United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1198
Issued: March 8, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 2, 2021 appellant, through counsel, filed a timely appeal from a February 1,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 As more
than 180 days has elapsed from OWCP’s last merit decision, dated December 20, 2019, to the

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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed beginning
on the day following the date of OWCP’s decision. An appeal is considered filed upon receipt by the Clerk of the
Appellate Boards. See 20 C.F.R. § 501.3(e)–(f). One hundred and eighty days from February 1, 2021, the date of
OWCP’s last decision, was July 31, 2021. As this fell on a Saturday, appellant had until the close of the next business
day, Monday, August 2, 2021 to file the appeal. 20 C.F.R. § 501.3(f)(2. The appeal was received on Monday,
August 2, 2021, rendering it timely.

filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 1, 2019 appellant, then a 60-year-old medical supply technician, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2019 she injured her legs, hips,
back, and shoulders when she slipped and fell on a greasy and wet floor while carrying metal trays
while in the performance of duty. 4 She did not stop work.
Appellant underwent diagnostic testing. An April 3, 2019 left shoulder x-ray scan revealed
mild degenerative changes at the acromioclavicular (AC) joint. A right shoulder x-ray scan was
unremarkable. A cervical spine computerized tomography (CT) scan revealed moderate right
foraminal stenosis at C3-4 and multiple degenerative grade 1 subluxations in the cervical and upper
thoracic spine.
In an April 5, 2019 report, Dr. Robert Reppy, an osteopath specializing in family medicine,
recounted that on February 26, 2019 appellant slipped on a concrete floor and fell on her head,
neck, shoulders, low back, and knees at work. He noted appellant’s complaints of neck and
bilateral knee pain. Dr. Reppy discussed appellant’s diagnostic test results, provided examination
findings, and diagnosed aggravation of existing low back pain, degenerative disc disease at C5-6
and C6-7, foraminal stenosis at C3-4, thoracic spine subluxation at multiple levels, and suspected
meniscus tear of the left knee. He also provided range of motion, comparative muscle report,
pinch/grip test, and lift strength evaluation reports dated April 8, 2019.
On April 4, 2019 appellant accepted a full-time, light-duty job offer.
An April 17, 2021 electromyography (EMG) and nerve conduction velocity (NCV) study
revealed abnormal findings of the upper extremities, which suggested the presence of left T1
radiculopathy.

3

5 U.S.C. § 8101 et seq.

4

OWCP assigned the claim OWCP File No. xxxxxx806. Appellant has two previously-accepted traumatic injury
claims. Under OWCP File No. xxxxxx662, OWCP accepted that appellant sustained a right hip contusion causally
related to a July 10, 2006 employment incident. Under OWCP File No. xxxxxx937, it accepted a closed fracture of
the upper and lower end of the left and right fibula condition as causally related to a June 18, 2017 employment
incident. Appellant also has a prior traumatic injury claim under OWCP File No. xxxxxx139 alleging left shoulder,
upper and lower back, left hip, and lower legs injuries due to a March 22, 2017 employment incident. OWCP denied
the claim, finding that the evidence of record was insufficient to establish that the March 22, 2017 incident occurred
as alleged. It has administratively combined OWCP File Nos. xxxxxx662, xxxxxx937, xxxxxx139, and xxxxxx806
with the latter claim as the master file.

2

In an April 25, 2019 report, Dr. Markus Kornberg, a Board-certified orthopedic surgeon,
indicated that he evaluated appellant for multiple symptoms related to a fall that she had at work
on February 26, 2019. On physical examination of the cervical spine, he reported tenderness of
the paracervicals and the trapezius and limited range of motion (ROM) testing. Examination of
appellant’s lumbar spine revealed tenderness of the paraspinal region at L5, tenderness of the
paraspinal region at L4 on the left, and limited ROM. Dr. Kornberg diagnosed low back pain and
lumbosacral spondylosis without myelopathy. He indicated that appellant had preexisting lumbar
issues and opined that she suffered an exacerbation of her preexisting condition. Dr. Kornberg
also diagnosed cervical spondylosis without myelopathy. He reported that appellant had
mechanical cervical neck pain with significant preexisting condition and opined that she suffered
“temporary exacerbation of recent traumatic insult.” Dr. Kornberg further diagnosed left knee
pain and explained that appellant suffered “traumatic insult to the left knee with resultant bruising.”
In a May 16, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised of the type of factual and medical evidence necessary to establish her claim and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to respond.
Appellant submitted additional reports by Dr. Reppy dated May 3 and June 7, 2019.
Dr. Reppy discussed appellant’s diagnostic test results and provided physical examination
findings. He diagnosed left knee chondromalacia, cervical stenosis, thoracic spine subluxation at
multiple levels, and aggravation of preexisting low back pain due to intervertebral discs.
Dr. Reppy completed a June 7, 2019 duty status form report (Form CA-17) indicating that
appellant could work full-time, modified-duty.
Appellant submitted an emergency room report dated April 3, 2019 by Dr. Elizabeth
Janevski, an emergency medicine physician, who recounted appellant’s complaints of severe neck
and upper back pain following a fall in late February. Dr. Janevski reported that physical
examination of appellant’s upper back demonstrated tenderness over the bilateral paraspinal region
of the upper back, shoulders, and lateral neck. Range of motion was limited due to pain.
Dr. Janevski indicated that a cervical spine CT scan showed degenerative narrowing, but no acute
pathology. She diagnosed muscle spasms of the neck and shoulder region.
By decision dated June 14, 2019, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the incident occurred as alleged. Thus,
it concluded that the requirements had not been met to establish an injury as defined by FECA.
On July 12, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
November 8, 2019. Appellant described her previous injuries to her neck, back, hips, and left
shoulder and prior workers’ compensation claims.
In a November 8, 2019 report, Dr. Reppy noted no changes in appellant’s cervical range of
motion. He diagnosed cervical stenosis, thoracic spine subluxation at multiple levels, left knee
chondromalacia, left shoulder degenerative joint disease at the AC joint, and displacement of
lumbar spine intervertebral discs.

3

By decision dated December 20, 2019, OWCP’s hearing representative modified the
June 14, 2019 decision to accept that the February 26, 2019 incident occurred as alleged and that
medical conditions were diagnosed. However, the claim remained denied as the medical evidence
of record was insufficient to establish causal relationship between the diagnosed conditions and
the accepted employment incident.
On December 20, 2020 appellant, through counsel, requested reconsideration. Counsel
argued that appellant’s claim should be accepted based on Dr. Reppy’s reports because he had
treated appellant for her other work-related injuries and had diagnosed aggravation of cervical and
lumbar spondylosis.
Appellant submitted the April 3, 2019 diagnostic examination reports of the lumbar spine
and bilateral shoulders, the April 17, 2019 EMG/NCV study, and Dr. Kornberg’s April 25, 2019
report and June 7, 2019 Form CA-17 report, which were previously reviewed.
Appellant also submitted radiograph reports dated February 28, 2019. A bilateral hip
radiograph showed mild femoracetabular joint space narrowing bilaterally and no acute displaced
fractures. A bilateral knee radiograph demonstrated very mild degenerative change. A lumbar
spine radiograph revealed mild degenerative changes at L5-S1.
OWCP received an April 3, 2019 work capacity evaluation form (Form OWCP-5c) from
Dr. Kornberg who noted a diagnosis of exacerbation of cervical and lumbar spondylosis.
Appellant also submitted a December 20, 2019 report by Dr. Reppy under OWCP File No.
xxxxxx937. Dr. Reppy indicated that he treated appellant for complaints of low back pain
radiating to the bilateral legs after she fell down last Sunday. He provided examination findings
and diagnosed status post right fibula fracture, bilateral tarsal tunnel syndrome, lumbar
degenerative disc disease, lumbar radiculopathy at L5 root and S1 root, and mononeuritis of the
right tibial. Appellant provided additional reports by Dr. Reppy dated January 24, 2020 through
February 5, 2021 regarding medical treatment for her lumbar and right lower extremity conditions.
By decision dated February 1, 2021, OWCP denied appellant’s request for reconsideration
of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument that: (1) shows that OWCP erroneously applied or interpreted a

5

5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April 28, 2021); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); D.L., Docket No. 09-1549 (issued
February 23, 2010); W.C., 59 ECAB 372 (2008).

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specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On reconsideration, appellant did not show that OWCP erroneously applied or interpreted
a specific point of law. Moreover, she did not advance a relevant legal argument not previously
considered by OWCP. As such, appellant is not entitled to review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3). 10
In support of her request for reconsideration, appellant submitted additional medical
evidence, including February 28, 2019 radiograph reports, Dr. Kornberg’s April 3, 2019 Form
OWCP-5c, and Dr. Reppy’s reports dated December 20, 2019 through February 5, 2021. While
this medical evidence is new, it is not relevant because it does not address the underlying issue of
the present case, i.e., whether appellant has established causal relationship between the accepted
February 26, 2019 employment incident and her diagnosed medical conditions. The Board notes
that the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.11 Moreover, appellant also submitted April 3, 2019
diagnostic examination reports of the lumbar spine and bilateral shoulders, an April 17, 2019
6

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (September 2020). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.608(a); see F.V., Docket No. 18-0230 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); see B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
10

Id. at § 10.606(b)(3); G.K., Docket No. 20-1026 (issued December 11, 2020); D.T., Docket No. 20-0456 (issued
September 1, 2020).
11

D.C., Docket No. 19-0873 (issued January 27, 2020); E.G., Docket No. 18-0270 (issued August 24 2018);
Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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EMG/NCV study report, and Dr. Kornberg’s April 25, 2019 report and June 7, 2019 CA-17 form
report, which were previously reviewed. The Board has held that the submission of evidence
which duplicates or is substantially similar to evidence already in the case record does not
constitute a basis for reopening a case. 12 Therefore, for the above reasons, appellant also failed to
satisfy the third requirement under 20 C.F.R. § 10.606(b)(3). 13
The Board thus finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2022
Washington, DC

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

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

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

12

S.W., Docket No. 18-1261 (issued February 22, 2019); E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59
ECAB 141 (2007).
13

See D.J., Docket No. 21-0371 (issued November 24, 2021).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

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

Docket No. 16-0433
Issued: September 26, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 7, 2016 appellant, through counsel, filed a timely appeal of an October 27,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability commencing August 18, 2014 causally related to his accepted April 15, 2005
employment injury.
On appeal, counsel alleges that appellant has established a worsening of his accepted
condition, resulting in a recurrence of total disability.
FACTUAL HISTORY
On April 15, 2005 appellant, a 50-year-old letter carrier, filed a traumatic injury (Form
CA-1) alleging that he sustained an injury to his right foot when a motor vehicle ran over it.
OWCP accepted the claim for contusion of the right foot and traumatic arthritis of the right first
metatarsophalangeal joint.
Appellant underwent authorized fusion of the right first
metatarsophalangeal joint on September 20, 2005. He received compensation benefits on the
supplemental rolls from September 20 through November 13, 2005.
Appellant returned to full duty as a letter carrier on February 20, 2006. He underwent
surgery for hardware removal on October 10, 2006; he returned to full duty thereafter on
November 14, 2006. Appellant stopped work again in 2008 for intermittent periods and began
receiving compensation benefits on the periodic rolls as of June 7, 2009.
In a June 17, 2013 report, Dr. Edward L. Chairman, a specialist in podiatric surgery,
advised that appellant was returning to work with restrictions after a five-year hiatus. He noted
his history of a right foot injury and fusion of the first metatarsophalangeal joint in 2005.
Dr. Chairman advised that appellant continued to have right foot pain and discomfort and noted
that one of the screws used in fixation began to loosen, which led to it being surgically removed;
after this procedure appellant’s right foot condition improved. He noted that appellant reported
total rigidity and fusion of the first metatarsophalangeal joint. Dr. Chairman related that
appellant had been working at home in a computer-type business and was able to work by sitting
at his computer with his right foot elevated on a stool to counteract gravity; he advised that when
appellant’s foot was not elevated it swelled up and caused significant pain and discomfort. He
opined that appellant could return to work at a sedentary position if he was able to sit at his desk
most of the time and keep his foot elevated.
On March 12, 2014 appellant accepted a part-time position as a modified clerk, sales
solution team member, with varying hours. The job was tailored to the physical restrictions
outlined by Dr. Chairman. The duties of the job involved: contacting customers by telephones,
light data entry, answering the telephone, and administrative assistance duties in the back room.
The physical requirements of the job were as follows: sitting in an office chair with a back
support, with occasional standing, simple grasping to use computer mouse with right upper
extremity, pushing/pulling for intermittent use of computer mouse with right hand, intermittent
use of the right hand for keyboard data entry, and speaking on the telephone. Appellant
continued to receive compensation benefits on the supplemental rolls for partial disability, for
four hours of wage loss per day.

2

In a June 23, 2014 report, Dr. Miteswar Purewal, Board-certified in orthopedic surgery,
advised that appellant related that his right foot pain had increased since his last visit. He
diagnosed traumatic ankle arthropathy and chronic regional pain syndrome of the right lower
extremity, with neuropathic pain. Dr. Purewal reported that appellant was struggling with
increased pain, as he had returned to part-time work. He related that the employing
establishment had not provided appellant with an adjustable desk that would allow him to elevate
his leg.
In order to determine appellant’s current condition, and whether he had continued
disability causally related to his April 15, 2005 employment injury, OWCP referred him to
Dr. Raoul Biniaurishvili, Board-certified in psychiatry and neurology, for a second opinion
examination. In a report dated June 23, 2014, Dr. Biniaurishvili related that appellant had
sustained trauma in 2005 when a car ran over his foot. He opined that appellant had traumatic
arthropathy and chronic pain syndrome related to his injuries. Dr. Biniaurishvili opined that
appellant’s conditions were connected to the work injury by direct cause. He noted that
appellant complained of moderately severe pain in the right foot; the pain in his right foot was
more severe in the big toe and at the bottom of the right foot. Dr. Biniaurishvili asserted that
appellant’s pain was associated with frequent exacerbations and limited his everyday activities.
He related that appellant was unable to walk long distances and experienced difficulty walking
and carrying weight. Dr. Biniaurishvili opined that appellant could not perform full-duty work.
He opined, however, that appellant was able to work four to six hours a day in a sedentary
position.
Dr. Biniaurishvili concluded that appellant had reached maximum medical
improvement, although he could benefit from repeated courses of physical therapy, medical
treatment, and possible sympathetic blocks. He advised that appellant’s prognosis for gaining
full function in his right foot was guarded.
In an August 18, 2014 report, Dr. Purewal advised that appellant continued to experience
right lower extremity pain and that his average pain level was an 8 on a scale of 1 to 10. He
diagnosed traumatic ankle arthropathy and chronic regional pain syndrome of the right lower
extremity and suggested cutting appellant’s work hours to Mondays, Wednesdays, and Fridays to
see if his swelling would improve. Dr. Purewal advised that appellant’s swelling and discomfort
had increased since he began working part time and opined that the employing establishment had
not provided him with any accommodation in terms of ergonomics. He reported that appellant
continued his three-day work schedule.
Appellant filed a Form CA-7 dated August 20, 2014, in which he claimed compensation
for wage loss from August 9 to 23, 2014. In a time analysis form (Form CA 7a) dated
August 26, 2014, he noted that he had worked four hours a day from August 11 through 15,
2014, and on August 20, 2014. Appellant related that he had used four hours of leave on
August 18, 2014 for a physician’s appointment and two hours of annual leave on
August 22, 2014. He requested eight hours of wage-loss compensation for August 19
and 21, 2014.
On September 10, 2014 appellant filed another Form CA-7 claim for compensation for
the period August 23 through September 5, 2014. He continued to submit Forms CA-7, every
two weeks, alleging wage loss.

3

By letter dated September 10, 2014, OWCP advised appellant that it required additional
factual and medical evidence, including a comprehensive medical report, to support his claim for
reimbursement for eight hours of leave without pay on August 19 and 21, 2014. It noted that
Dr. Biniaurishvili opined in his June 23, 2014 report that appellant was capable of working at
least four hours per day. OWCP found that his opinion represented the weight of the medical
evidence. It asked appellant to either indicate why he did not work on August 19 and 21, 2014
or have his attending physician submit an updated report indicating his work capacity on these
days.
On March 10, 2015 appellant filed a Form CA-2a claim for a recurrence of disability,
alleging that his increased disability from work; i.e., his reduced work hours, as of August 18,
2014 was caused or aggravated by his accepted April 15, 2005 employment injury. He reported
on the form that his treating physician reduced his work hours due to a worsening of his condition.
The employing establishment indicated on the form that it had made accommodations or
adjustments in appellant’s regular duties due to his injury-related limitations. It further asserted
that he had returned to work on March 12, 2014 at four hours per day, five days per week.
Appellant had claimed that his injuries were worsened and that his days were decreased to three
per week; management indicated that his current schedule was four hours per day, four days per
week.
By letter dated May 18, 2015, OWCP advised appellant that it required additional factual
and medical evidence, including a comprehensive medical report, to support his claim that his
alleged recurrence of disability as of August 18, 2014 was causally related to his accepted right
foot conditions. It informed appellant that the evidence it had received was insufficient to
establish his claim for recurrence of disability because, although Dr. Purewal advised that
appellant was experiencing increased swelling and discomfort and suggested reducing his work
schedule to three days per week, he did not indicate how his work-related conditions had
materially worsened or how the suggested reduction in work hours was related to the accepted
right foot conditions. Appellant was afforded 30 days to submit this additional evidence. No
additional response was received within that time frame.
By decision dated June 29, 2015, OWCP denied appellant’s claim, finding that he failed
to establish a recurrence of disability commencing August 18, 2014, causally related to his
April 15, 2005 employment injury.3 It determined that medical evidence submitted in support of
the recurrence claim did not establish that he had a return or increase of disability due to a
change or worsening of his accepted, work-related conditions.
OWCP noted that
Dr. Biniaurishvili found in his June 23, 2014 report that appellant could work four to six hours
per day performing a desk job. It further noted that Dr. Purewal’s August 18, 2014 report
asserted that the swelling and discomfort in appellant’s right foot had increased since he began
working part time, that management had provided no accommodation for his physical
restrictions, and that he had suggested cutting his work hours to Monday, Wednesday, and
Friday. OWCP found, however, that Dr. Purewal’s report did not specifically indicate how the
worsening of appellant’s accepted conditions caused his inability to work at least four hours per
3

OWCP listed traumatic right ankle arthropathy and reflex sympathetic dystrophy of the right lower limb as
accepted conditions. There is no documentation in the record that these conditions were ever accepted by OWCP as
causally related to the April 15, 2005 employment injury.

4

day in the modified sales solution team member job. OWCP therefore concluded that the weight
of medical evidence continued to support that appellant was capable of working in this sedentary
position up to four hours per day. It further noted that he had been paid up to four hours per day
leave without pay since returning to work on March 14, 2014.
By letter dated July 6, 2015, appellant, through counsel, requested an oral hearing before
an OWCP hearing representative, which was held on September 14, 2015.
In a report dated July 14, 2015, Dr. Purewal advised that he began treating appellant on
October 2, 2008 for his right lower extremity condition which began in 2005. He noted that
appellant suffered a work-related injury when a car ran over his foot. Dr. Purewal noted that
appellant had returned to work in a modified employment position in an office setting. He
related that appellant reported increased swelling and pain in his lower extremity when he
worked five consecutive days. Dr. Purewal noted that he suggested modification of appellant’s
work schedule to determine if this would improve his pain. He opined that the reduction in work
hours would reduce the swelling and pain as the affected limb would not be in the dependent
position.
In an August 24, 2015 report, Dr. Purewal noted that appellant’s pain had remained the
same since his last visit; he rated the pain as an 8 on a scale of 1 to 10. He reiterated his
diagnoses of traumatic ankle arthropathy, chronic regional pain syndrome of the right lower
extremity, and neuropathic pain. Dr. Purewal agreed with Dr. Biniaurishvili that appellant would
benefit from physical therapy.
At the hearing, appellant testified that when he first returned to work in March 2014 his
job involved sitting at a desk making telephone calls, calling different companies trying to
generate business for the employing establishment. He related that he had a chair with two
armrests on the side; he noted that Dr. Purewal had also recommended that he have a footrest to
keep his foot elevated at all times. Appellant asserted that when he returned to work the
employing establishment provided him with a makeshift stool, which did not have sufficient
elevation for his foot. He learned of a stool which would satisfy his needs and provided
management with a picture of the stool, but has not been able to obtain this stool to this day, as
management allegedly told him that they would order it, but he would have to pay for it with his
own credit card. Appellant asserted that because he did not get the stool he began to experience
constant pain, numbness, and discomfort in his legs, at the bottom of his right foot, right ankle,
and right leg all the way up to his hip.
Appellant advised that when he returned to work he was working approximately five
days a week, but he eventually realized that this was too much. He related that, because of the
pain, numbness, and swelling in his right foot and right leg he returned to Dr. Purewal, who
reduced his work schedule to three days per week: Monday, Wednesday, and Friday, for four
hours per day, in August 2014. Dr. Purewal prescribed medications and administered epidural
injections every three months; he also recommended that appellant take a 15-minute break every
hour to relieve the pain, numbness, and discomfort in his back and his legs. Appellant reported
that these measures helped relieve some of the pain and discomfort, as did putting two chairs
together and placing his right leg on the chairs. He also experienced improvement in his right
foot condition by taking more days off, when he could elevate his leg more and undergo physical

5

therapy. Appellant recently switched to a four-day per week work week; he noted that his
schedule had since varied, most recently going from 12 hours per week (four hours per day three
days a week) to 16 (adding a fourth workday of four hours). He noted that he was receiving
compensation for 20 hours per week in lost wages from OWCP.
Counsel argued that Dr. Purewal’s June 23, 2014 report supported a worsening of
appellant’s condition. He stated that appellant’s right foot condition worsened because he was
initially working 20 hours a week, five days a week, 4 hours per day until August 2014, when
Dr. Purewal recommended reducing appellant’s workdays to three per week. Counsel reported
that appellant underwent electromyogram testing on July 2, 2014 which showed persistent nerve
damage in his right lower extremity including poly peroneal neuropathy on the right leg, which
required right lower extremity epidural injections. He asserted that Dr. Purewal reported
increased swelling and discomfort in the right foot in his August 2014 report and alleged that
management did not provide suitable accommodation for appellant’s right foot condition by
failing to provide an appropriate stool for his right foot, consistent with Dr. Purewal’s
recommendations; appellant further noted that Dr. Purewal reduced his workdays to Monday,
Wednesday, and Friday to alleviate the swelling in the right leg and foot. Counsel noted that
Dr. Purewal opined in his June 5, 2015 report that appellant’s condition had improved after this
modification in his work schedule; Dr. Purewal therefore argued that the schedule was part of the
problem and that appellant needed to have a day off in between workdays to recover. Based on
this evidence, counsel argued, the record established that appellant sustained an overall
worsening of his condition and a recurrence of his work-related right foot condition as of
August 18, 2014.
By decision dated October 27, 2015, OWCP’s hearing representative affirmed the
July 29, 2015 decision.
LEGAL PRECEDENT
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that, light duty can be performed, the employee has the burden of proof to establish
by the weight of the reliable, probative, and substantial evidence a recurrence of disability. As
part of this burden, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.4
The Board will not require OWCP to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.5

4

Terry Hedman, 38 ECAB 222 (1986).

5

See W.T., Docket No. 13-1026 (issued September 10, 2013).

6

ANALYSIS
Appellant has been in receipt of wage-loss compensation for partial disability. He
worked a five-day, four-hour a day schedule in the modified job for five consecutive months,
from March to August 2014, and received compensation for 20 hours per week in lost wages
from OWCP.
The record does not contain any medical opinion evidence showing a change in the
nature and extent of appellant’s injury-related condition resulting in total disability as of
August 18, 2014. Indeed, appellant has failed to submit any medical opinion containing a
rationalized, probative report, which establishes increased disability as of August 18, 2014
causally related to his accepted contusion of the right foot and traumatic arthritis of the right first
metatarsophalangeal joint conditions. For this reason, he has not discharged his burden of proof
to establish his claim a recurrence of disability as a result of his accepted employment
conditions.
On appeal, counsel argues that he has provided sufficient factual and medical evidence to
establish an overall worsening of his work-related condition beginning August 18, 2014. He
notes that appellant testified at the hearing that, after his return to work, he was working five
days a week, but found that schedule was too much for his right foot and ankle therefore
Dr. Purewal reduced appellant’s workdays to three per week. Counsel further contends that
Dr. Purewal’s reports establish that appellant was experiencing a worsening of the his workrelated right foot condition in the form of increased swelling and pain in the right foot and ankle;
he notes that Dr. Purewal opined that the prolonged position of the lower extremity in a
dependent position required by appellant’s new work position led to increased swelling as the
normal autonomic control was compromised; this necessitated the reduction in work hours. The
Board does not accept counsel’s contentions.
Dr. Chairman advised in his June 17, 2013 report that appellant could return to work in a
sedentary position where he was able to sit for most of the day and prop his foot up on a stool,
fighting gravity. He reported that when appellant was able to keep his foot elevated on a stool
while sitting at a desk, he did not experience swelling, symptoms, or pain in his right foot. On
March 12, 2014 appellant accepted a part-time position as a modified clerk, a sales solution team
member, based on the restrictions outlined by Dr. Chairman.
Dr. Biniaurishvili opined in his June 23, 2014 report that appellant could work four to six
hours a day performing a desk job.
In his June 23, 2014 report, Dr. Purewal related that appellant was struggling with
increased right foot pain since he returned to part-time work. He related that management had
failed to provide appellant with an adjustable desk that would permit him to elevate his leg. In
his August 18, 2014 report, Dr. Purewal noted that appellant continued to experience right lower
extremity pain and that his average pain level was an 8 on a scale of 1 to 10. He advised that
appellant’s swelling and discomfort had increased since he began working part time and opined
that the employing establishment had not provided him with any accommodation in terms of
ergonomics. Dr. Purewal diagnosed traumatic ankle arthropathy and chronic regional pain

7

syndrome of the right lower extremity and recommended that appellant reduce his workdays to
Mondays, Wednesdays, and Fridays to see if this would decrease his swelling.
The reports from Dr. Purewal provided a diagnosis of appellant’s current condition and
indicated generally that he complained of disabling pain in June and August 2014, but did not
constitute probative, rationalized medical evidence sufficient to establish that appellant’s alleged
increased disability as of August 18, 2014 was causally related to his accepted right foot
conditions. He opined in his August 18, 2014 report that appellant had increased swelling, pain,
and discomfort in his right foot and that he therefore needed to cut back on his workdays.
Dr. Purewal, however, did not provide a probative, rationalized medical opinion, which
addressed or explained whether appellant sustained a recurrence of disability due to his accepted
contusion of the right foot and traumatic arthritis of the right first metatarsophalangeal joint
conditions on August 18, 2014. He made no objective findings regarding whether appellant
sustained a recurrence of disability as of August 18, 2014.6 Dr. Purewal did not describe how
appellant’s accepted contusion of the right foot and traumatic arthritis of the right first
metatarsophalangeal joint conditions would have been competent to cause the claimed
recurrence of disability as of August 18, 2014. Thus, his reports do not constitute probative,
rationalized evidence demonstrating that a change occurred in the nature and extent of the injuryrelated conditions sufficient to warrant increased disability for the period claimed.
Further, appellant did not submit sufficient evidence indicating that there was a change in
the nature and extent of his limited-duty assignment. He asserted at the hearing that when he
returned to work in March 2014 his job involved sitting at a desk making telephone calls, calling
different companies trying to generate business for the employing establishment. Appellant and
counsel alleged that management did not provide suitable accommodation for his right foot
condition by failing to provide an appropriate stool for his right foot, consistent with
Dr. Chairman’s recommendations; the makeshift stool management gave appellant did not have
sufficient elevation for his foot and he had not been able to obtain the stool which provided these
needs. He asserted that because he did not get the stool he began to experience constant pain,
numbness, and discomfort in his legs, hips, and at the bottom of his right foot, right ankle, and
right leg all the way up to his hip and that was the worst. Appellant stated that he was working
about five days a week at the modified job, but eventually came to believe that he needed to
reduce his weekly workdays. Dr. Purewal recommended reducing appellant work schedule to
three days per week; Monday, Wednesday, and Friday, for four hours per day, in August 2014
and that appellant take a 15-minute break every hour to relieve the pain, numbness, and
discomfort in his back and his legs. Appellant reported that these measures helped reduce some
of the pain and discomfort, as did putting two chairs together and placing his right leg between
the chairs; the additional days off also helped because he could elevate his leg more, get more
rest for his right foot and undergo physical therapy. He subsequently switched to a four day per
week workweek.
While appellant asserted that his workdays were decreased because his right foot
conditions had worsened due to management’s failure to accommodate his work restrictions, he

6

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

8

has failed to support these allegations with any documentary evidence.7 The employing
establishment provided him with the modified job as a sales solution team member a job tailored
to meet Dr. Purewal’s work restrictions. It indicated on the May 10, 2015 Form CA-2a that it had
made accommodations and adjustments in appellant’s regular duties due to his injury-related
limitations. Appellant asserted that his conditions worsened as a result of management’s failure
to make the requisite accommodations and adjustments for his work-related conditions. The
record shows, however, that he was able to work a five-day, four-hour per day schedule at the
modified job for five consecutive months, from March to August 2014, without interruption.
Further, as noted above, appellant was receiving compensation for 20 hours per week in lost
wages from OWCP.
Accordingly, OWCP properly denied compensation for a recurrence of appellant’s workrelated accepted right foot and traumatic arthritis of the right first metatarsophalangeal joint
conditions as of August 18, 2014. The Board will affirm the October 27, 2015 decision of
OWCP’s hearing representative.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing August 18, 2014 causally related to his accepted April 15, 2005
employment injury.

7

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).

9

ORDER
IT IS HEREBY ORDERED THAT the October 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 26, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.K., Appellant
and
DEPARTMENT OF THE AIR FORCE, OGDEN
AIR LOGISTICS CENTER, HILL AIR FORCE
BASE, UT, Employer
__________________________________________

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

Docket No. 16-1653
Issued: April 25, 2017

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 9, 2016 appellant filed a timely appeal from a May 24, 2016 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated November 10, 2015, 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 the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its May 24, 2016 decision.
However, the Board’s jurisdiction is limited to reviewing evidence that was part of the record at the time OWCP
issued its final decision. Thus, the Board is precluded from reviewing this evidence on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On September 15, 2015 appellant, a 54-year-old fire chief, filed a traumatic injury claim
(Form CA-1). He alleged that he sprained his right shoulder on August 19, 2015 when the foot
peg of an elliptical trainer he was moving got caught between the slats of a pallet.
By letter to appellant dated October 6, 2015, OWCP advised him that it required
additional factual and medical evidence to determine whether he was eligible for compensation
benefits. It noted that he did not provide a statement or description as to how his injury occurred,
and asserted that such factual evidence was required to support his claim. OWCP asked
appellant to submit a comprehensive medical report from his treating physician describing his
symptoms and a medical opinion explaining the cause of any diagnosed condition. It afforded
him 30 days to submit the requested evidence.
In an October 28, 2015 memorandum, the employing establishment controverted the
claim because appellant did not report the injury by submitting a Form CA-1 within 30 days of
the injury.
By decision dated November 10, 2015, OWCP denied the claim finding that appellant
failed to meet his burden of proof to establish fact of injury. It explained that he failed to meet the
factual component.
On May 10, 2016 appellant requested reconsideration.
Appellant submitted copies of e-mails he exchanged with an employing establishment
workers’ compensation specialist dated October 28, 2015 and May 3, 4, and 9, 2016. In the
May 2016 e-mails, he referenced the October 28, 2015 e-mails. Appellant indicated that he
injured his right shoulder, that his condition had not improved, that his neurologist referred him
for a magnetic resonance imaging (MRI) scan of his right shoulder, and that he was awaiting an
appointment with an orthopedist. He also asked what he needed to do to reopen his case. The
workers’ compensation specialist advised appellant that the employing establishment had
controverted his claim for continuation of pay because he did not file his claim within 30 days of
the alleged injury.
By decision dated May 24, 2016, OWCP denied appellant’s request for reconsideration as
it neither raised substantive legal questions nor included new and relevant evidence sufficient to
require it to review the merits of the claim.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
3

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

2

must be received by OWCP within one year of the date of the decision for which review is
sought.5 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
ANALYSIS
The Board finds that, in the present case, appellant has not shown that OWCP
erroneously applied or interpreted a specific point of law nor has he advanced a relevant legal
argument not previously considered by OWCP. The Board has held that the submission of
evidence which does not address the particular issue involved in the case does not constitute a
basis for reopening the claim.8 The evidence appellant submitted in connection with his
reconsideration request, however, is not pertinent to the issue on appeal; i.e., whether appellant
has established that he sustained an injury on August 19, 2015 in the performance of his federal
employment at the time, place, and in the manner alleged.9 The October 2015 and May 2016
e-mails appellant submitted did not contain a statement or description as to how appellant’s
alleged right shoulder injury occurred on August 19, 2015, as requested by OWCP. Appellant’s
reconsideration request failed to show that OWCP erroneously applied or interpreted a point of
law nor did it advance a point of law not previously considered by OWCP. OWCP did not abuse
its discretion in refusing to reopen appellant’s claim for a review on the merits in its May 24,
2016 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of the OWCP decision for which review is sought. Federal (FECA)
Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined
by the document receipt date of the request for reconsideration as indicated by the “received date” in the integrated
Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

See David J. McDonald, 50 ECAB 185 (1998).

9

See Patricia G. Aiken, 57 ECAB 441 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 25, 2017
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Jose, CA,
Employer
__________________________________________

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

Docket No. 19-1874
Issued: June 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 9, 2019 appellant filed a timely appeal from a September 5, 2019 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,946.03 as he concurrently received Office of
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 5, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence
for the first time on appeal. Id.

Personnel Management (OPM) retirement benefits and FECA wage-loss compensation for the
period December 18, 2018 through January 5, 2019; and (2) whether OWCP properly found that
appellant was at fault in the creation of the overpayment and thereby precluded from waiver of
recovery of the overpayment.
FACTUAL HISTORY
On September 29, 2011 appellant, then a 53-year-old driver, filed a traumatic injury claim
(Form CA-1) alleging that on September 23, 2011 he injured his arms, back, and neck when he
fell through a dock plate as he was attempting to pull it open while in the performance of duty.
OWCP accepted the claim for bilateral shoulder and upper arm strain, right hip and thigh
contusion, and bilateral lumbar sprain. Appellant underwent OWCP-approved right shoulder
surgery on June 5, 2012. He stopped work on that date and did not return. OWCP paid appellant
wage-loss compensation on the supplemental rolls from May 31 through September 22, 2012, and
on the periodic rolls beginning September 23, 2012.
On December 21, 2018 appellant completed a form indicating his election of OPM
retirement benefits effective December 18, 2018. The case record reflects that OWCP received
the form on December 31, 2018. OWCP continued to pay appellant wage-loss compensation for
temporary total disability for the period December 9, 2018 through January 5, 2019.
A memorandum of telephone call (Form CA-110) related that appellant called OWCP on
January 9, 2019 to follow up on his election of benefits. Appellant was advised that his election
of benefits was being processed and that a letter would be sent to OPM to process the election. He
questioned when his OPM retirement benefits would begin and was informed that OPM was
another jurisdiction outside of OWCP’s control. In Form CA-110 notes dated January 10, 2019,
OWCP informed appellant that it was his duty to follow up with OPM regarding his retirement
benefits “because it can take a while.”
In a letter dated January 11, 2019, OWCP confirmed that it had paid appellant wage-loss
compensation through January 5, 2019 and had stopped payments as of that date.
In a compensation termination form dated January 16, 2019, OWCP noted that appellant
had elected OPM retirement benefits effective December 18, 2018, but continued to be paid wageloss compensation on the periodic rolls through January 5, 2019. It calculated that an overpayment
of compensation in the amount of $1,946.03 had therefore been created for the period
December 18, 2018 through January 5, 2019.
On January 18, 2019 OWCP informed OPM that appellant had elected to receive OPM
retirement annuity benefits effective December 18, 2018 in lieu of FECA wage-loss compensation,
requested reimbursement from OPM in the amount of $1,946.03 for the period December 18, 2018
through January 5, 2019, and requested that OPM commence retirement annuity payments
effective December 18, 2018.
On January 25, 2019 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $1,946.03 for the period December 18, 2018
through January 5, 2019. It explained that the overpayment was the result of his receipt of FECA

2

wage-loss compensation through January 5, 2019 after having elected receipt of OPM retirement
benefits effective December 18, 2018. OWCP provided a calculation of the overpayment and
found that appellant was at fault in its creation as he accepted a payment he knew, or reasonably
should have known, to be incorrect. It notified him that, within 30 days of the date of the letter,
he could request a final decision based on the written evidence or a prerecoupment hearing.
On February 11, 2019 appellant requested a prerecoupment hearing on the issues of fault
and eligibility for waiver of recovery of the overpayment. The hearing was held before an OWCP
hearing representative on June 17, 2019.
In an overpayment recovery questionnaire form (OWCP-20) dated July 15, 2019, appellant
contended that he reported the change in circumstances that affected his monthly payment, as he
had informed both OPM and OWCP of his election of benefits. He also reported assets, monthly
income and expenses.
By decision dated August 15, 2019, a representative of OWCP’s Branch of Hearings and
Review finalized the preliminary overpayment determination, finding an overpayment of
compensation in the amount of $1,946.03, for which appellant was at fault. The hearing
representative explained that the overpayment occurred because appellant received both FECA
wage-loss compensation and OPM retirement benefits between December 18, 2018 and
January 5, 2019.
By decision dated September 5, 2019, OWCP issued an amended final decision finding
that an overpayment of compensation in the amount of $1,946.03 had occurred, for which appellant
was at fault. Referring to the decision dated August 15, 2019, it explained that the overpayment
occurred because he received both FECA compensation and OPM retirement benefits between
December 18, 2018 and January 5, 2019. OWCP reaffirmed the finding that appellant was at fault
in the creation of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits.4 It provides that, while an employee is receiving workers’ compensation benefits, he or
she may not receive salary, pay, or remuneration of any type from the United States, except in
return for services actually performed or for certain payments related to service in the Armed
Forces, including benefits administered by the Department of Veterans Affairs, unless such
benefits are payable for the same injury or the same death being compensated for under FECA.5
3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8116(a).

3

Section 10.421(a) of OWCP’s implementing regulations provide that a beneficiary may
not receive wage-loss compensation concurrently with a federal retirement or survivor annuity.6
The beneficiary must elect the benefit that he or she wishes to receive.7
OWCP’s procedures also explain that the employee must make an election between FECA
benefits and OPM retirement benefits. The employee has the right to elect the monetary benefit
which is the more advantageous.8
ANALYSIS
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $1,946.03 for the period December 18, 2018
through January 5, 2019.
On December 21, 2018 appellant completed a form indicating his election of OPM
retirement benefits effective December 18, 2018. OWCP, however, continued to pay him wageloss compensation for temporary total disability for the period December 9, 2018 through
January 5, 2019. It calculated that an overpayment of $1,946.03 was therefore created.
A FECA beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.9 The clear language of section 8116(a) of FECA, section 10.421(a)
of OWCP’s implementing regulations, and OWCP’s procedures prohibit the concurrent receipt of
FECA wage-loss benefits and a federal annuity.10
However, there is no evidence of record establishing that appellant actually received OPM
retirement benefits for the period December 18, 2018 through January 5, 2019.11 It was not until
January 18, 2019 that OWCP informed OPM that he had elected to receive retirement annuity
benefits effective December 18, 2018 in lieu of FECA wage-loss compensation and requested that
OPM commence annuity payments effective retroactively to that date.
OWCP based its overpayment findings on its determination that appellant had received
prohibited dual OPM and FECA benefits for the period December 18, 2018 through
January 5, 2019. The Board has previously held that the mere fact that a claimant received FECA
benefits after the effective date of an OPM election will not establish receipt of a prohibited dual

6

20 C.F.R. § 10.421(a).

7

Id.

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); see also
R.S., Docket No. 11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued
March 30, 1994).
9

Supra note 6.

10

5 U.S.C. § 8116(a); 20 C.F.R. § 10.421(a); Federal (FECA) Procedure Manual, supra note 8.

11

See C.P., Docket No. 19-0732 (issued September 5, 2019); J.M., Docket No. 15-1604 (issued May 23, 2016).

4

benefit.12 While the record reflects that appellant received FECA benefits for this period, the
Board finds that OWCP had not established that he also received OPM retirement benefits for that
same period.13
Therefore, the Board finds that OWCP has not met its burden of proof to establish that the
overpayment occurred.14
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $1,946.03 for the period December 18, 2018
through January 5, 2019.15

12

Id. See also B.H., Docket No. 13-1955 (issued January 29, 2014).

13

See R.R., Docket No. 18-0032 (issued May 3, 2018) (The election form signed by appellant on December 21,
2018 was insufficient to show that he actually began receiving OPM retirement benefits). See also E.R., Docket No.
18-0084 (issued July 27, 2018).
14

See J.A., Docket No. 18-0259 (issued August 5, 2019).

15

In light of the Board’s disposition in Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: June 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Fort Pierce, FL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-15
Issued: February 24, 2015

Case Submitted on the Record

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

JURISDICTION
On October 2, 2014 appellant, through her attorney, filed a timely appeal of the May 15,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty.
FACTUAL HISTORY
On February 26, 2013 appellant then a 55-year-old facts compliance officer, filed a Form
CA-1, traumatic injury claim, alleging that on February 22, 2013, she slipped on water on the
1

5 U.S.C. §§ 8101-8193.

break room floor. She stated that she kept from falling by grabbing onto nearby chairs.
Appellant stated that she injured her head, shoulder, arm, knee and leg. She stopped work on
February 25, 2013. Appellant’s supervisor stated that she spoke to appellant around 9:00 a.m. on
February 22, 2013. Appellant related that she had taken a pain pill before the incident and
wanted the effects of the pain pill to wear off to see if she was in pain from the slip.
In a March 8, 2013 letter, OWCP advised appellant of the type of evidence needed to
establish her claim, particularly requesting that she submit a reasoned physician’s opinion
addressing the relationship of her claimed condition and specific employment factors.
Appellant submitted reports from Gladys Ellis, a nurse practitioner, dated February 25,
March 4 and 18 and April 3, 2013. Ms. Ellis treated appellant for arm, shoulder, neck, and leg
pain after she slipped on water at work. Appellant’s history was significant for degenerative disc
disease of the cervical and lumbar spine, meniscus tear of the right knee in 2007, and bulging
discs in the cervical, and lumbar spine after a 2007 motor vehicle accident. Ms. Ellis noted
findings of tenderness in the neck, back, right shoulder, right buttock, and right knee. She
diagnosed lumbosacral joint sprain/strain, muscle spasms, cervical sprain/strain, cervicalgia, hip
sprain/strain, cervical, and lumbar spondylosis with myelopathy and cervical radiculitis.
Ms. Ellis opined that appellant’s slip at work “most likely” exacerbated her preexisting
conditions. She noted that appellant was disabled for three days and then could return to parttime light duty. In state workers’ compensation reports dated February 25, March 4, and April 3,
2013, Ms. Ellis noted treating appellant for a work-related accident noting appellant slipped on
water at work and injured her right side. She diagnosed lumbar and cervical sprain/strain, hip
sprain/strain, and cervicalgia and referred her for physical therapy. In an attending physician’s
report dated February 25, 2013, Ms. Ellis noted appellant slipped on water at work but did not
fall, injuring her arm, shoulder, neck, leg, toe, and side. She checked a box “yes” that appellant’s
condition was caused or aggravated by her work and found appellant totally disabled for three
days. A February 25, 2013 right hip x-ray revealed no abnormalities. A right knee x-ray
revealed loose bodies in the suprapatellar bursa, possible synovial osteochondromatosis, while a
right shoulder x-ray showed diffuse degenerative changes. An x-ray of the cervical spine
revealed cervical levoscoliosis and upper thoracic dextroscoliosis with reversal of the cervical
lordosis, narrowing of C5-6, C6-7 disc spaces, diffuse spondylosis in the cervical region. A
lumbar spine x-ray showed dextroscoliosis in the mid lumbar region and narrowing at L1-2, L23, L3-4, and L4-5 with vacuum phenomenon at L4-5 and lower lumbar facet arthropathy.
Appellant submitted a state workers’ compensation report dated March 18, 2013 from
Dr. Maureen Zelinka, a Board-certified family practitioner, who noted no change in appellant’s
condition since her March 4, 2013 appointment. She could work part time with restrictions. In a
March 18, 2013 attending physician’s report, Dr. Zelinka checked a box “yes” that appellant’s
condition was caused or aggravated by work activity. She found appellant partially disabled
from February 25 to March 18, 2013, but appellant could work light duty four hours a day. In an
April 4, 2013 attending physician’s report, Dr. Zelinka stated the history of injury as a “slip and
fall” on water at work and that she had a preexisting cervical and lumbar disease. She checked a
box “yes” that appellant’s condition was aggravated by work activity, noting “disc disease motor
vehicle accident 2007.” Dr. Zelinka found that appellant’s condition had declined since working
light duty. She recommended physical therapy.

2

In a questionnaire dated March 19, 2013, appellant noted taking pain medication prior to
the work incident, but she indicated that the medication did not impair her vision, balance or
motor skills. She noted that she did not fall to the ground but slipped on the water on the floor
and fell forward landing on a chair seat holding a chair back. After her fall, appellant did not
perceive any new pain and continued to work. She subsequently experienced headaches, arm,
shoulder, low back, leg, and knee pain. Appellant reported having work-related carpal tunnel
syndrome and bulging neck and back disc damage in 2001. She also noted a 2007 right knee
replacement after a 2007 motor vehicle accident. Appellant submitted witness statements from
Linda Lent, Joseph Hammes and Angela Bennett, coworkers, who saw a puddle of water in the
break room and chairs blocking the area around the water. She reported to them that she slipped
on the water.
In an April 16, 2013 decision, OWCP denied the claim as appellant had not submitted
medical evidence establishing a medical condition in connection with the claimed event or work
factors.
On May 14, 2013 appellant requested an oral hearing which was held on October 7, 2013.
She resubmitted evidence previously of record. Appellant also resubmitted reports from
Ms. Ellis dated February 25, March 4 and 18, and April 3, 2013 and the attending physician’s
report dated February 25, 2013 which had now been countersigned by Dr. Zelinka. She
resubmitted the state workers’ compensation reports dated February 25, March 4, and 18, 2013
also now countersigned by Dr. Zelinka. A duty status report from Dr. Zelinka dated April 3,
2013, indicated that appellant, sustained a cervical and lumbar sprain/strain, and was disabled
from work. A September 26, 2013 cervical spine magnetic resonance imaging (MRI) scan
revealed C4-5 bulging disc; C5-6 bulging disc with spinal stenosis and canal narrowing; C6-7
central disc herniation, narrowing of disc space with degenerative changes; and reversal of
normal cervical spine curvature.
In an October 10, 2013 report, Dr. Charles M. Bolno, a Board-certified orthopedic
surgeon, noted that appellant had a 2001 work injury to her lumbar and cervical spine causing
neural foraminal encroachment at C5-6 and bulging disc at C6-7 with S1 radiculopathy and he
opined, within a reasonable degree of medical certainty that her recent injury on February 22,
2013 directly aggravated her previous injuries. Dr. Bolno stated that appellant was totally
disabled since March 29, 2013.
In a November 5, 2013 supplemental report, Dr. Bolno advised that, as a result of the
October 17, 2001 work injury, based on MRI scan and electromyogram (EMG), appellant was
diagnosed with S1 nerve root irritation and lumbar bulging disc at C5-6, nerve root irritation, and
cervical bulging disc. He noted that a 2007 motor vehicle accident aggravated the cervical and
lumbosacral spondylosis. Dr. Bolno indicated that x-rays taken after the February 22, 2013
incident showed narrowing at C5, C6, and C7, fused spondylosis and C6-7 disc herniations and
dextroscoliosis with narrowing at L1-5. He stated that these were distinct differences in
appellant’s condition after the February 22, 2013 injury. Dr. Bolno also stated that recent lumbar
spine x-rays showed dextroscoliosis with narrowing at L1-5 that was not present before
February 22, 2013 while the lumbar radicular symptoms were previously only on the left side but
were not bilateral. He opined that appellant had a permanent aggravation of degenerative disc

3

disease of the cervical and lumbar spine, C6-7 disc herniation, cervical and lumbar radiculopathy
which was caused by twisting, and sudden movement when slipping on wet floor.
In a decision dated December 9, 2013, an OWCP hearing representative affirmed the
April 16, 2013 decision.
On April 18, 2014 appellant requested reconsideration. She submitted a February 20,
2014 report from Dr. Zelinka who noted that prior to the February 22, 2013 injury appellant had
degenerative disc disease of the cervical and lumbar spine and C6-7 disc herniation. Appellant
stated that studies after the February 22, 2013 injury revealed additional damage including
narrowing at C5, C6, and C7 with spondylosis, and a C6-7 disc herniation, dextroscoliosis with
narrowing at L1-5 with bilateral radiculopathy. Dr. Zelinka opined that the post February 22,
2013 diagnoses represented the permanent aggravation of degenerative disc disease of the
cervical lumbar spine and C6-7 disc herniations, and cervical and lumbar radiculopathy. He
opined that these aggravations of the degeneration of the cervical and lumbar spine were caused
by the slipping move as described by appellant. Dr. Zelinka noted that her opinions were to a
reasonable degree of medical probability.
In a decision dated May 15, 2014, OWCP denied modification of the December 9, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

2

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

3

T.H., 59 ECAB 388 (2008).

4

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4
ANALYSIS
It is not disputed that on February 22, 2013, appellant slipped on water on the break room
floor at work and caught herself from falling by grabbing onto chairs. However, she has not
submitted sufficient medical evidence to establish that her diagnosed conditions were caused or
aggravated by the February 22, 2013 incident.
Appellant submitted an October 10, 2013 report from Dr. Bolno, a Board-certified
orthopedic surgeon, who noted that she sustained injuries to her neck and back on February 22,
2013 which totally disabled her. In his narrative report, Dr. Bolno noted that she had acute
lumbar and cervical radiculopathy in 2001 to 2002 and that her February 22, 2013 injury directly
aggravated her previous injuries. He opined to a reasonable degree of medical certainty
appellant’s work injuries in February 2013 were directly related to her work-related slip on a wet
floor which aggravated her preexisting work-related injuries causing acute cervical and lumbar
radiculopathy with acute cervical and lumbar spine sprain and strain. Dr. Bolno advised that she
was totally disabled since March 29, 2013. Similarly, on November 5, 2013, he indicated that, as
a result of the October 17, 2001 work injury, based on MRI scan and EMG study, appellant was
diagnosed with S1 nerve root irritation and lumbar bulging disc at C5-6, nerve root irritation and
cervical bulging disc. Dr. Bolno noted distinct differences in her cervical and lumbar condition
after the February 22, 2013 injury and opined that appellant had a permanent aggravation of
degenerative disc disease of the cervical and lumbar spine, C6-7 disc herniation, cervical and
lumbar radiculopathy caused by twisting and sudden movement when slipping on wet floor.
Although he supported causal relationship, Dr. Bolno did not provide sufficient medical
rationale explaining the basis of his conclusion/opinion regarding the causal relationship between
appellant’s diagnosed conditions and the workplace fall. He did not explain how slipping on
water would cause or aggravate the diagnosed conditions and why the cervical and lumbar disc
disease and permanent aggravation of degenerative disc disease of the cervical and lumbar spine,
C6-7 disc herniation, cervical and lumbar radiculopathy was not caused by nonwork-related
factors such as age-related degenerative changes. Merely, noting that x-rays taken after the
February 23, 2013 incident showed worsening degenerative spine conditions is insufficient to
establish that the worsening is due to the work incident.5 The need for more rationale is
particularly important as appellant also had a 2007 motor vehicle accident in addition to her
preexisting degenerative spine conditions. Therefore, this evidence is insufficient to meet her
burden of proof.
Also submitted was a February 20, 2014 report from Dr. Zelinka, who noted appellant’s
history of a prior work injury in October 2001 and a motor vehicle accident in 2007 causing
degenerative disc disease of the cervical and lumbar spine, and C6-7 disc herniation. Dr. Zelinka
4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

See L.D., Docket No. 09-1503 (issued April 15, 2010) (the fact that a condition manifests itself during a period
of employment does not raise an inference that there is a causal relationship between the two).

5

stated that studies after the February 22, 2013 injury revealed additional damage including
narrowing at C5, C6, C7 with spondylosis and a C6-7 disc herniation, dextroscoliosis with
narrowing at L1-5 with bilateral radiculopathy. She opined that the post February 22, 2013
diagnoses represented the permanent aggravation of degenerative disc disease of the cervical
lumbar spine and C6-7 disc herniations, and cervical and lumbar radiculopathy. Dr. Zelinka
opined to a reasonable degree of medical probability that these aggravations of the degeneration
of the cervical and lumbar spine were caused by the slipping move as described by appellant.
Although Dr. Zelinka supported causal relationship in a conclusory statement, she did not
provide medical rationale explaining the basis of her conclusion/opinion regarding the causal
relationship between appellant’s diagnosed conditions and the workplace incident. Dr. Zelinka
did not explain how slipping on water would cause or aggravate the diagnosed conditions and
why the cervical and lumbar disc pathology and radiculopathy was not caused by the
October 2001 work injury, the 2007 motor vehicle accident or age-related degenerative changes.
The need for rationale is particularly important where appellant has preexisting degenerative disc
disease of the lumbar and cervical spine, a prior work injury in October 2001 and a motor vehicle
accident in 2007 in which she sustained lumbar and cervical injuries. Therefore, this evidence is
insufficient to meet appellant’s burden of proof.
Dr. Zelinka also countersigned February 25, March 4 and 18, and April 3, 2013 reports
which noted that appellant’s fall at work “most likely” exacerbated her injuries. While these
reports provide some speculative support for causal relationship,6 they are insufficient to
establish that the diagnosed conditions are causally related to her employment duties.
Dr. Zelinka provided no medical reasoning to support her opinion on causal relationship. In state
workers’ compensation reports dated February 25 and March 4, 2013, she noted treating
appellant for injuries after she slipped on water at work. Dr. Zelinka offered diagnoses and
indicated that preexisting conditions contributed to appellant’s current conditions. These reports
are also insufficient to establish the claim as she did not provide medical rationale explaining
how the employment incident caused or aggravated the diagnosed conditions.7 Appellant
submitted April 4, March 18, and February 25, 2013 attending physician’s reports signed by
Dr. Zelinka in which a box was checked “yes” to indicate that appellant’s diagnosed condition
was caused or aggravated by work activity. However, the Board has held that an opinion on
causal relationship which consists only of a physician checking “yes” to a medical form report
question on whether the claimant’s condition was related to the history given is of little probative
value. Without any explanation or rationale for the conclusion reached, such report is
insufficient to establish causal relationship.8 In none of these reports did Dr. Zelinka explain the
process by which the February 22, 2013 slipping incident would cause or aggravate the
diagnosed conditions. Therefore, these reports are insufficient to meet appellant’s burden of
proof.
6

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.D., 57
ECAB 734 (2006).
7

See T.M., 60 ECAB Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value
on the issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale).
8

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

6

With regard to nurse practitioner reports that were not signed by a physician, the Board
has held that documents signed by a nurse are not considered medical evidence as a nurse is not a
physician under FECA.9 Thus, these treatment records are of no probative medical value in
establishing appellant’s claim. The remainder of the medical evidence, including reports of
diagnostic testing, is insufficient to establish the claim as it does not support that the
February 22, 2013 work incident caused or aggravated a diagnosed medical condition.10
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.11 Appellant failed to submit such evidence, and OWCP
therefore properly denied her claim for compensation.
On appeal, appellant through counsel, disagrees with OWCP’s decision denying her
claim for compensation and noted that she submitted sufficient evidence to establish her claim.
As noted above, the medical evidence does not establish that her diagnosed conditions were
causally related to her employment. Reports from appellant’s physicians failed to provide
sufficient medical rationale explaining the reasons why appellant’s diagnosed medical conditions
were caused or aggravated by particular employment duties.
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 did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.

9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
“physician” as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
10

J.F., Docket No. 09-1061 (issued November 17, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of causal relationship).
11

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

7

ORDER
IT IS HEREBY ORDERED THAT the May 15, 2014 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: February 24, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
North Chicago, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1208
Issued: April 30, 2020

Case Submitted on the Record

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

On May 29, 2018 appellant filed a timely appeal from December 29, 2017 and May 11,
2018 decisions of the Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the
Appellate Boards docketed the appeal as No. 18-1208.
On November 15, 2017 appellant, then a 32-year-old temporary assistant, filed a traumatic
injury claim (Form CA-1) alleging that on November 13, 2017 she was sexually assaulted while
in the performance of duty. She notified her supervisor of the incident that same date. On the
reverse side of the claim form her supervisor reported that he was not present when the incident
occurred and, as such, could not agree or disagree with the allegations she had made.
In an accompanying November 15, 2017 narrative statement, appellant reported that on
November 13, 2017 she was stocking supplies in the central supply room when T.T. sexually
assaulted her. She immediately returned to the breakroom and had to transfer another cart to the
1

Appellant’s AB-1 form indicates that she is requesting an appeal of an April 20, 2018 decision. However, there
is no such decision of that date found in the case record. The December 29, 2017 and May 11, 2018 decisions are the
only OWCP decisions within the Board’s jurisdiction.

supply room. When she left the supply room, T.T. approached her again and kissed her right
cheek. Appellant reported that both incidents were unwanted.
In support of her claim, appellant also submitted a Department of Veterans’ Affairs
voluntary witness statement dated November 14, 2017 in which she detailed the events
surrounding the November 13, 2017 employment incident.
By decision dated December 29, 2017, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that she sustained an emotional condition in the
performance of duty, as alleged. It noted that she had not alleged compensable employment factors
that caused her injury.
In an appeal request form dated January 8, 2018, appellant sought an oral hearing before
an OWCP hearing representative. By decision dated May 11, 2018, OWCP’s hearing
representative found that appellant had abandoned her hearing request.
The Board, having duly considered the matter, concludes that this case is not in posture for
decision and must be remanded for further development. 2
FECA provides that OWCP shall determine and make findings of fact in making an award
for or against payment of compensation after considering the claim presented by the employee and
after completing such investigation as it considers necessary with respect to the claim. 3 The
reasoning behind OWCP’s evaluation should be clear enough for the reader to understand the
precise defect of the claim and the kind of evidence which would overcome it. 4
In its December 29, 2017 decision, OWCP did not discharge its responsibility to set forth
findings of fact and a clear statement of reasons explaining the disposition so that appellant could
understand the basis for the decision, as well as the precise defect and the evidence needed to
overcome the denial of her emotional condition claim. 5 The decision did not discuss the customary
criteria for an assault case or address the allegations made by appellant to determine whether she
had established a compensable factor of employment.6
The Board further finds that OWCP failed to sufficiently develop the evidence regarding
whether appellant was sexually assaulted at work while in the performance of duty on
November 13, 2017. OWCP’s procedures provide that, in cases involving assault, OWCP should
obtain copies of police reports which may have been made, as well as statements from the official

2

N.M., Docket No. 17-0262 (issued July 3, 2017).

3

5 U.S.C. § 8124(a)(2); 20 C.F.R. § 10.125.

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5(c) (February 2013). See
also G.S., Docket No. 14-1933 (issued November 7, 2014).
5

K.J., Docket No. 14-1874 (issued February 26, 2015). See also J.J., Docket No. 11-1958 (issued June 27, 2012).

6

FECA Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.10 (August 1992).

2

superior, coworkers, the assailant, or other witnesses. 7 In this instance, appellant detailed the
circumstances surrounding the November 13, 2017 incident and reported T.T. as the assailant. She
further identified employing establishment employees who had knowledge of the circumstances
surrounding the claim. The record reflects that a police report had been filed. OWCP, however,
failed to properly develop the evidence by requesting information from the employing
establishment addressing her allegations of the sexual assault. 8
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.9 While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence, particularly when such evidence
is of the character normally obtained from the employing establishment or other governmental
source.10 The Board finds that OWCP has not properly discharged its responsibilities in
developing the case record or in issuing a proper decision.
As such, this case will be remanded to OWCP for further development. OWCP shall
request additional evidence from the employing establishment addressing the November 13, 2017
employment incident.11 Following this and any other such further development deemed necessary,
OWCP shall issue a de novo merit decision, which includes findings of fact and a clear and precise
statement regarding whether appellant has met her burden of proof under the customary standards
to establish an assault claim.12 Accordingly,

7

Supra note 3.

8

Lillian E. Lesniak, Docket No. 00-1021 (issued February 22, 2001).

9

See Phillip L. Barnes, 55 ECAB 426 (2004).

10

See L.L., Docket No. 12-0194 (issued June 5, 2012); N.S., 59 ECAB 422 (2008).

11

A.R., Docket No. 11-1949 (issued April 16, 2012). The employing establishment is responsible for submitting
to OWCP all relevant and probative factual and medical evidence in its possession, or which it may acquire through
investigation or other means. Such evidence may be submitted at any time. 20 C.F.R. § 10.118(a).
12
In light of this disposition, the issue of whether OWCP properly determined that appellant abandoned her request
for hearing is rendered moot.

3

IT IS HEREBY ORDERED THAT the May 11, 2018 and December 29, 2017 decisions
of the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further proceedings consistent with this order of the Board.
Issued: April 30, 2020
Washington, DC

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

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

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

4