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

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

Docket No. 13-518
Issued: May 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 3, 2013 appellant filed a timely appeal of an October 4, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) denying her occupational disease 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 has met her burden of proof in establishing that she
sustained a left hand and wrist condition in the performance of duty.
On appeal, appellant submitted new medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 22, 2012 appellant, then a 50-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that on or before June 9, 2012 she sustained
tenosynovitis of her left wrist and index finger due to repetitive grasping, pitching and reaching
for mail. She described pain and swelling throughout the left hand and wrist after sorting flats of
mail on June 9 and 12, 2012. Appellant did not stop work.
In a July 20, 2012 letter, OWCP advised appellant of the type of additional evidence
needed to establish her claim, including a narrative report from her attending physician
explaining how and why factors of her federal employment would cause the claimed
tenosynovitis. It requested that she address her previous claim under File No. xxxxxx9912 for
tenosynovitis of the fourth dorsal extensor compartment with inflammation of the tenosynovium,
requiring a left wrist extensor synovectomy on October 23, 2009. Appellant was also advised to
clarify if she was claiming two traumatic injuries or an occupational condition. She was afforded
30 days to submit such evidence. Appellant responded on August 21, 2012 that her left hand and
wrist condition was due to pulling, grasping and reaching for mail while pitching from tubs “at
an accelerated pace due to the mail arriving to [her] work area … all at one time.” She reiterated
that she was claiming an occupational disease and not a traumatic injury as she experienced
sharp pains in her left hand on June 9 and 12, 2012.
In a May 19, 2011 report, Dr. Jidong Sun, an attending Board-certified physiatrist,
diagnosed brachial neuritis of the left upper extremity, left C6 radiculopathy and right carpal
tunnel syndrome.3 On December 1, 2011 she noted treating appellant for left wrist pain since
September 1, 2009, with a ganglion cyst removal. Appellant was discharged from treatment on
November 6, 2010. She presented on January 24, 2011 with neck and right wrist pain. Dr. Sun
diagnosed cervical and lumbar radiculopathy, right carpal tunnel syndrome , status post ganglion
cyst removal and shoulder pain. She opined that it was “reasonable to conclude that these
injuries [were] the direct result of the repetitive overuse in [appellant’s] job.”
In a June 15, 2012 report, Dr. James Hancock, an attending Board-certified internist,
noted appellant’s employment and related a history of one year of neck pain and surgery for
tenosynovitis of the left hand. Appellant also planned to undergo cervical spine surgery.
Dr. Hancock diagnosed left cervical radiculopathy and tenosynovitis of the left wrist. On
June 20, 2012 he diagnosed right carpal tunnel syndrome, tenosynovitis of the “finger/wrist” of
the left hand caused by repetitive and compensatory motion due to right carpal tunnel syndrome.4
On August 1, 2012 Dr. Hancock restricted appellant to lifting, pulling or pushing no more than
10 pounds.

2

File No. xxxxxx991 is not before the Board on the present appeal.

3

A May 10, 2011 electromyogram and nerve conduction velocity studies demonstrated left C6 radiculopathy and
mild right carpal tunnel syndrome with demyelinating changes.
4

Appellant participated in physical therapy from June 15 to August 3, 2012.

2

In an August 21, 2012 report, Dr. Kaixuan Liu, an attending Board-certified spine
surgeon and anesthesiologist, noted treating appellant beginning on May 25, 2011 for neck pain,
right arm paresthesias and low back pain “after a work[-]related injury.” He opined that her
“neck injuries were causally related to the accident that occurred on May 19, 2011.” Dr. Liu
found that appellant’s condition was permanent.
By decision dated October 4, 2012, OWCP denied the claim on the grounds that causal
relationship was not established. It accepted that the June 9 and 12, 2012 work incidents
occurred as alleged. However, OWCP found that appellant submitted insufficient medical
evidence linking the claimed left hand and wrist condition to those work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 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.7
An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.8 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; (2) factual statement identifying employment factors alleged to have
caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the employment factors identified by the claimant were the proximate
cause of the condition for which compensation is claimed or, stated differently, medical evidence
establishing that the diagnosed condition is causally related to the employment factors identified
by the claimant. 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.9
5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

20 C.F.R. § 10.5(q).

9

Solomon Polen, 51 ECAB 341 (2000).

3

An award of compensation may not be based on appellant’s belief of causal
relationship.10 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.11
ANALYSIS
Appellant claimed that she sustained tenosynovitis of the left wrist and hand due to
repetitive upper extremity motion while sorting flats of mail on June 9 and 12, 2012.
In support of her claim, appellant submitted May 19 and December 1, 2011 reports from
Dr. Sun, an attending Board-certified physiatrist, noting a history of a ganglion cyst of the left
wrist, attributable to repetitive motion at work. However, Dr. Sun did not address appellant’s
condition on and after June 9, 2012, the period relevant to the present claim. Similarly, Dr. Liu,
an attending Board-certified spine surgeon and anesthesiologist, diagnosed a neck injury
attributable to a May 19, 2011 accident, but did not address any claimed wrist condition or work
factors on and after June 9, 2012. In fact in his report, he commented that appellant’s upper
extremities demonstrated normal sensation bilaterally. As neither physician discussed
appellant’s condition during the period in question, their opinions are irrelevant to the claim.12
Dr. Hancock, an attending Board-certified internist, provided reports from June 15 to
August 1, 2012 diagnosing tenosynovitis of the left wrist attributable to repetitive and
compensatory motion due to right carpal tunnel syndrome. However, he did not mention the
accepted June 9 and 12, 2012 work incidents or explain how those events or other specific work
activities would cause or contribute to the claimed condition. This lack of medical rationale
greatly diminishes the probative value of his reports.13
OWCP advised appellant by a July 20, 2012 letter of the evidence needed to establish her
claim, including her physician’s explanation of how and why the identified work incidents would
cause the claimed condition. As appellant did not submit such evidence, it properly denied her
claim.14
On appeal, appellant submitted new medical evidence. The Board may not consider
evidence for the first time on appeal that was not before OWCP at the time it issued the final
decision in the case.15

10

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Id.

12

A.A., Docket No. 12-1828 (issued March 25, 2013).

13

Deborah L. Beatty, 54 ECAB 340 (2003).

14

See Frank D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
15

20 C.F.R. § 501.2(c).

4

Appellant may submit such evidence and any other new evidence or argument, with a
written request for reconsideration to OWCP within one year of this merit decision, pursuant to
5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a left hand and wrist condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 4, 2012 is affirmed.
Issued: May 16, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Federal Way, WA, Employer
)
___________________________________________ )
K.R., Appellant

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

Docket No. 14-580
Issued: July 10, 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 January 23, 2014 appellant filed a timely appeal from the December 12, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her bilateral knee
condition is causally related to factors of her federal employment.
FACTUAL HISTORY
On September 20, 2013 appellant, then a 55-year-old rural mail carrier, filed an
occupational disease claim alleging joint disease in her knees as a result of walking, standing and
carrying heavy packages in the performance of duty. Her knee condition began on February 13,
1

5 U.S.C. § 8101 et seq.

2013 and that she first became aware of its relation to her work on that date. Appellant stopped
work on July 12, 2013.
In a September 10, 2013 statement, appellant noted that, in February 2013, she
complained to her primary physician that her “knee hurt a lot.” Her duties included standing,
lifting, walking and carrying heavy packages. Appellant noted that her duties affected both
knees and that she did not lose time from work until July 11, 2013. She underwent bilateral knee
replacement surgery on August 16, 2013.
By letters dated September 24, 2013, OWCP advised appellant and the employing
establishment that additional factual and medical evidence was needed.
In a July 25, 2013 disability certificate, Dr. Regan B. Hansen, a Board-certified
orthopedic surgeon, advised that appellant could not return to work. In a September 12, 2013
note, he advised that he was answering the question as to whether her arthritis was caused or
aggravated by employment. Dr. Hansen explained that appellant had a “degenerative process
and on a more probable than not basis this is more genetic in origin, but it has probably been
aggravated by her job requiring walking and repetitive trauma.” He noted that this was based on
how far she was walking, explaining that “[i]f [appellant] were walking 10 miles a day, I think
this would obviously be much more aggravating than someone who had a sedentary job. I am
unaware of the amount of walking required for her job. I would apportion 75 percent of this due
to genetics and 25 percent due to aggravating circumstances that could be work related,
depending on the distance required to walk on a daily basis.”
In a letter dated October 3, 2013, Larry Beauchamp, the postmaster, noted that appellant
had knee replacement surgery to both knees on August 16, 2013. Appellant alleged that her
condition was work related and was due to standing, walking and lifting heavy packages.
Mr. Beauchamp advised that she stood for approximately two to two and a half hours in the
morning while casing mail. The remainder of appellant’s six and a half hour day was spent
delivering mail from her car. Mr. Beauchamp noted that she might be required to walk during
the driving portion of her day to deliver a package to a customer’s door. This would require that
appellant get in and out of her vehicle several times a day. Mr. Beauchamp explained that, after
returning from her route, she would have to return all outgoing mail and empty equipment at the
employing establishment. He noted that this required that appellant walk from her car to the
employing establishment, “about 20 feet.” Appellant was also required to lift packages up to
75 pounds with assistance when requested.
In an October 8, 2013 report, Dr. Andrew F. Jones, a family practitioner and osteopath,
noted that appellant was first seen in February 2013. Appellant had bone on bone with
recommendations for a total knee replacement, for which an orthopedic consultation was
warranted.
In a November 18, 2013 conference call, OWCP noted that appellant had worked at the
employing establishment for 14 years and had not held any other jobs. Appellant indicated that
she worked six days a week and had no hobbies because she did not have time for anything else.
When not at work, she cleaned house and helped out from time to time at a ranch her husband
owned with his brother. Appellant helped feed hay to the animals but did not lift any of the bales

2

and she also helped to vaccinate young calves. Until about 20 years prior, she drove a hay truck
but she stopped driving the truck as she could not use the clutch because of her knees. In a
November 21, 2013 telephone memorandum, appellant advised that she also had a few jobs
during her employment at the employing establishment. She provided an update of her jobs from
October 2002 to November 2007. They included part-time work at a casino as a drop crew
member; a dishwasher working three days a week; and loading bales of hay with tractors.
In a November 14, 2013 work restriction certificate, Dr. Hansen diagnosed bilateral total
knee replacement. He noted that appellant could not return to work until after January 15, 2014.
A November 18, 2013 x-ray of the left knee read by Dr. Dean Easton, a Board-certified
diagnostic radiologist, revealed marked degenerative joint disease involving the medial
compartment with cartilage loss, as well as the patellofemoral compartment. Accompanying the
copy of his February 13, 2013 x-ray report was a note listing marked degenerative joint disease
of the left knee.
In a November 19, 2013 letter to Dr. Hansen, OWCP requested that he provide further
medical opinion as to whether appellant’s bilateral knee degenerative arthritis was caused her
federal employment. It provided a description of her work duties.2
In a November 19, 2013 response, Dr. Hansen, responded:
“As to the question is [appellant’s] walking on concrete at work directly related to
her arthritis on a more probable than not basis. Her genetics have a much stronger
relation to the arthritis than does her job where there was a substantial injury or
severe trauma. Walking on concrete in and of itself or jogging or prolonged
walking is not a cause of degenerative arthritis. It can aggravate symptoms. It
can make them worse once they occur. But as to the causative agent, it is either
trauma or genetics.”
By decision dated December 12, 2013, OWCP denied appellant’s claim. It found that the
medical evidence was not sufficient to establish that her bilateral knee condition was related to
her work-related duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged and
that any disability and/or specific condition for which compensation is claimed are causally related

2

A copy was provided to appellant and the employing establishment.

3

5 U.S.C. §§ 8101-8193.

3

to the employment injury.4 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.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is 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
The record reveals that appellant has a bilateral knee condition. Her work involved
activities such as walking, standing, lifting and carrying heavy packages at work. The Board
finds that appellant submitted insufficient medical evidence to establish that her bilateral knee
condition was caused or aggravated by her work activities as a rural mail carrier.
Appellant submitted various reports from Dr. Hansen. On September 12, 2013
Dr. Hansen addressed the question as to whether her arthritis was caused or aggravated by her
employment. He stated that appellant had a “degenerative process and on a more than probable
not basis this is more genetic in origin, but it has probably been aggravated by her job requiring
walking and repetitive trauma.” Dr. Hansen explained that “[i]f [appellant] were walking 10
miles a day, I think this would obviously be much more aggravating than someone who had a
sedentary job. I am unaware of the amount of walking required for her job. I would apportion
75 percent of this due to genetics and 25 percent due to aggravating circumstances that could be
work related, depending on the distance required to walk on a daily basis.” The Board finds that
Dr. Hansen’s opinion on causal relation is speculative. Dr. Hansen stated that he was unaware of
the actual amount of walking required in her rural carrier position and selected a random
percentage. The Board has held that medical opinions which are speculative or equivocal are of

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

Id.

4

diminished probative value.7 Dr. Hansen did not provide adequate medical rationale in
addressing the relationship between appellant’s current knee conditions and the accepted
employment work duties.8
On November 19, 2013 OWCP provided Dr. Hansen with a description of appellant’s job
duties and asked him to clarify his opinion on causal relation. In a November 19, 2013 response,
Dr. Hansen stated that her work on concrete was related to her arthritis on a more probable than
not basis. Further, appellant had a strong genetic element such that her work did not cause
degenerative arthritis. Dr. Hansen stated “that work can aggravate symptoms. It can make them
worse once they occur. But as to the causative agent, it is either trauma or genetics.” The Board
finds that Dr. Hansen’s opinion remains speculative. He did not state to a reasonable degree of
medical certainty that appellant’s condition was caused or aggravated by her specific work
duties. The Board has found that unrationalized medical opinions on causal relationship are of
diminished probative value.9
Similarly, the other medical evidence submitted by appellant is similarly deficient. The
evidence of record lacks a physician’s reasoned opinion supporting that factors of her
employment caused or contributed to her bilateral knee condition.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.10
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.11 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
There is insufficient medical evidence explaining how appellant’s employment duties
caused or aggravated her bilateral knee condition. She has not met her burden of proof in
establishing that her knee condition is causally related to factors of his employment.
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.

7

See S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has generally held that opinions such as the
condition is probably related, most likely related or could be related are speculative and diminish the probative value
of the medical opinion); Cecilia M. Corley, 56 ECAB 662 (2005) (medical opinions which are speculative or
equivocal are of diminished probative value).
8

Robert Broome, 55 ECAB 339 (2004).

9

Albert C. Brown, 52 ECAB 152 (2000).

10

See Joe T. Williams, 44 ECAB 518, 521 (1993).

11

Id.

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CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty causally related to factors of her federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 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


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

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)
)

Appearances:
Ramon Rosado, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1835
Issued: May 26, 2015

Case Submitted on the Record

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

JURISDICTION
On August 18, 2014 appellant, through his representative, filed a timely appeal from a
June 16, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Board has jurisdiction over this decision. As more than 180 days has elapsed since issuance
of OWCP’s most recent merit decision dated September 5, 2013 to the filing of this appeal on
August 18, 2014 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 the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a) without further merit review.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure.
20 C.F.R. § 501.5(b). The Board denied the request in an April 23, 2015 order on the grounds that her arguments
could be adequately addressed based on a review of the case record. Order Denying Request for Oral Argument,
Docket No. 14-1835 (issued April 23, 2015).

FACTUAL HISTORY
On July 10, 2013 appellant, then a 24-year-old carrier, filed a traumatic injury claim
alleging that on July 8, 2013 he sustained muscle spasm and low back pain in the performance of
duty. He alleged that he began to experience back pain after lifting a box at work. Appellant
stopped work on July 8, 2013.
In a July 12, 2013 attending physician report, Dr. Jeff Mollins, a chiropractor, advised
that appellant injured himself at work. He assessed strain/sprain of the lumbar spine, radicular
syndrome, and lumbago. Dr. Mollins checked the box marked “yes” to indicate that appellant’s
condition was caused or aggravated by his employment.
By letter dated July 23, 2013, OWCP notified appellant that evidence was insufficient to
establish his claim and advised him of the type of evidence needed.
Appellant provided additional medical evidence. In a July 8, 2013 hospital discharge
report, Dr. Lorraine Giordano, Board-certified in emergency medicine, advised that appellant
was throwing heavy boxes into a bin that morning at work when he began experiencing mid low
back pain. On physical examination she noted that there was minimal tenderness of the lower
back. Dr. Giordano diagnosed low back pain.
In a July 10, 2013 chiropractic report, Dr. Mollins advised that appellant began to
experience back pain when he threw a package at work. He diagnosed lumbosacral radicular
syndrome, lumbosacral sprain/strain, and lumbago. Dr. Mollins noted that appellant also
complained of stiffness and right leg pain.
In a July 12, 2013 report, Dr. Bhim Nangia, Board-certified in psychiatry and neurology,
advised that appellant was involved in a work-related accident where he injured his back. He
noted that appellant complained of lower back pain that radiated to his legs, numbness, and
tingling. Dr. Nangia advised that appellant had trouble standing and walking for prolonged
periods of time. On physical examination he noted that appellant had an antalgic gait, pain in
back forward flexion, increased pain on extension of the lumbar spine, multiple areas of mild
tenderness along the lumbosacral spine and paraspinal muscles especially at L1-L5, and
paraspinal muscle spasm with restriction in range of motion. Dr. Nangia assessed lumbar
strain/sprain and lumbar radiculitis. He opined that based on the history and physical
examination there was a reasonable degree of medical certainty that appellant’s injuries were
“causally related to the accident noted above.”
In a July 31, 2013 attending physician’s report (Form CA-20), Dr. Nangia advised that
appellant was injured at work on July 8, 2013. He assessed lumbosacral radiculopathy and noted
that he was unsure when appellant would be able to return to work. Dr. Nangia checked the box
marked “yes,” indicating that appellant’s condition was caused or aggravated by his
employment.
By decision dated September 5, 2013, OWCP denied appellant’s claim because the
medical evidence was insufficient to establish that there was a condition diagnosed in connection
with the work-related incident.

2

Appellant continued to submit evidence. In a September 25, 2013 report, Dr. Nangia
advised that appellant injured his lower back while at work. Appellant related that he was
handling a heavy package when he felt a sudden onset of pain in his lower back that radiated
down his right leg. On physical examination Dr. Nangia noted that appellant had an antalgic
gait, pain in back forward flexion, increased pain on extension of the lumbar spine, multiple
areas of mild tenderness along the lumbosacral spine and paraspinal muscles especially at L1-L5,
and paraspinal muscle spasm with restriction in range of motion. He opined that based on the
history and physical examination there was a reasonable degree of medical certainty that the
patient’s condition was “causally related to accident noted above.”
In a July 10, 2013 disability status report, Dr. Mollins advised that appellant was being
treated for injuries he sustained in a work-related accident and was unable to do his job for an
undetermined period of time. In an August 23, 2013 disability status report, he advised that
appellant was injured at work on July 8, 2013 and that he was able to return to work.
On December 16, 2013 appellant requested reconsideration. In an accompanying
undated statement, received on December 27, 2013, he advised that he picked up a parcel at
work using proper lifting technique. Appellant noted that he initially felt slight discomfort, but
not long afterward, he began to experience agonizing pain that prevented him from walking or
standing. He advised that he was transported to the emergency room by ambulance. Several
witness statements from appellant’s coworkers were submitted corroborating his account of the
incident.
By decision dated June 16, 2014, OWCP denied appellant’s claim without review of the
merits. It noted that his claim was denied for insufficient medical evidence; however, she
submitted no relevant medical evidence with her request.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA, the
evidence or argument submitted by a claimant must: (1) show that OWCP erroneously applied
or interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

3

ANALYSIS
In a September 5, 2013 merit decision, OWCP denied appellant’s claim finding that the
medical evidence did not establish that there was a condition diagnosed in connection with the
work incident. Appellant submitted a timely request for reconsideration which was denied on
June 16, 2014 without a merit review.
Appellant also submitted several statements from coworkers corroborating his account of
the incident. As noted, this aspect of the claim is not in dispute. Thus, this evidence is not
relevant to the underlying medical issue. The disability status reports from Dr. Mollins indicate
that appellant was injured at work but these reports address causal relationship in essentially the
same manner of Dr. Mollins’ July 10 and 12, 2013 reports. The Board has held that evidence or
argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.6 The September 25, 2013 report by Dr. Nangia
does constitute relevant new evidence because it is substantially similar to his earlier July 12,
2013 report with regard to his opinion on causal relationship. In fact, his opinion on causal
relationship is exactly the same. The only difference in the July 12, 2013 report and the
September 25, 2013 report is that the later report includes the history of the injury as provided by
appellant but, as noted, Dr. Nangia does not change the manner in which he addresses causal
relationship. Consequently, new evidence submitted does not constitute relevant new evidence.
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits. The underlying issue in this case is whether appellant established that the
work incident caused or contributed to a diagnosed medical condition. This is a medical issue.
OWCP, in its July 23, 2013 letter, as well as its September 5, 2013 initial decision, informed
appellant of the defects of his claim and particularly advised him of why the medical evidence
was deficient. In his reconsideration request, appellant explained how the claimed injury
occurred and what he did after the claimed injury. However, this aspect of appellant’s claim is
not disputed by OWCP. This does not show that OWCP erroneously applied or interpreted a
specific point of law nor does it advance a relevant legal argument not previously considered by
OWCP.7
On appeal appellant argued that the medical evidence submitted was sufficient to
establish his claim. However, as noted, the Board does not have jurisdiction over the merits of
the claim. Because appellant failed to meet any of the three regulatory criteria for reopening a
claim, he was not entitled to further merit review of his claim.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits.

6

E.M., Docket No. 09-39 (issued March 3, 2009).

7

See Darletha Coleman, 55 ECAB 143 (2003) (evidence that does not address the particular issue involved does
not constitute a basis for reopening a case).

4

ORDER
IT IS HEREBY ORDERED THAT the June 16, 2014 decision of Office of Workers’
Compensation Programs is affirmed.
Issued: May 26, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, St. Louis, MO,
Employer
__________________________________________

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

Docket No. 10-291
Issued: August 20, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant filed a timely appeal from an August 18, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. As the last merit decision is dated August 7, 2008, more than one year prior to
the filing of this claim, the Board lacks jurisdiction to review the merits of this case under 5
U.S.C. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request to reopen his case for
further review of the merits under section 8128.
FACTUAL HISTORY
On January 30, 2007 appellant, then a 35-year-old tractor-trailer operator, filed a claim
alleging that he injured his left knee on that date trying to move an overloaded basket. The

Office accepted that he sustained a sprain of the left knee and an aggravation of left knee
chondromalacia patella.
On June 22, 2007 appellant underwent a left knee arthroscopy and lateral release. He
filed a claim for a schedule award and submitted a February 19, 2008 impairment evaluation
from Dr. Keith Odegard, a Board-certified orthopedic surgeon, who found that he had a 10
percent permanent impairment of the left knee. An Office medical adviser reviewed
Dr. Odegard’s report on March 29, 2008 and found that there was no evidence that he based his
finding on the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides). He recommended a second opinion evaluation.
By decision dated August 7, 2008, the Office denied appellant’s claim for a schedule
award. It found that the June 26, 2008 opinion of Dr. Jack C. Tippet, a Board-certified
orthopedic surgeon and Office referral physician, established that he had no permanent
impairment of the left lower extremity.
The record contains medical evidence dated December 2008 to March 2009 from
Dr. Joseph R. Ritchie, a Board-certified orthopedic surgeon, who evaluated appellant for
continued left knee pain.1 On January 29, 2009 Dr. Ritchie performed a left knee arthroscopy
with chondroplasty of the central facet of the patella and a partial synovectomy of the
anteriomedial and anteriolateral portions of the knee. In follow up reports dated February 6 and
March 2, 2009, he noted that appellant’s knee had greatly improved and that he had good range
of motion.
On March 19, 2009 appellant filed another claim for a schedule award. On May 1, 2009
the Office informed him that the medical evidence submitted was insufficient, as the record did
not contain a report in accordance with the sixth edition of the A.M.A., Guides.
In a report dated June 24, 2009, Dr. Ritchie found full range of motion of the knee with
no swelling or loss of stability or tone. He opined that appellant had a nine percent impairment
of the left knee due to his injury. Dr. Ritchie noted that a physician previously found that he had
a 12 percent impairment and indicated that he “certainly would not rate him any higher than
that.”
On July 30, 2009 appellant requested reconsideration. He asserted that his physicians
found that he had a permanent left knee impairment due to his January 30, 2007 employment
injury. Appellant noted that he had provided an impairment evaluation from Dr. Ritchie.
In a decision dated August 18, 2009, the Office found that the evidence submitted was
insufficient to warrant reopening the case for further merit review. It noted that it had authorized
left knee surgery subsequent to the August 7, 2008 decision and indicated that it would consider
the newly submitted medical evidence in connection with appellant’s March 2009 schedule
award claim.
1

A December 11, 2008 magnetic resonance imaging (MRI) study of the left knee showed a small cyst. On
January 12, 2009 Dr. Ritchie diagnosed possible chondromalacia that might improve with further arthroscopic
surgery. On January 24, 2009 he attributed appellant’s continued patella symptoms to his accepted work injury.

2

On appeal appellant asserted that he had a left knee impairment related that the Office did
not consider that his initial surgery was unsuccessful.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.3 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.5 A timely request for reconsideration that meets at
least one of the standards under section 10.606(b)(2) will be reopened for merit review in
accordance with the requirements of 20 C.F.R. § 10.609.6 The Office’s decision shall contain
findings of fact and a statement of reasons.7
ANALYSIS
In its August 7, 2008 decision, the Office denied appellant’s claim for a schedule award
based on the opinion of the second opinion examiner that he did not have a permanent
impairment of the left knee. On July 30, 2009 appellant requested reconsideration. He
submitted medical evidence regarding his left knee surgery on January 2, 2009 and an
impairment evaluation dated June 24, 2009 from Dr. Ritchie. The Office listed the medical
evidence submitted by appellant but did not review the evidence as it found that it applied to his
March 2009 request for a schedule award. The issue, however, is whether appellant has
submitted relevant and pertinent new evidence that he has a permanent impairment of the left
knee causally related to the January 30, 2007 employment injury. The Office must consider the
medical evidence and determine whether it is relevant and pertinent to the issue upon which it
denied his schedule award claim. Further, pursuant to section 10.126 the Office must provide
findings of facts and a statement of reasons supported by clear reasoning which allows the
claimant to “understand the precise defect of the claim and the kind of evidence which would
overcome it.”8 Accordingly, the case will be remanded for an appropriate decision with a review
2

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

Id.

7

Id. at § 10.126.

8

Paul M. Colosi, 56 ECAB 294 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances,
Chapter 2.1400.4 (March 1997).

3

of the medical evidence and an explanation regarding whether it is pertinent new and relevant to
the issue of whether appellant has a permanent impairment of the left knee due to his accepted
work injury.9
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: August 20, 2010
Washington, DC

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

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

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

9

The Board notes that the Office issued an April 10, 2010 decision granting appellant a schedule award for the
left lower extremity. As this decision was issued after he filed his appeal with the Board on November 9, 2009, it is
null and void. See Douglas E. Billings, 41 ECAB 880 (1990); Oren E. Beck, 33 ECAB 1551 (1982).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
LAX-DOCKWEILER STATION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 14-714
Issued: August 13, 2014

Case Submitted on the Record

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

JURISDICTION
On February 11, 2014 appellant filed a timely appeal from an October 31, 2013 merit
decision and a January 16, 2014 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a neck or
shoulder injury causally related to factors of his federal employment and; (2) whether OWCP
properly denied his request for a review of the written record.
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted additional evidence subsequent to OWCP’s October 31, 2013 merit
decision and with his appeal to the Board. The Board cannot consider this evidence, however, as its review of the
record is limited to evidence of record which was before OWCP at the time of its final merit decision. 5 U.S.C.
§ 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).

On appeal appellant generally asserts that his claim should be accepted.
FACTUAL HISTORY
On September 9, 2013 appellant, then a 42-year-old city carrier, filed an occupational
disease claim asserting that his employment duties caused a stiff and sore neck and shoulder. He
indicated that his work duties required him to use his arms and shoulders. Appellant stated that
he first realized the condition and its relationship to his employment on August 21, 2013. By
letter dated September 23, 2013, OWCP informed him of the evidence needed to support his
claim, to include a physician’s opinion as to how his employment duties caused, contributed to
or aggravated any diagnosed condition.
In a September 20, 2013 report, Dr. Jai Lee, a Board-certified orthopedic surgeon, noted
a history of neck and right shoulder pain after a lifting accident in 2008 and a current complaint
of right neck ache and cervical radiculopathy to the right hand with numbness and weakness and
right shoulder stiffness. He indicated that this had bothered appellant since 2009 after cracking
his neck while lifting at work. Dr. Lee diagnosed displacement or cervical disc without
myelopathy and degeneration of cervical disc. On September 23, 2013 he described May 18,
2009 cervical spine magnetic resonance imaging (MRI) scan findings of multiple disc
protrusions and right shoulder findings of mild arthropathy of the acromioclavicular joint with
tears and tendinopathy of the supraspinatus tendon. Dr. Lee diagnosed right cervical disc
disease, right shoulder adhesive capsulitis, and right supraspinatus tear and tendinopathy. On
September 27, 2013 he noted that a September 28, 2013 MRI scan study of the cervical spine
demonstrated multilevel discogenic/degenerative changes and moderate stenosis at C4-5 and
C5-6. Dr. Lee additionally diagnosed spinal stenosis. On October 6, 2013 he reported persistent
neck and right shoulder pain. Dr. Lee noted right shoulder MRI scan findings of moderate-tosevere supraspinatus and biceps tendinosis and additionally diagnosed bursitis.
By decision dated October 31, 2013, OWCP denied the claim finding that the factual and
medical evidence was insufficient. It indicated that Dr. Lee did not provide a sufficient
explanation as to how appellant’s work duties caused the diagnosed conditions. OWCP further
noted that appellant had a previous claim with a May 7, 2009 date of injury, accepted for a
cervical and right shoulder condition and that, because he failed to attend a scheduled second
opinion evaluation under that claim, a sanction was issued terminating all benefits until he
complied with the examination, which he had not done.3
In a request postmarked December 3, 2013, received by OWCP on December 11, 2013,
appellant requested a review of the written record and submitted copies of the September 26,
2013 cervical spine MRI scan study and an October 1, 2013 right shoulder MRI scan study and a
November 22, 2013 report from Dr. Lee.
In a January 16, 2014 decision, OWCP denied appellant’s request for a review of the
written record as untimely and advised him that the issue in the case could equally be addressed

3

The 2009 claim was adjudicated by OWCP under file number xxxxxx972, the instant claim under file number
xxxxxx060. File number xxxxxx972 is not presently before the Board.

2

by requesting reconsideration with OWCP and submitting evidence not previously considered or
by filing an appeal with the Board.
LEGAL PRECEDENT -- ISSUE 1
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 timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed is causally
related to the employment injury. These are the essential elements of each and every
compensation claim, regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.4
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”5 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion 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
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 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 employee.8 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9

4

Roy L. Humphrey, 57 ECAB 238 (2005).

5

20 C.F.R. § 10.5(ee).

6

Roy L. Humphrey, supra note 4.

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

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

3

ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof to establish a right
shoulder, cervical or neck condition caused by his federal job duties because the medical
evidence is insufficient to establish causal relationship.
While Dr. Lee provided treatment notes dated September 20 to October 6, 2013 and
mentioned 2008 and 2009 work incidents, as noted above, the 2009 injury was accepted by
OWCP under file number xxxxxx972. He did not provide medical rationale explaining the
nature of the relationship between his current diagnoses and specific employment factors and did
not provide any opinion regarding disability.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to his
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.10 It is appellant’s burden to establish that his claimed back
condition is causally related to factors of his federal employment. In this case, he submitted
insufficient evidence to show that he sustained a shoulder or neck condition caused by his
employment duties.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
A claimant dissatisfied with a decision of OWCP shall be afforded an opportunity for an
oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a 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. If the request is not made within 30 days or if
it is made after a reconsideration request, a claimant is not entitled to a hearing or a review of the
written record as a matter of right.11 The Board has held that OWCP, in its broad discretionary
authority in the administration of FECA has the power to hold hearings in certain circumstances
where no legal provision was made for such hearings and that OWCP must exercise this
discretionary authority in deciding whether to grant a hearing.12 OWCP’s procedures, which
require OWCP to exercise its discretion to grant or deny a request for a hearing or review of the
written record when the request is untimely or made after reconsideration, are a proper
interpretation of FECA and Board precedent.13

10

A.D., 58 ECAB 149 (2006).

11

Claudio Vazquez, 52 ECAB 496 (2001).

12

Marilyn F. Wilson, 52 ECAB 347 (2001).

13

Claudio Vazquez, supra note 11.

4

ANALYSIS -- ISSUE 2
In its January 16, 2014 decision, OWCP denied appellant’s request for a review of the
written record on the grounds that it was untimely filed. It found that he was not, as a matter of
right, entitled to a written record review as his request, postmarked December 3, 2013, was not
made within 30 days of its October 31, 2013 decision. As appellant’s request was postmarked
December 3, 2013, more than 30 days after the date of the October 31, 2013 OWCP decision, the
Board finds that OWCP properly determined that he was not entitled to a review of the written
record as a matter of right as his request was untimely filed.
OWCP also has the discretionary power to grant a request for a hearing or review of the
written record when a claimant is not entitled to such as a matter of right. In the January 16,
2014 decision, it properly exercised its discretion by stating that it had considered the matter in
relation to the issue involved and had denied appellant’s request on the basis that the issue could
be addressed through a reconsideration application.
The Board has held that, as the only limitation on OWCP’s authority is reasonableness,
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts.14 In the present case, the evidence of record does not indicate that OWCP
committed any act in connection with its denial of appellant’s request for a review of the written
record that could be found to be an abuse of discretion.
CONCLUSION
The Board finds that appellant did not establish that he sustained a neck or shoulder
condition causally related to factors of his federal employment and that OWCP properly denied
his request for a review of the written record.

14

See Mary Poller, 55 ECAB 483 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the January 16, 2014 and October 31, 2013
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 13, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
A.V., Appellant
and
U.S. POSTAL SERVICE, NEW HYDE PARK
POST OFFICE, New Hyde Park, NY, Employer
__________________________________________

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

Docket No. 19-1575
Issued: June 11, 2020

Case Submitted on the Record

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

JURISDICTION
On July 18, 2019 appellant, through counsel, filed a timely appeal from a May 3, 2019
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.3

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.

3
The Board notes that, following the May 3, 2019 decision, OWCP received additional evidence. However, the
Boards Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish disability from work
on July 11 and 23 through 25, and August 20 and 21, 2018 causally related to his accepted June 8,
2006 employment injury.
FACTUAL HISTORY
On June 9, 2006 appellant, then a 48-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 8, 2006 he slipped on a wet walkway when delivering mail and
injured his head and neck while in the performance of duty. OWCP accepted his claim for neck
and left knee sprains and dizziness and giddiness. Appellant stopped work on June 8, 2006 and
returned to full-time regular-duty work on June 26, 2006.
On January 24, 2018 appellant underwent a magnetic resonance imaging (MRI) scan of the
left knee which revealed progression of medial meniscus tearing and surrounding synovitis, new
subchondral edema associated with chondral loss in the medial compartment, and mild new
intraligamentous ganglion associated the chronic partial anterior cruciate ligament tear, and slight
pes anserine bursitis/tenosynovitis with patellofemoral effusion.
On January 17 and March 6, 2018 appellant was examined by Dr. Craig Levitz, a Boardcertified orthopedist, for left knee pain after a fall at work. Dr. Levitz reported that appellant was
then working full-time light duty. He diagnosed post-traumatic osteoarthritis of the left knee,
complex tear of the medial meniscus, some history of chondral loss and meniscal tear as a result
of work injury, increased post-traumatic osteoarthritis, and degenerative changes. Dr. Levitz
performed an ultrasound guided steroid injection into the left knee.
On June 12, 2018 Dr. Levitz treated appellant in follow-up for a left knee injury resulting
from a work injury on June 8, 2006. Appellant continued in full-time limited-duty work. Findings
on examination of the neck, back, spine, and right knee revealed no abnormalities. Examination
of the left knee revealed a mild effusion, medial joint line tenderness, restricted range of motion,
positive McMurray’s and Apley’s test, and mildly antalgic gait. Dr. Levitz diagnosed posttraumatic osteoarthritis of the left knee and a work-related arthritis with failure of rehabilitation
and medication. He also recommended a series of ultrasound guided injections. On July 10, 2018
Dr. Levitz noted that appellant was disabled from work until July 12, 2018 when appellant could
return to full-duty work without restrictions.
OWCP received a July 10, 2018 report from Danielle Bombara, a physician assistant, who
diagnosed post-traumatic osteoarthritis of the left knee. Findings on examination of the left knee
were unchanged from the June 12, 2018 examination. Ms. Bombara opined that appellant was
partially disabled, but currently working.
On July 24, 2018 Dr. Eric Keefer, a Board-certified orthopedist, treated appellant for a left
knee injury that occurred after a fall while delivering mail at work on June 8, 2006. Findings on
examination revealed mild effusion, medial joint line tenderness, limited range of motion, positive
McMurray’s and Apley’s tests, and mildly antalgic gait. Dr. Keefer performed a second ultrasound
guided in the left knee. He diagnosed post-traumatic arthritis of the left knee and left knee pain
with osteoarthritis. Dr. Keefer noted that appellant missed time from work and was working light
duty. In an accompanying note, he advised that appellant could return to work on July 25, 2018.
2

OWCP subsequently received a July 24, 2018 note from Dr. William A. Facibene, a Boardcertified orthopedist, who reported treating appellant.
On July 26, 2018 appellant filed several claims for wage-loss compensation (Form CA-7)
for disability from work on July 11 and 23 through 25, 2018. On a time analysis form (Form CA7a) dated July 20, 2018 noting eight hours of leave without pay (LWOP) used on July 11, 2018
for attending a medical appointment. A Form CA-7a dated July 26, 2018 noted eight hours per
day of LWOP used from July 23 through 25, 2018 for attending medical appointments. A Form
CA-7a dated August 24, 2018 noting eight hours of LWOP used on August 20 and 21, 2018 for
attending medical appointments.
In an August 10, 2018 development letter, OWCP requested additional factual and medical
evidence supporting the claimed disability. It afforded appellant 30 days to respond.
In an August 20, 2018 report, Kimberly Gomez, a physician assistant, treated appellant for
left knee pain. She noted that appellant presented for his third ultrasound guided injection and
reported a 30 percent decrease in pain with the prior injection. Ms. Gomez diagnosed posttraumatic osteoarthritis of the left knee and left knee pain with osteoarthritis and noted that
appellant’s work status was light duty at that time.
In an August 20, 2018 note, Dr. Keefer advised that appellant was treated for an injury
occurring on June 8, 2006 and could return to full-duty work with no restrictions on
August 22, 2018.
On August 28, 2018 appellant filed a Form CA-7 claim for wage-loss compensation for
disability from work on August 20 and 21, 2018.
In a September 7, 2018 development letter, OWCP requested additional factual and
medical evidence in support of the additional claimed period of disability. It afforded appellant
30 days to respond.
OWCP subsequently received an April 24, 2018 report from Dr. Levitz noting a right
shoulder injury that occurred at work on “September 16, 2013.” Dr. Levitz diagnosed bursitis of
the right shoulder and primary osteoarthritis of the right shoulder.
In a September 18, 2018 report, Dr. Levitz noted that appellant presented for an ultrasoundguided injection and reported minimal relief in symptoms from the series of injections. He
diagnosed post-traumatic osteoarthritis of the left knee and primary osteoarthritis of the right
shoulder.
By decision dated November 7, 2018, OWCP denied appellant’s Form CA-7 claims for
compensation for the periods July 11 and 23 through 25 and August 20 and 21, 2018. It found that
there was no medical documentation of record establishing that he was disabled from work for the
claimed periods due to his accepted employment injury.
In an appeal request form dated November 15, 2018, appellant, through counsel, requested
an oral hearing before an OWCP hearing representative, held on April 4, 2019.
By decision dated May 3, 2019, an OWCP hearing representative affirmed the
November 7, 2018 decision.
3

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.5 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.6
Under FECA the term “disability” means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.7 Disability is thus not
synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the time
of injury, has no disability as that term is used in FECA.8
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 Rationalized medical evidence is medical evidence
which includes a physician’s detailed medical opinion on the issue of whether there is a causal
relationship between the claimant’s claimed disability and the accepted employment injury. 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 claimed period
of disability.10
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.11
The Board has interpreted section 8103, which requires payment of expenses incidental to
the securing of medical services, as authorizing payment for loss of wages incurred while obtaining
medical services.12 An employee is entitled to disability compensation for any loss of wages
incurred during the time he or she receives authorized treatment and for loss of wages for time
4

See B.O., Docket No. 19-0392 (issued July 12, 2019); D.W., Docket No. 18-0644 (issued November 15, 2018).

5

Id.

6

20 C.F.R. § 10.5(f); B.O., supra note 4; N.M., Docket No. 18-0939 (issued December 6, 2018).

7

Id. at § 10.5(f); see B.K., Docket No. 18-0386 (issued September 14, 2018).

8

Id.

9

J.M., Docket No. 19-0478 (issued August 9, 2019).

10

R.H., Docket No. 18-1382 (issued February 14, 2019).

11

A.W., Docket No. 18-0589 (issued May 14, 2019).

12

Y.H., Docket No. 17-1303 (issued March 13, 2018).

4

spent incidental to such treatment. The rationale for this entitlement is that, during such required
examinations and treatment and during the time incidental to undergoing such treatment, an
employee did not receive his or her regular pay.13
ANALYSIS
The Board finds that appellant has met his burden of proof to establish entitlement to wageloss compensation for up to four hours of time lost for medical treatment on July 24 and
August 20, 2018.
On July 24, 2018 appellant attended a medical appointment with Dr. Keefer who treated
him for the work-related left knee injury that occurred on June 8, 2006. The record also establishes
that appellant received medical treatment from Dr. Keefer and a physician assistant on August 20,
2018 for an accepted condition. As noted above, an employee is entitled to disability compensation
for any loss of wages incurred during the time he or she receives authorized treatment and for loss
of wages for time spent incidental to such treatment.14 Here, appellant underwent treatment for
his accepted left knee sprain on July 24 and August 20, 2018. The Board thus finds that this
medical evidence is sufficient to establish that he is entitled to up to four hours of wage-loss
compensation on these dates.
The Board further finds, however, that appellant has not met his burden of proof to establish
entitlement to wage-loss compensation for the remaining claimed disability on July 11 and 23
through 25, and August 20 and 21, 2018 causally related to his accepted June 8, 2006 employment
injury as there is no medical evidence of record sufficient to establish additional disability from
work for those dates.
In support of his claims for wage-loss compensation, appellant submitted numerous reports
from his treating physician, Dr. Levitz, dated January 17 to June 12, 2018. However, these reports
are of limited probative value in addressing the remainder of appellant’s claimed disability as they
predate the claimed periods.15
On July 10, 2018 Dr. Levitz noted that appellant was disabled from work until July 12,
2018 and at that time he could work full duty without restrictions. The Board notes that, while
Dr. Levitz opined that appellant was disabled from work on July 11, 2018, he did not opine that
his disability was due to his accepted conditions.16 As Dr. Levitz opined that appellant could return
to work on July 12, 2018 his opinion negates causal relationship for the remainder of the claimed

13
For a routine medical appointment, a maximum of four hours of compensation for time lost to obtain medical
treatment is usually allowed. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter
2.901.19(c) (February 2013); see also K.A., Docket No. 19-0679 (issued April 6, 2020); William A. Archer, 55 ECAB
674 (2004).
14

Id.

15

M.A., Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019). D.J.,
Docket No. 18-0200 (issued August 12, 2019); V.G., Docket No. 17-1425 (issued February 16, 2018).
16

V.G., Docket No. 18-0936 (issued February 6, 2019).

5

period.17 Therefore, the Board finds that this report is insufficient to establish appellant’s claim
for compensation.18
Dr. Facibene treated appellant on July 24, 2018. However, his report is insufficient to meet
appellant’s burden of proof as he did not address the issue of disability from work. The Board has
held that evidence that does not address the accepted conditions and dates of disability are
insufficient to establish his claim.19
Reports from physician assistants dated July 10 and August 20, 2018 are of no probative
value as physician assistants are not considered “physician[s]” as defined under FECA and
therefore are not competent to provide a medical opinion.20 These reports are therefore insufficient
to establish causal relationship between the remaining claimed periods of disability and the
accepted employment conditions.
In an August 20, 2018 note, Dr. Keefer advised that appellant could return to work on
August 22, 2018. The Board finds that Dr. Keefer did not explain with sufficient rationale how
appellant’s inability to work was due to his accepted June 8, 2006 employment conditions. Thus,
Dr. Keefer’s opinion is of limited probative value and his report is also insufficient to establish the
claimed period of disability.21
Appellant also submitted diagnostic imaging studies. The Board has held that diagnostic
studies standing alone lack probative value as they do not provide an opinion on causal relationship
between the accepted employment injury and the claimed period of disability.22 This evidence is
therefore insufficient to establish appellant’s claim.
As noted appellant must submit reasoned medical evidence directly addressing the
remaining claimed disability.23 However, he did not provide medical evidence containing a
rationalized opinion establishing disability from work on July 11 and 23 through25, and August 20
and 21, 2018 causally related to his accepted June 8, 2006 employment injury. Thus, the Board
finds that appellant has not met his burden of proof.

17

T.W., Docket No. 19-0677 (issued August 16, 2019).

18

L.S., Docket No. 18-0264 (issued January 28, 2020); Id.

19

Supra note 11.

20
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA).
21

T.H., Docket No. 19-0436 (issued August 13, 2019); C.B., Docket No. 18-0040 (issued May 7, 2019).

22

See I.C., Docket No. 19-0804 (issued August 23, 2019).

23

See K.A., Docket No. 16-0592 (issued October 26, 2016).

6

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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish entitlement to wageloss compensation for up to four hours of time lost for medical appointments on July 24 and
August 20, 2018. The Board further finds that he has not met his burden of proof to establish
disability for the remaining claimed disability on July 11, and 23 through 25 and August 20 and
21, 2018 causally related to his accepted June 8, 2006 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part and the case is remanded for
payment of wage-loss compensation consistent with this decision of the Board.
Issued: June 11, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
New Bedford, MA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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)
)
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)
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Docket No. 07-877
Issued: October 17, 2007

Oral Argument September 18, 2007

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

JURISDICTION
On February 12, 2007 appellant filed a timely appeal of the November 8, 2006 merit
decision of the Office of Workers’ Compensation Programs, which found a forfeiture of
compensation and an overpayment of benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant forfeited her right to compensation for the period July 10,
2004 to August 6, 2005 by failing to report earnings from employment, and thus, was at fault in
creating an overpayment of $16,646.73.
FACTUAL HISTORY
Appellant, a 28-year-old former casual clerk, has an accepted traumatic injury claim for
acute stress disorder, which arose on June 11, 2004 when she was trapped in an elevator for more

than an hour. She received continuation of pay from June 12 to July 9, 2004, and the Office paid
wage-loss compensation beginning July 10, 2004.1
On October 12, 2004 the Office informed appellant that she had been placed on the
periodic compensation rolls effective October 3, 2004 and would receive regular compensation
payments every 28 days in the amount of $1,186.04. The letter was accompanied by an Office
Form EN1049, which advised appellant of her rights and responsibilities as a benefits recipient.
Appellant signed the Form EN1049 on October 25, 2004, certifying that she read and understood
the various conditions and reporting requirements associated with her receipt of benefits.
The Office referred appellant for vocational rehabilitation in January 2005. During her
initial meeting with the rehabilitation counselor, she reportedly told the counselor that she had no
other source of income apart from her regular compensation checks of $1,186.04. Over the next
few months, appellant regularly met with the rehabilitation counselor but was unsuccessful in
securing any form of employment.
On March 2, 2005 the Office requested that appellant submit an affidavit of earnings and
employment, Form CA-1032. Appellant signed and returned the form indicating, among other
things, that she had not worked during the preceding 15-month period.2
During a June 7, 2005 telephone conversation with her rehabilitation counselor, appellant
advised that she had “engaged in training with Bath and Body Works [BBW] for a retail clerk
position.” She indicated that she was “tentatively hired” for this position and was awaiting an
opening in the schedule. The position was to provide 20 to 24 hours of work per week. Later
that same month, appellant advised her rehabilitation counselor that she was being considered for
employment as a nursing technician at St. Luke’s Hospital in New Bedford, MA. She also
indicated that she had accepted employment as a substitute preschool teacher with North Star
Learning Centers, Inc. in New Bedford, MA. Effective July 18, 2005, appellant was employed
as a nurse intern at St. Luke’s Hospital. In July 2005, she began submitting pay stubs for
earnings she received as a nurse intern and preschool teacher. The Office ended its vocational
rehabilitation services on September 2, 2005.
A September 14, 2005 investigative memorandum from the employing establishment’s
Office of the Inspector General revealed that, beginning September 18, 2004, appellant worked
as a part-time sales associate for BBW. Appellant was paid an hourly rate of $7.20. Records
from BBW indicated that appellant was paid on a biweekly basis from September 25, 2004 to
April 23, 2005 and June 4 to 18, 2005.3
On January 6, 2006 the Office issued a decision finding that appellant forfeited
compensation for the period September 18, 2004 to August 6, 2005. The reason for the
forfeiture was appellant’s failure to report earnings that she received from employment at BBW.
1

At the time of her injury, appellant held a temporary position, which subsequently expired on July 9, 2004.

2

The report bears appellant’s signature, but it is undated. The Office received the signed Form CA-1032 on
April 1, 2005.
3

There was no record of income received for the two biweekly pay periods in May 2005.

2

The Office issued an amended decision on May 30, 2006, finding that appellant forfeited
compensation for the period July 10, 2004 to March 2, 2005. The period of the forfeiture
coincided with the 15-month time frame covered by the March 2, 2005 Form CA-1032, wherein
appellant denied engaging in any employment activities.
In a separate letter, also dated May 30, 2006, the Office informed appellant of its
preliminary determination that a $9,996.51 overpayment existed because of her forfeiture of
compensation for the period July 10, 2004 to March 2, 2005. The Office found that appellant was
at fault in creating the overpayment due to her failure to report earnings as required on Form
CA-1032. It issued a second preliminary overpayment finding on May 30, 2006. This one
covered the period March 3 to August 6, 2005, during which appellant received $6,650.22 in
wage-loss compensation. Again, the Office found appellant at fault for failing to report earnings
received from BBW during the covered period.
On June 24, 2006 appellant requested a review of the written record. She submitted
copies of her 2004 and 2005 W-2 (wage and tax) statements for BBW. Appellant also provided
a June 24, 2006 itemization of her BBW earnings from September 25, 2004 to June 17, 2006.
By decision dated November 8, 2006, the Office hearing representative affirmed the
May 30, 2006 decision regarding forfeiture for the period July 10, 2004 to March 2, 2005. The
hearing representative also finalized the Office’s overpayments in the amount of $9,996.51 and
$6,650.22 and that appellant was at fault in creating the overpayments. Because she was at fault,
appellant was not entitled to a waiver of recovery of the overpayment.
LEGAL PRECEDENT
Pursuant to the Federal Employees’ Compensation Act, a partially disabled employee
may be required to report her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times specified by the Office.4 An employee who fails to
make an affidavit or report when required or knowingly omits or understates any part of her
earnings; forfeits the right to compensation with respect to any period for which the affidavit or
report was required.5 Forfeiture results in an overpayment of compensation for the period of the
forfeiture and is subject to recovery under 5 U.S.C. § 8129.6 An individual who is found at fault
in either accepting or creating an overpayment is not eligible for a waiver of recovery of
overpayment.7 A benefits recipient will be found at fault if the individual failed to provide
information which she knew or should have known to be material.8

4

5 U.S.C. § 8106(b) (2000).

5

Id.

6

Id.; 20 C.F.R. § 10.529(b) (2007).

7

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

8

20 C.F.R. § 10.433(a)(2).

3

ANALYSIS
On August 2, 2004 the Office accepted appellant’s claim and advised her of certain
responsibilities with respect to returning to work. The acceptance letter included the following
pertinent information: “You are expected to return to work (including light duty or part-time
work, if available) as soon as you are able. Once you return to work, or obtain new
employment, notify this office immediately.” (Emphasis in the original.) The Office further
advised appellant that, if she received a compensation check which included payment for a
period she had worked, she should “return it … immediately to prevent an overpayment of
compensation.”
The Office subsequently placed appellant on the periodic compensation rolls. The
October 12, 2004 letter advising appellant of this action included a Form EN1049, which
explained, among other things, her responsibility for reporting information regarding
employment. Appellant was instructed to advise the Office if she returned to her former job. If
she obtained other work, either with her original employing agency or with another employer,
she was to submit “at once,” the name and address of her employer, the date she returned to
work, the type of work she was performing, the number of hours worked per week and the
weekly pay rate.
An EN1049 form also provided appellant with information regarding overpayments. To
minimize the possibility of an overpayment of compensation, appellant was instructed to
“NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO BACK TO WORK.” (Emphasis
in the original.) The Office explained that each payment showed the period for which payment
was being made. If appellant worked for any portion of the designated period, she was instructed
to return the payment, even if she had already advised the Office that she was working.
Appellant signed a Form EN1049 on October 24, 2005, certifying that she read and understood
its content and acknowledging that her “willful failure … to comply with these conditions
[could] result in termination or forfeiture of benefits and liability for resulting overpayments.”
The March 2, 2005 Form CA-1032 also advised appellant of her reporting obligations
and the consequences of providing false, misleading or incomplete information. The first page
of the information package included a warning that false or evasive answers to any questions, or
the omission of an answer, may be grounds for forfeiting compensation benefits. The
instructions for completing the affidavit explained that the statement covered the 15 months prior
to the date the form was completed and signed. It also advised that, by signing the form,
appellant would be certifying that she had supplied all information requested for that period of
time.
The Board finds that appellant forfeited her compensation for the period July 10, 2004 to
March 2, 2005 as she failed to report her earnings from BBW on the March 2, 2005 CA-1032
form that she submitted. Appellant worked for BBW as a part-time sales associate beginning
September 18, 2004. Employment records indicate that BBW paid her on a biweekly basis
beginning September 25, 2004. These payments continued uninterrupted through the pay period
ending April 23, 2005. However, appellant did not report this information on her CA-1032,
which clearly advised her to report “ALL employment for which [she] received a salary, wages,
income, sales commissions, piecework, or payment of any kind.” She stated on the Form

4

CA-1032 that she had not worked for any employer and was not self-employed or involved in
any business enterprise during the preceding 15-month period. Appellant also indicated that she
had been unemployed for all periods during the past 15 months.
The 15-month period covered by the March 2, 2005 CA-1032 encompassed all wage-loss
compensation that appellant received beginning July 10, 2004 to March 2, 2005, for a total of
$9,996.51. Appellant’s failure to report her earnings from BBW on a Form CA-1032 constitutes
a knowing omission of her earnings and employment activities, thus warranting forfeiture of all
wage-loss compensation received during the 15-month period covered by the March 2, 2005
form.9 While there is no evidence of BBW earnings from July 10 to September 17, 2004,
appellant’s compensation for this 2-month period is nonetheless forfeited because the period falls
within the 15-month time frame of the March 2, 2005 Form CA-1032.10
Appellant’s failure to report her earnings and employment activities on Form CA-1032
similarly constitutes a failure to provide information which she knew or should have known to be
material.11 Consequently, the Office properly found appellant at fault in creating the
overpayment of compensation for the period July 10, 2004 to March 2, 2005. Because appellant
was at fault, she is not eligible for a waiver of recovery of the $9,996.51 overpayment.12
While the Office’s findings with respect to the period July 10, 2004 to March 2, 2005 is
affirmed, the question of whether there was a similar forfeiture and overpayment for the period
of March 3 to August 6, 2005 is not in posture for decision. The record includes a May 26, 2006
worksheet indicating that the Office paid appellant wage-loss compensation of $6,650.22 for the
period March 3 to August 6, 2005. However, the record does not include a specific breakdown of
when these payments were disbursed and the amounts of each disbursement. This information is
necessary in order to properly match appellant’s wage-loss compensation with the earnings she
received and failed to report. Without the benefit of a Form CA-1032, the Office must be more
exact in its analysis of the individual periods for payments disbursed and the corresponding
unreported earnings.
The Board notes that there is no evidence of earnings from BBW for May 2005, yet the
Office found that appellant forfeited all compensation received from March 3 to August 6, 2005.13
Moreover, the July 7, 2005 earnings statement submitted by BBW only reported earnings through
the pay period ending June 18, 2005. When the Office issued its preliminary determination on
9

Cheryl Thomas, 55 ECAB 610, 616 (2004). It is also noteworthy that almost five months passed before
appellant even hinted to her rehabilitation counselor about the possibility of employment with BBW. Although
securing employment was the primary reason for their relationship, appellant never disclosed her months-long
tenure with BBW to her rehabilitation counselor. The only mention of BBW appears in the rehabilitation
counselor’s June 28, 2005 report, when appellant reportedly advised her earlier that month that she was “tentatively
hired” to work at BBW.
10

20 C.F.R. § 10.529(a).

11

20 C.F.R. § 10.433(a)(2).

12

See Gary L. Allen, 47 ECAB 409, 418 (1996).

13

Appellant advised her rehabilitation counselor that she was going on vacation in May 2005.

5

May 30, 2006, there was no evidence of any post-June 18, 2005 unreported earnings from BBW.
Despite the lack of evidence, it was found that appellant forfeited an additional seven weeks of
compensation through August 6, 2005. In affirming this finding, the hearing representative noted
that there was evidence that appellant “continued to work at least through June 17, 2006.” The
Office’s analysis regarding the March 3 to August 6, 2005 period is incomplete or supported by the
evidence of record. Accordingly, the Office’s finding of forfeiture and overpayment for the period
of March 3 to August 6, 2005 is set aside.
CONCLUSION
The Board finds that appellant forfeited her right to compensation for the period July 10,
2004 to March 2, 2005. During this time frame, appellant received a $9,996.51 overpayment, for
which she was at fault in creating. Because appellant was at fault, she is not entitled to waiver of
recovery of the $9,996.51 overpayment. The Board further finds that the question of whether
there was a forfeiture of compensation and resulting overpayment for the period of March 3 to
August 6, 2005 is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 8, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
to the Office for further action consistent with this decision.
Issued: October 17, 2007
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