United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR FORCE COMMISSARY SERVICE,
MAXWELL AIR FORCE BASE, AL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Winn Faulk, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1611
Issued: July 2, 2009

Case Submitted on the Record

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

JURISDICTION
On May 19, 2008 appellant filed a timely appeal from a February 12, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for further
review of the merits of her claim and a May 29, 2007 decision denying her request for an oral
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these
nonmerit decisions. The last merit decisions of record are the Office’s March 7, 2006 schedule
award for 23 percent impairment to appellant’s right arm, and October 11 and December 5, 2001
decisions terminating her compensation benefits. Because more than one year has elapsed
between these merit decisions and the filing of this appeal, the Board lacks jurisdiction to review
the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for an oral
hearing as untimely; and (2) whether the Office properly refused to reopen appellant’s case for
further review of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On February 5, 1989 appellant, then a 40-year-old sales store checker, sustained injury to
her right shoulder after cleaning her register. The Office accepted her claim for cervical strain,
right shoulder strain and a ruptured biceps tendon on the right. Surgery was performed and the
Office paid compensation and medical benefits. By decision dated October 11, 2001, the Office
terminated appellant’s compensation benefits as it found that she had no continuing disability
from employment as a result of the injury. On March 7, 2006 it issued a schedule award for 23
percent impairment to her right arm.
By letter dated March 22, 2006, appellant requested that her disability benefits be
reinstated as of October 2001 when they were terminated. She argued that she was still under
doctor’s care. Appellant did not believe that her schedule award adequately compensated her for
pain and suffering. By letter dated April 24, 2006, she requested reconsideration and again asked
that her disability benefits be reinstated. Appellant indicated that she was advised that she could
draw her schedule award and compensation benefits at the same time.
By decision dated April 25, 2006, the Office denied reconsideration of the 2001
termination decision as her request was not filed within one year and failed to establish clear
evidence of error.
By letter dated May 17, 2006, appellant requested a hearing as to the April 25, 2006
decision. On July 13, 2006 she again requested an oral hearing. By decision dated August 17,
2006, the Office denied appellant’s request for a hearing as she had previously sought
reconsideration. It further denied the request, finding that the issue could equally well be
addressed through the reconsideration process.
By letter dated April 9, 2007, appellant asked for a disability hearing and indicated that
she wanted benefits retroactive to October 2001. By decision dated May 29, 2007, the Office
denied appellant’s request for a hearing as it was untimely filed. It found that her request was
filed more than 30 days following the issuance of the March 7, 2006 schedule award decision.
The Office further reviewed appellant’s request and determined that the request could be equally
well addressed by requesting reconsideration and submitting evidence that shows a greater
schedule award.
In a letter dated January 19, 2008, appellant advised the Office that, “I had until May to
appeal the letter I received on May of last year, where you said I filed too late.” She contended
that her benefits were illegally cut off in 2001. Appellant inquired as to why she had not had a
hearing.
Appellant submitted a May 25, 2007 note from Dr. Brad P. Katz, a Board-certified
anesthesiologist, who gave appellant trigger point injections in her right trapezius, right biceps
and right deltoid muscles. On July 10 and October 4, 2007 Dr. Katz administered further
injections. Appellant also submitted medical reports from Dr. J. Patrick Couch previously of
record.

2

By decision dated February 12, 2008, the Office denied appellant’s request for
reconsideration of the March 7, 2006 decision as the request for reconsideration was not timely
filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
A claimant dissatisfied with a decision of the Office shall be afforded an opportunity for
an oral hearing or, in lieu thereof, a review of the written record.1 A request for either an oral
hearing or review of the written record must be submitted, in writing, within 30 days of the date
of the decision for which a hearing is sought.2 If the request is not made within 30 days, a
claimant is not entitled to a hearing or review of the written record as a matter of right.
Furthermore, Office regulations provide that the claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.3 Although a
claimant may not be entitled to a hearing as a matter of right, the Office has discretionary
authority with respect to granting a hearing and it must exercise such discretion.4
ANALYSIS -- ISSUE 1
By letter dated April 9, 2007, appellant requested a hearing and indicated that she wanted
retroactive benefits from October 2001. The Board finds that her request for a hearing was not
timely filed within 30 days of the most recent decision, the March 7, 2006 schedule award
decision. Appellant’s attorney contends that appellant submitted a letter dated March 22, 2006
asking that her disability benefits be reinstated. However, the letter does not establish that
appellant sought an oral hearing or made any reference to the March 7, 2006 schedule award
decision. Accordingly, the Board finds that this letter was not a timely request for an oral
hearing. The Office also reviewed appellant’s request under its discretionary authority and
further denied a hearing as the issue could also be addressed by requesting reconsideration and
submitting new evidence. The Board finds that the Office properly denied appellant’s request
for a hearing as untimely filed.
LEGAL PRECEDENT -- ISSUE 2
To be entitled to a merit review of an Office decision denying or terminating a benefit, a
claimant must file her application for review within one year of the date of that decision.5 The
Board has found that the imposition of the one-year limitation does not constitute an abuse of the

1

20 C.F.R. § 10.615 (2008).

2

Id. at § 10.616(a).

3

Id.

4

See Samuel R. Johnson, 51 ECAB 612 (2000); Eileen A. Nelson, 46 ECAB 377 (1994); Herbert C. Holley, 35
ECAB 140 (1981).
5

20 C.F.R. § 10.607(a).

3

discretionary authority granted the Office under section 8128(a) of the Federal Employees’
Compensation Act.6
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, the
Office must nevertheless undertake a limited review to determine whether the application
establishes clear evidence of error.7 Office regulations and procedure provide that the Office
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of
error on the part of the Office.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.14

6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). Office procedure further provides the term clear evidence of error is intended to represent a difficult
standard. The claimant must present evidence which on its face shows that the Office made an error (for example,
proof that a schedule award was miscalculated). Evidence such as a detailed, well-rationalized medical report
which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona D. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Leon D. Faidley, Jr., supra note 6.

4

ANALYSIS -- ISSUE 2
The last merit review of the decision terminating appellant’s compensation benefits was
issued on December 5, 2001. Appellant filed her request for reconsideration by letter dated
January 19, 2008. This letter was clearly not timely filed within one year from the merit decision
of the Office. As noted, appellant’s attorney contends that appellant requested reconsideration in
a March 22, 2006 letter. However, appellant did not state what form of appeal she desired and
mentioned that her compensation benefits should be reinstated. This letter was also not timely
filed within one year of the December 5, 2001 termination decision.
The Office reviewed appellant’s request under the clear evidence of error standard and
determined that she had not established clear evidence of error. The Board notes that appellant
did not submit any evidence in support of her contention that the Office improperly terminated
her benefits in October 2001. Appellant submitted reports from Dr. Couch that had already been
considered. Dr. Katz merely noted that she had been given trigger point injections in 2007. The
fact that appellant had injections is not relevant to the issue of continuing disability. The Board
notes that medical treatment was not terminated. Accordingly, the Board finds that appellant has
not shown clear evidence of error.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for a hearing as
untimely filed. The Board further finds that the Office properly refused to reopen appellant’s
case for further review of the merits of the claim on the grounds that her request was untimely
filed and failed to demonstrate clear evidence of error.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 12, 2008 and May 29, 2007 are affirmed.
Issued: July 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.N., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF ENGRAVING & PRINTING,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-911
Issued: August 21, 2013

Case Submitted on the Record

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

JURISDICTION
On March 8, 2013 appellant filed a timely appeal of a January 10, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration without further merit review. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this decision.
Because more than 180 days elapsed from March 15, 2011, the date of the most recent OWCP
merit decision, to March 8, 2013, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 16, 2007 appellant, then a 28-year-old printing plant worker, filed an
occupational disease claim alleging that she sustained a respiratory illness due to her federal
employment. She became aware of her condition and its relationship to her job on
August 6, 2007. In a July 17, 2007 report, Dr. Daniel E. Jimenez, a Board-certified occupational
physician, examined appellant and observed multiple upper and lower extremity erythematous
lesions. He diagnosed environmental allergies and sinusitis. Dr. Jimenez reexamined appellant
on August 6, 2007 and noted faint, erratic wheezing throughout the lung fields.2
By decision dated January 9, 2008, OWCP denied appellant’s claim, finding the evidence
insufficient to demonstrate that a work event occurred as alleged.
Appellant requested reconsideration on February 27, 2008. She specified that her job
duties involved daily use of chemical products and exposure to inks, fumes, smoke, gas and other
irritants. Appellant thereafter experienced breathing problems at work on August 6, 2007.3
On April 14, 2008 OWCP modified the January 9, 2008 decision to find that appellant
routinely used chemical products at work and was exposed to inks, fumes, smoke, gas and other
irritants. Nonetheless, it denied her claim on the grounds that the medical evidence did not
sufficiently establish that these accepted employment factors caused or contributed to a
respiratory illness.
Appellant requested reconsideration on April 13, 2009 and submitted new evidence. In a
November 13, 2008 report, Dr. Virginia M. Weaver, a Board-certified occupational physician,
stated that appellant started working for the employing establishment in September 2005.
Appellant’s tasks included cleaning the presses with solvents, distributing plates and dyes and
collecting and refilling ink containers. She sustained urticaria in September 2006 and asthma in
August 2007 and remained symptomatic. On examination, Dr. Weaver observed left fifth digit,
right upper arm and left dorsal foot erythematous papules. She commented that a printing
facility was “known to have increased risk for allergy due to components in the inks” and opined
that appellant’s condition may be job related.
On July 10, 2009 OWCP denied modification of the April 14, 2008 decision.
Appellant requested reconsideration on July 1, 2010 and submitted new evidence.
Pulmonary function tests conducted by Dr. Bahram Redjaee, a Board-certified internist, on
July 21, 2008 and June 23, 2010 exhibited mild restrictive lung disease and small airways
disease, respectively.
On March 15, 2011 OWCP denied modification of the July 10, 2009 decision.
2

The case record contains other medical evidence. However, these records were signed by nonphysicians, failed
to address whether the alleged occupational disease was causally related to appellant’s federal employment,
discussed medical conditions not presently before the Board and/or were illegible.
3

Appellant provided a detailed list of chemical products as well as material safety data sheets.

2

Appellant requested reconsideration on September 10, 2012 and submitted new evidence.
In a July 13, 2011 report, Dr. Redjaee noted a history of asthma. Pulmonary function tests were
normal. Dr. Redjaee remarked that appellant “used to work in the area of printing and engraving
where she had a long history of exposure to films” and that her asthma was “thought to be
secondary to occupational factors and exposures.” Subsequent pulmonary tests conducted on
January 18, 2012 were also normal.
By decision dated January 10, 2013, OWCP denied appellant’s request for
reconsideration, finding that it was not filed within one year of the March 15, 2011 decision and
did not otherwise establish clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.4 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be filed within one year of the date of OWCP
decision for which review is sought.5 Imposition of this one-year filing limitation does not
constitute an abuse of discretion.6
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether it establishes clear evidence of error. If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.7
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP8 is positive, precise and explicit and manifests on its face
that OWCP committed an error.9 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited

4

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a). See also D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340
(issued June 22, 2009).
6

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011) “(The term ‘clear evidence of
error’ is intended to represent a difficult standard.)”
8

Dean D. Beets, 43 ECAB 1153 (1992).

9

Leona N. Travis, 43 ECAB 227 (1991).

3

review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.10
ANALYSIS
The Board finds that appellant filed an untimely request for reconsideration. The last
OWCP merit decision in this case was issued on March 15, 2011. Appellant filed an application
to reopen this decision for further merit review on September 10, 2012. Because more than one
year elapsed from March 15, 2011 to September 10, 2012, OWCP properly determined that the
reconsideration request was not timely filed.
The Board also finds that appellant’s untimely request failed to demonstrate clear
evidence of error. In its March 15, 2011 decision, OWCP denied her occupational disease claim
on the grounds that the medical evidence did not establish that work factors, namely daily use of
chemical products and exposure to inks, fumes, smoke, gas and other irritants, caused or
contributed to a respiratory condition. Thereafter, appellant submitted July 13, 2011 and
January 18, 2012 medical records from Dr. Redjaee. As noted, the question of whether a
claimant has established clear evidence of error entails a limited review of how the evidence
submitted with the reconsideration request bears on the evidence previously of record. Neither
of Dr. Redjaee’s records, however, manifested on its face that OWCP erred in denying
appellant’s claim in view of the earlier, deficient case record.11 Since this new evidence did not
raise a substantial question as to the correctness of the March 15, 2011 decision, OWCP properly
determined that the untimely request failed to establish clear evidence of error.
Appellant contends on appeal that the medical evidence was sufficient. The Board has
already addressed the deficiencies of the reconsideration request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.

10

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

11

See also D.G., 59 ECAB 455, 460 (2008) (the submission of a detailed, well-rationalized medical report, which
would have created a conflict in medical opinion requiring further development if submitted before the denial was
issued, is not clear evidence of error; the evidence must shift the weight of the evidence in favor of the claimant).

4

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
East Rockaway, NY, Employer
)
_________________________________________ )
W.S., Appellant

Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1183
Issued: November 3, 2016

Case Submitted on the Record

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

JURISDICTION
On May 11, 2016 appellant, through counsel, filed a timely appeal of an April 5, 2016
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 merit decision in the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an occupational
disease causally related to factors of his employment.
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.

FACTUAL HISTORY
On September 26, 2014 appellant then a 58-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed osteoarthritis, ulceration, and infection of
his right big toe as a result of prolonged standing and walking while performing his letter carrier
duties. He first became aware of his condition on August 29, 2014. Appellant stopped work on
September 6, 2014.
In a September 26, 2014 statement, appellant advised that his mail carrier duties included
lifting, sorting, carrying, and delivering mail and parcels for eight hours a day, five to six times a
week. His route required that he lift, bend, walk, carry, reach, throw, trot, kneel, climb, and
descend stairs. Appellant noted that his job was physically demanding and it was commonplace
to hit, bang, stub, twist, and wrench his feet while working. He indicated that his job duties
contributed and exacerbated his foot condition which resulted in osteomyelitis and amputation of
toes. Appellant requested a change of assignment.
Appellant submitted a September 5, 2014 work excuse note from Dr. Leon Livingston, a
podiatrist, who treated appellant for a right foot ulcer. Dr. Livingston noted that development of
the ulcer was most likely due to repetition of trauma to the toe. He noted that appellant was
disabled beginning September 5, 2014.
In a September 12, 2014 work excuse note,
Dr. Livingston advised that appellant was treated for a foot problem and was excused from work
from September 12 to 19, 2014. He indicated in a September 19, 2014 work excuse note that
appellant was treated for chronic foot problems and was able to return to light duty on
September 22, 2014.
Dr. Lowell B. Taubman, a Board-certified orthopedist, provided a September 22, 2014
disability note documenting that appellant underwent a toe amputation and had severe gout. He
advised that appellant had an infection on another toe and would not be able to work in his
previous capacity due to his foot disorders.
By letter dated November 6, 2014, OWCP advised appellant of the type of evidence
needed to establish his claim, particularly requesting that he submit a physician’s reasoned
opinion addressing the relationship of his claimed condition and specific employment factors.
Appellant submitted work excuse notes from Dr. Livingston dated October 4 and 23,
2014, who treated appellant for foot problems and advised that he was unable to perform work
activities including walking or standing. Dr. Livingston noted that appellant was only able to sit
and perform light-duty work. On November 21, 2014 he noted that appellant was treated for a
foot problem.
Appellant submitted a November 22, 2014 note from Dr. Taubman who noted that
appellant was unable to work due to cellulitis of the right foot. On December 5, 2014
Dr. Taubman treated appellant in follow up for his diagnosed gout and cellulitis of the toe.
Appellant submitted a work excuse note from Dr. Brandon Naing, a podiatrist, dated
December 4, 2014, who indicated that appellant was treated for an ulcer and was unable to work
at that time. Dr. Naing excused appellant from work beginning December 4, 2014.

2

Appellant was treated by Dr. David J. Sands, a podiatrist, who, in a December 10, 2014
report, noted appellant’s chronic recurrent ulceration on his right great toe. Dr. Sands advised
that appellant had a rigid hammered great toe and idiopathic neuropathy which caused blunting
of sensation. He opined that appellant’s job as a letter carrier and the excessive amount of
ambulation directly led to the development of his toe ulceration.
In a January 9, 2015 decision, OWCP denied appellant’s claim because he failed to
establish that his claimed medical condition was causally related to the established work-related
events.
On December 31, 2015 appellant requested reconsideration. He submitted an October 6,
2015 report from Dr. Sands who treated appellant for an evaluation of a nonhealing ulcer of his
right great toe. Appellant reported that the ulcer occurred within a few months prior to his initial
visit without any history of injury. Dr. Sands noted that appellant worked as a letter carrier and
the ulceration prevented him from resuming his job. He noted that appellant’s medical history
was significant for hypertension, kidney stones, idiopathic neuropathy, a second toe right foot
amputation secondary to an infection in 2012, and an Achilles tendon repair of his right foot in
2007. Dr. Sands noted findings of a small open ulceration noted at the distal aspect of his right
great toe with a healing granular base, high arch bilaterally with rigid contracture of the right
great toe at the interphalangeal joint and metatarsal phalangeal joint consistent with hammertoe
deformity. He recommended that appellant significantly reduce his weight bearing activities, use
an orthotic, and continue with wound care. Dr. Sands opined, based on his evaluation, that
appellant’s condition was a direct result of appellant’s vocation.
In an undated report, Dr. Sands noted that appellant was treated for a chronic ulcer on his
right great toe. He noted that the right great toe ulcer was recurrent due to severe deformity and
arthritis of his feet and idiopathic neuropathy with an altered sense of sensation. Dr. Sands
advised that appellant had his right second toe amputated due to an ulcer with infection.
Dr. Sands indicated that appellant worked as a letter carrier and that his ulceration prevented him
from working. He again recommended that appellant significantly reduce his weight bearing
activities and noted that appellant would be a candidate for reconstructive surgery if his ulcer did
not resolve. Dr. Sands opined that appellant’s condition was a “direct result” of his vocation.
Appellant submitted a report from Dr. John Feder, a Board-certified orthopedist, dated
December 10, 2015, who noted treating appellant since February 9, 2012. Dr. Feder noted that
appellant was a letter carrier and while performing his job duties it was commonplace for him to
hit, bang, and stub his toes, feet, and knees. He noted that appellant presented with complaints of
chronic pain and ulcer in the right second toe. A magnetic resonance imaging (MRI) scan of the
right foot revealed mild-to-moderate soft tissue swelling, suspicious lesion within distal soft
tissues right second toe, no definite adjacent cortical destruction, focal edema within the second
nail bed or diffuse bone marrow edema likely related to an underlying contusion, and an
underlying inflammatory process or osteomyelitis. Dr. Feder noted an x-ray of the right foot
revealed second hammertoe and osteoarthritis. On April 23, 2012 he performed second toe
terminal amputation and the pathology report confirmed chronic ulceration and osteomyelitis.
Dr. Feder diagnosed right second toe terminal amputation, neuropathy, history of right second
toe osteomyelitis, history of ulcer of right second toe, secondary localized osteoarthrosis of the
ankle and foot, and pain in joints involving foot and ankle. He noted that “if the history reported

3

to me is accurate then there is a direct causal relationship between [appellant’s] right toe, ankle,
and foot from working as a … [mail carrier]. [Appellant] has underlying neuropathy.”
In a decision dated April 5, 2016, OWCP denied modification of the February 11, 2015
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims an injury in the performance of
duty, he or she must submit sufficient evidence to establish that he or she experienced a specific
event, incident, or exposure occurring at the time, place, and in the manner alleged. The
employee must also establish that such event, incident, or exposure caused an injury.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.4 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
It is undisputed that appellant’s duties as a mail carrier included lifting, sorting, carrying
bending, walking, reaching, throwing, trotting, kneeling, and climbing and descending stairs
while delivering mail and parcels for eight hours a day, five to six times a week. However,
appellant has not submitted sufficient medical evidence to establish that his diagnosed medical
conditions are causally related to factors of his federal employment.
3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
4

S.P., 59 ECAB 184, 188 (2007).

5

R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

6

Solomon Polen, 51 ECAB 341 (2000).

4

Appellant submitted an undated report from Dr. Sands who treated him for a recurrent
right great toe ulcer which was due to severe deformity of the feet, arthritis and idiopathic
neuropathy and altered sensation. Dr. Sands advised that appellant had his right second toe
amputated due to an ulcer with infection. He noted appellant’s job duties and opined that
appellant’s condition was a “direct result” of his vocation. Similarly, on December 10, 2014
Dr. Sands opined that due to his job as a letter carrier, and the excessive amount of ambulation
that his job required, directly led to the development of his toe ulceration. Likewise, in an
October 6, 2015 report, Dr. Sands treated appellant for an evaluation of a nonhealing ulcer of his
right great toe. He opined that based on his evaluation appellant’s condition was a direct result
of his vocation. The Board finds that, although Dr. Sands supported causal relationship, he did
not provide sufficient medical rationale explaining the basis of his conclusory opinion regarding
the causal relationship between appellant’s right great toe ulcer and the factors of employment.7
For example, he did not explain the process by which prolonged walking would cause the
diagnosed condition and why such condition would not be due to any nonwork factors such as
age-related arthritis, congenital foot deformity, or idiopathic neuropathy.8 Therefore, this report
is insufficient to meet appellant’s burden of proof.
In a December 10, 2015 report, Dr. Feder advised that when carrying out his duties as a
letter carrier it was commonplace for appellant to hit, bang, and stub his toes, feet, and knees.
He noted an x-ray of the right foot revealed second hammertoe and osteoarthritis. On April 23,
2012 Dr. Feder performed second toe terminal amputation. He diagnosed right second toe
terminal amputation, neuropathy, history of right second toe osteomyelitis, history of ulcer of
right second toe, secondary localized osteoarthrosis of the ankle and foot, and pain in joints
involving foot and ankle. Dr. Feder noted that “if the history reported to me is accurate then
there is a direct causal relationship between [appellant’s] right toe, ankle, and foot from working
as a … [mail carrier]. [Appellant] has underlying neuropathy.” The Board notes that Dr. Feder’s
report provides some support for causal relationship, but is insufficient to establish the claimed
conditions are causally related to his employment duties. Dr. Feder’s reports, at best, provide
speculative support for causal relationship as he noted “if the history reported to me is accurate”
there was a direct causal relationship between his right toe, ankle, and foot and his employment
duties.9 He did not provide medical reasoning explaining how or why particular workplace
substances or conditions caused or aggravated a diagnosed condition. The need for medical
rationale is particularly important in view of appellant’s underlying right lower extremity
neuropathy. Therefore, these reports are insufficient to meet appellant’s burden of proof.
Appellant submitted work excuse notes from Dr. Livingston dated September 5 to
November 21, 2014, who treated appellant for a right foot ulcer and noted that he was unable to
perform his normal work duties including walking or standing from September 5 to
November 21, 2014. Dr. Livingston noted that appellant could return to sedentary light duty on
7

See T.M., 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

Id.

9

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

5

September 22, 2014. He noted that development of the ulcer most likely was due to repetition of
trauma to the toe. Similarly, a work excuse note from Dr. Naing dated December 4, 2014
indicated that appellant was treated for an ulcer and was unable to perform normal work
activities. However, these notes fail to provide a history of injury10 or offer a rationalized
opinion addressing how specific work activities caused or contributed to a diagnosed medical
condition.11
On September 22, 2014 appellant was treated by Dr. Taubman who noted findings of
severe gout and performed a toe amputation. Dr. Taubman noted that appellant had an infection
on another toe and would not be able to work in his previous capacity due to his foot disorders.
On November 22 and December 5, 2014 he diagnosed gout and cellulitis of the toe and noted
that appellant was totally disabled. Dr. Taubman’s reports as well are insufficient to establish
the claim as he did not provide a history of injury12 or specifically address whether appellant’s
employment activities had caused or aggravated a diagnosed medical condition.13
On appeal, appellant disagrees with OWCP’s decision denying his claim for
compensation and asserts that he submitted sufficient evidence to establish his claim. As noted
above, the medical evidence of record does not establish that appellant’s diagnosed conditions
are causally related to his employment. Reports from appellant’s physician failed to provide
sufficient medical rationale explaining how appellant’s injuries are causally related to particular
employment factors.
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 his burden of proof to establish an
occupational disease causally related to factors of his employment.

10

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
11

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

Supra note 10.

13

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

6

ORDER
IT IS HEREBY ORDERED THAT the April 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2016
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 11-1355 &
11-1389
Issued: May 18, 2012

Case Submitted on the Record

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

JURISDICTION
On May 13 and 25, 2011 appellant filed timely appeals from Office of Workers’
Compensation Programs’ (OWCP) decisions dated December 17, 2010 and April 15, 2011 which
denied his reconsideration requests on the grounds that they were untimely filed and failed to
establish clear evidence of error. Because more than one year has elapsed between the most
recent merit decision dated August 9, 1989 to the filing of these appeals on May 13 and 25,
2011, the Board lacks jurisdiction to review the merits of his claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant requested oral argument on May 25, 2011. However, as he is merely raising the
same contentions which the Board and OWCP have rejected on numerous contentions, the Board in its discretion
denies oral argument. The case can equally well be handled with a review of the record and will not unduly delay
the issuing of the decision.

ISSUE
The issue is whether OWCP properly determined that appellant’s requests for
reconsideration were untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. On March 23, 1989 appellant, then a
23-year-old mail clerk, filed a claim for traumatic injury to his low back on March 20, 1989
when a coworker pushed him backward into a mail container. By decisions dated May 19 and
August 9, 1989, OWCP denied his traumatic injury claim on the grounds that he did not establish
that the March 20, 1989 incident occurred as alleged. By decision dated January 3, 2005, it
denied appellant’s request for reconsideration as untimely and insufficient to show clear
evidence of error. In a May 12, 2006 decision, the Board affirmed OWCP’s January 3, 2005
decision.3 By nonmerit decision dated August 10, 2006, OWCP denied appellant’s request for
reconsideration as untimely and insufficient to show clear evidence of error. In a February 7,
2007 decision, the Board affirmed OWCP’s January 3, 2005 nonmerit decision.4 By decision
dated February 24, 2009, OWCP denied appellant’s request for reconsideration without a merit
review, finding the request was untimely and that appellant had not established clear evidence of
error. In a decision dated February 23, 2010, the Board affirmed OWCP’s February 24, 2009
nonmerit decision.5 The facts of this case as set forth in the Board’s prior decisions are
incorporated by reference.
In a December 10, 2010 request for reconsideration, appellant stated that he was
submitting new and relevant medical evidence in support of his claim, including a November 19,
2010 report from Dr. Christopher T. Plastaras, a specialist in physical medicine and
rehabilitation, a second “corrected” report from Dr. Plastaras, and a report from Dr. Aron Jeffrey,
an osteopath. In a February 22, 2011 request for reconsideration, appellant stated that OWCP
erred by ignoring several procedural errors by his employer, which failed to fulfill its statutory
obligation to assist him in developing the evidence and in obtaining an attending physician’s
report. He alleged that the employing establishment ignored a March 21, 1989 medical opinion
from his treating physician, Dr. Gunnar Ek, and failed to request a medical report in accordance
with 20 C.F.R. §§ 10.330 and 10.331; the employing establishment failed to provide him with a
Form CA-1 in a timely fashion; the employing establishment failed to ensure that he received
CA-16 or CA-20 forms as a follow up to his submission of his completed Form CA-1; the
employing establishment’s physician issued a report without examining or treating him and
failed to order any diagnostic tests regarding his work-related injuries; although his supervisor
initially supported appellant’s assertion that his injury was work related, she subsequently
changed her mind and controverted the claim, which diminished her credibility and that of the
witnesses who provided statements in support of the controversion; the employing
establishment’s witness statements lack credibility because these witnesses were friends of
3

Docket No. 05-967 (issued May 12, 2006).

4

Docket No. 06-2139 (issued February 7, 2007).

5

Docket No. 09-1556 (issued February 23, 2010).

2

appellant’s alleged assailant and were prejudiced against him for additional reasons; while all of
the witnesses indicated an altercation had occurred, they falsely stated that he was not attacked
by a coworker on March 20, 1989 due to their personal animus and jealousy toward him; the
employing establishment coerced the witnesses into making statements against him and
improperly influenced these statements by telling them what to say; and OWCP did not exercise
due diligence in trying to contact him while it was developing the claim.
Appellant submitted numerous medical reports from December 2008 through
November 2010 in support of his requests. These included: a December 2, 2008 report from
Dr. Jeffrey; reports dated April 19, August 30 and November 2010 from Dr. Plastaras; and
reports dated June 14 and July 23, 2010 from Dr. Anand Joshi, Board-certified in physical
medicine and rehabilitation. These reports related complaints of chronic back pain, presented
several diagnoses of appellant’s condition and generally attributed appellant’s low back
condition to the alleged March 20, 1989 work incident.
By decisions dated December 17, 2010 and April 15, 2011, OWCP denied appellant’s
request for reconsideration without a merit review, finding the requests untimely requested
reconsideration and that appellant had not established clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle an employee to a review of an OWCP decision
as a matter of right.7 This section, vesting OWCP with discretionary authority to determine
whether it will review an award for or against compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).8 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.9 The Board has found that the imposition of

6

5 U.S.C. § 8128(a).

7

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon. denied,
41 ECAB 458 (1990).
8

See 20 C.F.R. § 10.606(b).

9

Id. at § 10.607(b).

3

this one-year time limitation does not constitute an abuse of the discretionary authority granted
by OWCP under 5 U.S.C. § 8128(a).10
In cases where a request for reconsideration is not timely filed, OWCP must nevertheless
undertake a limited review of the case to determine whether there is clear evidence of error
pursuant to the untimely request.11 Its procedures state that it will reopen a case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(b), if the
application for review shows clear evidence of error on the part of OWCP.12
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise and explicit and
must be manifested on its face that OWCP committed an error.14 Evidence which does not raise
a substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.15 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.16 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.17 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.18 The Board makes an
independent determination of whether an appellant has submitted clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review.19
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on August 9, 1989. Appellant requested
reconsideration on December 10, 2010 and February 22, 2011; thus, the requests are untimely as
they were outside the one-year time limit.
10

See cases cited supra note 7.

11

Rex L. Weaver, 44 ECAB 535 (1993).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

13

See Dean D. Beets, 43 ECAB 1153 (1992).

14

See Leona N. Travis, 43 ECAB 227 (1991).

15

See Jesus D. Sanchez, supra note 7.

16

See Leona N. Travis, supra note 14.

17

See Nelson T. Thompson, 43 ECAB 919 (1992).

18

Leon D. Faidley, Jr., supra note 7.

19

Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

4

The Board finds that appellant’s December 10, 2010 and February 22, 2011 requests for
reconsideration failed to show clear evidence of error. As the Board noted in its prior decisions,
the issue in this case is whether the March 20, 1989 employment incident occurred at the time,
place and in the manner alleged. This question is factual in nature. The medical evidence
submitted by appellant does not address the pertinent issue of whether he established the
occurrence of the March 20, 1989 employment incident. Appellant did not submit any new
factual evidence with his request for reconsideration which was relevant to this issue upon which
his claim was denied. The evidence submitted therefore does not establish clear evidence of
error in the denial of his claim.
The Board also finds that appellant’s December 10, 2010 and February 22, 2011 requests
for reconsideration merely restate arguments previously rejected by the Board and OWCP. The
Board also finds that his contention that prescription drugs prevented him from filing a timely
claim is not a valid reason for failing to file a timely request for reconsideration. Therefore,
appellant has failed to demonstrate clear evidence of error on the part of OWCP such that OWCP
abused its discretion in denying merit review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of OWCP in his reconsideration requests dated December 10, 2010 and
February 22, 2011. Inasmuch as appellant’s reconsideration requests were untimely filed and
failed to establish clear evidence of error, OWCP properly denied further review in its
December 17, 2010 and April 15, 2011 decisions.

5

ORDER
IT IS HEREBY ORDERED THAT the April 15, 2011 and December 17, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 18, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-625
Issued: June 2, 2015

Case Submitted on the Record

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

JURISDICTION
On January 26, 2015 appellant filed a timely appeal from a December 19, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than 180 days elapsed between the last relevant OWCP merit decision
dated August 17, 2010 to the filing of this appeal, and pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly determined that appellant’s reconsideration request
was not timely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On March 17, 2010 appellant, then a 29-year-old customer service representative, filed a
traumatic injury claim indicating that on March 11, 2010 he was “assaulted” when his manager
grabbed/groped his left shoulder, causing him to turn his neck suddenly. He alleged a left
trapezius muscle strain and secondary laceration of right fifth finger “due to the drowsiness
effect of his prescribed flex meds.” The employing establishment controverted the claim.
Further development followed.
In support of his claim, appellant submitted notes from the employing establishment
health unit. In a note dated March 13, 2010, Frank Aguayo, a physician assistant, related that
appellant was seen for left trapezius muscle pain, after his boss grabbed him by the shoulder two
days prior. OWCP also received an unsigned report from the Cleveland Veterans Affairs
Medical Center, dated March 16, 2010, which noted that appellant had been seen for laceration
of the fifth finger.
By decision dated April 29, 2010, OWCP denied the claim. It found that the March 11,
2010 claimed event supported that the manager grabbed appellant’s shoulder; however, there
was no medical evidence which provided a diagnosis in connection to the event. OWCP further
found that he failed to describe how the finger injury was sustained and, thus, fact of injury was
not established.
On June 2, 2010 OWCP received appellant’s May 27, 2010 request for reconsideration.
Appellant explained that medication he was taking as a result of his assault caused him to
become “woozy” and lose his balance. When he lost his balance his right hand then went
through a window and caused a laceration of the right finger. Appellant resubmitted medical
evidence of record.
By decision dated August 17, 2010, OWCP denied modification of its April 29, 2010
decision. It found the evidence on file clearly established that appellant’s supervisor placed his
hand on appellant’s left shoulder to gain his attention on March 11, 2010; however, there was
insufficient medical evidence on file to establish that a medical condition arose from that
incident. OWCP also found that the evidence submitted was insufficient to establish that the
injury to his right fifth finger occurred as reported.
On September 25, 2014 OWCP received another request for reconsideration. Appellant
contended that he was disabled at the time of the filing of his workers’ compensation claim due
to his physical and mental conditions and requested that time limitations pertaining to his claim
be waived. He submitted a March 26, 2013 favorable decision from the Social Security
Administration which found that he had severe impairments, which included a left shoulder
injury, degenerative disc disease, depression and post-traumatic stress disorder, which were
disabling as defined in the Social Security Act as of March 13, 2010.

2

By decision dated December 19, 2014, OWCP denied his reconsideration request on the
grounds that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.3
Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth in section 10.607 of OWCP regulations, if the claimant’s
application for review shows clear evidence of error on the part of OWCP.4 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP. To show clear
evidence of error, the evidence submitted must be of sufficient probative value to prima facie
shift the weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision.6
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.7 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.8

3

Id. at § 10.607(a) (2011).

4

Id. at § 10.607(b) (2011); Cresenciano Martinez, 51 ECAB 322 (2000).

5

See Alberta Dukes, 56 ECAB 247 (2005).

6

Robert G. Burns, 57 ECAB 657 (2006).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
8

Nancy Marcano, 50 ECAB 110 (1998).

3

ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. The most recent OWCP merit decision in this case was issued on
August 17, 2010. Appellant did not request reconsideration until September 25, 2014, more than
one year after the August 17, 2010 merit decision. Therefore, his reconsideration request was
not timely filed. While appellant has requested that the time limitation be waived due to his
physical and mental condition, he has not submitted any medical evidence to substantiate that he
was incompetent and incapable of filing a request for reconsideration during the year following
August 17, 2010.9 Consequently, he must demonstrate clear evidence of error by OWCP in
denying his request for a merit review of his claim.
The Board finds that appellant has not established clear evidence of error in OWCP’s
December 19, 2014 decision. As noted, the occurrence of the March 11, 2010 work incident is
not in dispute. The claim was denied because the medical evidence did not establish that the
March 11, 2010 incident caused an injury or that appellant sustained a laceration secondary to
the March 11, 2010 work incident.
In support of his untimely request for reconsideration, appellant submitted a March 26,
2013 decision from the Social Security Administration which found that he met the medical
requirements for social security disability benefits as of March 13, 2010. Although the Social
Security Administration decision noted a left shoulder condition, as well as degenerative disc
disease, depression, and post-traumatic stress disorder, it is insufficient to establish clear
evidence of error. The Board has reviewed a similar case, B.U.,10 wherein appellant alleged that
a Social Security Administration decision regarding a claim for disability benefits, established
her FECA claim. The Board held that entitlement to benefits under another statute does not
establish entitlement to benefits under FECA. Thus, the Social Security Administration decision
was not relevant to the underlying issue and was not of sufficient probative value to shift the
weight of the evidence or raise a substantial question as to the correctness of OWCP’s decision.11
The Board therefore finds that the March 26, 2013 Social Security Administration
decision that appellant submitted in support of his reconsideration request did not establish clear
evidence of error. Appellant has not established clear evidence of error in August 17, 2010
decision which denied his claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration was
untimely filed and failed to establish clear evidence of error.

9

See D.B., Docket No. 10-976 (issued December 1, 2010).

10

Docket No. 10-721 (issued October 25, 2010).

11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the December 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Columbus, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-1284
Issued: March 22, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an
occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due
to factors of his federal employment. He noted that he first became aware of his condition and
first realized its relationship to his federal employment on March 27, 2019. On the reverse side of
the claim form D.C., an assistant port director for the employing establishment, noted that
appellant retired, effective August 31, 2018.
In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical and factual evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary information.
In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing
establishment reporting that appellant’s position at the employing establishment was primarily a
supervisory and administrative position that did not require constant exposure to the elements. He
noted that the port area was surrounded by open desert with the associated dust and wind. D.C.
provided a position description for an assistant port director.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish the alleged factors of his employment. It
specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding
how his federal employment caused or contributed to his claimed condition. OWCP, therefore,
concluded that the requirements had not been met to establish an injury as defined by FECA.
On September 25, 2019 appellant requested reconsideration. By decision dated
October 29, 2019, OWCP denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
On April 8, 2020 appellant, through counsel, requested reconsideration.
In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history
of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a
3

Docket No. 20-1477 (issued March 25, 2021).

2

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema.
Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work
environment” since he did not have a history of smoking.
By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019
decision.
Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board
affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to
establish an injury in the performance of duty, as alleged. 5
On May 14, 2021 appellant, through counsel, requested reconsideration. 6
Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021.
He indicated that he believed he developed emphysema while working as a customs inspector from
1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound
from Mexico. He reported that he worked an average of 64 hours per day and inspected an average
of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car
exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He
indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes
and dust. Appellant explained that he first noticed his condition changing in early 2015 when his
stamina and endurance declined and he developed a persistent cough. He noted that, at that time,
doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally
diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.
In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

4

A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of
an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized
centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography
report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing
capacity.
5

Supra note 3.

6
Although appellant claimed to be filing a request for reconsideration from the Board’s March 25, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP
decision is the appropriate subject of possible modification by OWCP.
7

Id.

3

limitation of FECA, 8 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 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. 10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he developed emphysema due to factors of his federal
employment. OWCP initially denied his claim finding that he had failed to establish that the
employment factors occurred as alleged. It specifically noted that appellant failed to respond to
OWCP’s request for a detailed statement regarding how his federal employment caused or
contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the
denial of his claim.
Following the Board’s March 15, 2021 decision, appellant submitted his response to
OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema
while working as a customs inspector for the employing establishment from 1988 to 2018.
Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and
inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that
he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements.
OWCP’s procedures provide that a description of job duties will almost always be required
to adjudicate an occupational disease claim. 12 It further notes that a claimant should usually be
asked to describe the physical and environmental requirements of the job, and the supervisor or
injury compensation specialist should review that statement and provide comments if there is any
8

D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
10

C.H., Docket No. 19-1781 (issued November 13, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
11

T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2).
(June 2011)

4

disagreement. 13 While the employing establishment responded to OWCP’s July 19, 2019
development letter, the Board notes that it provided information regarding appellant’s employment
duties as an assistant port director and provided a position description for an assistant port director.
Appellant, however, has not attributed his pulmonary condition to his employment duties as an
assistant port director, but to his employment as a customs inspector from 1988 to 2018. The
Board notes that OWCP did not request further information, including his position description as
a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s
contentions that he was exposed to vehicle fumes and/or environmental conditions. For this
reason, the Board finds that the case must be remanded for further development of the factual
evidence.14
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the responsibility 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.15 OWCP has an obligation to see
that justice is done. 16
On remand OWCP should obtain a detailed statement from the employing establishment
indicating whether it concurred with appellant’s allegations and a position description for a
customs inspector. If the employing establishment fails to respond to a request for comments on
appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17
Following this and any such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.

14

See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing
establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see
also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from
the employing establishment addressing appellant’s allegations regarding harassment at work).
15

D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
16

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket
No. 17-1671 (issued November 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 14-1003
Issued: August 22, 2014

Case Submitted on the Record

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

JURISDICTION
On March 28, 2014 appellant filed a timely appeal from a March 7, 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation from March 25, 2012 to October 19, 2013 in the amount of
$3,000.22 because OWCP did not correctly withhold deductions for postretirement life
insurance; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 25, 2011 appellant, then a 44-year-old customer service supervisor, filed an
occupational disease claim alleging that she sustained swelling, stiffness and pain in both knees
as a result of the repetitive nature of her employment duties. She first became aware of her
condition and realized it resulted from her employment on February 2, 2009. Appellant stopped
work on January 25, 2011. OWCP accepted her claim for localized primary osteoarthritis of
both knees. It paid disability compensation and placed appellant on the periodic rolls effective
June 5, 2011.
By letter dated August 29, 2013, the Office of Personnel Management (OPM),
Retirement Operations Center, informed OWCP that as a compensationer appellant had elected
to continue Federal Employees’ Group Life Insurance (FEGLI) coverage with basic and optional
life insurance. Appellant chose Standard Option A, Option B multiplied by 5 and Option C
multiplied by 1 for family. The final base salary on which FEGLI was based was $67,920.00.
The postretirement election was no reduction. The commencement date for postretirement
deductions was March 25, 2012. OPM attached a completed July 18, 2012 Continuation of Life
Insurance Coverage form.
Effective October 20, 2013 OWCP adjusted appellant’s compensation payments to reflect
the correct deduction for postretirement life insurance pursuant to the August 29, 2013 OPM
letter.
On January 27, 2014 OWCP issued a preliminary determination that appellant received
an overpayment in compensation in the amount of $3,000.22 because it did not make deductions
for postretirement life insurance from March 25, 2012 to October 19, 2013. It found that she was
without fault in the creation of the overpayment and requested that she provide financial
information in order to determine waiver of recovery of the overpayment. OWCP also requested
that appellant complete and submit an enclosed financial questionnaire (Form OWCP-20) within
30 days of the letter. An overpayment worksheet of record reflects that OWCP did not withhold
deductions for postretirement life insurance from March 25, 2012 to October 19, 2013. It
determined that OWCP should have withheld $146.35 every 28 days from appellant’s continuing
compensation payments. OWCP multiplied $146.35 by 20 periods of 28 days for a total
of $2,927.00. It divided $146.35 by 28 days to determine a daily rate of $5.23 and multiplied the
daily rate of $5.23 by 14 days for the additional period March 25 to April 7, 2012 for a total
of $73.22. OWCP found a total overpayment of $3,000.22 for the period March 25, 2012 to
October 19, 2013.
Appellant did not respond to the preliminary notice of overpayment.
By decision dated March 7, 2014, OWCP finalized the overpayment in the amount of
$3,000.22 for the period March 25, 2012 to October 19, 2013 for which appellant was without
fault. It denied waiver of recovery of the overpayment because it received no financial
documentation or a completed overpayment recovery questionnaire. OWCP determined that it
would deduct $100.00 every 28 days from appellant’s continuing compensation benefits.

2

LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI program, most civilian employees of the Federal Government are
eligible to participate in basic life insurance and one or more of the options.2 The coverage for
basic life insurance is effective unless waived3 and the premiums for basic and optional life
coverage are withheld from the employee’s pay.4
FECA and its implementing regulations provide that an employee entitled to disability
compensation benefits may continue his or her basic life insurance coverage without cost under
certain circumstances and may also retain the optional life insurance. At separation from the
employing establishment, the FEGLI insurance will either terminate or be continued under
compensationer status. If the compensationer chooses to continue basic and optional life
insurance coverage, the schedule of deductions made while the compensationer was an employee
will be used to withhold premiums from his or her compensation payments.5 When an under
withholding of life insurance premiums occurs, the entire amount is deemed an overpayment
because OWCP must pay the full premium to OPM upon discovery of the error.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $3,000.22. The record reveals that she elected to receive postretirement basic and optional life
insurance effective March 25, 2012 but OWCP did not make deductions until October 19, 2013.
While in compensationer status, appellant remained responsible for all insurance benefits,
including the premiums for postretirement life insurance. An overpayment worksheet
demonstrated that the deductions for postretirement basic life insurance amounted to $73.22
during the period March 25 to April 7, 2012 and to $2,927.00 during the period April 8 to
October 19, 2013 (20 periods of 28 days) for a total overpayment of $3,000.22. The Board finds
that appellant received a $3,000.22 overpayment of compensation.7
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.8
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for OWCP to
2

5 U.S.C. § 8702(a).

3

Id. at § 8702(b).

4

Id. at § 8707.

5

Id. at § 8706(b).

6

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

7

See C.A., Docket No. 14-86 (issued April 14, 2014).

8

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436 and 10.437.

3

waive the overpayment.9 OWCP must exercise its discretion to determine whether recovery of
the overpayment would defeat the purpose of FECA or would be against equity and good
conscience, pursuant to the guidelines provided in the implementing federal regulations.10
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses and the
beneficiary’s assets do not exceed a specified amount as determined by OWCP.11 Additionally,
recovery of an overpayment is considered to be against equity and good conscience when any
individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when any individual, in reliance on such payment or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.12
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.13
When an overpayment has been made to an individual who is entitled to further payments
and no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.14
ANALYSIS -- ISSUE 2
OWCP advised appellant by notice dated January 27, 2014 of its preliminary
determination of the $3,000.22 overpayment and that she was not at fault in the creation of the
overpayment. Although appellant was without fault, she nonetheless bears responsibility for
providing the financial information necessary to support the request for waiver. OWCP properly
requested that she submit information regarding her income, assets and expenses by completing a
questionnaire and providing supporting documentation; however, she did not provide any of the
9

James Lloyd Otte, 48 ECAB 334 (1997); see William J. Murphy, 40 ECAB 569 (1989).

10

20 C.F.R. §§ 10.434 and 10.437.

11

Id. at § 10.436(a)(b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).
12

Id. at § 10.437(a)(b).

13

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

14

Id. at § 10.441(a).

4

requested financial information or documentation. In the absence of the information requested,
OWCP could not determine whether or not recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience. Under OWCP’s implementing
federal regulations at 20 C.F.R. § 10.438(b), the failure to submit the requested information
within 30 days of the request shall result in the denial of waiver.15 Therefore, the Board finds
that OWCP properly denied waiver of recovery.16
On appeal, appellant alleges that it is unfair that she has to pay back an error that
occurred two years ago. As previously explained, however, an individual is subject to recovery
of overpayment unless she can establish that such recovery would defeat the purpose of FECA or
would be against equity and good conscience. The length of time it took OWCP to discover the
overpayment error is immaterial to the issue of waiver. Appellant further contends that she is not
financially able to pay back the $3,000.22 overpayment. Despite her contention of financial
hardship, she failed to provide any financial information or documents to support her request for
waiver of recovery of the overpayment. Accordingly, appellant is not entitled to waiver of
recovery.
CONCLUSION
The Board finds that OWCP properly found that an overpayment of $3,000.22 was
created. The Board also finds that OWCP properly denied waiver of recovery.

15

Id. at § 10.438(b).

16

See C.A., Docket No. 14-86 (issued April 14, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the March 7, 2014 overpayment decision of the
Office of Workers’ Compensation Programs is affirmed.
Issued: August 22, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6