004, appellant stated that he
was experiencing severe neck pain, headaches and dizziness. She opined that appellant could
return to work for three hours per day with restrictions, but his disabilities were permanent, with
progressive deterioration. Dr. Brugueras concluded that appellant could not perform the
essential functions of his job, even with accommodations.
By letter dated September 21, 2005, the Office advised appellant that it required
additional factual and medical evidence to determine whether he was eligible for compensation
benefits based on a recurrence of disability. The Office asked appellant to submit a medical
report from his treating physician containing an opinion as to whether his claimed condition as of
September 1, 2004 was causally related to his accepted employment conditions.
By decision dated November 14, 2005, the Office denied appellant compensation for a
recurrence of his accepted bilateral carpal tunnel, cervical and degenerative lumbar disc
conditions.
Appellant requested reconsideration and submitted an August 15, 2006 report from
Dr. Brugueras, who essentially reiterated her previous findings and conclusions.
By decision dated November 9, 2006, the Office denied modification of the November 14,
2005 decision.
LEGAL PRECEDENT
An individual who claims a recurrence of disability resulting from an accepted
employment injury has the burden of establishing that the disability is related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury, and who supports that conclusion with sound medical
reasoning.1

1

Dennis E. Twardzik, 34 ECAB 536 (1983); Max Grossman, 8 ECAB 508 (1956); 20 C.F.R. § 10.121(a).

2

ANALYSIS
Appellant has failed to submit any medical opinion containing a rationalized, probative
report which relates his condition or disability as of September 1, 2004 to his accepted bilateral
carpal tunnel, cervical and degenerative lumbar disc conditions. For this reason, he has not
discharged his burden of proof to establish his claim that he sustained a recurrence of disability
as a result of his accepted employment conditions.
The only medical evidence which appellant submitted consisted of the reports from
Dr. Brugueras. The weight of the medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physician’s knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of stated conclusions.2 Dr. Brugueras’ reports provided a history
of appellant’s injury and a diagnosis of his current conditions and indicated generally that
appellant complained of disabling pain as of September 1, 2004, but did not contain a probative,
rationalized medical opinion sufficient to establish that appellant’s disability as of September 1,
2004 was causally related to his accepted bilateral carpal tunnel, cervical and degenerative
lumbar disc conditions.
Dr. Brugueras noted in her November 29, 2004 report that appellant related severe neck
pain, dizziness, low back pain, parasthesis in each hand, frequent dizziness, palpations,
occasional chest pain, difficulty breathing and fatigue during the September 8, 2004
examination. Appellant continued to relate complaints of pain during his October 15 and
November 29 2004 visits, in addition to cardiological pain and headaches. Dr. Brugueras
advised that appellant could return to work for three hours per day with permanent restrictions,
but could not return to his preinjury job. She opined that he would continue to experience
progressive deterioration.
Dr. Brugueras’ report did not contain sufficient medical evidence demonstrating a causal
connection between appellant’s employment-related condition and his alleged recurrence of
disability. Causal relationship must be established by rationalized medical opinion evidence.
Dr. Brugueras did not explain the medical process through which any of appellant’s accepted
conditions would have been competent to cause the alleged recurrence of disability.
Dr. Brugueras’ opinion, therefore, is of limited probative value as it does not contain any medical
rationale explaining how or why appellant’s accepted condition is causally related to his alleged
recurrence of disability.3 Appellant has thus failed to submit evidence to show he sustained a
worsening of his bilateral carpal tunnel, cervical and degenerative lumbar disc conditions or was
totally disabled from all work after September 1, 2004. As he did not submit medical evidence
sufficient to establish that he sustained a recurrence of his work-related bilateral carpal tunnel,
cervical and degenerative lumbar disc conditions, the Office denied compensation for a
recurrence of disability in its November 14, 2005 decision.4
2

See Ann C. Leanza, 48 ECAB 115 (1996).

3

William C. Thomas, 45 ECAB 591 (1994).

4

Id.

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Following the November 14, 2005 decision, appellant submitted Dr. Brugueras’
August 15, 2006 report. Dr. Brugueras noted appellant’s increasing difficulties with his bilateral
carpal tunnel, cervical and degenerative lumbar disc conditions and reiterated that appellant
could only return to work on a limited basis, with numerous restrictions, and was permanently
disabled from working as a laundry worker. This report, however, did not address the causal
connection, if any, between appellant’s employment-related conditions and his alleged
recurrence of disability. While Dr. Brugueras’ reports stated findings and provided diagnoses of
appellant’s current conditions, she failed to provide an explanation of how appellant’s bilateral
carpal tunnel, cervical and degenerative lumbar disc conditions would cause or contribute to his
alleged disability as of September 1, 2004.
Dr. Brugueras, therefore, failed to submit probative, rationalized medical evidence
sufficient to establish that appellant’s current condition was causally related to his accepted
May 1999 conditions. Appellant has therefore failed to submit sufficient medical evidence
supporting his claim that he sustained a recurrence of his employment-related disability as of
September 1, 2004. The Office properly found that appellant was not entitled to compensation
based on a recurrence of disability.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he was entitled to
compensation for a recurrence of disability as of September 1, 2004 causally related to his
accepted bilateral carpal tunnel, cervical and degenerative lumbar disc conditions.

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ORDER
IT IS HEREBY ORDERED THAT the November 9, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: May 7, 2007
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

5