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

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

Docket No. 11-1625
Issued: October 21, 2011

Case Submitted on the Record

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

JURISDICTION
On July 8, 2011 appellant filed a timely appeal from a June 27, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the June 27, 2011 nonmerit decision. The Board does not have jurisdiction over the merits of the
claim.2
ISSUE
The issue is whether OWCP properly found appellant’s application for reconsideration
was untimely and failed to show clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The last OWCP decision on the merits of the claim was dated February 24, 2000, and was reviewed by the
Board in a September 25, 2002 decision. For final adverse OWCP decisions issued prior to November 19, 2008, a
claimant had one year to file an appeal. 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions dated
November 19, 2008 and after, a claimant has 180 days to timely file an appeal. 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
The case has previously been before the Board. In a decision dated September 25, 2002,
the Board affirmed the termination of appellant’s compensation as of June 1, 1992.3 The Board
found that the weight of the medical evidence was represented by second opinion psychiatrist,
Dr. Reynaldo Abejuela, who submitted reports dated February 1, 1996 to March 12, 1997. In a
decision dated March 14, 2005, the Board affirmed a June 13, 2003 OWCP decision denying
appellant’s request for reconsideration without merit review of the claim.4 On August 23, 2006
the Board affirmed a November 21, 2005 OWCP decision finding appellant’s application was
untimely and failed to show clear evidence of error.5 By decision dated June 2. 2008, the Board
affirmed a September 11, 2007 OWCP decision finding appellant’s application for review was
untimely and failed to show clear evidence of error.6 Again on May 7, 2010, the Board found
that appellant’s application for reconsideration was untimely and failed to show clear evidence of
error.7 The history of the case is provided in the Board’s prior appeals and is incorporated herein
by reference.
By letter dated March 31, 2011, appellant requested reconsideration of his claim. He
stated that there was “new information and evidence” and stated that he expected reconsideration
for “PTSD 2007” and for left knee replacement in 2011. Appellant submitted a June 12, 2007
letter from OWCP stating that they assumed a May 31, 2007 letter was a request for
reconsideration, noting that he had referred to post-traumatic stress disorder (PTSD). On
April 4, 2011 he submitted an additional statement referring to “clear evidence of error” and
stated that OWCP accepted an on-the-job injury on March 26, 1997 after he was “wrongfully
terminated” February 20, 1995.8 Appellant stated that Dr. Lawrence Moss, a psychiatrist, and
Dr. Ibrahim Farid, an occupational medicine specialist, opined that he could not work. He
submitted an August 31, 1992 report from Dr. Farid stating that, based on medical and
employment records and discussions with Dr. Moss, he felt appellant was not fit for postal
employment in any capacity. Appellant also submitted portions of a December 1, 1992 report
from Dr. Moss, who stated that appellant could return to full-time employment.
By decision dated June 27, 2011, OWCP determined that appellant’s application for
reconsideration was untimely. It further held that the application did not show clear evidence of
error and therefore was insufficient warrant reopening the claim for merit review.

3

Docket No. 00-1176 (issued September 25, 2002). OWCP had accepted adjustment disorder and temporary
aggravation of paranoid personality disorder due to an October 4, 1991 compensable incident.
4

Docket No. 03-1724 (issued March 14, 2005).

5

Docket No. 06-375 (issued August 23, 2006), petition for recon. denied (issued January 24, 2007).

6

Docket No. 07-2386 (issued June 2, 2008), petition for recon. denied (issued October 30, 2008).

7

Docket No. 09-1498 (issued May 7, 2010), petition for recon. denied (issued August 20, 2010).

8

On March 26, 1997 OWCP advised appellant that his claim was accepted for adjustment disorder and temporary
aggravation of paranoid personality disorder, resolved as of June 1, 1992.

2

LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.9 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”10
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.11 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.12 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA. As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be sent within one year of the date of OWCP’s decision for which review is
sought. OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The evidence must be
positive, precise and explicit and must manifest on its face that OWCP committed an error.13
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.14 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.15 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.16 The Board makes an independent
determination as to whether a claimant has submitted clear evidence of error on the part of
OWCP.17
ANALYSIS
Appellant’s application for reconsideration was dated March 31, 2011. The last decision
on the merits of the claim was the Board’s September 25, 2002 decision. Since the application
9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.605 (1999).

11

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

12

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
13

Robert F. Stone, 57 ECAB 292 (2005); D.O., Docket No. 08-1057 (issued June 23, 2009).

14

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

15

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

16

Id.

17

Thankamma Mathews, 44 ECAB 765 (1993).

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for reconsideration was filed more than one year after the decision on the merits of the claim, it
was untimely filed.
As the application for reconsideration was untimely, appellant must show clear evidence
of error by OWCP. The underlying merit issue was the determination that appellant’s
employment-related condition had resolved by June 1, 1992. Appellant has submitted statements
in which he uses the phrase “clear evidence of error” and cites Board case law, without
specifically explaining how the evidence establishes clear evidence of error by OWCP. There is
a reference to PTSD in 2007, but the June 12, 2007 letter from OWCP resubmitted by appellant
simply indicates that OWCP advised appellant that his May 31, 2007 letter was considered an
application for reconsideration. As to a left knee condition, which appellant indicated had
required surgery, this was not an accepted condition related to the employment injury in this
case. Appellant submitted no evidence of error in this regard.
With regard to medical evidence, appellant resubmitted an August 31, 1992 report from
Dr. Farid and two pages of a December 1, 1992 report from Dr. Moss. Dr. Farid does not
provide a complete factual and medial background, does not discuss the compensable work
factor or provide a reasoned medical opinion regarding an employment-related disability. His
report does not establish clear evidence of error. The December 1, 1992 report from Dr. Moss
indicated only that appellant at that time could return to work. Appellant did not submit a
complete report and there is no discussion of an employment-related disability as of
June 1, 1992. It does not establish clear evidence of error by OWCP. As noted above, the
evidence must be of such probative value that it shifts the weight of the evidence in favor of the
claimant.
The Board finds that the untimely application for reconsideration in this case does not
establish clear evidence of error by OWCP in terminating compensation as of June 1, 1992.
Appellant was not entitled to a merit decision and OWCP properly denied the application for
reconsideration in this case.
On appeal, appellant repeats his assertions that OWCP improperly terminated his
compensation and that all prior decisions are incorrect. The issue on appeal is clear evidence of
error, and for the above reasons the Board finds appellant did not establish clear evidence of
error by OWCP.
CONCLUSION
The Board finds appellant’s application for reconsideration was untimely and failed to
show clear evidence of error.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 27, 2011 is affirmed.
Issued: October 21, 2011
Washington, DC

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

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

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

5


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

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

Docket No. 13-1307
Issued: December 3, 2013

Case Submitted on the Record

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

JURISDICTION
On May 8, 2013 appellant filed a timely appeal from an April 29, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. 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 overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of $56,316.66 for the
period March 1, 2009 to February 9, 2013 because he received compensation from OWCP after
he elected retirement benefits from the Office of Personnel Management (OPM); and (2) whether
he was at fault in the creation of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated October 21, 2009, the
Board affirmed an October 21, 2008 nonmerit decision denying appellant’s request for
reconsideration as it was not timely filed and did not demonstrate clear evidence of error.2 On
March 10, 2011 the Board affirmed a March 2, 2010 nonmerit decision denying his untimely
request for reconsideration on the grounds that he failed to establish clear evidence of error.3 In
a decision dated April 5, 2012, the Board affirmed a July 19, 2011 decision finding that
appellant’s request for reconsideration was untimely and insufficient to show clear evidence of
error.4 The facts and the circumstances as set forth in the prior decisions are hereby incorporated
by reference. The facts pertinent to the instant appeal are set forth.
OWCP paid appellant wage-loss compensation for four hours a day beginning
September 6, 2002. On May 19, 2012 appellant noted that he wanted to receive benefits from
OPM beginning on the date of his retirement. He asked OWCP to inform him in writing of the
date that his compensation would end. On September 3, 2012 appellant submitted a completed
election form to OWCP to receive retirement benefits from OPM effective March 1, 2009. By
letter dated February 4, 2013, OWCP advised him that he was not entitled to receive workers’
compensation benefits and retirement benefits for the same period. It enclosed another election
form. On February 7, 2013 appellant again elected to receive retirement benefits from OPM
effective March 1, 2009.
On March 4, 2013 OWCP advised appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $56,316.66 because he received
benefits from OWCP from March 1, 2009 to February 9, 2013 but elected to receive
compensation retroactively from OPM beginning March 1, 2009. It further advised him of its
preliminary determination that he was at fault in the creation of the overpayment. OWCP
requested that he complete an enclosed overpayment recovery questionnaire and submit
supporting financial documents. Additionally, it notified him that, within 30 days of the date of
2

Docket No. 09-435 (issued October 21, 2008). On July 29, 1985 appellant, then a 30-year-old letter carrier,
sustained acute lumbar strain and a herniated disc at L5 in the performance of duty. He returned to part-time work
on September 12, 2002 and received compensation from OWCP for two hours per day. By decision dated
October 24, 2003, a hearing representative reopened appellant’s case for review under section 8128 and reversed
OWCP decisions terminating his compensation for refusing suitable work. The hearing representative instructed
OWCP to refer him for an impartial medical examination. OWCP paid appellant compensation for total disability
from July 15, 2000 to September 6, 2002 and compensation for four hours per day effective September 6, 2002. By
decision dated May 24, 2004, it found that he did not establish an employment-related recurrence of disability
beginning April 16, 2003. OWCP continued to pay appellant compensation for four hours per day. On April 20,
2005 a hearing representative vacated the May 24, 2004 decision and remanded the case for clarification from
Dr. Paul Liebert, a Board-certified orthopedic surgeon, regarding whether appellant sustained a recurrence of
disability beginning April 16, 2003. Based on Dr. Liebert’s opinion, by decisions dated November 29, 2005 and
April 21, 2006, OWCP found that appellant did not establish a recurrence of disability beginning April 16, 2003. In
decisions dated October 21, 2008, March 2, 2010 and July 19, 2011, it denied his requests for reconsideration as
untimely and insufficient to show clear evidence of error.
3

Docket No. 10-1278 (issued March 10, 2011).

4

Docket No. 11-1983 (issued April 5, 2012).

2

the letter, he could request a telephone conference, a final decision based on the written evidence
or a prerecoupment hearing.
On March 13, 2013 appellant requested a decision based on the written evidence. He
asserted that he was not at fault in creating the overpayment. In an accompanying statement,
appellant maintained that he had not provided inaccurate information to OWCP regarding an
overpayment or accepted a payment to which he was not entitled as he had not received any
money from OPM. He related, “As I have stated, I have had my OWCP stopped and still have
not received any benefits from OPM.”
By decision dated April 29, 2013, OWCP determined that appellant received an
overpayment of $56,316.66 because he retroactively elected to receive compensation from OPM
when he had already received compensation benefits from OWCP. It further found that he was
at fault in creating the overpayment.5 OWCP determined that appellant should submit a check
for the full amount of the overpayment as repayment.
On appeal appellant contends that he was not at fault in creating the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of FECA6 defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.7 The implementing regulations provide that a “beneficiary may not receive
wage-loss compensation concurrently with a federal retirement or survivor annuity.”8 The
beneficiary must elect the benefit that he or she wishes to receive.9
ANALYSIS -- ISSUE 1
On September 3, 2012 appellant elected to receive OPM retirement benefits retroactive to
March 1, 2009 in lieu of compensation from OWCP. The record reflects that OWCP paid wageloss compensation for partial disability from March 1, 2009 to February 9, 2013. As appellant
elected to receive OPM retirement effective March 1, 2009, any wage-loss compensation
received from OWCP for a period on or after that date constitutes an overpayment of benefits.10
Appellant is not eligible to receive wage-loss compensation and retirement benefits from OPM
5

In a telephone call dated April 29, 2013, appellant related that he had received a check from OPM and requested
repayment information. The claims examiner indicated that he had already issued the overpayment determination
requesting payment in full.
6

5 U.S.C. § 8101 et seq.

7

Id. at § 8116(a).

8

20 C.F.R. § 10.421(a)

9

Id.

10

See Franklin L. Bryan, 56 ECAB 310 (2005).

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for the same time period.11 An overpayment arose after his election of benefits as he was not
entitled to the amount paid by OWCP for the period March 1, 2009 to February 9, 2013.
Accordingly, the Board finds that appellant received an overpayment of compensation in the
amount of $56,631.66 for the period March 1, 2009 to February 9, 2013.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA12 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of OWCP’s implementing regulations13
provide that in determining whether a claimant is at fault, it will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be incorrect.”
ANALYSIS -- ISSUE 2
OWCP denied appellant’s request for waiver of recovery of the overpayment because it
found that he was at fault in creating the overpayment. It determined that he knew or should
have known that he could not receive retirement benefits from OPM and compensation from
OWCP concurrently. However, the issue is not whether appellant was familiar with OWCP’s
prohibition against receiving dual benefits, but whether he accepted a payment which he knew or
should have known to be incorrect.14 On September 3, 2012 appellant elected benefits from
OPM retroactive to March 1, 2009 in lieu of compensation from OWCP. On February 4, 2013
OWCP notified him that he was not entitled to receive workers’ compensation benefits and
retirement benefits concurrently and enclosed an election form. On February 7, 2013 appellant
again elected retirement benefits from OPM effective March 1, 2009. He did not, however,
receive any payment from OPM from March 1, 2009 to February 9, 2013, the period of the
overpayment. Although appellant was generally aware that he could not simultaneously receive
OPM benefits and workers’ compensation payments, no payment was made by OPM during the
period in question and there is no evidence that he accepted a payment during this period that he
knew or should have known was incorrect.15 Accordingly, OWCP’s finding that he was at fault
11

20 C.F.R. § 10.421(a).

12

5 U.S.C. § 8129(b).

13

20 C.F.R. § 10.433.

14

See 20 C.F.R. § 10.433(a).

15

See Franklin L. Bryan, supra note 10.

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in creating the overpayment will be set aside. The case will be remanded for a determination of
whether appellant is entitled to waiver of recovery of the overpayment.
CONCLUSION
The Board finds that appellant received an overpayment of $56,316.66 for the period
March 1, 2009 to February 9, 2013 because he received compensation from OWCP after he
retroactively elected retirement benefits from OPM. The Board further finds that he was without
fault in creating the overpayment. The case is remanded to OWCP for a determination of
whether appellant is entitled to wavier of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this decision.
Issued: December 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, BUFFALO POST
OFFICE, Buffalo, NY, Employer
__________________________________________

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

Docket No. 20-0178
Issued: August 23, 2021

Case Submitted on the Record

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

JURISDICTION
On October 31, 2019 appellant filed a timely appeal from a May 10, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year has
elapsed from OWCP’s last merit decision, dated May 1, 2018, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of her claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of
error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 16, 2017 appellant, then, 63-year-old letter carrier, filed a notice of recurrence
(Form CA-2a) alleging that she sustained a recurrence of disability as a result of an April 30, 2011
left knee employment injury.2 She claimed that on approximately September 6, 2017, while
walking to her vehicle, her left knee unexpectedly buckled, and she twisted it when she tried to
regain balance while in the performance of duty. Appellant indicated that her left knee has been
unstable with cartilage loss following her original injury and subsequent surgery, causing
weakness and for it to frequently buckle. On the reverse side of the claim form the employing
establishment indicated that appellant did not stop work and had been accommodated with
modified job duties following her original injury.3
A September 27, 2017 left knee magnetic resonance imaging (MRI) scan demonstrated a
tricompartmental degenerative change with full-thickness cartilage defects, complex tearing of the
posterior horn and the medial meniscus, sequela of prior high-grade anterior cruciate ligament
(ACL) injury, small-to-moderate popliteal cyst, and small joint effusion with synovial
hypertrophy.
In an August 15, 2017 work capacity evaluation (Form OWCP-5c), Dr. Mark Anders, a
Board-certified orthopedic surgeon, advised that appellant had permanent work restrictions
resulting from her previously accepted work injury under OWCP File No. xxxxxx095, consisting
of no repetitive use of stairs, reaching above the shoulder, climbing, as well as no pushing, pulling,
or lifting more than 20 pounds.
In an October 3, 2017 medical report, Dr. Anders noted that the September 28, 2017 MRI
scan demonstrated some degree of tricompartmental osteoarthritis as well as a degenerative
meniscus tear. He recommended a new x-ray and left knee arthroscopy with partial medial
meniscectomy. In a Form OWCP-5c of even date, Dr. Anders modified appellant’s permanent
work restrictions to include no bending/stooping, as well as no climbing into a mail vehicle,
driving, winter walking while delivering mail, or street walking while delivering mail with a 20pound bag. He also limited appellant’s walking to inside only.
In a letter dated October 19, 2017, a health and resource management specialist for the
employing establishment provided OWCP a copy of a modified city carrier position offered to
appellant on September 25, 2017, based on the work restrictions provided by Dr. Anders in his
August 15, 2017 report. She requested that it determine whether appellant could perform the duties
of the offered position.4

2

OWCP previously accepted appellant’s claim for a left knee meniscus tear and strain resulting from the April 30,
2011 employment incident under OWCP File No. xxxxxx095.
3

A March 1, 2018 employing establishment notification of personnel action (PS Form 50) indicated that appellant
retired, effective December 31, 2017.
4
In an October 19, 2017 report of work status (Form CA-3), the employing establishment informed OWCP that
appellant had accepted its new offer of modified assignment on October 16, 2017.

2

In a response dated December 18, 2017, OWCP informed the employing establishment that
the September 25, 2017 offer of the modified city carrier position was not suitable for appellant,
finding that it exceeded work restrictions provided by Dr. Anders in his October 3, 2017 work
capacity evaluation.
In a December 19, 2017 development letter, OWCP provided a definition of a recurrence
of disability. It advised appellant of the factual and medical evidence necessary to establish her
claim, provided a questionnaire for her completion, and afforded her 30 days to submit additional
evidence.
In a December 15, 2015 medical report, Dr. Anders noted that appellant presented with
arthritic symptoms, but was managing with her work restrictions. He indicated that she
experienced a mild-to-moderate disability with regard to her bilateral knee osteoarthritis.
Dr. Anders opined that appellant had 50 percent temporary impairment.
An October 3, 2017 left knee x-ray report revealed moderate symmetric osteoarthritis of
both knees with medial joint space narrowing.
In an October 16, 2017 medical report, Dr. Thomas Bevilacqua, a Board-certified
diagnostic radiologist, noted April 30, 2011 as the date of incident and diagnosed osteoarthritis.
In a January 16, 2018 narrative response to OWCP’s development questionnaire, appellant
described her modified job duties following her original April 30, 2011 employment injury, which
included casing and handling mail. She explained that she struggled with her work duties because
it temporarily required her to perform street deliveries, which included climbing in and out of her
mail vehicle at least 14 times a day. Appellant indicated that Dr. Anders modified her work
restrictions after reviewing the September 27, 2017 left knee MRI scan, which revealed a torn
meniscus. She explained that she was then limited to working inside and worked with restrictions
until she retired on December 31, 2017. Appellant contended that she still had residuals from her
original employment injury.
In a January 17, 2018 medical report, Dr. Anders noted that appellant’s 2011 employmentrelated injury resulted in both meniscal and articular damages. He diagnosed a recurrent meniscal
tear and progressive degenerative osteoarthritis. Dr. Anders opined, although he could not say
with certainty, her current injury was “definitely more likely than not” attributed to and consequent
to her 2011 employment injury.
On January 18, 2018 appellant completed OWCP’s questionnaire, noting that her disability
occurred by simply walking and that there was no intervening cause except for her work activities.
She asserted that pain and instability of her left knee never went away following the April 30, 2011
employment injury. Appellant contended that her current condition was caused by the 2011
employment injury, which was made worse after her original meniscus surgery causing her left
knee to buckle, twist, and tear.
On February 22, 2018 OWCP notified appellant that her recurrence claim had been
administratively converted to an occupational disease under the current claim, File No. xxxxxx739.
It found that, based on her “description of the circumstances that prompted the filing of the Form

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CA-2a, [appellant was] really claiming a new occupational disease attributed to repetitive
work/exposure over the course of more than one work shift.”
In a March 22, 2018 development letter, OWCP informed appellant of the deficiencies in
her claim. It advised her of the factual and medical evidence necessary to establish her claim and
provided a factual questionnaire for completion. In a separate development letter of even date,
OWCP requested that the employing establishment provide additional information concerning
appellant’s claim. It noted that in the absence of a full reply from the employing establishment, it
may accept appellant’s allegations as factual. OWCP afforded both parties 30 days to submit the
requested information.
In a March 30, 2018 letter, appellant’s postmaster, A.E., indicated that appellant had
informed her that her left knee buckled and twisted when she was walking to her vehicle. She
explained that appellant’s modified work duties included casing, sorting, and pulling down mail
for about one hour a day. A.E. noted that appellant was accommodated with a stool to avoid
standing on her knee for a long period and was able to take a break if needed. She further noted
that additional help was available upon appellant’s request. A.E. indicated that appellant was
unable to perform any of the street activities due to the injury of her knee.
In an April 18, 2018 response to OWCP’s March 22, 2018 questionnaire, appellant
estimated that her injury occurred on or around September 6, 2017. She explained that her left
knee buckled so frequently and unpredictably that she did not write down actual dates. Appellant
indicated that her left knee started to buckle in 2015, when she started using a brace. She related
that when her knee buckled, it might be sore for a day or two before the pain would go away, but
on or around September 6, 2017, the pain did not subside. Appellant explained that she was not
working at the time of the September 6, 2017 incident, but was walking to her personal vehicle on
her own free time when her left knee spontaneously buckled without any intervening cause. She
indicated that she saw Dr. Anders on October 3, 2017, who increased her work restrictions and
advised her to avoid further damaging the left knee.
In a separate letter of even date, appellant contended that OWCP made a mistake,
converting her recurrence case to a new occupational disease claim. She noted that the employing
establishment had initially given her a Form CA-2a. Appellant argued that she was not released
from treatment for the accepted April 30, 2011 employment injury under OWCP File No.
xxxxxx095. She explained that she was experiencing symptoms of an articular damage on a daily
basis and that there was no way for her to keep track of every time her knee buckled. Appellant
noted that she wore a knee brace for stability in 2015. She contended that this buckling had been
going on since 2011.
By decision dated May 1, 2018, OWCP denied appellant’s occupational disease claim
finding that the medical evidence submitted was insufficient to establish causal relationship
between her condition and the accepted factors of her federal employment.
On May 7, 2019 appellant requested reconsideration. She argued that her case should have
been developed as a recurrence claim, not a new occupational disease claim. Appellant contended
that her current injury was a consequential injury of the previously accepted April 30, 2011
employment injury under OWCP File No. xxxxxx095.

4

By decision dated May 10, 2019, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.6 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.7 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).8 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA (5 U.S.C. § 8128(a)).9
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely filed, it must nevertheless undertake
a limited review to determine whether the application demonstrates clear evidence of error.10
OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s request demonstrates clear evidence of error on the part of OWCP.11
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.12 The Board
notes that clear evidence of error is intended to represent a difficult standard.13 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to

5
5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
6

20 C.F.R. § 10.607(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

8

Id. at Chapter 2.1602.4(b) (February 2016).

9

See R.L., Docket No. 18-0496 (issued January 9, 2019).

10

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

11

Id. at § 10.607(b); Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.1602.5(a) (February 2016).

12

G.G., supra note 10.

13

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 9.

5

demonstrate clear evidence of error.14 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.15 This entails a limited review by OWCP of
the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.16 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.17 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.18
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. The last merit decision of record was OWCP’s May 1, 2018
decision. As appellant’s request for reconsideration was received by OWCP on May 7, 2019, more
than one year after the May 1, 2018 merit decision, it was untimely filed. Consequently, she must
demonstrate clear evidence of error by OWCP in denying her claim.19
The Board finds that the evidence submitted in support of appellant’s untimely request for
reconsideration raises a substantial question as to the correctness of OWCP’s May 1, 2018 merit
decision and is sufficient to demonstrate clear evidence of error.20
Appellant filed a notice of recurrence after working in a modified-duty capacity following
the accepted April 30, 2011 left knee employment injury under OWCP File No. xxxxxx095. In a
February 22, 2018 development letter, OWCP informed her that her recurrence claim had been
administratively converted to an occupational disease claim. It found that, based on her description
of the circumstances, appellant was claiming a new occupational disease attributed to repetitive
work/exposure over the course of more than one work shift. OWCP provided no further
explanation.
Appellant has consistently maintained that OWCP should have developed the claim as one
for a recurrence under OWCP File No. xxxxxx095. In her April 18, 2018 response to the
development letter, she asserted that that OWCP made a mistake converting her recurrence case
to a new occupational disease claim. Appellant noted that the employing establishment had
initially given her a Form CA-2a. She further argued that she was not yet released from treatment
14

E.B., Docket No. 18-1091 (issued December 28, 2018).

15

J.W., Docket No. 18-0703 (issued November 14, 2018).

16

P.L., Docket No. 18-0813 (issued November 20, 2018).

17

D.G., 59 ECAB 455 (2008); A.F., 59 ECAB 714 (2008).

18

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

19

Supra note 7; See also Debra McDavid, 57 ECAB 149 (2005).

20

See S.M., Docket No. 18-1499 (issued February 5, 2020) (OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation, if the claimant’s request for reconsideration shows clear evidence of
error on the part of the OWCP).

6

for the accepted April 30, 2011 employment injury under OWCP File No. xxxxxx095. However,
in its May 1, 2018 decision OWCP did not reference or discuss appellant’s contention of the
unilateral conversion from a recurrence to a new occupational disease claim.
Federal (FECA) Procedure Manual provides that, while a submission of an incorrect form
is a technical error, it is improper to deny a case because a claimant failed to submit the correct
form. Rather, OWCP should convert the incorrect claim form to the correct type and notify the
claimant and the employing establishment that the claim has been converted and explain the
reasons for the conversion.21
As OWCP did not reference or discuss appellant’s contentions, nor explained the reasons
for its conversion the Board therefore finds that she has raised a substantial question as to the
correctness of the May 1, 2018 merit decision and, thus, has demonstrated clear evidence of error.22
The Board will reverse OWCP’s May 10, 2019 decision and remand the case for an
appropriate decision on the merits of appellant’s claim.
CONCLUSION
The Board finds that appellant has demonstrated clear evidence of error in OWCP’s
May 10, 2018 merit decision and, thus, OWCP improperly denied her request for reconsideration
of the merits of her claim.

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.800.3(c)(2) (June 2011).

22

B.C., Docket No. 20-0465 (issued November 19, 2020)

7

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2019 decision of the Office of Workers’
Compensation Programs is reversed and this case is remanded for further proceedings consistent
with this decision of the Board.
Issued: August 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


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

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

Docket No. 12-1315
Issued: November 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 31, 2012 appellant filed a timely appeal from the December 27, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
modification of a wage-earning capacity determination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that modification of
OWCP’s July 24, 1998 wage-earning capacity decision was warranted.
FACTUAL HISTORY
OWCP accepted that on June 12, 1989 appellant, then a 35-year-old rural letter carrier
sustained an aggravation of lumbosacral strain and herniated discs at L4-5 and L5-S1. In
1

5 U.S.C. §§ 8101-8193.

August 1989, he underwent revision lumbar laminectomy surgery at L4-5 and L5-S1. The
procedure was authorized by OWCP. On May 23, 1998 appellant began working as a modified
flat sorter machine operator.
In a July 24, 1998 decision, OWCP reduced appellant’s wage-loss compensation to zero
effective May 23, 1998 based on its determination that his actual earnings in the limited-duty
position of modified flat sorter machine operator fairly and reasonably represented his wageearning capacity.
Effective November 20, 2010, specific hours of appellant’s limited-duty position were
withdrawn under the National Reassessment Process (NRP).2
On December 16, 2010 appellant filed a Claim for Compensation (Form CA-7) for
intermittent hours of partial wage loss from November 20 to December 3, 2010, as limited-duty
work had been partially withdrawn. He submitted additional Forms CA-7 claiming partial leave
without pay hours through March 11, 2011.
In a March 17, 2011 letter, OWCP advised appellant of the three grounds for which
modification of an established loss of wage-earning capacity determination would be warranted.
Specifically, one of the following criteria had to be met: (1) the original rating was in error;
(2) the claimant had been retrained or vocationally rehabilitated, or (3) the claimant’s medical
condition had materially changed. Appellant was provided 30 days to submit the required
information.
In an April 28, 2011 decision, OWCP denied appellant’s claim on the grounds that he did
not meet his burden of proof to establish that modification of its July 24, 1998 wage-earning
capacity determination was warranted.3
Appellant requested a telephonic hearing with an OWCP hearing representative regarding
his claim. During the October 12, 2011 hearing, he argued that the partial withdraw of his
limited-duty position in November 2010 warranted modification of OWCP’s July 24, 1998
wage-earning capacity determination. Appellant noted that the duties of his limited-duty
position changed in 2002 but that he did not sustain any loss of work hours or wages at that time.
He returned to working 40 hours per week in July 2011.
In a December 27, 2011 decision, an OWCP hearing representative affirmed OWCP’s
April 28, 2011 decision noting that appellant had not met any of the three criteria for modifying
OWCP’s wage-earning capacity determination.4
2

Appellant’s work hours were reduced from 40 hours per week to 36 hours per week.

3

OWCP incorrectly indicated that appellant requested that its wage-earning capacity determination be modified
beginning December 27, 2010. Appellant actually requested that the determination be modified beginning
November 20, 2010.
4

An OWCP hearing representative modified OWCP’s April 28, 2011 decision to reflect that appellant requested
that OWCP’s July 24, 1998 wage-earning capacity determination be modified beginning November 20, 2010, rather
than beginning December 27, 2010.

2

LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.5 Compensation for loss of wage-earning capacity is based upon loss of the capacity to
earn and not on actual wages lost.6 Compensation payments are based on the wage-earning
capacity determination, which remains undisturbed until properly modified.7
Modification of a standing wage-earning capacity determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was
erroneous.8 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.9
FECA Bulletin No. 09-05 outlines OWCP’s procedures when limited-duty positions are
withdrawn pursuant to NRP. If, as in the present case a formal wage-earning capacity decision
has been issued, OWCP must develop the evidence to determine whether a modification of that
decision is appropriate.10
ANALYSIS
OWCP accepted that on June 12, 1989 appellant sustained an aggravation of lumbosacral
strain and herniated discs at L4-5 and L5-S1 and it authorized lumbar surgery in August 1989.
In a July 24, 1998 decision, it reduced his compensation to zero effective May 23, 1998 based on
its determination that his actual earnings in the limited-duty position of modified flat sorter
machine operator fairly and reasonably represented his wage-earning capacity. Effective
November 20, 2010, specific hours of appellant’s limited-duty position were withdrawn under
NRP and appellant sought modification of OWCP’s July 24, 1998 wage-earning capacity
determination.
OWCP analyzed this case under the customary criteria for modifying a loss of wageearning capacity determination, but did not acknowledge FECA Bulletin No. 09-05 or fully

5

5 U.S.C. § 8115(a); K.R., Docket No. 09-415 (issued February 24, 2010); Lee R. Sires, 23 ECAB 12, 14 (1971)
(the Board held that actual wages earned must be accepted as the measure of a wage-earning capacity in the absence
of evidence showing they do not fairly and reasonably represent the employee’s wage-earning capacity).
6

K.R., id.; Roy Matthew Lyon, 27 ECAB 186, 190 (1975). Ernest Donelson, Sr., 35 ECAB 503, 505 (1984).

7

See Sharon C. Clement, 55 ECAB 552, 557 (2004).

8

Sue A. Sedgwick, 45 ECAB 211, 215-16 (1993); Elmer Strong, 17 ECAB 226, 228 (1965).

9

Selden H. Swartz, 55 ECAB 272, 278 (2004).

10

FECA Bulletin No. 09-05 (issued August 18, 2009).

3

follow the procedures outlined therein for claims, such as this, in which specific hours of limitedduty positions are withdrawn pursuant to NRP.11
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No.
09-05 requires OWCP to develop the evidence to determine whether a modification of the
decision is appropriate.12 FECA Bulletin No. 09-05 instructs OWCP to confirm that the file
contains documentary evidence supporting that the position was an actual bona fide position. It
requires OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.13
Further FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct
the employing establishment to review its files for contemporaneous evidence concerning the
position.14
If, after development and review by OWCP, the evidence establishes that the wageearning capacity decision was proper and none of the customary criteria for modifying the
determination were met, then OWCP may issue a decision denying modification of the wageearning capacity determination.15
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the December 27, 2011 decision and remand the case for further consideration. After
proper compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate
de novo decision on appellant’s entitlement to wage-loss compensation beginning
November 20, 2010.16
CONCLUSION
The Board finds that this case is not in posture for determination on whether modification
of OWCP’s July 24, 1998 loss of wage-earning capacity determination is appropriate. Further
action by OWCP is warranted.

11

See M.A., Docket No. 12-316 (issued July 24, 2012).

12

FECA Bulletin No. 09-05, supra note 10.

13

Id. at §§ I.A.1-2.

14

Id. at § I.A.3.

15

Id. at § I.A.4.

16

See M.A., supra note 11; M.E., Docket No. 11-1416 (issued May 17, 2012).

4

ORDER
IT IS HEREBY ORDERED THAT the December 27, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: November 21, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburg, PA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 18-0208
Issued: May 4, 2018

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 November 7, 2017 appellant, through counsel, filed a timely appeal from a July 7, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). The appeal was
docketed as No. 18-0208.
Appellant, then a 60-year-old postmaster/officer in charge, filed an occupational disease
claim (Form CA-2) on February 25, 20132 alleging that on December 29, 2012 he realized that he
developed bilateral knee pain due to factors of his federal employment. The employing
establishment noted that appellant retired effective February 28, 2013.

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
On January 15, 2016 an employing establishment supervisor signed the form, the same date that OWCP received
the form.

In support of his claim appellant submitted an OWCP hearing representative’s decision
from OWCP File No. xxxxxx240 dated January 19, 2017.
By decision dated July 7, 2017, OWCP denied appellant’s claim as it found the claim was
untimely pursuant to 5 U.S.C. § 8122, as it was not filed within three years of the date of injury.
It also found that his immediate supervisor had no actual knowledge within 30 days of the
December 29, 2012 injury date, and that he filed his claim on February 25, 2013.
The Board has duly considered the matter and finds that this case is not in posture for a
decision.
Section 8124(a) of the Federal Employees’ Compensation Act provides that OWCP shall
determine and make a finding of fact and make an award for or against payment of compensation.3
Its regulations also provide that the decision shall contain a correct description of the basis for the
denial in order that the parties of interest have a clear understanding of the precise defect of the
claim and the kind of evidence which would overcome it.4
The Board finds that the findings in OWCP’s February 7, 2017 decision were incomplete
as it found that appellant filed his claim on February 25, 2013, but that he had failed to timely file
his claim within three years of the December 29, 2012 date of injury.
While the record is unclear as to whether appellant actually filed the claim on February 25
2013, the case must be returned to OWCP for a proper decision which includes findings of fact
and a clear, correct, and precise statement regarding why it is found that appellant’s claim was
untimely filed. If OWCP finds that it was timely filed, then it must provide reasons for approving
or denying his claim. Following this and other such further development as OWCP deems
necessary, it shall issue an appropriate decision.

3

5 U.S.C. § 8124(a); see Hubert Jones, Jr., 57 ECAB 467 (2006); Paul M. Colosi, 56 ECAB 294 (2005).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See
also R.B., Docket No. 17-0912 (issued January 23, 2018); L.R., Docket No. 15-0235 (issued December 21, 2015);
Patrick Michael Duffy, 43 ECAB 280 (1991).

2

IT IS HEREBY ORDERED THAT the July 7, 2017 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: May 4, 2018
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
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, Cherry Point, NC,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-577
Issued: July 26, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 19, 2012 appellant filed a timely appeal from an October 25, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his request for reconsideration
without conducting a merit review.1 The Board docketed the appeal as No. 12-577.2
The Board has reviewed the case record and notes that on May 3 and October 6, 2011
appellant requested reconsideration. Appellant maintained that the job on which the wageearning capacity was based was fraudulent and his right knee condition had worsened. He
submitted additional evidence some of which was previously of record. Appellant also
submitted a May 18, 2011 treatment note in which Dr. George J. Miller, an attending Boardcertified orthopedic surgeon, noted the employment-related right knee injury and appellant’s
1

The October 25, 2011 decision referenced the correct legal precedent for modification of wage-earning capacity
decisions, but ultimately denied the claim without considering the merits.
2

The last merit decision in this case was an April 14, 2011 decision in which the Board affirmed April 16, 2010
OWCP decisions. These OWCP decisions modified a December 20, 1993 wage-earning capacity decision, to find
entitlement to a period of compensation in part of 1993 and 1994 but otherwise found that the 1993 determination
was correct. The Board found that appellant had not established that the April 16, 2010 wage-earning capacity
determination should be modified. Docket No. 10-1631 (issued April 14, 2011).

surgical history. Dr. Miller advised that appellant complained of constant right knee pain and
that he used a cane and a motorized wheelchair. He noted additional medical conditions
including asthma, chronic obstructive pulmonary disease, heart disease with previous bypass
surgery and prostate cancer. Dr. Miller provided physical examination findings for both knees,
noting negative laxity and meniscal tests bilaterally. He commented that appellant had anterior
right knee skin sensitivity with excellent stability and strong extension of the right knee.
Dr. Miller advised that, when observing appellant walk without his cane about the office, he did
not fall but walked slowly and that balance without his cane was adequate. He diagnosed joint
leg pain and status post knee joint replacement. Dr. Miller opined that appellant’s right knee
problems were work related. In a July 2, 2011 letter to his Senator, appellant described his work
and medical history. In its October 25, 2011 decision, OWCP denied appellant’s request for
merit review.
As noted, OWCP had issued a formal decision on appellant’s wage-earning capacity on
December 20, 1993 and modified that decision on April 16, 2010. These decisions were issued
prior to the time that appellant requested reconsideration on May 3 and October 6, 2011 and
prior to Dr. Miller’s May 18, 2011 treatment note. Board precedent and OWCP’s procedural
manual directs the claims examiner to consider the criteria for modification when a claimant
requests resumption of compensation for total wage loss.3 While appellant used the term
reconsideration in his May 3 and October 6, 2011 correspondence, he asserted that the previous
decisions were in error and that his employment-related right knee condition had worsened. The
Board finds that OWCP should have adjudicated the issue of modification of the wage-earning
capacity determination.4 The Board will therefore remand the case to OWCP for proper
adjudication, to be followed by an appropriate merit decision to preserve appellant’s appeal
rights.5

3

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.9(a)
(December 1995) (if a formal decision on loss of wage-earning capacity is issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss, in which instance OWCP will need to
evaluate the request according to the customary criteria for modifying a formal loss of wage-earning capacity
determination).
4

F.B., Docket No. 09-99 (issued July 21, 2010).

5

Appellant, through his Senator, also asked for authorization to treat hearing problems. On August 15, 2011
OWCP informed appellant’s congressional office that he should file an occupational disease claim for an
employment-related hearing loss. The record before the Board does not indicate that appellant has filed a claim for
an employment-related hearing loss.

2

IT IS HEREBY ORDERED THAT the October 25, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: July 26, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
PEACE CORPS, Thailand, Employer
__________________________________________

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

Docket No. 11-369
Issued: October 24, 2011

Case Submitted on the Record

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

JURISDICTION
On December 3, 2010 appellant filed a timely appeal from a July 27, 2010 merit decision
of the Office of Workers’ Compensation Programs (OWCP) regarding entitlement to a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award decision.
ISSUES
The issues are: (1) whether appellant has more than a 13 percent permanent impairment
of the penis; and (2) whether he is entitled to a schedule award for the bladder.
FACTUAL HISTORY
On October 16, 2002 appellant, then a 24-year-old Peace Corps volunteer, filed a
traumatic injury claim for injuries sustained in a July 24, 2002 motor vehicle accident. OWCP
accepted the claim for an anterior wedge compression fracture at L3, a fractured proximal

1

5 U.S.C. § 8101 et seq.

sacrum with displacement and angulation at S1-2, a fractured right tibia, a Schmorl node and a
nerve root injury at S2-4.
On January 22, 2007 Dr. Peter Moskovitz, a Board-certified orthopedic surgeon, opined
that appellant had a 24 percent permanent impairment to the whole person due to his back
problems and cauda equina syndrome. On June 5, 2007 appellant filed a claim for a schedule
award. In a report dated May 11, 2007, Dr. Edward F. Aulisi, a Board-certified neurosurgeon,
opined that appellant had a 50 percent permanent impairment due to his spine and cauda equina
syndrome pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (5th ed. 2001) (A.M.A., Guides). OWCP’s medical adviser reviewed the evidence
on November 25, 2008 and found that it was insufficient to determine the extent of any
impairment.
By decision dated February 25, 2009, OWCP denied appellant’s claim for a schedule
award. On March 20, 2009 appellant requested a review of the written record. He submitted a
report dated March 18, 2008 from Dr. Kenneth J. Hammerman, a Board-certified internist, who
diagnosed cauda equina syndrome “with neurogenic bladder, sexual dysfunction and a
neurogenic bowel.” Dr. Hammerman opined that appellant had a 37 percent whole person
impairment after rating his back, bladder, bowel and loss of sexual function under the fifth
edition of the A.M.A., Guides.
Following a preliminary review of the record, on December 15, 2009 a hearing
representative vacated the February 25, 2009 decision. He instructed OWCP to refer appellant
for a second opinion examination to determine the extent of any permanent impairment of the
penis and lower extremities.
On February 11, 2010 OWCP referred appellant to Dr. Leonard A. Brant, a Boardcertified urologist, for a second opinion examination.2 In a March 5, 2010 evaluation, Dr. Brant
discussed his complaints of an inability to empty his bladder and his loss of the sensation of
bladder fullness. He also found that appellant had erectile dysfunction usually successfully
treated with Cialis. Dr. Brant diagnosed cauda equina syndrome, erectile dysfunction and bowel
dysfunction due to the accepted employment injury. He performed diagnostic studies which
revealed no bladder sensation and a significantly abnormal voiding pattern. Dr. Brant stated:
“The noninvasive urodynamic studies were markedly abnormal indicating the
presence of a loss of bladder sensation and an inability to empty the bladder. The
applicant is able to occasionally achieve an erection without the use of Cialis,
however, the Cialis enables him to function better. He has a loss of sensation in
the ventral portion of the shaft and the penis.”
Dr. Brant advised, “[Appellant] should have an ultrasound of his abdomen to evaluate his
kidneys and be certain that he does not have hydronephrosis. As the bladder becomes
2

OWCP also referred appellant to Dr. Alan B. Kimelman, a Board-certified physiatrist, for a second opinion
examination regarding the extent of any lower extremity impairment. On February 8, 2010 Dr. Kimelman found
that appellant had a 61 percent lower extremity impairment. OWCP is separately developing the issue of the extent
of his lower extremity impairment.

2

decompensated [he] may develop reflex and renal dysfunction.” He determined that appellant
had a 29 percent impairment of the bladder under the sixth edition of the A.M.A., Guides.
Dr. Brant further found that he had a class 1, or five percent whole person impairment due to
penile disease, categorized as “sexual function possible with varying degrees of difficulty with
erection or sensation that are responsive to medical treatment [and] mild physical or testing
abnormalities. I believe that [appellant] qualifies for class 1 so long [as] he has access to Cialis
or equivalent medication….”
On March 24, 2010 OWCP’s medical adviser concurred with Dr. Brant’s finding that
appellant had a 29 percent impairment due to a bladder impairment and a 5 percent impairment
due to loss of sexual function. He stated:
“Noting the Federal (FECA) Procedure Manual for Special Determination a rating
for sexual dysfunction may be calculated as a loss of the penis. For organs such
as the penis the FECA Manual dictates that both sexual function whole-person
impairment and loss of urethral function [are] considered in calculating the
impairment of the penis. In this particular case there is zero percent whole-person
impairment with regard to urethral dysfunction with the maximum rating of the
whole person for urethral disease a [c]lass IV -- 28 percent. The maximal loss of
function of the penis for [c]lass III impairment for sexual function would be 15
percent. The 15 combined with 28 would be a total of a 39 percent whole-person
impairment. The [p]hysician indicates a 5 percent impairment for sexual
dysfunction and this would represent a 13 percent impairment of the penis for loss
of sexual function as described.”
By decision dated April 14, 2010, OWCP granted appellant a schedule award for a 13
percent permanent impairment of the penis. The period of the award ran for 26.65 weeks from
March 5 to September 7, 2010.
In a letter dated April 23, 2010, appellant questioned why OWCP did not provide him
with a schedule award for his bladder. On May 6, 2010 he requested a review of the written
record. Appellant argued that the schedule award did not address his severe bladder impairment
and did not include his loss of urethral function in determining his penile impairment. He
additionally maintained that Dr. Brant found an impairment in urethral function.
In a decision dated July 27, 2010, the hearing representative affirmed the April 14, 2010
decision. He further found that FECA did not provide for a loss of function of the bladder.
On appeal appellant argues that the schedule award should include his bladder
impairment. He also maintains that OWCP erred in failing to include a loss of urethral function
in determining his penile impairment. Appellant questions why he did not also receive a
schedule award for the lower extremities.

3

LEGAL PRECEDENT -- ISSUE 1 & 2
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).7 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
OWCP procedures provide a formula to measure the percentage of impairment of an
organ when the whole person impairment is provided. The whole person impairment of the
claimant, identified as A, is divided by B, the maximum impairment of the organ, which equals
X, the impairment rating, divided by 100. For organs such as the penis, which have more than
one physiologic function, the A.M.A, Guides provide whole person impairment levels for each
function. When calculating the impairment of these organs, OWCP’s medical adviser must
consider all functions as instructed in the A.M.A., Guides. The maximum whole person
impairment ascribed to the particular organ (B) is obtained by combining the maximum levels
for all functions using the Combined Values Chart in the current edition of the A.M.A., Guides.
The actual whole person impairment (A) is obtained by combining all functional impairments
found using the Combined Values Chart in the A.M.A., Guides.8
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.9 FECA identifies members such as the arm, leg,
hand, foot, thumb and finger, organs to include the eye and functions as loss of hearing and loss
of vision.10 Section 8107(c)(22) of FECA provides for the payment of compensation for
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 494-531.

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(c)(2)(a)
(August 2002).
9

See Leroy M. Terska, 53 ECAB 247 (2001).

10

5 U.S.C. § 8107(c).

4

permanent loss of “any other important external or internal organ of the body as determined by
the Secretary of Labor.11 The Secretary of Labor has made such a determination, and pursuant to
the authority granted in section 8107(c)(22), added the breast, kidney, larynx, lung, penis,
testicle, ovary, uterus and tongue to the schedule.12 FECA does not provide for OWCP to add
organs or functions to the compensation scheduled on a case-by-case basis and the Board does
not have the power to enlarge the provisions of either statute or regulation.13
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.14 While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done.15 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in the proper manner.16
ANALYSIS -- ISSUES 1 & 2
OWCP accepted that appellant sustained an anterior wedge compression fracture at L3, a
fractured proximal sacrum with displacement and angulation at S1-2, a fractured right tibia, a
Schmorl node at and a nerve root injury at S2-4 due to a July 24, 2002 motor vehicle accident.
On June 5, 2007 appellant requested a schedule award. In a report dated January 22,
2007, Dr. Moskovitz opined that he had a 24 percent whole person impairment due to cauda
equina syndrome and his back condition. On May 11, 2007 Dr. Aulisi found that he had a 50
percent permanent impairment due to his spinal problems and cauda equina syndrome. In a
report dated March 18, 2008, Dr. Hammerman advised that appellant had a 37 percent whole
person impairment due to impairments of his back, bladder, bowel and loss of sexual function.
FECA, however, does not provide for impairment of the whole person.17 It also specifically
excludes the back as an organ and, therefore, the back does not come under the provisions for
payment of a schedule award.18 Consequently, the opinions of Dr. Moskovitz, Dr. Aulisi and
Dr. Hammerman are insufficient to support payment of a schedule award.
OWCP referred appellant to Dr. Brant for an impairment evaluation. On March 5, 2010
Dr. Brant diagnosed cauda equina syndrome with bladder, bowel and erectile dysfunction. He
found that appellant was unable to adequately empty his bladder and had an absence of the
sensation of bladder fullness. Dr. Brant further diagnosed erectile dysfunction treated largely
11

Id. at § 8122(c)(22).

12

20 C.F.R. § 10.404; Henry B. Ford, III, 52 ECAB 220 (2001).

13

See Janet C. Anderson, 54 ECAB 394 (2003).

14

Vanessa Young, 55 ECAB 575 (2004).

15

Richard E. Simpson, 55 ECAB 490 (2004).

16

Melvin James, 55 ECAB 406 (2004).

17

N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

18

Francesco C. Veneziani, 48 ECAB 572 (1997).

5

successfully with Cialis. He recommended that appellant have an ultrasound to evaluate his
kidney function. Utilizing the sixth edition of the A.M.A., Guides, Dr. Brant found a 29 percent
impairment of the bladder. He next determined that appellant had a class 1 impairment of the
penis due to loss of sexual function under Table 7-6 on page 144 of the A.M.A., Guides.
Dr. Brant graded the severity of the class 1 penile impairment as five percent of the whole
person.
On appeal appellant argues that OWCP should have awarded him a schedule award for
his bladder impairment. Neither FECA nor the regulations, however, provide a schedule award
for the bladder.19 As discussed, no schedule award is payable for a member, function or organ of
the body not specified in FECA or in the implementing regulations.20 FECA does not allow
OWCP to add organs or functions to the compensation scheduled on a case-by-case basis nor
does the Board have the power to enlarge the provisions of either statute or regulation.21
Consequently, appellant is not entitled to a schedule award for his bladder impairment.
Appellant would, however, be entitled to any impairment of the urethra as part of his
penile impairment. The sixth edition of the A.M.A., Guides notes that the penis has both sexual
and urinary functions and states, “When evaluating penis impairment, consider both sexual and
urinary function impairment.”22 Dr. Brant discussed his difficulty voiding urine and his loss of
sensation but did not directly address whether he had any impairment in urethral function. As
OWCP referred appellant to him for a second opinion, it has the obligation to secure a report that
will resolve the relevant issues in the case.23 Accordingly, the Board finds that the case must be
remanded to OWCP. On remand, OWCP should request that Dr. Brant clarify whether appellant
has an additional penile impairment due to loss of urinary function as set forth in the sixth
edition of the A.M.A., Guides. Following this and any other development deemed necessary,
OWCP shall issue an appropriate decision.24
CONCLUSION
The Board finds that the case is not in posture for decision.

19

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404.

20

See J.W., 59 ECAB 308 (2008); Paul A. Zoltek, 56 ECAB 325 (2005).

21

See Janet C. Anderson, supra note 13.

22

A.M.A., Guides 143.

23

On appeal appellant argues that OWCP failed to issue him a schedule award for his lower extremities. OWCP
is separately adjudicating the issue of his lower extremity impairment. The Board’s jurisdiction is limited to
reviewing final decisions of OWCP. See 20 C.F.R. § 501.2(c).
24

The Board notes that Dr. Brant also recommended an ultrasound of appellant’s kidneys. The kidney is a
scheduled member under FECA and thus any employment-related kidney impairment would be compensable. See
5 U.S.C. § 8122(c)(22).

6

ORDER
IT IS HEREBY ORDERED THAT the July 27, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 24, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

Docket No. 20-1629
Issued: April 15, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 15, 2020 appellant filed a timely appeal from an August 13, 2020 merit
decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards
docketed the appeal as No. 20-1629.
On February 14, 2020 appellant, then a 56-year-old unassigned regular (former letter
carrier), filed an occupational disease claim (Form CA-2) alleging that she developed migraines,
panic and anxiety attacks, and depression due to factors of her federal employment. She noted that
she had filed two prior claims for the same conditions, and that a negative and hostile work
environment in the office had caused a flare up of those conditions.1 Appellant indicated that she
first became aware of her claimed conditions on November 11, 2019, and realized their relationship
to factors of her federal employment on November 25, 2019. She stopped work on
January 13, 2020.

1

Appellant previously filed a Form CA-2 alleging a stressful and harmful work environment, which OWCP
adjudicated under OWCP File No. xxxxxx975. She further referenced a prior traumatic injury claim (Form CA-1)
occurring while in the performance of duty on June 4, 2019, resulting in migraine headaches, nausea, light and noise
sensitivity and extremity weakness, which OWCP adjudicated under OWCP File No. xxxxxx026. By decisions dated
January 3 and July 26, 2019, respectively, OWCP denied both claims.

In a statement of even date, appellant described feelings of anxiety, fear, and panic that she
experienced while in the workplace since January 2017.
OWCP received various medical records detailing treatment that appellant received for a
diagnosis of post-traumatic stress disorder (PTSD) due to a history of sexual trauma while serving
in the military and for migraines and emotional difficulties that she attributed to her work
environment with the employing establishment. In an April 29, 2020 letter, Dr. Lynn Marie Nyle,
a psychiatrist, diagnosed appellant with PTSD and major depressive disorder, recurrent and severe,
and declared her to be totally unemployable.
By decision dated August 13, 2020, OWCP denied appellant’s claim finding that she had
not submitted sufficient evidence to establish that she actually experienced the employment
incidents alleged to have occurred. In its decision, it noted appellant’s two earlier claims for
similar conditions, and that “all documentation in the file were [sic] reviewed.” OWCP concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
The Board has duly considered the matter and finds that the case is not in posture for
decision.
OWCP’s procedures provide that cases should be combined when correct adjudication
depends on cross-referencing between files and where two or more injuries occur to the same part
of the body.2 In the instant case, appellant filed an occupational disease claim for migraines, panic
and anxiety attacks, and depression due to a negative and harmful work environment. The Board
notes that appellant’s prior claims under OWCP File No. xxxxxx975 and OWCP File No.
xxxxxx026 also involved migraine headaches and emotional conditions due to an allegedly
stressful and harmful work environment. However, OWCP has not administratively combined the
claims.
For a full and fair adjudication, the Board finds that this case must be remanded to OWCP
to administratively combine the present claim file with OWCP File No. xxxxxx975 and OWCP
File No. xxxxxx026. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.3

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
3
M.B., Docket No. 20-0770 (issued January 5, 2021); R.G., Docket No. 19-1755 (issued July 7, 2020); L.M., Docket
No. 19-1490 (issued January 29, 2020).

2

IT IS HEREBY ORDERED THAT the August 13, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: April 15, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, Seattle, WA, Employer
)
__________________________________________ )
B.A., Appellant

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

Docket No. 08-1542
Issued: February 11, 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 May 6, 2008 appellant filed an appeal from a February 1, 2008 decision of the Office
of Workers’ Compensation Programs that denied reimbursement for medication. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this case.
ISSUE
The issue is whether the Office abused its discretion in denying reimbursement for the
medication Truvada.
FACTUAL HISTORY
On February 23, 2007 appellant, then a 31-year-old deputy U.S. Marshal, sustained an
employment-related needle stick to the right palm in the performance of his federal duties.1 By
1

Appellant was dropping off a wanted poster at the time of the injury. The record indicates that, with the
exception of the Truvada medication, the Office paid appellant’s medical expenses, and the claim remains open for
further medical treatment and injury-related wage-loss.

letter dated August 28, 2007, the Office informed appellant that a prescription for the medication
Truvada could not be paid. The relevant medical evidence includes an emergency room report
dated February 23, 2007 in which Jordana Z. Grussgott, a nurse practitioner, provided a history
that appellant was stuck by a discarded hypodermic needle that day. Ms. Grussgott diagnosed
blood-borne pathogen exposure due to a puncture wound of the right palm and prescribed a
seven-day course of the medication Truvada, to be taken daily for prophylaxis. In a March 1,
2007 report, Joey Merrifield, a nurse practitioner, noted the history of injury and diagnosis and
advised that appellant should continue a full 28-day course of Truvada. By report dated April 2,
2007, Dr. Corey L. Casper, Board-certified in internal medicine and infectious disease, noted his
review of the history of injury and treatment. He advised that he was in complete agreement
with Mr. Merrifield’s treatment regimen. An April 6, 2007 report noted that appellant’s human
immunodeficiency virus (HIV) and hepatitis C tests were negative. Final HIV and hepatitis C
test reports were reported as negative on May 18 and 21, 2007 respectively.
By decision dated February 1, 2008, the Office denied authorization for payment of
Truvada.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act2 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances, and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability, or aid in
lessening the amount of the monthly compensation.3 While the Office is obligated to pay for
treatment of employment-related conditions, the employee has the burden of establishing that the
expenditure is incurred for treatment of the effects of an employment-related injury or
condition.4
In interpreting this section of the Act, the Board has recognized that the Office has broad
discretion in approving services provided under section 8103, with the only limitation on the
Office’s authority being that of reasonableness.5 Abuse of discretion is generally shown through
proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts. It is not enough to merely
show that the evidence could be construed so as to produce a contrary factual conclusion.6 In
order to be entitled to reimbursement for medical expenses, a claimant must establish that the

2

5 U.S.C. §§ 8101-8193.

3

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

4

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

5

D.C., 58 ECAB ____ (Docket No. 06-2161, issued July 13, 2007).

6

Minnie B. Lewis, 53 ECAB 606 (2002).

2

expenditures were incurred for treatment of the effects of an employment-related injury.7 Proof
of causal relationship must include supporting rationalized medical evidence.
Section 10.303(a) of Office regulations provides that simple exposure to a workplace
hazard, such as an infectious agent, does not constitute an injury entitling an employee to
medical treatment under the Act unless the employee has sustained an identifiable injury or
medical condition as a result of that exposure.8 Section 10.313(b) provides that the Office can
authorize treatment where there is “actual or probable exposure to a known contaminant due to
an injury, requiring disease specific measures against the infection.”9 Chapter 805.8 of Office
procedures, addressing high-risk employment, note that certain kinds of employment routinely
present situations which may lead to infection by contact with animals, human blood, bodily
secretions and other substances. Conditions such as HIV infection and hepatitis B more
commonly represent a work hazard in health care facilities, correctional institutions and drug
treatment centers, among others, than in federal workplaces as a whole. For claims based on
transmission of a communicable disease where the means of transmission and the incubation
period are medically feasible, the Office should, if the source of infection is a known or probable
carrier of the disease, accept the case for the physical injury involved and authorize prophylactic
treatment.10
Chapter 3.400.7 of Office procedures provides that the Act does not authorize preventive
measures such as vaccines and inoculations and, in general, preventive treatment is the
responsibility of the employing establishment except that preventive care can be authorized by
the Office for complications of preventive measures which are provided or sponsored by the
agency, such as adverse reaction to prophylactic immunization and or an injury involving actual
or probable exposure to a known contaminant.11
ANALYSIS
The Board finds that the Office did not abuse its discretion in denying authorization for
the medication Truvada. The Office accepted that appellant sustained an employment-related
needle stick from a used hypodermic needle on February 23, 2007, and Truvada was prescribed
for prophylaxis.12 However, it is not required to pay for prophylactic treatment under section
8103 of the Act. Rather, appellant’s physician must satisfy the Office that the expenditure was
7

Cathy B. Mullin, 51 ECAB 331 (2000).

8

20 C.F.R. § 10.303(a).

9

Id. at § 10.313(b).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.8 (October 1995);
N.S., 59 ECAB ____ (Docket No. 07-1652, issued March 18, 2008).
11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.7
(April 1992).
12

The Board notes that nurse practitioners are not considered under the Act. 5 U.S.C. § 8101(2); see Sean
O’Connell, 56 ECAB 195 (2004). In this case, while Nurses Grussgott and Merrifield prescribed Truvada,
Dr. Casper noted his agreement with their care.

3

incurred for treatment of the effects of the accepted employment injury. As noted by the Office
in its February 1, 2008 decision, reimbursement was denied because no disease or illness had
been diagnosed in connection with the accepted needle stick. This is not a case where appellant
worked in the type of employment, such as a health care facility, correctional institution, or drug
treatment facility, which could routinely present a situation that could lead to infection by
contact with animals, human blood, bodily secretions or other substances.13 Furthermore, this is
not a case where there was a known contaminant. Simple exposure to a workplace hazard does
not constitute an injury that would entitle appellant to medical treatment under the Act.14 The
record does not contain a rationalized medical opinion that explains the necessity for use of
Truvada in treating appellant’s accepted needle stick. In the February 23, 2007 report,
Ms. Grussgott stated that Truvada was prescribed for prophylaxis. It was represcribed by
Mr. Merrifield, and their treatment was approved by Dr. Casper. These reports, at best, provide
speculative support for the medical necessity of the medication. The medical record is therefore
insufficient to establish that Truvada was likely to cure, give relief, reduce the degree or the
period of disability, or aid in lessening the amount of the monthly compensation.15
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying reimbursement for
the medication Truvada.

13

Supra note 9.

14

20 C.F.R. §§ 10.303(a), 10.313(b).

15

Supra note 3.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2008 be affirmed.
Issued: February 11, 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

5