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

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

Docket No. 09-1445
Issued: January 7, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 20, 2009 appellant filed a timely appeal from a May 4, 2009 merit decision of
the Office of Workers’ Compensation Programs denying her claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was in the performance of duty at the time of her March 5,
2009 injury.
FACTUAL HISTORY
On March 20, 2009 appellant, a 44-year-old manual distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging she sustained an injury to her left middle finger on March 5,
2009 when she closed a car trunk on her finger while on a break retrieving a water bottle from a
coworker’s car parked in the employing establishment’s parking lot.
Appellant submitted medical evidence supporting her claim, including a March 23, 2009
report (Form CA-17) in which Dr. Khaja Yezdani, Board-certified in family medicine, diagnosed

left third finger phalangeal joint sprain. She also submitted statements from coworkers who
observed that her finger was swollen when she returned from her break.
By decision dated May 4, 2009, the Office denied the claim. Although it accepted that
the incident occurred as alleged, it denied the claim because appellant had not established that
her injury occurred in the performance of duty.1 It specifically found she was not engaged in the
performance of her employment duties or in the act of personal comfort at the time of injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for disability or death
of an employee resulting from personal injury sustained while in the performance of duty.2 The
phrase sustained while in the performance of duty is regarded as the equivalent of the coverage
formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of performance.3 To arise out of employment, the injury must have a causal connection to
the employment, either by precipitation, aggravation or acceleration. Course of employment
relates to the elements of time, place and work activity: the injury must occur at a time when the
employee may reasonably be said to be engaged in her employer’s business, at a place where she
may reasonably be expected to be in connection with her employment, and while she was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto.4
As to employees having fixed hours and a fixed place of work, injuries occurring on the
premises during working hours or at lunchtime are compensable.5
ANALYSIS
On appeal, appellant argues that her injury occurred in the performance of duty because it
occurred in the employing establishment’s parking lot, on premises, during an authorized work
break. The Office did not deny appellant’s claim because the incident did not occur on premises,
rather it denied the claim on the grounds that appellant was not engaged in the employing
1

On appeal, appellant submitted additional evidence. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision.) As this evidence was not part of
the record when the Office issued either of its previous decisions, the Board may not consider it for the first time as
part of appellant’s appeal.
2

5 U.S.C. § 8102(a).

3

This construction makes the statute actively effective in those situations generally recognized as properly within
the scope of workers’ compensation law. Bernard D. Blum, 1 ECAB 1 (1947).
4

Eugene G. Chin, 39 ECAB 598 (1988); Clayton Varner, 37 ECAB 248 (1985); Thelma B. Barenkamp
(Joseph L. Barenkamp), 5 ECAB 228 (1952).
5

Emma Varnerin, M.D., 14 ECAB 253, 254 (1963); 1 Arthur Larson & Lex K. Larson, The Law of Workers’
Compensation § 13 (June 2006).

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establishment’s business, in the duties she was employed to perform, or in an act of personal
comfort.6
The Board finds that appellant was engaged in an act of personal comfort at the time of
the incident. It is well established that employees who, within the time and space limits of their
employment, engage in acts which minister to their personal comfort do not leave the course of
employment.7 Activities encompassing personal acts for the employee’s comfort, convenience
and relaxation, eating meals and snacks on the premises, including established coffee breaks and
the employee’s presence on the premises for a reasonable time before or after specific working
hours are reasonably incidental to the employment and are in the course of employment.8
In Helen L. Gunderson,9 and other cases, the Board found that obtaining and drinking
coffee and similar beverages, or the eating of a snack, during recognized breaks during daily
work hours is now so generally accepted in the industrial life of our nation as to constitute a
work-related activity falling into a general class of activity closely related to personal
ministrations so that engaging in such activity does not take an employee out of the course of his
or her employment.10
Larson, in his treatise on workmen’s compensation law, in discussing the personal
comfort doctrine stated the following:
“Some courts ... have refused to recognize as part of the employment not only
personal comfort activities which are prohibited but also those which are so
remote from customary or reasonable practice that they cannot be said to be
incidents of the employment. In other words, the work ‘incident’ contains an
element of the usual and reasonable, both as to the needs to be satisfied and as to
the means used to satisfy them. If either is extraordinary, the action is no longer
viewed as incidental.11
“This rule is most likely to be followed when the abnormal means are chosen in
spite of the fact that satisfactory normal facilities are available.”12
Since the drinking of water can be considered incidental to one’s employment, according
to Larson the question is whether the method chosen to obtain drinking water was unusual or
6

Jeremiah Bowles, 38 ECAB 652 (1987); Christine Lawrence, 36 ECAB 422 (1985).

7

Larson § 5.00.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.4(a)(2) (August 1992)
(Industrial Premises).
9

7 ECAB 288 (1954).

10

JoAnn Curtis, 38 ECAB 122 (1986).

11

Larson § 21.81.

12

Id.

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unreasonable.13 The Office’s decision merely denied the claim concluding, without complete
analysis, that because she was on a break and not performing her assigned duties that the activity
appellant was engaged in was not incidental to her employment. The Board finds that
appellant’s actions were within the personal comfort doctrine and therefore were within the
performance of duty. Moreover, the record contains no evidence or explanation why appellant’s
actions at the time of the incident while on the employing establishment premises were not
reasonably incidental to the employment.
The case shall therefore be remanded to the Office to address the medical evidence and
determine whether appellant sustained an injury as a result of this incident. After any additional
development deemed necessary, the Office should issue a de novo decision.
CONCLUSION
The Board finds that the March 5, 2009 incident occurred in the performance of duty and
that further development of the medical evidence is necessary.
ORDER
IT IS HEREBY ORDERED THAT the May 4, 2009 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action consistent with this
opinion.
Issued: January 7, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
13

James E. Chadden, Sr., 40 ECAB 312 (1988).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Jackson, MS, Employer
__________________________________________

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

Docket No. 14-1495
Issued: November 19, 2014

Case Submitted on the Record

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

JURISDICTION
On June 16, 2014 appellant, through his counsel, filed a timely appeal from an April 28,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a left
shoulder and neck injury in the performance of duty on November 8, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 20, 2012 appellant, then a 40-year-old maintenance worker, filed a
traumatic injury claim (Form CA-1) alleging that on November 8, 2012 he was knocking a wall
down with a sledge hammer and experienced pain in his left shoulder and neck.
In a November 28, 2012 emergency room report, Dr. Jo L. Harbour, Board-certified in
internal medicine, reported that appellant presented with complaints of left shoulder pain that
started after knocking a wall down with a sledge hammer on November 8, 2012. Upon physical
examination, Dr. Harbour diagnosed muscle spasm in the neck and shoulder likely due to the
employment-related activity. A December 20, 2012 magnetic resonance imaging (MRI) scan of
the cervical spine and left shoulder revealed no abnormalities.
In a December 20, 2012 duty status report (Form CA-17), Dr. James Polk, Boardcertified in family medicine, diagnosed appellant with severe pain in left shoulder and neck.
Treatment notes were provided dated December 20, 2012 to March 14, 2013 documenting
complaints of neck and left shoulder pain.
In a February 5, 2013 report, Dr. Charles Pringle, a Board-certified diagnostic radiologist,
advised that an MRI scan of the cervical spine and skull was unremarkable.
In a March 11, 2013 report, Dr. Gary Cirilli, a Board-certified diagnostic radiologist,
reported that an MRI scan of the left upper extremity revealed marked arthritic changes
involving the right acromioclavicular (AC) joint. The supraspinatus tendon was intact and no
joint effusion identified. There was a possible anterior labral tear.
In a March 14, 2013 treatment note, Dr. Polk noted that appellant’s MRI scan suggested a
labral tear and referred him for orthopedic evaluation.
By letter dated April 23, 2013, the employing establishment controverted the claim. It
noted that appellant sustained his alleged injury on November 8, 2012 but did not file a claim
until December 20, 2012.
By letter dated April 25, 2013, OWCP informed appellant that the evidence of record was
insufficient to establish his claim. Appellant was advised of the factual and medical evidence
needed and asked to respond within 30 days.
By decision dated May 28, 2013, OWCP denied appellant’s claim. It found that the
evidence was insufficient to establish that he sustained an injury because he did not submit
sufficient medical evidence relating an injury to the accepted November 8, 2012 employment
incident. The medical evidence submitted provided a diagnosis of “pain” which was not a firm
medical condition.
On March 28, 2014 appellant, through counsel, requested reconsideration. Counsel
stated that appellant was submitting medical reports from Dr. Polk not previously considered.
In an April 29, 2013 work capacity evaluation (OWCP 5-c), Dr. Polk stated that appellant
required evaluation by an orthopedic surgeon. By letter dated March 3, 2014, Dr. Polk stated
2

that enclosed with his letter was a chronological order of the events pertaining to appellant’s
injury and treatment. He opined that appellant’s accident was work related. Medical reports
previously of record were resubmitted.
By decision dated April 28, 2014, OWCP denied modification of the May 29, 2013
decision. It found that appellant failed to establish a firm medical diagnosis causally related to
the accepted November 8, 2012 employment incident.
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; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.4 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. This medical opinion
must include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.6

2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Elaine Pendleton, see supra note 2.

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

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ANALYSIS
The Board finds that the November 8, 2012 employment incident occurred as alleged.
The issue is whether appellant submitted sufficient medical evidence to establish that the
employment incident caused a neck or left shoulder injury. The Board finds that he did not
submit sufficient medical evidence to support that he sustained an injury causally related to the
November 8, 2012 employment incident.7 The medical evidence is insufficient on two grounds:
first, it fails to provide a firm diagnosis; and second, there is no narrative opinion on causal
relationship between a diagnosed condition and the employment incident.
In a November 28, 2012 report, Dr. Harbour noted that appellant presented to the
emergency room that day with complaints of left shoulder pain that started after knocking a wall
down with a sledge hammer on November 8, 2012. Upon physical examination, he diagnosed
muscle spasm in the neck and shoulder likely due to the employment-related activity. The Board
has held that a diagnosis of muscle spasm is not sufficient to establish a firm medical diagnosis
as it is generally a description of a symptom.8 Moreover, Dr. Harbour’s opinion that appellant’s
injury was “likely” work related is speculative and of diminished probative value in establishing
causal relationship.9 To be of probative value, a physician’s opinion on causal relationship
should be one of reasonable medical certainty based on an accurate history and findings on
physical examination.10
The diagnostic reports of record are also insufficient to establish appellant’s claim.
Dr. Pringle’s February 5, 2013 report indicated that an MRI scan of the cervical spine and skull
were unremarkable. Dr. Cirilli’s March 11, 2013 diagnostic report noted that an MRI scan of the
left upper extremity revealed marked arthritic changes involving the right AC joint. He noted a
possible anterior labral tear. As diagnostic studies, these reports failed to provide a medical
history, findings on physical examination or any details pertaining to the November 8, 2012
employment incident. Without any mention of the November 8, 2012 employment incident,
these reports are insufficient to establish that appellant sustained injury to his neck or left
shoulder.11
Appellant also submitted medical reports from Dr. Polk dated December 20, 2012 to
March 3, 2014. In a December 20, 2012 CA-17 form, Dr. Polk diagnosed severe pain in the left
shoulder and neck and referred appellant for diagnostic testing. His diagnosis of neck and left
shoulder pain is of little probative value. As noted, the Board has held that pain is a general
description of a symptom and not a firm medical diagnoses.12 In a March 14, 2013 treatment
7

See Robert Broome, 55 ECAB 339 (2004).

8

See B.P., Docket No. 12-1345 (issued November 13, 2012) (regarding pain); C.F., Docket No. 08-1102 (issued
October 10, 2008) (regarding pain); J.S., Docket No. 07-881 (issued August 1, 2007) (regarding spasm).
9

See Michael R. Shaffer, 55 ECAB 339 (2004).

10

See Beverly R. Jones, 55 ECAB 411 (2004).

11

S.Y., Docket No. 11-1816 (issued March 16, 2012).

12

Supra note 8.

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note, Dr. Polk noted that appellant’s MRI scan suggested a labral tear and referred him for
orthopedic evaluation. This report does not establish a firm medical diagnosis regarding the left
shoulder as his opinion regarding the condition is speculative and unconfirmed pending
orthopedic evaluation.13 While Dr. Polk’s March 3, 2014 note opined that appellant’s accident
was work related, the physician failed to provide a firm medical condition, related to the
November 8, 2012 employment incident. Dr. Polk failed to provide any explanation or medical
rationale on how appellant’s neck or left shoulder conditions were caused or aggravated by the
November 8, 2012 employment incident. Dr. Polk’s medical reports do not constitute probative
medical evidence because they fail to provide a clear diagnosis and do not adequately explain the
cause of appellant’s injury.14
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.15 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.16 To establish a firm medical diagnosis and causal relationship, appellant must submit a
physician’s report in which the physician reviews those factors of employment alleged to have
caused his condition and, taking these factors into consideration, as well as findings upon
examination and his medical history, explain how these employment factors caused or
aggravated any diagnosed condition and present medical rationale in support of his opinion.17
The evidence of record fails to establish a firm medical diagnosis causally related to the accepted
November 8, 2012 employment incident. Thus, appellant has failed to meet his burden of proof.
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. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a neck and left shoulder injury in the performance of duty on November 8, 2012.

13

Supra note 10.

14

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

15

Daniel O. Vasquez, 57 ECAB 559 (2006).

16

D.D., 57 ECAB 734 (2006).

17

Supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the April 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION PLANT, Manchester, NH,
Employer
__________________________________________

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

Docket No. 18-0972
Issued: December 13, 2018

Case Submitted on the Record

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

JURISDICTION
On April 11, 2018 appellant filed a timely appeal from a February 23, 2018 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 to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish left shoulder
conditions causally related to the accepted July 16, 2017 employment incident.
FACTUAL HISTORY
On July 18, 2017 appellant, then a 60-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on July 16, 2017 he sustained a left shoulder injury while in the
performance of duty. He stopped work on that day.
In support of his claim, appellant submitted state workers’ compensation medical forms,
dated July 16, 19, and 26, 2017, noting his injury date of July 16, 2017, describing how the injury
occurred, and diagnosing left shoulder rotator cuff injury. The physician’s signature on the
July 16, 2017 form report was that of Dr. Marie Arringdale, an examining Board-certified
emergency room physician. In form reports dated July 19 and 26, 2017, Dr. Jolene J. Shuman, an
examining physician Board-certified in family medicine, signed the diagnosed a possible tear in
addition to rotator cuff injury in the July 26, 2017 form report.
By development letter dated August 4, 2017, OWCP advised appellant of the deficiencies
of his claim and afforded him 30 days to submit the necessary evidence.
OWCP thereafter received additional medical evidence. In reports dated July 19, 26,
August 14 and 28, 2017, Dr. Shuman noted that appellant developed left shoulder pain on July 16,
2017 while lifting heavy trays and packages, and performing repetitive movements. A physical
examination revealed limited left shoulder range of motion and significant pain. Diagnoses
included left shoulder joint pain, left shoulder injury, and possible left rotator cuff tear.
In an August 14, 2017 narrative report, Dr. Shuman noted that appellant was injured at
work on July 16, 2017 and had been unable to return to work. She observed that his left shoulder
condition was not improving and that appellant continued to experience pain. Dr. Shuman
completed August 28 and September 8, 2017 state workers’ compensation medical form reports
wherein she repeated her prior opinions.
On August 31, 2017 appellant was seen by Dr. Gavin R. Webb, an examining Boardcertified orthopedic surgeon. Dr. Webb noted a history of appellant’s July 16, 2017 employment
incident. Physical examination findings included left shoulder tenderness on palpation, positive
Hawkin’s and Near’s tests, negative Speed’s and O’Brien’s test, and pain with movement.
Dr. Webb reviewed an August 31, 2017 x-ray interpretation of appellant’s left shoulder which
revealed moderate acromioclavicular joint changes and no significant fracture, bone lesson, or
glenohumeral arthritis. He diagnosed left shoulder pain.
In an August 31, 2017 form report, Dr. Webb noted an injury date of July 16, 2017,
described how the injury occurred and diagnosed suspected left shoulder rotator cuff tear.
By decision dated September 13, 2017, OWCP accepted that the July 16, 2017 incident
occurred as alleged. However, it denied the claim because the medical evidence of record was
insufficient to establish a firm medical diagnosis due to the accepted July 16, 2017 employment
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incident. OWCP noted that pain is a symptom and not a medical diagnosis. It, therefore,
concluded that he had not met the requirements to establish an injury as defined by FECA.
In a form dated and postmarked on October 13, 2017, appellant requested a review of the
written record by an OWCP hearing representative.
On October 4, 2017 appellant was seen by Dr. Webb who provided examination findings.
Dr. Webb related that review of appellant’s magnetic resonance imaging (MRI) scan of the left
shoulder revealed severe tendinopathy and partial subscapularis tendon partial thickness tearing.
He also reviewed an x-ray performed that day with findings unchanged from the August 31, 2017
x-ray interpretation. Dr. Webb diagnosed left shoulder biceps tendinitis and left shoulder partial
thickness rotator cuff tear. He noted that a left shoulder arthroscopy with subacromial
decompression and acromioplasty had been performed.
Dr. Webb, in an October 23, 2017 report, noted that appellant was seen for a follow-up
examination for a left shoulder injury sustained at work on July 16, 2017. Physical examination
findings were unchanged. Appellant related that he had developed right shoulder problems which
he attributed to compensation for his left shoulder. A review of the MRI scan of the left shoulder
revealed severe tendinopathy and partial subscapularis tendon partial thickness tearing. Dr. Webb
also reviewed an x-ray performed that day with findings unchanged from the August 31, 2017 xray interpretation. Diagnoses for the left shoulder included partial thickness rotator cuff tear and
bicipital tendinitis.
By decision dated February 23, 2018, an OWCP hearing representative affirmed the
September 13, 2017 decision, finding that the evidence of record was insufficient to establish that
appellant’s diagnosed left shoulder conditions were causally related to the accepted July 16, 2017
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.6 First,
3

Supra note 1.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

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the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
Rationalized medical opinion evidence is 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 rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left
shoulder conditions were causally related to the accepted July 16, 2017 employment incident.
A July 16, 2017 form report signed by Dr. Arringdale detailed a history of appellant’s
injury and diagnosed rotator cuff injury. While Dr. Arringdale diagnosed an injury, she provided
no opinion regarding the cause of appellant’s condition. Medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of no probative value on the issue
of causal relationship.10 While this form report reflects immediate treatment following the
employment incident, it fails to relate any opinion regarding the cause of appellant’s condition and
is therefore insufficient to establish his traumatic injury claim.11
Appellant also submitted a number of state medical forms and narrative reports dated from
July 19 through August 31, 2017 from Dr. Shuman noting appellant’s July 16, 2017 employment
incident. Dr. Shuman’s diagnoses included rotator cuff injury, possible left rotator cuff tear, and
left shoulder joint pain. The Board notes “rotator cuff injury” is not a specific diagnosis.12
Dr. Shuman’s diagnosis of left shoulder joint pain is a description of a symptom rather than a clear
diagnosis of the medical condition.13 For these reasons, Dr. Shuman’s reports are insufficient to
establish a medical diagnosis in connection with appellant’s July 16, 2017 accepted work incident.
The record also contains reports dated August 31, October 4, and 23, 2017 and state form
medical reports dated August 31, 2017 from Dr. Webb. Dr. Webb diagnosed left shoulder pain in
7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

M.L., Docket No. 17-1026 (issued April 20, 2018).

10

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

11

J.A., Docket No. 17-1936 (issued August 13, 2018); J.P., Docket No. 14-0087 (issued March 14, 2014).

12

See T.W., Docket No. 11-2109 (issued July 2, 2012).

13

See P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

4

his August 31, 2017 report and suspected left shoulder rotator cuff tear in the August 31, 2017
form report. As previously noted, these are not valid diagnoses of appellant’s left shoulder
condition.14 Dr. Webb, in reports dated October 4 and 23, 2017, diagnosed left shoulder partial
thickness rotator cuff tear and left shoulder bicipital tendinitis. While noting the July 16, 2017
injury history, he did not specifically address nor offer any opinion as to whether the diagnosed
conditions had been caused or aggravated by the accepted July 16, 2017 employment incident.15
Therefore, the Board finds that his reports are insufficient to establish that appellant’s diagnosed
left shoulder conditions were causally related to the accepted July 16, 2017 employment incident.
An award of compensation may not be based on surmise, conjecture, speculation or on the
employee’s own belief of causal relation.16 Appellant’s honest belief that the July 16, 2017
employment incident caused his left shoulder conditions, however, sincerely held, does not
constitute medical evidence necessary to establish causal relationship.17
The evidence of record lacks rationalized medical evidence establishing causal relationship
between the accepted July 16, 2017 employment incident and appellant’s left shoulder conditions.
Thus, the Board finds that he has failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish left shoulder
conditions causally related to the accepted July 16, 2017 employment incident.

14

Supra note 13 and 14.

15

See supra note 10.

16

S.S., 59 ECAB 315 (2008); J.M., 58 ECAB 303 (2007); Donald W. Long, 41 ECAB 142 (1989).

17

S.H., Docket No. 17-1447 (issued January 11, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated February 23, 2018 is affirmed.
Issued: December 13, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
William E. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2131
Issued: April 2, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 18, 2009 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated April 17, 2009. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $17,049.23 for the period September 1, 2003 through August 2, 2008 when he
received compensation benefits under the Federal Employees’ Compensation Act1 (FECA) that
were not offset by his Social Security Administration (SSA) benefits; and (2) whether the Office
properly denied waiver of the overpayment.
On appeal, appellant’s attorney asserts that his SSA benefits were not subject to offset
and that the Office by collecting the overpayment prior to a final decision of the Board.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 25, 1994 appellant, then a 55-year-old safety compliance officer on
temporary duty in Glynco, Georgia, sustained an employment-related back injury when he
stepped into a hole and fell. The claim was accepted for permanent aggravation of preexisting
herniated disc at L5-S1 and left radiculopathy. Appellant underwent back surgery on
July 23, 1996. On March 14, 1997 he sustained an employment-related tendinitis of the left
elbow and left shoulder,2 and was placed on the periodic rolls effective April 16, 1997.
Appellant has not returned to work.3
By decision dated August 8, 2008, the Office reduced appellant’s monetary compensation
to zero on the grounds that he did not fully cooperate with a February 14, 2008 functional
capacity evaluation.4 On August 3, 2008 the SSA informed the Office of appellant’s SSA rate
with Federal Employee Retirement System (FERS) benefits and without FERS benefits for the
period September 2003 through December 2007. In an August 12, 2008 letter, the Office
informed appellant that, because he had been receiving FERS and SSA benefits and was not
entitled to receive both FERS benefits and FECA benefits, his FECA benefits would be adjusted
to reflect the FERS portion of his SSA benefits. An Office worksheet found in the record
showed the SSA rate with FERS, SSA rate without FERS, monthly FERS offset, and 28-day
FERS offset for this period.5 On August 18, 2008 the Office issued a preliminary finding that an
overpayment in compensation in the amount of $17,049.23 had been created. It included an
overpayment calculation worksheet6 and explained that the overpayment resulted because, for
the period September 1, 2003 through August 2, 2008 appellant had received SSA benefits
including a FERS benefit while receiving FECA benefits. The Office made a preliminary
determination that appellant was without fault and provided appellant with an overpayment
questionnaire and advised him of the importance to furnish financial information. On August 27,

2

The left upper extremity claim was initially adjudicated under Office No. xxxxxx919, and by decision dated
January 27, 2004, the Office denied authorization for left shoulder surgery. The claims were doubled, and in a
September 22, 2004 decision. Appellant filed an appeal with the Board of the September 22, 2004 decision, and by
order dated May 13, 2005, the Board dismissed the appeal on the grounds that, as the matter was in interlocutory
posture, the Board did not have jurisdiction to review the case.
3

By decision dated February 19, 1999 appellant’s compensation was suspended for failure to attend a scheduled
impartial evaluation. In a July 8, 1999 decision, an Office hearing representative reinstated wage-loss compensation
and the examination was rescheduled.
4

Appellant requested a review of the written record, and in an April 17, 2009 decision, an Office hearing
representative affirmed the August 8, 2008 decision. Appellant filed an appeal with the Board, Docket No. 09-2095,
that will be adjudicated separately.
5

The FERS offset calculation showed that for the period September 2 to December 1, 2003, the 28-day offset was
$245.91; for the period December 1, 2003 to December 1, 2004, $251.08; for the period December 1, 2004 to
December 1, 2005, $257.91; for the period December 1, 2005 to December 1, 2006, $268.43; for the period
December 1, 2006 to December 1, 2007, $277.29; and for the period beginning December 1, 2007, $283.66.
6

The worksheet indicated that for the period September 1 to November 30, 2003 appellant received $799.21 in
compensation that should have been offset; from December 1, 2003 to November 30, 2004, $3,281.97; from
December 1, 2004 to November 30, 2005, $3,362.04; from December 1, 2005 to November 30, 2006, $3,499.18;
from December 1, 2006 to November 30, 2007, $3,614.67; and from December 1, 2007 to August 2, 2008,
$2,492.16, for a total overpayment in compensation of $17,049.23.

2

2008 appellant disagreed that an overpayment occurred and requested a prerecoupment hearing.7
On November 14, 2008 he elected FECA benefits, effective August 31, 2008, and on
November 17, 2008 changed his request for a hearing to a review of the written record. In a
March 12, 2009 letter, the SSA explained appellant’s SSA benefits, noting that he reached full
retirement age beginning in September 2003. By decision dated April 17, 2009, an Office
hearing representative finalized the preliminary overpayment determination, denied waiver and
returned the record to the Office for collection of the overpayment debt.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of the Act requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service, and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.8
Office procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply. In disability cases, FECA benefits will be reduced by
the SSA benefits paid on the basis of age and attributable to the employee’s federal service.9 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: Where a claimant has received SSA benefits, the Office will obtain information from
SSA on the amount of the claimant’s SSA benefits beginning with the date of eligibility to FECA
benefits. SSA will provide the actual amount of SSA benefits received by the
claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without the
FERS covered earnings. The Office will then deduct the hypothetical benefit from the actual
benefit to determine the amount of benefits which are attributable to federal service, and that
amount will be deducted from the FECA benefit to obtain the amount of compensation
payable.10
ANALYSIS -- ISSUE 1
Appellant was placed on the periodic roll in April 1997 and received FECA benefits until
his monetary compensation was reduced to zero, effective August 31, 2008. The SSA provided
information establishing that he received SSA old age benefits beginning on September 1, 2003,
his full retirement age, and continuing, and in August 2008, the SSA informed the Office that
appellant’s FECA benefits were not offset by the amount of his SSA benefits attributable to his
federal employment under FERS. SSA records provided described the offset calculations for this
7

On September 5, 2008 the SSA informed the Office that appellant also received SSA retirement benefits for the
period August 2000 to July 2003 that would be subject to offset, and in a preliminary determination dated
September 26, 2008, the Office notified appellant that an overpayment in compensation in the amount of $7,175.08
had been created for this period. Following his request for a prerecoupment review of the written record, by
decision dated April 23, 2009, an Office hearing representative finalized the $7,175.08 overpayment and denied
waiver. Appellant filed an appeal with the Board, Docket No. 09-2132, that will be adjudicated separately.
8

5 U.S.C. § 8116(d); see Janet K. George (Angelos George), 54 ECAB 201 (2002).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.100.11 (a), (b) (February 1995).
10

FECA Bulletin 97-09 (issued February 3, 1997).

3

period that yielded an overpayment in compensation in the amount of $17,049.23.11 As
appellant is not entitled to receive both FECA benefits and that portion of his SSA benefits
attributable to his federal employment, the Office properly determined that an overpayment in
compensation in the amount of $17,049.23 was created.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”13 Section 10.438 of Office regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by the Office. This information is needed to determine whether or not
recovery on an overpayment would defeat the purpose of the Act or be against equity and good
conscience.14 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.15
ANALYSIS -- ISSUE 2
As the Office found appellant without fault in the creation of the overpayment, waiver
must be considered and repayment is still required unless adjustment or recovery of the
overpayment would defeat the purpose of the Act or be against equity and good conscience.16
Appellant, however, had the responsibility to provide financial information to the Office,17 and
did not do so.
In its preliminary determination dated August 18, 2008, the Office clearly explained the
importance of providing the requested financial information and advised appellant that it would
deny waiver if he failed to furnish the requested financial information within 30 days. Appellant
did not submit a completed overpayment questionnaire or otherwise submit financial information
supporting his income and expenses. As a result, the Office did not have the necessary financial
11

Supra notes 5 and 6.

12

Janet K. George, supra note 8.

13

5 U.S.C. § 8129.

14

Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by the
Office from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. Id. at § 10.437.
15

20 C.F.R. § 10.438.

16

Supra note 14.

17

20 C.F.R. § 10.438.

4

information to determine if recovery of the overpayment would defeat the purpose of the Act or
if recovery would be against equity and good conscience. Consequently, as appellant did not
submit the financial information required under section 10.438 of Office regulations, which was
necessary to determine his eligibility for waiver, the Office properly denied waiver of recovery
of the overpayment in compensation in the amount of $17,049.23.18
With respect to recovery of the overpayment, the Board’s jurisdiction is limited to
reviewing those cases where the Office seeks recovery from continuing compensation payments
under the Act, and appellant’s FECA benefits were reduced to zero effective August 31, 2008.
CONCLUSION
The Board finds that appellant received an overpayment in compensation in the amount
of $17,049.23 for the period September 1, 2003 through August 2, 2008 because he received
FECA benefits that were not offset by SSA benefits and that the Office properly denied waiver
of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 17, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: April 2, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

18

Id.

5


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

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

Docket No. 08-638
Issued: October 14, 2008

Case Submitted on the Record

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

JURISDICTION
On December 27, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ October 2, 2007 merit decision in which a hearing representative found
appellant at fault in the creation of an overpayment and not entitled to waiver. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this overpayment
decision.1
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $52,324.50 for the period May 16, 2005 through November 25, 2006; and (2) whether
the Office properly found that appellant was at fault in creating the overpayment, thus precluding
waiver of the recovery of the overpayment.

1

The record also contains an April 17, 2007 wage-earning capacity decision and a June 15, 2007 overpayment
decision in the amount of $431.12 for the receipt of duplicate checks for the refund of health benefits. Appellant has
not contested these decisions on appeal; thus, the Board will not address these decisions.

FACTUAL HISTORY
On April 20, 2004 appellant, then a 52-year-old supervisor customer service, filed an
occupational disease claim for bilateral carpel tunnel syndrome. The Office accepted the claim
for bilateral carpal tunnel syndrome and authorized surgical release. In its May 20, 2004 letter
accepting the claim, the Office advised appellant:
“Once you return to work, or obtain new employment, notify this Office
immediately. Full compensation is payable only while you are unable to perform
the duties of your regular job because of your accepted employment-related
condition. If you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.”
Appellant stopped work on February 8, 2005 and underwent a left carpal tunnel release.
On March 29, 2005 she underwent a right carpal tunnel release. The Office paid appellant
appropriate compensation for total disability. Appellant returned to limited-duty work on
May 16, 2005.
In a letter dated July 13, 2005, appellant advised the Office that she had returned to work
on May 16, 2005 as supervisor of maintenance operations support. She also advised that she
received a compensation check on June 13, 2005 and indicated that she mailed the check back to
the Office. Appellant advised that she would hold the next payment of $3,107.58 until she
received confirmation from the Office that it had discontinued payments and that it had received
her returned June compensation check.
On February 22, 2007 the Office made a preliminary determination that an overpayment
in compensation had occurred in the amount of $58,483.62 for the period May 16, 2005 through
November 25, 2006.2 It noted that appellant had returned to work on May 16, 2005 but
continued to receive compensation for wage loss through November 25, 2006. The Office found
that appellant was at fault in creating the overpayment because she failed to return the checks to
which she was not entitled. It informed appellant that, if she disagreed with the decision, she
could, within 30 days, submit evidence or argument to the Office, or request a prerecoupment
hearing with the Branch of Hearing and Review.3
In a February 22, 2007 letter, appellant advised the Office that she was returning checks
dated October 28 and November 25, 2006 in the amount of $3,079.56 each. The checks were for
the period October 1 through 28, 2006 and October 29 through November 25, 2006, respectively.
The Office cancelled the checks on March 13, 2007.

2

The Office originally calculated the overpayment in the amount of $61,591.20 but gave appellant credit for her
returned compensation check of $3,107.58 for a total amount of $58,483.62.
3

In a February 21, 2007 letter, the employing establishment noted that appellant had received paid leave from
October 17 through November 17, 2006 while she was also receiving wage-loss compensation from the Office. It
advised appellant that all paid leave for that period would be changed to leave without pay.

2

Appellant requested a prerecoupment hearing. This was later changed to a review of the
written record. In an undated statement, appellant argued that she was without fault in creating
the overpayment as she had notified the Office of her return to work but continued to receive
wage-loss compensation benefits.
Although she had requested confirmation that her
compensation checks had been stopped in July 2005, she never received a response from the
Office. Appellant contended that, as the compensation checks continued to come and the Office
was aware she was working, she was entitled to the money. She also advised that she was not
financially able to repay such a large sum of money. In an August 6, 2007 statement, appellant
stated that she was divorced and had resigned from the employing establishment due to medical
reasons. She noted that she had been approved for social security benefits and would begin
receiving $1,767.00 a month commencing November 2007. Appellant stated that she had no
present income and that her family was helping financially. In a statement entitled “Part III
Without Fault Statement,” she summarized the events of the overpayment. Appellant stated that,
if she had received a response to her inquires about the compensation checks, the overpayment
would not have happened. She submitted copies of bank statements and transactions from her
online banking. Appellant also submitted an overpayment recovery questionnaire, copies of
EN1032 forms signed September 13, 2005 and September 28, 2006, noting that she worked, and
a July 29, 2007 notice of disability award from the Social Security Administration, which noted
that she was entitled to $1,767.00 a month beginning October 2007.
By decision dated October 2, 2007, an Office hearing representative found that an
overpayment in the amount of $52,324.50 had occurred during the period May 16, 2005 through
November 25, 2006.4 The hearing representative found that appellant was at fault in creating the
overpayment as she knew or should have known that the compensation checks should not have
continued once she returned to work and began receiving her salary. The hearing representative
further found that appellant did not submit all the information requested to ascertain her current
financial status; therefore, she was unable to render a decision on an equitable repayment
schedule. The hearing representative found the overpayment due and payable.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Federal Employees’ Compensation Act provides that, while an
employee is receiving compensation under the Act the employee may not receive salary, pay or
remuneration of any type from the United States. Office procedures provide that an
overpayment in compensation is created when a claimant returns to work but continues to
receive wage-loss compensation except in limited specified instances.5

4

The hearing representative noted the original overpayment was in the amount of $61,591.20. Appellant had
returned checks in the amount of $3,107.58, $3,079.56 and $3,079.56 for a total of $9,266.70. Thus, the original
overpayment of $61,591.20 was offset by $9,266.70 for a total of $52,324.50.
5

5 U.S.C. § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2(a)
(May 2004).

3

ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $52,324.50 for the period May 16, 2005 through
November 25, 2006. The record shows that appellant received an overpayment during the period
in question because she received wage-loss checks for temporary total disability compensation
after returning to full-time work on May 15, 2005. The Office calculated the $52,324.50
overpayment by totaling the amount of temporary total disability compensation appellant
received for the period in the total amount of $61,591.20. It subtracted the three checks
appellant returned in the amounts of $3,107.58, $3,079.56 and $3,079.56, a total of $9,266.70, to
total $52,324.50. Based on this determination, the Office properly found that appellant received
an overpayment of compensation in the stated amount during that period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act6 provides that an overpayment must be recovered unless
incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.
No waiver of an overpayment is possible if the claimant is not without fault in helping to create
the overpayment.7
In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provides in relevant part:
A recipient who has done any of the following will be found to be at fault with respect to
creating an overpayment:
“(1) Made an incorrect statement as to a material fact which the individual knew
or should have known to be incorrect; or
“(2) Failed to provide information which the individual knew or should have
known to be material; or
“(3) Accepted a payment which he or she knew or should have known to be
incorrect.8
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. When the Office finds a claimant at fault in creating the overpayment on the
grounds that he accepted a payment which the individual knew or should have been expected to
6

5 U.S.C. § 8129(a)-(b).

7

Bonnye Mathews, 45 ECAB 657 (1994).

8

20 C.F.R. § 10.433(a).

4

know was incorrect, it must establish that, at the time the claimant received the compensation
payment, the claimant knew or should have known the payment was incorrect.9
Appellant returned to full-time employment on May 15, 2005 and was, therefore, no
longer entitled to temporary total wage-loss compensation. The evidence establishes that
appellant knew she was accepting payments to which she was not entitled. In her July 13, 2005
letter, appellant advised that she notified the Office that she had returned to work. She also
returned a June 13, 2005 check. In returning the check, appellant demonstrated that she was
aware that the compensation checks received after she returned to work were incorrect.
Appellant contended that she was entitled to subsequent checks as she continued to receive
compensation payments from the Office. Her contention is without merit. Appellant knew to
report her return to work to the Office and returned one check to which she was not entitled.
This is evidence that she knew that she was not entitled to temporary total wage-loss
compensation and salary from the employing establishment at the same time. Appellant is at
fault in creating the overpayment. The fact that the Office may have been negligent in issuing
the payments after appellant returned to work does not mitigate this finding.10 As appellant is
with fault in the creation of the overpayment from May 16, 2005 through November 25, 2006,
she is not eligible for waiver of the recovery of the overpayment. The Office is required by law
to recover this overpayment.11 Thus, the October 2, 2007 Office decision is affirmed.
CONCLUSION
The Board finds that an overpayment of compensation of $52,324.50 was created during
the period May 16, 2005 through November 25, 2006 because appellant received compensation
for that period following her return to work. The Board further finds that, under the
circumstances of this case, appellant is at fault in the creation of the overpayment and is not
entitled to waiver of recovery of the overpayment.

9

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

10

See 20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

11

The repayment of the overpayment is not an issue in this case as appellant is not in receipt of continuing total
disability payments. With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those
cases where the Office seeks recovery from continuing compensation benefits under the Act. 20 C.F.R. § 10.441(a);
see also Joan Ross, 57 ECAB 694 (2006); Bob R. Gilley, 51 ECAB 377 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the October 2, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 09-1441
Issued: February 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 21, 2009 appellant filed a timely appeal from a May 30, 2008 merit decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim, and a
December 23, 2008 nonmerit decision finding that he abandoned his request for an oral hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim and over the December 23, 2008 nonmerit decision.
ISSUES
The issues are: (1) whether appellant abandoned his request for an oral hearing; and
(2) whether appellant met his burden of proof to establish that he sustained a traumatic injury in
the performance of duty on April 18, 2008.
FACTUAL HISTORY
On April 22, 2008 appellant, then a 54-year-old training specialist, filed a traumatic
injury claim alleging that he sustained injuries to his right hip, leg, thigh, knee and groin on
April 18, 2008 when he stepped in a hole while leaving the employing establishment. He

submitted medical evidence, including an April 18, 2008 report from the employing
establishment health facility and an April 25, 2008 report from Dr. Anthony Carter, a Boardcertified orthopedic surgeon.
By decision dated May 30 2008, the Office denied appellant’s claim on the grounds that
the medical evidence did not provide a diagnosed condition which could be connected to the
accepted incident.
On June 23, 2008 appellant requested an oral hearing. In a letter dated November 13,
2008, the Office informed appellant that a hearing had been scheduled at 2:00 p.m. on
December 11, 2008. The notice was sent to appellant’s address of record in Suffolk, VA.
The record contains a copy of a facsimile from appellant to the Office, dated and received
on December 23, 2008.1 Appellant stated:
“I just received your November 13, 2008 letter informing me about a hearing date
in Norfolk, VA. Unfortunately the December 11, 2008 date has passed. I
informed local HRO of my new address change noted in an email and submitted a
letter dated November 12, 2008. to the OWCP London, KY office.”
Appellant submitted a copy of a November 12, 2008 letter advising the Office of a
change of address from his Suffolk, VA location to Chesapeake, VA. He also submitted a copy
of an envelope, bearing the Office’s return address, and an original date stamp of
November 14, 2008. The envelope bears the following notation: “Notify Sender of New
Address,” and reflects that the document was forwarded by the post office on December 19,
2008 to appellant’s Chesapeake, VA address. The envelope and the November 12, 2008 letter
were received by the Office on December 23, 2008.
By decision dated December 23, 2008, the Office found that appellant had abandoned his
request for an oral hearing, on the grounds that he had received proper notice of the scheduled
hearing but did not appear. It stated that there was no indication in the file that appellant had
contacted the Office prior to, or subsequent to, the scheduled hearing to explain his failure to
appear.
On appeal, appellant asserts that he did not receive timely notification of the hearing,
because the notice was first sent to his prior address. He contends that he contacted the Office,
by fax and telephone, immediately upon his receipt of the notice in order to discuss the situation.
LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act and its implementing regulations, a
claimant who has received a final adverse decision by the Office is entitled to receive a hearing
upon writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.2 Unless otherwise directed in writing by the claimant, the hearing
1

The facsimile bears a machine verification indicating that it was sent on December 23, 2008.

2

See 5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

2

representative will mail a notice of the time and place of the oral hearing to the claimant and any
representative at least 30 days before the scheduled date.3 The Office has the burden of proving
that it mailed notice of a scheduled hearing to a claimant.4
The authority governing abandonment of hearings rests with the Office’s procedure
manual, which provides that a hearing can be considered abandoned only when three conditions
are present, namely: the claimant has not requested a postponement; the claimant has failed to
appear at a scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing.5
As the Board’s jurisdiction of a case is limited to reviewing that evidence which was
before the Office at the time of its final decision,6 it is necessary that the Office review all
evidence submitted by a claimant and received by the Office prior to issuance of its final
decision.7 The Board has held that this principal applies with equal force when evidence is
received by the Office the same day a final decision is issued.8
ANALYSIS
The Board finds that this case is not in posture for a decision as to whether appellant
abandoned his request for an oral hearing. In its December 23, 2008 decision, the Office found
that appellant had abandoned his request, as he had received proper notice of the scheduled
hearing but did not appear. The Office stated that there was no indication in the file that
appellant had contacted the Office prior to or subsequent to the scheduled hearing to explain his
failure to appear; however, the decision made no reference to the December 23, 2008 letter from
appellant, or to the enclosed documents.
As the Board’s jurisdiction of a case is limited to reviewing that evidence which was
before the Office at the time of its final decision,9 it is necessary that the Office review all
evidence submitted by a claimant and received by the Office prior to issuance of its final
decision.10 In its final decision, the Office made no reference to appellant’s December 23, 2008
letter or additional evidence received on December 23, 2008, the same day the decision was
issued. Rather, it stated that he had not contacted the Office at all to explain his failure to appear
at the hearing. Because it does not appear that the Office considered the December 23, 2008
3

20 C.F.R. § 10.617(b).

4

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see R.C., 59 ECAB ___ (Docket No. 08-132, issued May 9, 2008).
6

20 C.F.R. § 501.2(c).

7

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

8

Linda Johnson, 45 ECAB 439 (1994).

9

20 C.F.R. § 501.2(c).

10

See William A. Couch, supra note 7.

3

letter and supporting documents in reaching its decision, the Board cannot review such evidence
for the first time on appeal.11
The Board finds that this case is not in posture for a decision. Consequently, the case
will be remanded for the Office to consider appellant’s December 23, 2008 letter and supporting
evidence. Following this and such other development as deemed necessary, the Office shall
issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for a decision as to whether appellant
abandoned his hearing request.12
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2008 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for action consistent
with this decision.
Issued: February 26, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

See id. at § 501.2(c). The Office’s obligation to address and consider relevant evidence that was properly
submitted prior to the issuance of its final decision, applies with equal force when evidence is received by the Office
the same day the final decision is issued. Linda Johnson, supra note 8.
12

In light of the Board’s decision, the merit issue is moot.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

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

Docket No. 11-1556
Issued: January 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 10, 2011 appellant, through her attorney, filed a timely appeal from a
February 28, 2011 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 OWCP properly terminated appellant’s authorization for medical
benefits effective August 26, 2010 on the grounds that she had no further residuals of her
accepted employment injury.
FACTUAL HISTORY
On August 27, 2001 appellant, then a 51-year-old postal clerk, filed an occupational
disease claim alleging that she developed a back condition as a result of repetitive heavy lifting,
1

5 U.S.C. § 8101 et seq.

pushing and pulling at work. OWCP accepted her claim for right carpal tunnel syndrome.2 On
December 17, 2007 appellant returned to light duty.
On June 21, 2010 OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified
orthopedic surgeon, for a second-opinion examination to determine whether her current
conditions and complaints of her right wrist were attributed to her accepted employment injury,
whether she was in need of ongoing treatment related to her accepted right carpal tunnel
syndrome, whether the current medical treatment was reasonable and necessary and whether she
could return to full duty without restrictions.
In his July 22, 2010 second-opinion report, Dr. Smith noted appellant’s complaints of
bilateral hand pain and a sensation of weakness and tingling in all her fingers and reviewed her
medical history. He observed that the October 2006 and July 2007 electrodiagnostic tests
demonstrated problems with the right radial and left ulnar nerve, but did not mention any right
side carpal tunnel syndrome. The examination of the right upper extremity revealed no
dystrophic signs and no focal atrophy in the arm, forearm or hand. Dr. Smith observed that
appellant had active range of motion in the upper extremity and her grip, pinch and opposition
strength were satisfactory. Tinel’s sign and Phalen’s test were nonspecific. Appellant related a
sensation of tingling and pain in her wrist when the Tinel’s sign and Phalen’s test were
performed. Dr. Smith stated that her examination was objectively normal with regards to the
median nerve and he was unsure about what her complaints related to. He reported that there
was no clinical or electrodiagnostic evidence to support that appellant still had right carpal tunnel
syndrome. Dr. Smith concluded that her right hand carpal tunnel syndrome had resolved and she
would not require any additional treatment for her right hand causally related to the
October 1997 incident.
On July 26, 2010 OWCP informed appellant of its proposed termination of her medical
benefits as the evidence established that she had no further residuals of her accepted work injury.
In an August 5, 2010 report cosigned by a physician’s assistant and Dr. Scott M. Fried, a
hand surgeon, they noted that appellant was upset and stressed at having her claim terminated.
Appellant continued to complain of proximal pain that spread down into the wrist and hands and
unchanged numbness and tingling. She described her work duties as a modified mail clerk.
Upon examination, Dr. Fried observed that the Phalen’s test revealed bilateral wrist pain and
Tinel’s sign was positive for the median nerve at the left and right wrist. Compression and
Tinel’s sign testing were also positive for the radial nerves of the right and left elbow. Dr. Fried
diagnosed bilateral wrist radial neuropathy, left ulnar neuropathy, bilateral brachial plexopathy,
capsulitis of the left shoulder and bilateral carpal tunnel median neuropathy of the upper
extremities secondary to work activities. He stated that appellant remained significantly
symptomatic and was still limited. Dr. Fried reported that she needed further treatment for the
above-noted injuries.

2

Appellant filed claims for left carpal tunnel syndrome (File No. xxxxxx245) and a left foot claim (File Nos.
xxxxxx430 and xxxxxx106), which were denied.

2

In a decision dated August 26, 2010, OWCP finalized its termination of appellant’s
benefits effective August 26, 2010 finding that the medical evidence demonstrated that she no
longer had any residuals or disability causally related to her accepted employment injury.3
On August 31, 2010 appellant, through her representative, requested an oral hearing. On
December 15, 2010 a hearing was held. Counsel was present. He stated that appellant’s
employing establishment was having trouble finding time for her to work and contended that,
between Dr. Smith and Dr. Fried, there was definite divergence in whether or not she still
suffered from carpal tunnel syndrome and if she was disabled. Counsel noted that Dr. Fried had
provided numerous reports confirming that appellant’s right arm and upper extremity was giving
her difficulty with numbness and tingling in both hands. He specifically pointed out that
Dr. Fried’s August 5, 2010 report revealed a positive Tinel’s sign over the median nerve of the
right wrist and a diagnosis of bilateral carpal tunnel syndrome, secondary to her work activities.
Counsel also noted that Dr. Smith stated in his July 22, 2010 report that appellant’s Tinel’s sign
and Phalen’s test were nonspecific and she still complained of tingling upon the Tinel’s sign and
Phalen’s test in the upper extremities. Thus, he contended that Dr. Smith’s report should not
have been given special weight of evidence or, in the alternative, that OWCP should have found
a conflict between Drs. Smith and Fried reports and recommended the case for a referee
examination.
By decision dated February 28, 2011, OWCP’s hearing representative affirmed the
August 26, 2010 decision finding that the weight of medical evidence resided with Dr. Smith’s
July 22, 2010 second-opinion report which established that appellant had no further residuals of
her right carpal tunnel syndrome and therefore she did not require any further medical treatment
to her right hand.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability compensation.5 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.6
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who

3

Appellant filed various claims for disability compensation for the period July 18 to September 24, 2010. As
OWCP has not issued a decision regarding these claims, they are not before the Board at this time.
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
6

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., id.

3

shall make an examination.7 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.8
ANALYSIS
OWCP accepted that appellant sustained right carpal tunnel syndrome as a result of
repetitive duties as a postal worker. Appellant stopped work and returned to light duty on
December 17, 2007. In a decision dated August 26, 2010, OWCP finalized its July 26, 2010
preliminary termination of her benefits finding that the medical evidence demonstrated that she
no longer had any residuals or disability causally related to her accepted employment injury. By
decision dated February 28, 2011, OWCP’s hearing representative affirmed the August 26, 2010
decision finding that the medical evidence established that appellant had no further residuals of
right carpal tunnel syndrome and did not require any further medical treatment. The Board finds
that OWCP did not meet its burden of proof to terminate appellant’s medical benefits for the
accepted employment injury as a conflict of medical opinion exists between Drs. Smith’s and
Fried’s reports.
The Board finds that a conflict in medical evidence has been created by the opinions of
Dr. Smith and Dr. Fried regarding whether further medical treatment was necessary for
appellant’s employment injury. In a July 22, 2010 report, Dr. Smith reported that appellant’s
Tinel’s sign and Phalen’s test were nonspecific. He stated that her examination was objectively
normal with regards to the median nerve and that there was no clinical or electrodiagnostic
evidence to support that she still had right carpal tunnel syndrome. Dr. Smith concluded that
appellant’s right hand carpal tunnel syndrome had resolved and she would not require any
additional treatment for her right hand causally related to her employment injury. In an
August 5, 2010 report cosigned by a physician’s assistant and Dr. Fried, they noted that appellant
continued to complain of proximal pain that spread down into the wrist and hands and
unchanged numbness and tingling. Upon examination, Dr. Fried observed that the Phalen’s test
revealed bilateral wrist pain and Tinel’s sign was positive for the median nerve at the left and
right wrist. He diagnosed bilateral carpal tunnel median neuropathy of the upper extremities and
opined that appellant needed further treatment for her injuries.
On appeal and in his oral argument, counsel contends that OWCP should have referred
appellant to a referee medical examination in light of the conflicting opinions of Drs. Smith and
Fried. The Board finds a conflict of medical opinion exists between Dr. Smith and Dr. Fried as
to whether appellant still suffered from right carpal tunnel syndrome as a result of her
employment activities and required further medical treatment. Thus, Dr. Smith’s opinion is
alone insufficient to establish that appellant’s right carpal tunnel syndrome had resolved and is
insufficient to constitute the weight of the medical evidence. As the record contains an

7

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
8

20 C.F.R. § 10.321.

4

unresolved conflict in medical opinion, the Board consequently finds that OWCP has not met its
burden of proof to terminate appellant’s medical benefits for the accepted employment injury.9
CONCLUSION
The Board finds that OWCP improperly terminated appellant’s authorization for medical
benefits effective August 26, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2011 is reversed.
Issued: January 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

See G.S., Docket No. 09-1670 (issued May 19, 2010); Lori E. Rayner-Brown, Docket No. 02-375 (issued
July 12, 2002).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 13-64
Issued: August 5, 2013

Case Submitted on the Record

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

JURISDICTION
On October 10, 2012 appellant filed a timely appeal from a June 27, 2012 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 OWCP properly reinstated appellant’s compensation effective
June 30, 2008 following a suspension of benefits under 5 U.S.C. § 8123(d).
FACTUAL HISTORY
This case has previously been on appeal before the Board. By decision dated
September 26, 2003, OWCP suspended appellant’s compensation benefits due to her failure to
1

5 U.S.C. § 8101 et seq.

attend a medical examination. On June 30, 2008 appellant inquired of OWCP how to reinstate
her benefits and filed a request for reconsideration. By decision dated October 3, 2008, OWCP
denied her request as untimely and that it failed to establish clear evidence of error. An appeal
was filed with the Board. In a January 15, 2010 decision, the Board found that OWCP had
improperly treated appellant’s June 30, 2008 inquiry as an untimely request for reconsideration.2
The Board found that the reconsideration should have been adjudicated on whether appellant’s
benefits should remain suspended. By decision dated February 15, 2011, OWCP found that
appellant’s June 30, 2008 appearance at OWCP’s office constituted her agreement to comply
with the request to attend her second opinion examination and reinstated compensation benefits
effective that date. It also found that appellant was not eligible for compensation during the
period of obstruction, October 5, 2003 through June 29, 2008. The Board affirmed OWCP’s
decision on March 15, 2012.3 The facts and history contained in the prior appeals are
incorporated by reference.
In the interim, appellant received compensation for the period June 30, 2008 through
March 12, 2011. Her compensation benefits were again terminated effective March 13, 2011.4
Subsequent to the Board’s decision, in a letter dated March 20, 2012, appellant requested
reconsideration. She informed OWCP that she was submitting a copy of the Board’s decision
and requested reinstatement of her compensation.
On March 26, 2012 OWCP received a September 22, 2011 report from Dr. Jeanie L.
Klabzuba, an osteopath and family practitioner, which indicated that appellant had a medical
need for a leave of absence from her worksite, based on her diagnosis of post-traumatic stress
disorder (PTSD), for an unknown period of time. She advised that appellant continued to have
PTSD, related symptoms of stress, inability to sleep, inability to control her emotions and
depression and could not return to work.
In a letter dated April 25, 2012, appellant informed OWCP that her name had changed.
In a letter dated May 1, 2012, appellant requested the status of her request for
reconsideration. In a letter dated May 16, 2012, appellant provided OWCP with a copy of her
birth certificate and documentation to show her name change, a direct deposit sign-up form and
information pertaining to an Equal Employment Opportunity Commission decision.
By decision dated June 27, 2012, OWCP affirmed its February 15, 2011 decision
regarding the date of reinstatement of appellant’s eligibility for compensation following the
suspension of her benefits.
2

Docket No. 09-602 (issued January 15, 2010).

3

Docket No. 11-1899 (issued March 15, 2012). The Board’s decision on this matter became final 30 days from
the date of the filing of the decision. See 20 C.F.R. § 501.6(d). The issue is thus res judicata and is not subject to
further consideration by the Board in this appeal. See Hugo A. Mentink, 9 ECAB 628 (1958); see also Clinton E.
Anthony, Jr., 49 ECAB 476 (1998) (in the absence of further review by OWCP on the issue addressed by a Board
decision, the subject matter reviewed is res judicata and is not subject to further consideration by the Board).
4

Appellant did not appeal the termination decision.

2

LEGAL PRECEDENT
FECA provides that, if an employee refuses to submit to or obstructs an examination, his
or her right to compensation is suspended until the refusal or obstruction stops. Compensation is
not payable while a refusal or obstruction continues and the period of the refusal or obstruction is
deducted from the period for which compensation is payable to the employee.5 The plain
meaning of this language is that compensation is forfeited for the period of the refusal or
obstruction.6
OWCP procedures state that, if the claimant does not report for a scheduled appointment,
he or she should be asked in writing to provide an explanation within 14 days. If good cause is
not established, entitlement to compensation should be suspended in accordance with 5 U.S.C.
§ 8123(d) until the date on which the claimant agrees to attend the examination. Such agreement
may be expressed in writing or by telephone (documented on Form CA-110). When the claimant
actually reports for examination, payment retroactive to the date on which the claimant agreed to
attend the examination may be made.7
ANALYSIS
The record reflects that OWCP suspended appellant’s compensation, effective October 5,
2003, for refusal to attend a scheduled second opinion examination. The Board notes that
OWCP reinstated appellant’s benefits effective June 30, 2008.
On reconsideration, appellant provided OWCP with a copy of the Board’s prior decision
and requested reinstatement of her compensation. She also informed OWCP that her name had
changed. The Board notes that this information is irrelevant to the date compensation benefits
would resume. Appellant made other arguments to the contrary.8
Appellant also provided a March 26, 2012 report from Dr. Klabzuba, who generally
indicated that she had a medical leave of absence due to her PTSD for an unknown period of
time. Dr. Klabzuba did not specifically address appellant’s ability to undergo a scheduled
medical examination. The Board finds that this report is insufficient to show that benefits should
have been reinstated any earlier than June 30, 2008. There was no evidence submitted on
reconsideration showing that any earlier date was appropriate.
5

5 U.S.C. § 8123(d).

6

William G. Saviolidis, 37 ECAB 174 (1985). The employee will forfeit compensation otherwise paid or payable
under FECA for the period of the refusal or obstruction, and any compensation already paid for that period will be
declared an overpayment and will be subject to recovery pursuant to 5 U.S.C. § 8129. See 20 C.F.R. § 10.323 (the
penalties for failing to report for or obstructing a second opinion or referee examination).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d),(e) (September 2010). See Sharon Handy, 57 ECAB 446 (2006).
8

To the extent that appellant seeks reinstatement of compensation benefits that were terminated in OWCP’s
February 15, 2011 termination decision, the Board notes that it does not have jurisdiction over this decision. See 20
C.F.R. § 501.3(e).

3

CONCLUSION
The Board finds that OWCP properly reinstated appellant’s compensation benefits,
effective June 30, 2008.
ORDER
IT IS HEREBY ORDERED THAT the June 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4