United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, ROSELAND POST
OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 20-1212
Issued: February 12, 2021

Case Submitted on the Record

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

JURISDICTION
On May 26, 2020 appellant filed a timely appeal from a February 21, 2020 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted January 10, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 21, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 11, 2020 appellant, then a 30-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on January 10, 2020 she sustained fractures and other
injuries to her right hip and buttocks when involved in a motor vehicle collision while in the
performance of duty. She stopped work on the date of injury. On the reverse side of the claim
form A.B., an employing establishment supervisor, checked a box “Yes” to indicate that appellant
was injured in the performance of duty and his agreement with appellant’s account of events.
In a development letter dated January 16, 2020, OWCP informed appellant that the
evidence of record was insufficient to establish her claim. It advised her of the type of factual and
medical evidence needed and provided a questionnaire for her completion. OWCP emphasized
the importance of submitting a narrative report from her attending physician containing a history
of injury, diagnosis, and opinion supported by medical rationale as to how the alleged employment
incident caused or aggravated the diagnosed conditions. It afforded appellant 30 days to submit
the necessary evidence.
In response, appellant provided a January 13, 2020 statement, explaining that on
January 10, 2020 at approximately 6:20 p.m., while making a left turn at an intersection, a semitruck ran a red light and struck the passenger side of her vehicle. She was then transported to a
hospital emergency department.
Appellant submitted a January 10, 2020 hospital emergency department discharge report
authored by a registered nurse whose name is illegible. She had been diagnosed with an acute
fracture of the distal sacrum.
In a January 16, 2020 disability certificate, Rachel Cheeks, an advanced practice registered
nurse and certified family nurse practitioner, held appellant off work due to acute fracture of the
distal sacrum, cervical whiplash injury with facetogenic pain, lumbar whiplash injury with
facetogenic pain, bilateral arm strains, right hip contusion, and bilateral knee injuries.
By decision dated February 21, 2020, OWCP accepted that the January 10, 2020
employment incident occurred as alleged. However, it denied appellant’s traumatic injury claim,
finding that she had not submitted medical evidence containing a diagnosis in connection with the
accepted employment incident. OWCP concluded, therefore, that the requirements had not been
met to establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 of FECA,4 that an injury was sustained in the performance of duty, as alleged, and
3

Supra note 1.

4
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

2

that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the accepted employment incident must be based on a
complete factual and medical background. 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 the
specific employment incident.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted January 10, 2020 employment incident.
In support of her claim, appellant provided a January 10, 2020 hospital discharge report
authored by a nurse. Appellant also submitted a January 16, 2020 disability certificate signed by
Ms. Cheeks, a nurse practitioner. However, certain healthcare providers such as physical
therapists, nurses, physician assistants, and social workers are not considered physicians as defined
under FECA.10 Consequently, their medical findings and/or opinions will not suffice for purposes
of establishing entitlement to FECA benefits. As such, this evidence is of no probative value and
insufficient to meet appellant’s burden of proof.

5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q).
8

L.S., Docket No. 19-1769 (issued July 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

B.C., Docket No. 20-0221 (issued July 10, 2020); Leslie C. Moore, 52 ECAB 132 (2000).

10
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t); see B.W., Docket No. 20-1027 (issued November 18, 2020); K.W., 59
ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or
certified nurse practitioner will be considered medical evidence if countersigned by a qualified physician. Federal
(FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

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As appellant has not submitted rationalized medical evidence establishing a diagnosed
medical condition causally related to the accepted January 10, 2020 employment incident, she has
not met her burden of proof to establish her claim.11
On appeal appellant contends that she submitted medical evidence to OWCP signed by her
attending physician. As explained above, 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. The evidence of record
is insufficient to establish her claim. The Board is precluded from considering additional evidence
for the first time on appeal.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted January 10, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
11

C.W., Docket No. 20-1027 (issued November 18, 2020); J.T., Docket No. 18-1755 (issued April 4, 2019).

12

Supra note 2.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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Appearances:
Coby Jones, for the appellant
Office of Solicitor, for the Director

Docket No. 12-32
Issued: October 9, 2012

Case Submitted on the Record

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

JURISDICTION
On December 21, 2011 appellant, through her representative, filed a timely appeal from
the July 18, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) and
its September 29, 2011 nonmerit decision denying her request for reconsideration. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. 8101 et seq.

On appeal, appellant submitted additional evidence. The Board’s jurisdiction is limited to reviewing the
evidence that was before OWCP at the time of its final decision. Therefore, this additional evidence cannot be
considered by the Board. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5
ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to OWCP, together with a formal request for
reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b)(2).

ISSUES
The issues are: (1) whether OWCP properly denied appellant’s claim for wage-loss
compensation for the period February 12 through March 31, 2011; and (2) whether it properly
refused to reopen her case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 21, 2011 appellant, a 63-year-old mail carrier, filed an occupational disease
claim alleging that she sustained right shoulder tendinitis, right rotator cuff tear and subacromial
impingement due to repetitive job activities. She stated that she worked full time until
December 19, 2010, when she stopped working. Appellant reportedly returned to work on
January 11, 2011 and worked two hours per day until January 14, 2011 when she stopped
working altogether. Her claim was accepted for sprain of the upper arm and right rotator cuff.
Appellant filed claims for wage-loss compensation alleging that she was totally disabled
due to her accepted conditions from February 12 through March 31, 2011.
In support of her wage-loss claim, appellant submitted a January 17, 2011 report from
Dr. Andrew M. Giovanni, a Board-certified orthopedic surgeon, who described a history of
gradual onset since 2005 of shoulder pain, which caused her to stop working on
December 19, 2010. She reportedly returned to work on January 17, 2011, but was unable to
continue working due to right shoulder pain after only two hours. On examination of the right
shoulder, appellant had localized tenderness at the subacromial region and over the right joint.
There was mild crepitation with abduction and forward flexion. Adduction was limited to 130
degrees with pain. Internal rotation was restricted. Measurements of grip strength taken with a
Jamar Dynamometer reflected a 33 percent loss of normal grip strength. Appellant had grade 4
motor function of the deltoid and rotator cuff. Neer’s impingement test was positive. Cervical
spine motion was restricted by 50 percent in all directions with moderate degree paravertebral
muscle spasm, worse on the right side. Dr. Giovanni provided a tentative diagnosis of right
shoulder tendinitis, rotator cuff tear and subacromial impingement, as well as cervical
degenerative joint disease, pending the results of x-rays and magnetic resonance imaging (MRI)
scans. He opined that appellant was totally disabled from work as of January 17, 2011 and could
tentatively return to work on March 30, 2011. Dr. Giovanni also indicated that his findings and
diagnosis were consistent with her account of the injury.
The record contains a report of an August 18, 2010 MRI scan of the right shoulder, which
revealed high-grade partial anterior bursal-sided supraspinatus tendon tear at footprint with mild
supraspinatus muscle atrophy; infraspinatus tendon mucoid degeneration; superimposed partial
tear not fully excluded; distal intra-articular biceps tendinosis; moderate subacromial, subdeltoid
and subcoracoid bursal fluid; and moderate acromioclavicular (AC) joint arthropathy.
Appellant submitted reports for the period April 29 to September 16, 2010 from
Dr. Anthony Luke, Board-certified in family medicine. On April 29, 2010 Dr. Luke diagnosed
right shoulder rotator cuff tendonopathy, most likely with an underlying rotator cuff tear. On
August 5, 2010 he provided examination findings reflecting reduced flexion and positive Neers
and Hawkins impingement signs on the right. On September 16, 2010 Dr. Luke diagnosed right

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rotator cuff high-grade partial tear and impingement from lateral acromion, based on imaging
results.
Appellant submitted a January 19, 2011 report from Dr. Laura Hill-Sakurai, Boardcertified in family medicine, who diagnosed right rotator cuff high-grade partial tear and
impingement from the lateral acromion. Dr. Hill-Sakurai described appellant’s repetitive job
duties, including extensive lifting, reaching and carrying of heavy packages and bags. Based on
Dr. Luke’s examination findings, Dr. Hill-Sakurai stated that it was “highly likely that
[appellant’s] work-related activities of extensive lifting, reaching and carrying (over the past 23
years she has served as a USPS mail carrier) are the cause of her chronic shoulder injury, as well
as the cause of the recent aggravation of this injury.”
In a March 8, 1011 report, Dr. A. Shabi Khan, a Board-certified internist, who diagnosed
high-grade partial essentially near complete tear along the right bursal-sided margin and leading
into the supraspinatus with mucoid degeneration in the infraspinatus and AC joint changes.
Examination of the right shoulder revealed tenderness along the anterior aspect of the acromion
and laterally. There was very mild tenderness over the AC joint. There was positive
impingement sign to internal rotation and deficit of strength to forward flexion, abduction and
caption. O’Brien’s test was positive, with pain upon compression/rotation and mild bicipital
tendinitis. Dr. Khan recommended right rotator cuff repair.
By letter dated March 18, 2011, OWCP informed appellant that the information
submitted was insufficient to establish her claim and advised her to submit contemporaneous
medical evidence of the disability for the period claimed, supported by an increase in objective
findings and an explanation as to how this increase precluded her from performing her
employment duties. It provided her 30 days to submit the required evidence.
In a March 21, 2011 statement, appellant indicated that she used sick leave for workdays
missed due to her accepted shoulder injury from December 20, 2010 through January 11, 2011,
when she returned to work. She worked two hours per day from January 11 through 16, 2011.
From January 17 and February 11, 2011, appellant used sick and annual leave.
Appellant submitted hospital records, nursing notes and reports from Dr. Khan for the
period March 24 through June 6, 2011 reflecting that she underwent right shoulder arthroscopy,
subacromial decompression and full thickness rotator cuff repair on April 1, 2011. In a letter
dated March 31, 2011, Dr. Khan stated that appellant had requested “simple documentation with
respect to her ongoing right shoulder secondary to her full-thickness rotator cuff repair as well as
her significant bone spur.” He indicated that appellant had been having intermittent pain since
2005, which had since become constant. Dr. Khan noted that she had apparently been off from
work since December 20, 2010 with temporary total disability. Appellant worked two hours a
day from January 11 to 15, 2011 but was unfortunately unable to maintain that work status,
secondary to continued discomfort. On June 2, 2011 Dr. Khan released her to return to work
with modified duties, which included no repetitive motion.
In a letter dated July 9, 2011, appellant reiterated her request for compensation for the
period February 12 through March 31, 2011. She contended that reports dated January 17 and

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March 31, 2011 from Drs. Giovanni and Khan respectively established her disability from work
during that period.
In a decision dated July 18, 2011, OWCP denied appellant’s claim for compensation for
the period February 12 through March 31, 2011, finding that the evidence did not establish that
she was disabled during the claimed period as a result of her accepted injury.
On July 18, 2011 appellant requested reconsideration. In support of her request, she
submitted a July 18, 2011 letter from Dr. Khan, who stated:
“[Appellant] comes in for a follow up of her right shoulder. She is here for
simple documentation with respect to her time off from work. [Appellant] has
been having intermittent pain since 2005 and now, it has been constant. She has
been apparently off from work from December 20, 2010 until this point with
temporary total disability. [Appellant] was previously working two hours a day
from January 11 to 15, 2011. Unfortunately, secondary to continued discomfort,
she was unable to maintain this work status.
“Once again, this is a simple documentation with respect to her ongoing right
shoulder secondary to her full-thickness rotator cuff repair as well as her
significant bone spur.”
Appellant also submitted reports from Dr. Khan dated August 8, 2011 reflecting that she
was able to work with restrictions, nursing notes and copies of previously submitted letters and
reports from her physicians.
In a letter dated August 1, 2011, Dr. Katherine K. Strelkoff, Board-certified in family
medicine, stated that appellant was unable to work from January 17 through March 31, 2011 due
to a rotator cuff tear and shoulder impingement. She indicated that appellant had attempted to
return to work in early January 2011 but was unable to perform work-related activities due to
pain and limited range of motion at her shoulder. Appellant’s MRI scan from August 2010
reportedly showed a high-grade partial tear of the supraspinatus tendon and impingement from
the acromion due to ossification at the coracoacromial ligament. She subsequently had a surgical
repair in April 2011.
By decision dated September 29, 2011, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant a review
of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the evidence.3 For each period of disability
claimed, the employee has the burden of establishing that she was disabled for work as a result of
3

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).

4

the accepted employment injury.4 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.5 The Board will not require
OWCP to pay compensation for disability in the absence of medical evidence directly addressing
the specific dates of disability for which compensation is claimed. To do so, would essentially
allow an employee to self-certify her disability and entitlement to compensation.6
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.7 The opinion of the physician must be based on a complete factual
and medical background of the employee, must be one of reasonable certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.8
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.9 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.10
ANALYSIS -- ISSUE 1
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her claimed total disability for the period
February 12 and March 31, 2011 and the accepted sprain of the upper arm and right rotator
cuff.11 The reports of her physicians do not provide a rationalized medical opinion finding her
disabled for work for the claimed period due to her accepted condition. Therefore, the medical
evidence submitted is insufficient to meet appellant’s burden of proof.
In his January 17, 2011 report, Dr. Giovanni provided examination findings and a
tentative diagnosis of right shoulder tendinitis, rotator cuff tear and subacromial impingement, as
well as cervical degenerative joint disease, pending the results of x-rays and MRI scans. He
opined that appellant was totally disabled from work as of January 17, 2011 and could tentatively
4

See Amelia S. Jefferson, id. See also David H. Goss, 32 ECAB 24 (1980).

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

7

See Viola Stanko (Charles Stanko), 56 ECAB 436 (2005); see also Naomi A. Lilly, 10 ECAB 560, 572573 (1959).
8

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

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

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

11

See supra note 4.

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return to work on March 30, 2011. Dr. Giovanni’s report is deficient on several counts. It does
not contain a definitive diagnosis or an opinion as to how her alleged disability was causally
related to her accepted injury.12 It also fails to discuss appellant’s employment duties or how her
current physical condition rendered her unable to perform those duties. An exacerbation of her
symptoms does not automatically result in her inability to work.13 For all of these reasons,
Dr. Giovanni’s report is of limited probative value.
On January 19, 2011 Dr. Hill-Sakurai diagnosed right rotator cuff high-grade partial tear
and impingement from the lateral acromion. Based on Dr. Luke’s examination findings, she
stated that it was “highly likely that appellant’s work-related activities of extensive lifting,
reaching and carrying (over the past 23 years she has served as a USPS mail carrier) are the
cause of her chronic shoulder injury, as well as the cause of the recent aggravation of this
injury.” Dr. Hill-Sakurai’s opinion is insufficient to establish appellant’s claim for disability.
The report does not reflect that she examined appellant. Rather, Dr. Hill-Sakurai’s opinion is
based upon examination findings provided by Dr. Luke. Moreover, her speculative opinion that
appellant’s employment duties caused her shoulder condition does not address the issue at hand,
namely whether appellant was disabled during the claimed period due to the accepted condition.
Therefore, the report is of limited probative value.
Dr. Kahn’s reports also fail to establish that appellant was disabled for the period in
question. On March 8, 2011 he diagnosed high-grade partial essentially near complete tear along
the right bursal-sided margin and leading into the supraspinatus with mucoid degeneration in the
infraspinatus and AC joint changes. Dr. Kahn provided examination findings and recommended
right rotator cuff repair. As he did not offer an opinion that appellant was disabled during the
claimed period due to her accepted injury, his report lacks probative value.
On March 31, 2011 Dr. Khan stated that appellant had requested “simple documentation
with respect to her ongoing right shoulder secondary to her full-thickness rotator cuff repair as
well as her significant bone spur.” He indicated that she had been having intermittent pain since
2005, which had since become constant. Dr. Kahn noted that appellant had apparently been off
from work since December 20, 2010 with temporary total disability. Appellant worked two
hours a day from January 11 to 15, 2011 but was unfortunately unable to maintain that work
status, secondary to continued discomfort. Dr. Kahn, however, provided no objective findings to
support her disability nor did he address how her flare-up prevented her from performing the
duties associated with her job. Moreover, he failed to explain how appellant’s alleged disability
was causally related to the accepted injury.14 For all of these reasons, Dr. Kahn’s report is of
diminished probative value. Disability slips, reports and notes from him that do not contain an
opinion regarding appellant’s disability due to her accepted condition during the claimed period
are irrelevant and, therefore, do not constitute probative medical evidence.
12

Willa M. Frazier, 55 ECAB 379 (2004); see also David L. Scott, 55 ECAB 330 (2004); see Brenda L.
DuBuque, 55 ECAB 212 (2004).
13

See Cheryl L. Decavitch, supra note 10.

14

See Brenda L. DuBuque, supra note 12; George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board
found that a medical opinion not fortified by medical rationale is of little probative value).

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Dr. Luke provided examination findings and diagnosed right rotator cuff high-grade
partial tear and impingement from lateral acromion, based on imaging results. He did not,
however, provide an opinion on the cause of appellant’s condition or the issue of disability.
Therefore, Dr. Luke’s reports are of limited probative value.
The remaining medical evidence of record, which includes disability slips, test results,
nursing notes and reports not containing an opinion on the issue of appellant’s work-related
disability, is insufficient to establish her claim. Because appellant has not submitted any
reasoned medical opinion evidence to show that she was disabled for the period February 12
through March 31, 2011 as a result of her accepted employment injury, the Board finds that
OWCP properly denied her claim for wage-loss compensation.
On appeal, appellant contends that the medical evidence is sufficient to establish her
claim for disability during the claimed period. For reasons stated, the Board finds that the
evidence is not sufficient to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
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. The
employee may obtain this relief through a request to the district office. The request, along with
the supporting statements and evidence, is called the application for reconsideration.15
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered; or (3) constitutes relevant and
pertinent new evidence not previously considered.16
A timely request for reconsideration may be granted if OWCP determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.17 Where
the request is timely but fails to meet at least one of these standards, OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.18

15

20 C.F.R. § 10.605.

16

Id. at § 10.606.

17

Donna L. Shahin, 55 ECAB 192 (2003).

18

20 C.F.R. § 10.608.

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ANALYSIS -- ISSUE 2
Appellant’s June 6, 2006 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant is not entitled to further review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Appellant also failed to submit relevant and pertinent new evidence not previously
considered by OWCP. Dr. Kahn’s July 18, 2011 letter reiterated statements made in his letter of
Likewise,
March 31, 2011 and is, therefore, cumulative and duplicative in nature.19
Dr. Strelkoff’s letter dated August 1, 2011 essentially repeated information contained in
documents previously received and reviewed by OWCP and is, therefore, cumulative.20 The
Board finds that this report does not constitute relevant and pertinent new evidence not
previously considered by OWCP.21 Therefore, OWCP properly determined that this evidence
did not constitute a basis for reopening the case for a merit review.
Reports from Dr. Khan dated August 8, 2011 reflecting that appellant was able to work
with restrictions and nursing notes, neither of which address the issue of disability during the
claimed period, are irrelevant and therefore insufficient to warrant merit review. Copies of
previously submitted letters and reports from appellant’s physicians are duplicative and do not
constitute relevant and pertinent new evidence not previously considered by OWCP.22
The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied her request for reconsideration.
On appeal, appellant contends that the evidence submitted is sufficient to warrant merit
review. As noted, the Board finds that OWCP properly denied her request for further merit
review.
CONCLUSION
The Board finds that appellant has not established that she was disabled for work and
entitled to wage-loss compensation for the periods February 12 through March 31, 2011. The
Board further finds that OWCP properly refused to reopen her case for further review of the
merits pursuant to 5 U.S.C. § 8128(a).

19

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
20

Id.

21

See Susan A. Filkins, 57 ECAB 630 (2006).

22

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 29 and July 18, 2011 are affirmed.
Issued: October 9, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.A., Appellant
and
DEPARTMENT OF THE ARMY, ROCK
ISLAND ARSENAL, Rock Island, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-2128
Issued: April 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 21, 2011 appellant filed an application for review of an April 8, 2011
merit decision of the Office of Workers’ Compensation Programs (OWCP) approving attorneys’
fees in the amount of $3,981.25. The appeal was docketed as number 11-2128. Having
reviewed the case record submitted by OWCP, the Board finds that this case is not in posture for
a decision.1
On November 19, 2007 appellant authorized Alan Shapiro to represent her in matters
relating to her claim with OWCP. OWCP acknowledged Mr. Shapiro’s representation of
appellant, and the record contains correspondence between OWCP and the representative from
the date of authorization through the date of the decision at issue in this case. On April 3, 2011
Mr. Shapiro submitted a petition for attorneys’ fees in the amount of $4,062.50 for 12.25 hours
of his time, at a billable rate of $325.00 per hour. The record contains a statement signed by
1

This is the third time this case has been before the Board. In a September 11, 2001 decision, the Board reversed
a September 7, 1999 decision denying appellant’s emotional disease claim and remanded the case for development
of the medical evidence. (Docket No. 00-795, issued September 11, 2001). In a November 23, 2009 decision, the
Board affirmed a November 4, 2008 decision terminating appellant’s medical and compensation benefits, but
remanded the case for further development on the issue of continuing disability and residuals, (Docket No. 09-319,
issued November 23, 2009).

appellant on March 31, 2011 reflecting that, although she was aware of her responsibility to pay
the fee, she did not approve of the fee.
By decision dated April 8, 2011, OWCP approved Mr. Shapiro’s application for fees. It
reduced the amount of fees awarded, however, to $3,981.25, finding that the attorney had
apparently made an error in calculating the total fee amount based on his hourly rate and time
expended.2
It is not the function of the Board to determine the fee for services performed by a
representative of a claimant before OWCP. That function is within the discretion of OWCP
based on the criteria set forth in Title 20 of the Code of Federal Regulations and mandated by the
Board decisions. The sole function of the Board on appeal is to determine whether the action of
OWCP constituted an abuse of discretion.3 Generally, an abuse of discretion is 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.4
OWCP is required to follow certain procedures in fee application cases. Section
10.703(a)(1)(ii) of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.5 When a fee application has
been disputed, OWCP is required to provide the claimant with a copy of the fee application and
request the submission of further information in support of any objection. After the claimant has
been afforded a reasonable time to respond to the request, OWCP will then proceed to review the
fee application to determine whether the amount of the fee is substantially in excess of the value
of services received by looking at the following factors: (i) usefulness of the representative’s
services; (ii) the nature and complexity of the claim; (iii) the actual time spent on development
and presentation of the claim; and (iv) customary local charges for similar services.6
The Board finds that this case is not in posture for decision regarding OWCP’s approval
of attorneys’ fees of $3,981.25. OWCP failed to follow the procedures set forth above at section
10.703 of its regulations with respect to providing appellant with an opportunity to support her
objection to the fees requested. Appellant’s representative submitted a fee application, which
appellant disputed. OWCP, however, did not provide appellant with a copy of the fee
application and request the submission of further information in support of her objection, as
required by its procedures.7 Therefore, appellant was deprived of the opportunity to provide
evidence regarding the disputed fees. In light of the foregoing, the Board finds that the case
2

OWCP explained that 12.25 hours times the hourly rate of $325.00 resulted in total fees of $3981.25.

3

Alvin T. Groner, Jr., 47 ECAB 588 (1996); Edward Snider, 39 ECAB 1268 (1988).

4

Gerald A. Carr, 55 ECAB 225 (2004).

5

20 C.F.R. § 10.703(a)(1)(ii).

6

Id. at § 10.703(c).

7

Id.

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must be remanded to OWCP to consider the attorneys’ fee application according to the
applicable regulatory procedures.
IT IS HEREBY ORDERED THAT the April 8, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further action consistent with
this order of the Board.
Issued: April 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Bliss, TX, Employer
__________________________________________

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

Docket No. 18-0043
Issued: May 7, 2019

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 October 6, 2017 appellant filed a timely appeal from a July 12, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish total disability
commencing June 23, 2016 causally related to the accepted August 23, 2012 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 12, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On September 19, 2012 appellant, then a 58-year-old practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that, on August 23, 2012, she sustained pain and limited range
of motion to her left arm and shoulder when a door that was closing hit her on the left arm and
shoulder while in the performance of duty. OWCP paid continuation of pay (COP) until
October 13, 2012.
OWCP accepted appellant’s claim for left shoulder rotator cuff sprain and tear and disorder
of bursae and tendons of the left shoulder.
On November 12, 2012 appellant underwent authorized left shoulder surgery. She stopped
work and received wage-loss compensation benefits. OWCP placed appellant on the periodic rolls,
effective December 16, 2012.
On April 15, 2013 appellant returned to part-time limited-duty work, for four hours per
day. She worked limited duty for six hours per day beginning April 24, 2013. OWCP paid wageloss compensation for part-time disability on the supplemental rolls.
On June 21, 2013 appellant returned to full-time limited-duty work and she continued to
receive wage-loss compensation on the supplemental rolls for attendance at medical appointments.
On September 6, 2013 appellant resigned from federal employment. In 2015 she indicated
that she wanted to return to work.
On March 9, 2015 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a copy of the record, to Dr. Sofia M. Weigel, a Board-certified physiatrist, for a
second opinion examination to determine whether appellant was capable of returning to full duty.
In a July 7, 2015 report, Dr. Weigel reviewed appellant’s history and noted that she reviewed the
SOAF. Upon physical examination of appellant’s left shoulder, she observed mild pain over the
acromioclavicular (AC) joint and moderate pain over the bicipital tendon. Dr. Weigel also noted
decreased range of motion and mild impingement sign. Drop arm test was negative. Dr. Weigel
opined that appellant was able to work full time with restrictions. She indicated that appellant’s
disability was causally related to the August 23, 2012 employment injury. Dr. Weigel provided a
work capacity evaluation form, which recommended that appellant work full time with restrictions
of no reaching above the shoulder and no lifting.
In a June 15, 2016 report, Ryann Putman, a nurse practitioner, related that appellant was
seen for a follow-up visit before her scheduled left rotator cuff repair surgery on June 23, 2016.
She reviewed appellant’s history and noted that she was currently working regular duty. Upon
physical examination of appellant’s left shoulder, Ms. Putman observed tenderness of the AC joint
and tenderness of the supraspinatus and the subacromial bursa. Hawkin’s and Neer’s tests were
positive. Ms. Putman diagnosed left shoulder full-thickness rotator cuff tear, left shoulder arthritis
of the AC joint, left shoulder bursitis, and left shoulder pain. She concluded that appellant had
symptomatic rotator cuff tear with impingement syndrome and needed an acromioplasty and miniopen rotator cuff repair of the left shoulder.

2

On June 23, 2016 appellant underwent authorized left shoulder recurrent rotator cuff tear
repair surgery.
On June 15, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for the
period June 23 through August 4, 2016. On July 15, 2016 she filed a separate Form CA-7 seeking
wage-loss compensation for the period June 23 to July 9, 2016. She indicated that she had been
employed as a nurse by Landsun Homes Long Term Care in Carlsbad, New Mexico from April 8
to June 22, 2016. Appellant subsequently filed Form CA-7 claims for compensation for
subsequent periods of disability.
In a development letter dated July 27, 2016, OWCP informed appellant that it had received
her claim for wage-loss compensation beginning June 23, 2016. It requested additional evidence
to establish that she was unable to work during the claimed period as a result of her accepted
August 23, 2012 employment injury. OWCP afforded appellant 30 days to submit the requested
evidence.
In an August 3, 2016 letter, OWCP requested additional information from appellant
regarding her current work at Landsun Homes Long Term Care and all work activities she
performed since she had returned to work in 2013. In a separate letter of the same date, it also
requested that she respond to an attached questionnaire in order to substantiate that her accepted
injury had worsened to the extent that she was no longer able to work. OWCP also requested that
appellant submit medical evidence to establish a recurrence of disability due to her August 23,
2012 employment injury. It afforded her 30 days to submit the requested evidence.
OWCP received appellant’s response to its development letter on August 16, 2016.
Appellant included a handwritten notation that she had not returned to work and instructed OWCP
to review her medical notes that she had previously submitted. She also submitted additional
medical evidence along with her response.
Appellant provided an August 9, 2016 work status note by Dr. Omar Osmani, an
orthopedic surgeon. Dr. Osmani checked a box indicating “No work until further notice.” In
another work status note of even date, Dr. Osmani checked a box indicating “No work until further
notice from June 23, 2016.”
On August 18, 2016 OWCP received a statement dated August 17, 2016 from appellant.
Appellant described the August 23, 2012 employment injury and indicated that because it had been
2½ years since her November 2012 left shoulder surgery and she still experienced left shoulder
pain, she sought medical treatment from Dr. Weigel. She related that she had told the physician
that her left shoulder pain had increased and her left shoulder was hanging lower than her right
shoulder. Appellant reported that an x-ray scan was taken, which showed that the screw in her left
shoulder was moving freely. She explained that her muscles had atrophied and weakened because
she had not utilized her shoulder due to pain. Appellant submitted a series of physical therapy
treatment notes.
By decision dated September 26, 2016, OWCP denied appellant claim for wage-loss
compensation beginning June 23, 2016. It found that the medical evidence submitted was

3

insufficient to establish total disability from work due to a change or worsening of her August 23,
2012 employment injury.
On October 12, 2016 appellant requested reconsideration. She related that the only
accident to her left shoulder rotator cuff was on August 23, 2012 at work. Appellant explained
that in March 2016, her left arm started to hurt worse and her shoulder was drooping. She noted
that no trauma or accident had occurred. Appellant reported that the hardware inserted in the
original surgery had come apart and opened up her rotator cuff. She indicated that the muscle
below the rotator cuff was atrophied to the second degree and alleged that it was a worsening of
the original injury. Appellant submitted medical evidence in support of her claim.
OWCP received appellant’s June 23, 2016 operative report. Appellant included a
handwritten notation that the operation showed the original hardware from her first surgery had
come apart.
In an August 16, 2016 report, Dr. Osmani noted that he treated appellant for follow-up of
left shoulder bursitis, pain, impingement syndrome, full thickness rotator cuff tear, and arthritis of
the AC joint. He related appellant’s complaints of increased pain in her shoulder and limited range
of motion. Dr. Osmani reviewed appellant’s history and conducted an examination of appellant’s
left shoulder. He reported no swelling, tenderness, or warmth. Range of motion was limited.
Dr. Osmani diagnosed postoperative rotator cuff repair with acute bursitis, left shoulder
impingement syndrome, left shoulder AC joint arthritis, and bilateral shoulder pain.
OWCP provided a December 1, 2016 OWCP memorandum where a claims examiner noted
that appellant had resigned from federal employment on September 6, 2013, but there was no
evidence of continued private sector employment. The examiner indicated that appellant worked
briefly from April through June 2016.
By decision dated December 1, 2016, OWCP denied modification of the September 26,
2016 decision. It found that appellant had not provided details about the work she performed
between 2013 and 2016. OWCP also determined that the medical evidence submitted was
insufficient to establish that appellant was totally disabled from work due to her accepted
August 23, 2012 employment injury.
On February 24, 2017 appellant again requested reconsideration.
OWCP received additional medical evidence from Dr. Osmani. In reports dated
November 8 and December 9, 2016, Dr. Osmani indicated that appellant was postoperative left
rotator cuff tear, but still complained of pain and weakness in her left shoulder. Upon physical
examination of appellant’s left shoulder, he observed no swelling, tenderness, or warmth and
appropriate range of motion. Dr. Osmani diagnosed left shoulder rotator cuff tear, left shoulder
impingement syndrome, left shoulder bursitis, left shoulder AC joint arthritis, and bilateral
shoulder pain. He indicated that appellant could return to work.
Appellant underwent a left shoulder x-ray examination on December 2, 2016 by
Dr. Matthew Stalker, a Board-certified diagnostic radiologist, who noted no shoulder subluxation
or dislocation and no focal bony defect or fracture.

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OWCP also received a December 2, 2016 report by Dr. Eric Sides, a Board-certified
orthopedic surgeon. Dr. Sides noted that appellant was status post left shoulder rotator cuff tear
repair. He reported that appellant had a left shoulder rotator cuff tear repair surgery in
November 2012 and now had lost the ability to lift her arm completely. Dr. Sides reviewed
appellant’s history and conducted an examination. He reported that her left shoulder had no
significant motion arising from the glenohumeral joint and minimal motion from the
scapulothoracic joint. Dr. Sides noted profound weakness of the rotator cuff and pain with
palpation of the greater tuberosity. He diagnosed complete rotator cuff tear or rupture of the left
shoulder.
In an unsigned January 18, 2017 left shoulder magnetic resonance imaging (MRI)
arthrogram, an unknown provider noted a large, full-thickness supraspinatus tendon rotator cuff
tear with tendon retraction and muscle atrophy.
Appellant submitted a January 27, 2017 letter by G.E. Booth, a physician assistant. He
indicated that appellant had been under pain management since December 2013 due to the late
effects of her left shoulder injury which appellant injured on August 23, 2012.
In a February 3, 2017 report, Dr. Daniel W. Vande Lune, a Board-certified orthopedic
surgeon, began to treat appellant and indicated that she was status post left shoulder rotator cuff
tear repair. Dr. Vande Lune related that appellant had a second surgery in June 2016 for her rotator
cuff tear and had lost the ability to lift her arm completely. Upon physical examination, he
observed no significant motion from the glenohumeral joint of appellant’s left shoulder and
minimal motion from the scapulothoracic joint. Dr. Vande Lune noted profound weakness of the
rotator cuff and pain with palpation of the greater tuberosity. He indicated that appellant had a
rotator cuff tear that was retracted to the level of the glenoid with supraspinatus and infraspinatus
fatty infiltration consistent with atrophy. Dr. Vande Lune diagnosed left shoulder complete rotator
cuff tear or rupture. He noted that appellant had failed, for a second time at rotator cuff repair.
Dr. Vande Lune opined: “all of these incidences relate to the problem, which took her to the
operating room initially in 2012.” He explained that appellant had a rotator cuff tear that was
repaired and without further injury progressed to tearing again. Dr. Vande Lune related that
appellant’s left shoulder MRI scan showed a tear that was really not repairable given the fatty
atrophy and retraction.
OWCP received a February 3, 2017 work status note by Dr. Osmani. Dr. Osmani noted:
“when original injury occurred muscle was torn, after surgery muscle did not heal which caused a
retear of the muscle.”
In a February 17, 2017 letter, Dr. Sides reported that appellant initially had a left shoulder
injury at work with a subsequent rotator cuff tear which required arthroscopic repair. He noted
that the date of injury was August 23, 2012 and that appellant’s first surgery was in
November 2012. Dr. Sides related that appellant continued to experience pain and difficulties with
her arm due to a failure of her rotator cuff repair. He indicated that appellant underwent a repeat
repair in June 2016, but still experienced persistent pain and loss of function in her left arm.
Dr. Sides noted that a left shoulder MRI scan showed a recurrent tear and supraspinatus atrophy.
He opined: “the recurrent tear in June was most likely because of a failure of her initial repair.”
Dr. Sides noted that the second repair also failed. He reported that both the initial and second

5

surgical repair were “within reasonable medical probability” and would be related to her original
injury.
On February 24, 2017 OWCP received a statement from appellant. Appellant indicated
that she did not ask to see Dr. Weigel for a second opinion examination and noted that she had not
seen her since May 1, 2015. She explained that she began to see Dr. Osmani for treatment because
her left shoulder pain had increased and her left shoulder was lower than the right shoulder.
Appellant asserted that the fact that her muscle atrophied in her left shoulder proved that she was
not using her left shoulder and was working within her limitations. She alleged that she obtained
a well-reasoned medical opinion from Dr. Osmani on how the retear in her left shoulder was
attributable to the original August 23, 2012 work injury. Appellant explained that the left shoulder
retear was caused because the original surgery in November 2012 had not healed. She related that
she worked for Landsun Homes Long Term Care from April to June 2016. Appellant listed her
duties as pouring medications into a red cup, taking it to a patient, and returning to a cart to give
another patient his or her medicine. She noted that she repeated this activity until all the
medications were passed.
By decision dated July 12, 2017, OWCP denied modification of the December 1, 2016
decision. It found that the medical evidence submitted was insufficient to establish that she was
unable to work beginning June 23, 2016 due to the August 23, 2012 employment injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that any disability for which compensation is
claimed is causally related to the employment injury.4 The term disability is defined as the
incapacity because of an employment injury to earn the wages the employee was receiving at the
time of the injury.5
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proven by a preponderance of the
reliable, probative, and substantial medical evidence.6 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled from work.7 When the
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he or she was in too much pain to work, without objective findings or

3

Supra note 1.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

6

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

7

Dean E. Pierce, 40 ECAB 1249 (1989).

6

disability being shown, the physician has not presented a medical opinion, supported by medical
rationale, on the issue of disability or a basis for payment of compensation.8
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.9
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of her wage-loss compensation claim, appellant submitted various reports by
Dr. Osmani dated August 9, 2016 to February 3, 2017. In an August 9, 2016 work status note, he
checked a box indicating “No work” from June 23, 2016. Dr. Osmani further related in reports
dated August 16 to December 9, 2016 that appellant complained of increased pain and weakness
in her left shoulder and limited range of motion after her November 12, 2012 surgery. He provided
examination findings and diagnosed postoperative rotator cuff repair with acute bursitis, left
shoulder impingement syndrome, left shoulder rotator cuff tear, left shoulder AC joint arthritis,
and bilateral shoulder pain. In a February 3, 2017 work status note, Dr. Osmani reported that when
the original injury occurred the muscle was torn, it did not heal after surgery, and this caused a
retear of the muscle.
The Board finds that, while the reports from Dr. Osmani are not completely rationalized,
they are consistent in indicating that appellant sustained a retear of her left shoulder rotator cuff
tear which caused her to be disabled from work, and his reports are not contradicted by any
substantial medical or factual evidence of record.10 Although the reports are insufficient to meet
appellant’s burden of proof to establish the claim, they raise an uncontroverted inference between
appellant’s current condition and resultant inability to work and the accepted August 23, 2012
employment injury, and thus, they are sufficient to require OWCP to further develop the medical
evidence.11
The Board notes that although the reports of Dr. Osmani do not provide medical rationale
explaining how the accepted employment incident caused or contributed to appellant’s current left
shoulder condition and inability to work, they strongly suggest and support a relationship between
the accepted August 23, 2012 injury and appellant’s current left shoulder condition and resultant
disability from work.

8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Amelia S. Jefferson, supra note 6.

10

See E.J., Docket No. 09-1481 (issued February 19, 2010).

11

Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).

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It is well-established that proceedings under FECA are not adversarial in nature and OWCP
is not a disinterested arbiter.12 While the claimant has the burden of proof to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence and to see that
justice is done.13 Thus, the Board will remand the case to OWCP for further development to obtain
a rationalized medical opinion as to whether appellant’s inability to work beginning June 23, 2016
is causally related to the August 23, 2012 employment injury and issue a de novo decision on
whether she was totally disabled beginning June 23, 2016 causally related to the August 23, 2012
employment injury.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with the above opinion.
Issued: May 7, 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

12

See Vanessa Young, 56 ECAB 575 (2004).

13
Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell,
34 ECAB 1233, 1237 (1983).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS B. STOKES VETERANS
ADMINISTRATION MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-810
Issued: October 18, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 1, 2010 appellant, through her attorney, filed a timely appeal of the
November 24, 2009 merit decision of the Office of Workers’ Compensation Programs finding
that she did not sustain an injury while in the performance of duty. Pursuant to 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 established that she sustained a right knee injury on
April 1, 2009, as alleged.
On appeal, counsel contends that the Office’s decision is contrary to fact and law.
FACTUAL HISTORY
On April 7, 2009 appellant, then a 52-year-old registered nurse, filed a traumatic injury
claim alleging that on April 1, 2009 she hurt her right knee when she slipped while exiting an

employing establishment shuttle bus.1 She stopped work on April 3, 2009. In medical reports
dated April 3 through 24, 2009, Dr. Bruce T. Cohn, an attending Board-certified orthopedic
surgeon, advised that appellant was totally disabled for work through May 20, 2009. He stated
that she reaggravated a right knee condition. In an April 3, 2009 report, Martha Brennan, a nurse
practitioner, noted appellant’s right knee and upper leg symptoms and medical history. She
placed appellant off work for the remainder of the day due to right knee pain.
By letter dated May 21, 2009, the Office advised appellant that the evidence submitted
was insufficient to establish her claim. It requested that she submit medical evidence, including
a rationalized medical report from an attending physician which described a history of injury and
provided dates of examination and treatment, findings, test results, a diagnosis together with an
opinion with medical reasons on why the diagnosed condition was caused or aggravated by the
April 1, 2009 incident.
In a May 15, 2009 report, Dr. Cohn advised that appellant was totally disabled for work
through June 26, 2009. In an April 3, 2009 report, he conducted a follow-up examination of
appellant’s prior employment-related right knee injury for which she underwent arthroscopic
surgery five months prior. Appellant had recently returned to full-duty work when she
experienced symptoms related to her knee on March 30, 2009. She denied any buckling or
giving out of the knee. Dr. Cohn listed essentially normal findings on examination of the right
knee with tenderness along the medial joint line, a positive McMurray’s test and decreased range
of motion. He also reported normal findings on examination of the right leg. Dr. Cohn
diagnosed a dislocated tear of the medial cartilage or meniscus of the right knee. He placed
appellant off work until her next evaluation. In reports dated April 10 and 24 and May 15, 2009,
Dr. Cohn again listed essentially normal findings on physical and neurosensory examination of
appellant’s right knee and leg, with a decreased range of motion. He diagnosed degenerative
joint disease with aggravation and patella chrondomalacia of the right knee and osteoarthritis of
the right leg. Dr. Cohn opined that appellant’s arthritic right knee condition was employment
related. He advised that she was totally disabled for work.
By decision dated June 22, 2009, the Office denied appellant’s claim, finding that the
medical evidence was insufficient to establish that her right knee condition was causally related
to the April 1, 2009 employment incident.
On August 25, 2009 appellant requested reconsideration. In reports dated May 22 to
June 12, 2009, Dr. Cohn reiterated the diagnoses of patella chrondomalacia and dislocated tear of
the medial cartilage or meniscus of the right knee and osteoarthritis of the right lower leg. He
released appellant to return to full-duty work June 29, 2009, four hours per day. Dr. Cohn
restricted her from climbing stairs.
By decision dated November 24, 2009, the Office denied modification of the June 22,
2009 decision, finding the evidence insufficient to establish that appellant sustained a right knee
injury causally related to the accepted April 1, 2009 employment incident.

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Prior to the instant claim, appellant filed a claim for a right knee injury under Office File No. xxxxxx809.

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LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.5
In order to meet her burden of proof to establish the fact that she sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that she actually
experienced the employment injury or exposure at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The Office accepted that appellant slipped while exiting an employing establishment
shuttle bus on April 1, 2009 while working as a registered nurse. The Board finds that the

2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 3.
5

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

6

Linda S. Jackson, 49 ECAB 486 (1998).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Charles E. Evans, 48 ECAB 692 (1997).

3

medical evidence of record is insufficient to establish that her right knee condition was caused or
aggravated by the April 1, 2009 employment incident.
Appellant submitted medical reports from Dr. Cohn, an attending physician, who noted
appellant’s prior employment-related right knee injury and listed essentially normal findings on
physical and neurosensory examination of the right knee and leg. Dr. Cohn found that she had a
dislocated tear of the medial cartilage or meniscus, degenerative joint disease with aggravation
and patella chrondomalacia of the right knee. He also found that appellant had osteoarthritis of
the right leg. Dr. Cohn opined that her arthritic right knee condition was employment related.
He stated that appellant was totally disabled for work from April 3 to June 28, 2009. Dr. Cohn
released her to return to full-duty work on June 29, 2009, four hours a day with restrictions.
However, he failed to identify the specific employment incident that caused appellant’s right
knee degenerative joint disease. Dr. Cohn did not discuss how the diagnosed arthritic right knee
condition was caused or aggravated by the April 1, 2009 employment incident in which appellant
slipped while exiting a bus.10 He noted appellant’s history of a prior right knee condition for
which she underwent surgery some five months before the accepted incident. Dr. Cohn did not
provide medical rationale explaining why the employment incident caused or aggravated her
right knee arthritic condition. He did not provide any medical opinion addressing whether the
dislocated tear of the medial cartilage or meniscus and patella chrondomalacia of the right knee
and osteoarthritis of the right leg conditions were causally related to the April 1, 2009
employment incident. Medical evidence which does not offer any opinion regarding the cause of
an employee’s condition is of limited probative value.11 The Board finds that Dr. Cohn’s reports
are insufficient to establish appellant’s claim.
The April 3, 2009 report from Ms. Brennan, a nurse practitioner, has no probative
medical value in establishing appellant’s claim. A nurse practitioner is not defined as a
physician under the Act.12
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a right knee injury causally related to the accepted April 1,
2009 employment incident. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a right knee injury
on April 1, 2009, as alleged.

10

See Willie M. Miller, 53 ECAB 697 (2002).

11

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

12

See 5 U.S.C. § 8101(2); K.H., Docket No. 09-2292 (issued May 14, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the November 24, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2010
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1791
Issued: February 23, 2018

Case Submitted on the Record

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

JURISDICTION
On August 21, 2017 appellant, through counsel, filed a timely appeal from a July 12,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,280.18 for the period June 25, 2016 through April 29, 2017 because OWCP failed
to deduct premiums for postretirement basic life insurance (PRBLI) from his wage-loss
compensation; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On September 19, 1995 appellant, then a 32-year-old mail handler, filed a recurrence of
disability claim (Form CA-2a) alleging that on that date he sustained a recurrence of disability
1

5 U.S.C. § 8101 et seq.

causally related to an accepted August 22, 1995 employment injury.2 OWCP determined that his
claim should be adjudicated as a traumatic injury claim and assigned File No. xxxxxx648. It
accepted the claim for strains of the lateral collateral ligament and anterior cruciate ligament of
the right knee, right knee chondromalacia, a right medial meniscus tear, an infection and
inflammatory reaction due to internal right knee prosthesis, and other mechanical complications
of internal right knee prosthesis.3
Following his employment injury, appellant sustained intermittent periods of total
disability.4 In June 2015 he stopped work and did not return. OWCP paid appellant wage-loss
compensation for total disability beginning June 22, 2015.
On November 29, 2016 the Office of Personnel Management (OPM) related that
appellant had elected PRBLI with no reduction as of June 25, 2016. Effective April 30, 2017,
OWCP began deducting premiums for PRBLI from his wage-loss compensation.
OWCP, by letter dated May 22, 2017, notified appellant of its preliminary determination
that it overpaid him wage-loss compensation in the amount of $1,280.18 because he elected
PRBLI with no reduction beginning June 25, 2016, but it did not deduct the premiums until
April 30, 2017. It calculated the overpayment by determining the amount of PRBLI it should
have deduced from his wage-loss compensation from June 25, 2016 to April 29, 2017. OWCP
further advised appellant of its preliminary determination that he was without fault in creating
the overpayment.
It requested that he complete the enclosed overpayment recovery
questionnaire (OWCP-20) and submit supporting financial documents. Additionally, OWCP
notified appellant that, within 30 days of the date of the letter, he could request a telephone
conference, a final decision based on the written evidence, or a prerecoupment hearing.
In an overpayment action request form completed June 1, 2017, appellant requested a
telephone conference with OWCP regarding the overpayment. He asserted that he was without
fault in creating the overpayment and requested waiver of recovery. In an accompanying
OWCP-20 form, appellant indicated that he received income of $1,062.00 from the Department
of Veterans Affairs (DVA) monthly and also provided his monthly expenses. He listed assets of
$23,439.00, noting that he was saving to purchase a house. Appellant indicated that he made
monthly support payments to a minor son and his former spouse.
On June 27, 2017 appellant elected to receive benefits under the DVA in lieu of workers’
compensation benefits effective that date.

2

Appellant previously filed a notice of traumatic injury (Form CA-1) alleging that he twisted his right knee on
August 22, 1995. OWCP assigned the claim File No. xxxxxx366 and administratively closed the case.
3
On June 13, 2000 OWCP accepted that appellant sustained right carpal tunnel syndrome, assigned File No.
xxxxxx201. On September 18, 2006 it accepted that he sustained bilateral carpal tunnel syndrome under File No.
xxxxxx915. These other claims have been administratively combined with the present claim, OWCP File No.
xxxxxx648, which serves as the master file.
4
By decision dated June 16, 1998, OWCP granted appellant a schedule award for seven percent permanent
impairment of the right lower extremity. In decisions dated September 29 and November 20, 2008, it denied his
request for an increased permanent impairment.

2

OWCP advised appellant that it had scheduled a telephone conference on July 12, 2017
to address whether he was entitled to waiver of recovery of the overpayment and, if not,
arranging repayment. It requested that he submit verification of his income and expenses.
In a July 12, 2017 memorandum of conference, OWCP informed appellant that he did not
qualify for waiver of recovery of the overpayment due to his assets. It recommended that he
submit $20.00 per month as repayment of the overpayment. OWCP noted that appellant had
asked OPM to change his PRBLI coverage to 75 percent reduction.
By decision dated July 12, 2017, OWCP found that appellant had received an
overpayment of compensation in the amount of $1,280.18 for the period June 25, 2016 through
April 29, 2017 because it failed to deduct premiums for PRBLI from his wage-loss compensation
benefits. It further determined that he was without fault in creating the overpayment, but denied
waiver of recovery of the overpayment based on his liquid assets of $23,439.00. OWCP found
that appellant should submit $20.00 per month as repayment of the overpayment.
On appeal appellant notes that it took OWCP over a year to process his life insurance,
causing a significant overpayment. He questions why he has to repay the overpayment given
that he was without fault in its creation.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI program, most civilian employees of the Federal Government are
eligible to participate in basic life insurance and one or more of the options.5 The coverage for
basic life insurance is effective unless waived6 and premiums for basic and optional life coverage
are withheld from the employee’s pay.7 Upon retirement or upon separation from the employing
establishment or being placed on the periodic FECA compensation rolls, an employee may
choose to continue basic and OLI coverage, in which case the schedule of deductions made will
be used to withhold premiums from his annuity or compensation payments.8 Basic life insurance
coverage shall be continued without cost to an employee who retired or began receiving
compensation on or before December 31, 1989.9 However, the employee is responsible for
payment of premiums for OLI coverage, which is accomplished by authorizing withholdings
from his continuing compensation.10
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his compensation, so that
his or her life insurance coverage could be continued without reduction. Regulations at 5 C.F.R.
§ 870.701 (December 5, 1980) provided that an eligible employee had the option of choosing no
5

5 U.S.C. § 8702(a).

6

Id. at § 8702(b).

7

Id. at § 8707.

8

Id. at § 8706.

9

Id. at § 8707(b)(2).

10

Id. at § 8706(b)(3)(B); see Edward J. Shea, 43 ECAB 1022 (1992).

3

life insurance; Option A -- basic coverage (at no additional cost) subject to continuous
withholdings from compensation payments that would be reduced by two percent a month after
age 65 with a maximum reduction of 75 percent; Option B -- basic coverage (at an additional
premium) subject to continuous withholdings from compensation payments that would be
reduced by one percent a month after age 65 with a maximum reduction of 50 percent; or Option
C -- basic coverage subject to continuous withholdings from compensation payments with no
reductions after age 65 (at a greater premium).11
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remained in effect.12 Any employee who
does not file a life insurance election form with his employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and
does not have that type of optional insurance.13 When an under withholding of life insurance
premiums occurs, the entire amount is deemed an overpayment of compensation because OWCP
must pay the full premium to OPM upon discovery of the error.14
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty. 15
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.16
ANALYSIS -- ISSUE 1
OPM notified OWCP on November 29, 2016 that appellant had elected PRBLI with no
reduction effective June 25, 2016. OWCP, however, did not deduct premiums for PRBLI from
his wage-loss compensation until April 30, 2017. It calculated the amount of the resulting
overpayment as $1,280.18. As noted, when an under withholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error.17

11

See James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

12

5 C.F.R. § 870.504(a)(1).

13

Id. at § 870.504(b).

14

Id. at § 8707(d); see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

15

Id. at § 8102(a).

16

5 U.S.C. § 8129.

17

Supra note 15.

4

As OWCP failed to deduce PRBLI premiums from June 25, 2016 through April 29, 2017,
appellant received an overpayment of compensation of $1,280.18 during this period.18 The
Board also notes that he does not contest fact or amount of the overpayment.19
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”20 Section 10.438 of OWCP regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.21
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections
10.434 to 10.437 of OWCP regulations.22
Section 10.436 provides that recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.23 An individual is
deemed to need substantially all or his or her current income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.24
OWCP procedures provide that the assets must not exceed a resource base of $4,800.00
for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent.25 An individual’s liquid assets include, but are not limited to cash, the
value of stocks, bonds, saving accounts, mutual funds, and certificate of deposits. Nonliquid

18

See E.H., Docket No. 15-0848 (issued July 6, 2016); V.B., Docket No. 15-0157 (issued March 16, 2015).

19

See J.H., Docket No. 15-1385 (issued October 27, 2015).

20

5 U.S.C. § 8129.

21

20 C.F.R. § 10.438.

22

5 U.S.C. § 10.434-10.437.

23

20 C.F.R. § 10.436

24

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (June 2009).
25

Id.

5

assets include, but are not limited to the fair market value of an owner’s equity in property such
as a camper, boat, second home, and furnishings/supplies.26
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.27 The Board finds
that OWCP properly denied waiver of recovery of the overpayment of compensation.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA as he has not shown that his assets do not exceed the allowable resource base.28 On the
completed overpayment recovery questionnaire, he indicated that he had checking accounts,
savings accounts, stocks, and bonds totaling $23,439.00. Appellant also claimed his minor son,
for whom he provided monthly support payments, as a dependent, for an applicable resource
base of $8,000.00.29 As his assets exceed the $8,000.00 resource base, he has not shown that
recovery of the overpayment would defeat the purpose of FECA.30 Because appellant has not
met the second prong of the two-prong test of whether recovery of the overpayment would defeat
the purpose of FECA, it is unnecessary to consider whether his monthly income exceeded his
monthly ordinary and necessary expenses by more than $50.00.31
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 position for the worse.32 OWCP procedures
provide that to establish that a valuable right has been relinquished, it must be shown that the
right was in fact valuable, that it cannot be regained and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.33
Appellant submitted no evidence to show that he gave up a valuable right or changed his
position for the worse in reliance on anticipated compensation payments. Thus, he has not
shown that, if required to repay the overpayment, he would be in a worse position after
repayment than if he had never received the overpayment at all. OWCP, therefore, properly

26

Id.

27

Supra note 22; see also M.H., Docket No. 17-0766 (issued July 3, 2017).

28

Supra note 24.

29

Appellant claimed his former wife as a dependent but the definition of a dependent does not include an ex-wife.
See 5 U.S.C. § 8110(a)(1); K.H., Docket No. 07-2265 (issued April 28, 2008).
30

Supra note 25.

31

See C.M., Docket No. 08-1119 (issued May 13, 2009).

32

20 C.F.R. § 10.437; see W.P., 59 ECAB 514 (2008).

33

Supra note 24 at Chapter 6.200.6b(3) (June 2009).

6

determined that appellant was not entitled to waiver as that recovery would be against equity and
good conscience.34
On appeal appellant notes that actions by OWCP resulted in a large overpayment and
questions why he has to repay the overpayment since he was not at fault in its creation. As
discussed, however, he is not entitled to waiver even though he was without fault in creating the
overpayment as his assets exceed the applicable resource base.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,280.18 because OWCP failed to deduct premiums for PRBLI for the period June 25, 2016
until April 30, 2017 from his wage-loss compensation. The Board further finds that OWCP
properly denied waiver of recovery of the overpayment.35
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 23, 2018
Washington, DC

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

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

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

34

See M.H., supra note 27.

35

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. D.R., 59 ECAB 148 (2007); Miguel A. Muniz, 54 ECAB
217 (2002). As appellant was not in receipt of continuing compensation at the time of OWCP’s overpayment
determination, the Board does not have jurisdiction over the method of recovery of the overpayment in this case.
See Lorenzo Rodriguez, 51 ECAB 295 (2000); 20 C.F.R. § 10.441.

7