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

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

Docket No. 16-0005
Issued: February 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 28, 2015 appellant filed a timely appeal from an April 1, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from April 1, 2015, the date of OWCP’s last decision, was
September 28, 2015. Since using October 1, 2015, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is September 28, 2015, rendering the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the April 1, 2015 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met his burden of proof to establish additional cervical
and lumbar conditions as a consequence of his accepted August 31, 2013 employment injuries.
FACTUAL HISTORY
On August 31, 2013 appellant, then a 40-year-old city carrier, filed a traumatic injury
claim (Form CA-1) for injuries received as a result of a motor vehicle accident while delivering
mail. He claimed a neck sprain, sprain of the back, lumbar region, left knee and left leg sprain of
unspecified sites, and left hip and left thigh sprain of unspecified sites. Appellant stopped work
on the date of injury and has not returned to work.
In a September 9, 2013 report, Dr. Anthony Melillo, a Board-certified orthopedic
surgeon, noted the history of the August 31, 2013 motor vehicle accident and that appellant had
been seen at an emergency room. He noted findings which included full motion of the left knee
with no instability, and normal motion of the left hip with no grinding. Dr. Melillo reported
reviewing left knee, left hip, pelvis, and cervical spine x-rays which were negative. Appellant
was intact neurologically. Dr. Melillo assessed mild left knee sprain and a left hip sprain due to
the work injury. He recommended physical therapy. Dr. Melillo noted that appellant should not
work until his next visit.
Thereafter, appellant sought treatment from Dr. Louis Train, a family practitioner. On
September 26, 2013 Dr. Train noted the history of the work injury and reported findings that
included neck muscle spasms, decreased pinprick sensations in the median and ulnar nerves,
decreased bilateral shoulder motion, decreased grip strength in the forearms, positive straight leg
raising at 90 degrees bilaterally, and left patella crepitus and tenderness. He diagnosed neck
sprain with thoracic outlet syndrome triggered by sprained neck muscles, low back sprain, left
knee sprain, and left hip/thigh sprain. Dr. Train concluded that “in my medical rationale,”
appellant’s diagnosed conditions were due to the work-related motor vehicle accident. He
opined that appellant could not work as a postal carrier.
On October 17, 2013 OWCP accepted sprains of the neck, back (lumbar region), left
knee, leg, hip, and thigh. Appellant received continuation of pay beginning September 1, 2013.
He was placed on the periodic rolls effective October 16, 2013.
By letter dated January 29, 2014, OWCP referred appellant, together with a statement of
accepted facts, a list of questions, and the medical record, to Dr. James F. Hood, a Boardcertified orthopedic surgeon, for a second opinion to determine whether he had any residuals
from his accepted conditions and to determine if he had continued disability. In a February 19,
2014 medical report, Dr. Hood provided a history of the August 31, 2013 employment injuries
and appellant’s medical treatment. He noted appellant’s complaints of neck, back, right hip, and
right knee pain. Dr. Hood reported findings on examination of the lumbar and cervical spines,
and left knee. He diagnosed left knee contusion with no evidence of any internal derangement,
hip sprain/contusion, and soft tissue sprain of the lumbar and cervical spine without
radiculopathy. Dr. Hood advised that appellant’s subjective complaints were no longer related to
the accepted employment injuries. He opined that there was secondary gain and symptom
magnification. Dr. Hood concluded that although appellant could not return to his city carrier
2

position due to his medications, he could return to full-duty work eight hours a day with no
restrictions.
In a March 12, 2014 report, Dr. Train noted appellant’s complaints of neck and low back
pain. He reported findings on examination of the neck, lower back, and left knee. Dr. Train
diagnosed cervical herniated nucleus pulposus and lumbar herniated nucleus pulposus with left
sciatica. Based on magnetic resonance imaging (MRI) scan results, appellant’s history and
physical findings, he requested that his accepted injuries be upgraded to include cervical
herniated nucleus pulposus.
On March 28, 2014 OWCP requested that Dr. Hood review additional medical evidence
of record and provide an opinion as to whether appellant’s current cervical condition was
causally related to the accepted work injuries and whether he had continued disability. In a
supplemental report dated April 9, 2014, Dr. Hood reviewed the additional medical evidence and
reiterated his prior diagnoses of left knee contusion with no evidence of any internal
derangement, hip sprain/contusion, and soft tissue sprain of the lumbar and cervical spine
without radiculopathy. He advised that appellant’s current cervical condition was no longer
medically connected to his accepted August 31, 2013 employment injuries as there were no
objective findings to correlate with his subjective complaints. Dr. Hood concluded that he could
return to his city carrier position after he was off all prescribed medications.
In an April 9, 2014 report, Dr. Train again provided appellant’s history. Appellant
complained about constant low back pain that radiated down his left leg. Dr. Train reported
physical examination findings. He also reported that a February 24, 2014 cervical MRI scan
showed C3-4 disc herniation, three to four millimeters that caused flattening of the thecal sac.
Electromyogram/nerve conduction (EMG/NC) studies dated March 8, 2014 showed L5-S1
radiculopathy on the left. A March 17, 2014 lumbar MRI scan showed L5-S1 disc herniation,
four to five millimeters. Dr. Train noted the accepted conditions and advised that appellant’s
claim was not limited to a lumbar sprain/strain based on his examination findings, and MRI scan
and EMG/NC results. He requested that the new diagnoses be included in appellant’s claim.
Dr. Train reasoned that these conditions were a direct result of his work-related injuries. He
ordered a functional capacity examination and advised that appellant could not perform any
sedentary work or stand, push, or pull.
On May 6, 2014 OWCP found a conflict in medical opinion between Drs. Train and
Hood regarding appellant’s work capacity. By letter dated May 14, 2014, it referred him,
together with a statement of accepted facts, a list of questions, and the medical record, to
Dr. Grant R. McKeever, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In a June 4, 2014 report, Dr. McKeever reviewed appellant’s history and medical record.
He noted appellant’s complaint of intermittent pain in his back, cervical spine, and left leg, and
reported examination findings. Dr. McKeever opined that appellant’s accepted employmentrelated conditions had resolved based on his examination findings. These conditions had
resolved within eight weeks post injury and ceased to be a factor. Dr. McKeever concluded that
appellant could return to his city carrier position with no restrictions. He also concluded that no
further medical treatment was necessary as the compensable injuries had long resolved.

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In a November 12, 2014 report, Dr. Train provided appellant’s history and findings on
examination. He again noted the February 24 and March 17, 2014 cervical and lumbar MRI scan
and March 8, 2014 EMG/NC results. Dr. Train reported that a December 9, 2013 left knee MRI
scan showed mild patellar tendinosis. A May 20, 2014 functional capacity evaluation showed
appellant’s work restrictions.4 Dr. Train again advised that appellant’s claim was not limited to a
lumbar sprain/strain. He requested that his claim be upgraded to include the diagnoses of
cervical and lumbar disc displacement, and reactive depression. Dr. Train reasoned that these
conditions were a direct result of appellant’s August 31, 2013 employment injuries.
On March 16, 2015 an OWCP medical adviser reviewed a statement of accepted facts
and the medical record, including Dr. Train’s April 9 and November 12, 2014 reports, to
determine whether appellant’s claim should be upgraded to include cervical and lumbar disc
displacement, and reactive depression. He noted Dr. McKeever’s opinion that appellant’s
employment-related injuries had resolved. The medical adviser related that he was unable to
find an acceptable causation analysis explaining the relationship of the disc pathology in the
cervical and lumbar spines to the August 31, 2013 traumatic work event. Therefore, he opined
that the diagnoses of cervical and lumbar disc displacement were likely unrelated to the
August 31, 2013 traumatic work event and more likely the result of degenerative spinal
conditions. The medical adviser concluded that, based on the above reasons, he could not
support a consequential injury in appellant’s claim to include cervical and lumbar disc
displacement. He, however, recommended that his claim be upgraded to include the diagnosis of
reactive depression as proposed by Dr. Train. The medical adviser reasoned that it appeared
appellant’s chronic pain complaints persisted and they were consistent with this condition.
In an April 1, 2015 decision, OWCP found that the medical evidence of record was
insufficient to establish that appellant sustained cervical and lumbar disc displacement as a
consequence of his accepted August 31, 2013 work injuries. However, it accepted his claim for
chronic pain syndrome. OWCP found that further medical development was necessary to
determine whether appellant had reactive depression due to his accepted work injuries.
LEGAL PRECEDENT
With respect to consequential injuries, it is an accepted principle of workers
compensation law that, when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.5 The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.6

4

The Board notes that the May 20, 2014 EMG/NC results are not contained in the case record.

5

See Albert F. Ranieri, 55 ECAB 598 (2004); A. Larson, The Law of Workers’ Compensation § 10.01
(November 2000).
6

See Charles W. Downey, 54 ECAB 421-23 (2003).

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A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence.7 Rationalized
medical evidence is evidence which relates a work incident, work injury or factors of
employment to a claimant’s condition, with stated reasons of a physician.8 The opinion of the
physician must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship of the diagnosed condition and the specific
employment injury.9
ANALYSIS
OWCP accepted that on August 31, 2013 appellant sustained a neck sprain, sprain of the
back, lumbar region, left knee and left leg sprain of unspecified sites, left hip and left thigh
sprain of unspecified sites, and chronic pain syndrome while in the performance of duty.
Appellant claimed that he sustained additional neck and lumbar injuries, including cervical and
lumbar disc displacement as a consequence of his accepted neck, back, and left knee, left leg, left
hip, and left thigh conditions. He bears the burden of proof to establish his claim for a
consequential injury.10 The Board finds that appellant has not submitted sufficient medical
evidence to establish his additional neck and back conditions as a consequence of his accepted
employment injuries.
Dr. Train failed to relate how the accepted neck, back, left knee, left leg, left hip, left
thigh, and chronic pain conditions caused the additional cervical and lumbar conditions. On
April 9 and November 12, 2014 he briefly addressed causal relationship by opining that
appellant’s L5-S1 radiculopathy on the left, C3-4 and L5-S1 disc herniation, cervical disc
displacement, and lumbar disc displacement (sciatica) were a direct result of the accepted workrelated injuries. However, Dr. Train failed to explain the mechanism of injury by detailing how
this motor vehicle accident caused the diagnosed conditions. A medical report is of limited
probative value on the issue of causal relationship if it contains a conclusion regarding causal
relationship which is unsupported by medical rationale.11 The Board finds, therefore, that
Dr. Train’s reports are insufficient to meet appellant’s burden of proof.
The Board notes that it is appellant’s burden of proof and finds insufficient rationalized
medical evidence of record to establish that appellant’s cervical and lumbar conditions were a
consequence of his accepted employment injuries. Appellant did not meet his burden of proof to
establish a consequential injury. Moreover, an OWCP medical adviser reviewed the medical
record and related that he could not recommend the expansion of appellant’s claim to include
consequential cervical and lumbar disc displacement. He reasoned that there was no acceptable
causation analysis explaining the relationship between the disc pathology in the cervical and
lumbar spines and the accepted August 31, 2013 employment incident. The medical adviser
7

J.A., Docket No. 12-603 (issued October 10, 2012).

8

See supra note 6.

9

Id.

10

Supra note 7.

11

T.M., Docket No. 08-0975 (issued February 6, 2009).

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further reasoned that these conditions were more likely the result of degenerative spinal
conditions and not the accepted work incident. Furthermore, Dr. Hood, an OWCP referral
physician, and Dr. McKeever, an impartial specialist, found no basis on which to attribute
additional conditions to the August 31, 2013 work injury.12 Dr. Hood reported that there were no
objective findings to correlate his subjective complaints, while Dr. McKeever concluded that the
accepted orthopedic conditions had resolved, thus negating further medical treatment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained additional cervical and lumbar conditions as a consequence of his accepted August 31,
2013 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the April 1, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

The Board notes that Dr. McKeever was an impartial specialist with regard to appellant’s work capacity and not
with regard to whether additional conditions should be accepted. However, his report may still be considered for its
own intrinsic value. See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
FEDERAL JUDICIARY, U.S. PROBATION
OFFICE, Tampa, FL, Employer
__________________________________________

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

Docket No. 10-1944
Issued: June 1, 2011

Case Submitted on the Record

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

JURISDICTION
On July 21, 2010 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs’ decision dated January 27, 2010. Pursuant to the Federal
Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office abused its discretion by denying appellant’s request for
reimbursement of travel expenses.
FACTUAL HISTORY
On June 16, 2008 appellant, a 47-year-old probation officer, injured his ribs, his right
shoulder, his back and his neck when the vehicle he was driving was struck by another vehicle.
He filed a claim for benefits on June 19, 2008, which the Office accepted for fracture of the right
1

5 U.S.C. § 8101 et seq.

humerus. Appellant underwent open reduction/internal fixation surgery on July 11, 2008; the
procedure was performed by Dr. Mark E. Farmer, a Board-certified orthopedic surgeon. He has
not returned to work since his June 16, 2008 injury.
By letter dated August 28, 2008, appellant advised the Office that he had moved from
Kingsland, Georgia, to Macon, Georgia. He requested authorization for physical therapy
treatment at a facility in Macon, Georgia. In addition appellant continued to seek follow-up
treatment from Dr. Farmer, whose office was located in Fort Myers, Florida. He stated that the
round trip distance from his home in Macon, Georgia to Dr. Farmer’s office was approximately
740 miles.
In an inter-Office memorandum dated October 29, 2008, the Office noted that appellant
had appeared at the district Office on October 28, 2008 requesting reimbursement for mileage,
hotel accommodations and meals for trips to Dr. Farmer’s office on July 6, 10, 20 and
August 25, 2008. It agreed to reimburse him for these trips but advised appellant that when he
completed his postoperative treatment he needed to obtain the services of a physician within his
commuting area. Appellant told the Office that he understood and would comply.
In an October 27, 2008 x-ray report, received by the Office on November 4, 2008, it was
indicated that appellant’s right shoulder/greater tuberosity fracture had healed and was in good
position. The report stated that he presented a satisfactory, healed postoperative appearance.
In an October 27, 2008 report, Dr. Farmer stated that appellant was progressing well,
despite some lingering pain and stiffness, limited range of motion and occasional popping in the
shoulder. He restricted appellant from work activity for three months and recommended six
weeks of continuing physical therapy.
By letter dated December 12, 2008, the Office advised the claimant that it had assigned a
registered nurse to assist in his recovery and in locating a qualified physician within the Macon
commuting area. It asked appellant to contact Dr. Farmer regarding a referral to a qualified
physician in the Macon area. The Office asked that the claimant fully cooperate so that the
excessive travel reimbursements and accommodations could be discontinued and that he provide
the name, specialty and telephone number of the selected physician within 30 days.
In a January 7, 2009 progress report, appellant’s field nurse identified three orthopedic
surgeons in the Macon area who were qualified to treat his postsurgical right shoulder condition.
He stated that he sent the names and contact information for these physicians to appellant;
however, appellant asserted that he was more comfortable being treated by Dr. Farmer.
By telephone call dated February 4, 2009, appellant advised the Office that he had not
selected a doctor in Macon because he felt more comfortable with Dr. Farmer; he noted that he
had performed the shoulder surgery and had been treating him since that time. He asserted that
he wished to continue to be treated by Dr. Farmer regardless of whether the Office reimbursed
him for the travel. The Office advised appellant that his travel to Dr. Farmer’s office, which
exceeded 500 miles, was not reasonable given that there were qualified doctors in Macon, his
commuting area. It stated that the applicable regulations indicated that, generally, 25 miles from
the place of injury, the employing establishment, or the employee’s home, was a reasonable

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distance to travel.2 The Office advised appellant to provide any written comments within 30
days.
By letter to the Office dated February 26, 2009, appellant informed it that he continued to
be treated by Dr. Farmer because of his reputation, his prior treatment of his wife and son, and
the fact that Dr. Farmer had performed the June 2008 shoulder surgery and treated him
subsequently. He asserted that, although he had consulted several other physicians in the
Jacksonville, Florida area, he did not receive the proper treatment for his right shoulder condition
until he began treatment with Dr. Farmer. Appellant also stated that Dr. Farmer had indicated
that he might require additional shoulder surgery in light of a recent test which showed a bone
spur and possible rotator cuff tear in his right shoulder.
By decision dated March 24, 2009, the Office denied authorization for reimbursement for
transportation costs and expenses for travel to Dr. Farmer’s office in Fort Myers, Florida,
effective January 13, 2009. It stated that appellant failed to submit any evidence that there were
not qualified physicians in his area who could provide treatment for his accepted right shoulder
condition.
On March 30, 2009 Dr. Farmer requested authorization for additional right shoulder
surgery. In a March 30, 2009 report, he explained that appellant was an appropriate candidate
for surgery because nonoperative options had been exhausted. The procedure was performed to
ameliorate the conditions of capsular release adhesions, subacromial decompression and
removing hardware.
By letter dated April 6, 2009, appellant requested an oral hearing, which was held on
November 18, 2009. At the hearing he reiterated that he had been dissatisfied with the
physicians who treated his shoulder prior to Dr. Farmer, with whom he felt comfortable.
Appellant indicated that he continued to seek treatment from Dr. Farmer, regardless of whether
or not he was reimbursed for travel expenses, because he had rendered a significant improvement
in his shoulder condition, because he was a shoulder specialist, and because appellant continued
to experience problems with his shoulder; he noted that Dr. Farmer had scheduled him for
additional surgery. He admitted that he had not attempted to find an appropriate specialist within
25 miles of his residence because of his preference for Dr. Farmer. Appellant’s wife stated at the
hearing that she was unable to locate a shoulder specialist in Macon. She asserted that she called
the offices of physicians recommended by the Office but was informed that they were hand and
spine specialists, not shoulder specialists. Appellant’s wife further asserted that she had also
sustained a shoulder injury and had experienced similar difficulty finding a shoulder specialist in
Macon.
By decision dated January 27, 2010, an Office hearing representative affirmed the
March 24, 2009 decision. She noted that Dr. Farmer had requested additional right shoulder
surgery on March 30, 2009. The hearing representative found, however, that the issues of
authorization of medical treatment and reimbursement of travel expense for medical treatment
were separate and distinct. She stated that the Office could authorize medical treatment but
2

The Board notes that the applicable regulations in effect at the time, 20 C.F.R. § 10.402, has been replaced by
20 C.F.R. § 10.315.

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determine that the travel expense incurred for such authorized treatment was unnecessary or
unreasonable.
The hearing representative found that the Office properly determined that appellant’s
continuing travel to Dr. Farmer’s office in Fort Myers was not reasonable given the fact that
there were qualified physicians available to treat him in the Macon, Georgia, area. She stated
that there was no evidence establishing that this travel was reasonable and necessary in order to
obtain medical treatment, as there was no indication that competent and appropriate medical care
was not available within the commuting area of appellant’s Macon, Georgia, residence. The
hearing representative therefore found that the expenses appellant incurred for travel on or after
February 4, 2009, between his home in Georgia and Dr. Farmer’s office in Fort Meyers, Florida,
were personal and that the Office did not abuse its discretion in denying reimbursement of
further travel expenses for visits to Dr. Farmer effective February 4, 2009.
LEGAL PRECEDENT
Section 8103 of the Act3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Office considers likely to cure, give relief,
reduce the degree of the period of disability or aid in lessening the amount of monthly
compensation.
Section 10.315 of Title 20 of the Code of Federal Regulations provide, in relevant part:
“The employee is entitled to reimbursement of reasonable and necessary
expenses, including transportation needed to obtain authorized medical services,
appliances or supplies. To determine what is a reasonable distance to travel, [the
Office] will consider the availability of services, the employee’s condition and the
means of transportation. Generally, 25 miles from the place of injury, the work
site or the employee’s home, is considered a reasonable distance to travel. The
standard form designated for [f]ederal employees to claim travel expenses should
be used to seek reimbursement under this section.”4
The Board has previously explained that the Office may authorize medical treatment but
determine that the travel expense incurred for such authorized treatment was unnecessary or
unreasonable.5
As the only limitation on the Office’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 deductions from known facts.6 The
3

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4

20 C.F.R. § 10.315.

5

W.M., 59 ECAB 132 (2007).

6

See William B. Webb, 56 ECAB 156 (2004); Lecil E. Stevens, 49 ECAB 673 (1998).

4

Board has long held that the Office has broad discretion in approving services provided under the
Act.7
ANALYSIS
The Office accepted that appellant sustained a fracture of the right humerus and
authorized open reduction/internal fixation surgery on his right shoulder on July 11, 2008.
Appellant subsequently moved to Macon, Georgia, but continued to receive treatment for his
right shoulder from Dr. Farmer. The Office informed appellant on October 29, 2008 that it
would no longer reimburse him for traveling to Dr. Farmer’s office in Fort Myers, Florida after
he completed his postoperative treatment and advised him that he needed to obtain the services
of a physician within his commuting area.8 On January 7, 2009 the nurse assisting appellant
informed him that she had identified three orthopedic surgeons in the Macon area who were
qualified to treat his postsurgical right shoulder condition. Appellant, however, advised the
nurse and the Office that he had not selected a new attending physician in Macon because he felt
more comfortable having his right shoulder condition treated by Dr. Farmer. He stated that he
wished to continue to be treated by Dr. Farmer regardless of whether or not the Office
reimbursed him for travel expenses. The Office advised appellant on February 4, 2009 that his
travel to Dr. Farmer’s office was not reasonable given that there were qualified doctors in
Macon, his current commuting area, and allowed him 30 days to submit written comments before
formally disallowing any additional reimbursement for travel to Dr. Farmer’s office in Fort
Myers. Appellant informed the Office on February 26, 2009 that, although he had consulted
several other physicians in the Macon, Georgia area, only Dr. Farmer had provided him with the
proper treatment for his right shoulder condition. The issues of authorization of medical
treatment and payment of reasonable travel expense have been determined by the Board to be
separate and distinct issues. Appellant’s continued wish to treat with Dr. Farmer, does not
establish that unreasonable travel expense must be authorized.
The Board notes that appellant is entitled to reimbursement for reasonable and necessary
travel expenses as provided under section 10.315. The regulations provide, however, that a
reasonable distance to travel is generally 25 miles from the place of injury, the work site or the
employee’s home. In determining what constitutes a reasonable travel distance, the Office must
consider the availability of medical services in appellant’s area, his condition and the means of
transportation.9 It found that he did not reasonably need to seek medical treatment in Fort
Myers, Florida, given the number of available specialists for his condition who practiced in his
commuting area of Macon, Georgia; it noted that appellant’s attending nurse had identified three
shoulder specialists who worked in the Macon metropolitan area. This is insufficient however,
to establish that he is unable to obtain competent and appropriate medical care within his
commuting area given the number of available specialists.10
7

See Wanda L. Campbell, 44 ECAB 633 (1993).

8

The Office indicated in its January 27, 2010 decision that appellant was reimbursed for travel expenses through
January 12, 2010.
9

W.M., supra note 5.

10

See Julia A. Strickland, 54 ECAB 649 (2003).

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The Office has broad discretion in considering whether to reimburse or authorize travel
expenses. As the only limitation on the Office’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 known facts.11 The
Board finds that the expenses appellant incurred for travel after March 2009 between his new
home in Macon, Georgia and Dr. Farmer’s office in Fort Myers, Florida, must be considered
personal to appellant and that the Office’s denial of appellant’s request for reimbursement was
reasonable.12 There was no evidence establishing that this travel was reasonable and necessary
in order to obtain medical treatment where there was no indication that competent and
appropriate medical care was not available within the commuting area of Macon, Georgia.13
The Office properly considered the factors enumerated in section 10.315 and denied
appellant’s request for authorization for travel expenses to see Dr. Farmer in Fort Myers, Florida.
It did not abuse its discretion by denying authorization of travel expenses after February 2009
between Macon, Georgia and Fort Myers, Florida.14
CONCLUSION
The Board finds that the Office did not abuse its discretion by denying appellant’s request
for reimbursement of travel expenses.

11

See William B. Webb, supra note 6.

12

Lecil E. Stevens, supra note 6.

13

See David Spearman, 49 ECAB 445 (1998).

14

The Board notes that the Office hearing representative did not address Dr. Farmer’s March 30, 2009 request for
authorization for additional right shoulder surgery, stating that the issues of reimbursement for medical treatment
and travel must be considered separately. This finding was in error. Section 8103 indicates that “the employee may
initially select a physician to provide medical services ... in accordance with such regulations and instructions as the
Secretary considers necessary, and may be furnished necessary and reasonable transportation and expenses incident
to the securing of such services.” (Emphasis added.) Thus in the event the Office approves Dr. Farmer’s request for
surgery, it is required by section 8103 to approve expenses incident to the surgery, including transportation
expenses.

6

ORDER
IT IS HEREBY ORDERED THAT the January 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Calexico, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-1298
Issued: December 1, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On June 14, 2016 appellant filed an application for review of a May 5, 2016 decision of
the Office of Workers’ Compensation Programs (OWCP), which denied appellant’s claim for an
emotional condition.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,1 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued. Following OWCP’s April 5,
2016 letter to appellant requesting additional evidence, including a detailed description of the
work incidents that contributed to her claimed emotional condition, appellant submitted
responsive factual and medical evidence. This responds to the April 5, 2016 OWCP
questionnaire. In a May 5, 2016 statement, appellant addressed the particular matters at the
employing establishment that gave rise to her claim. She also submitted medical reports from
Dr. Jorge F. Robles dated March 8 to April 20, 2016, who treated appellant for stress and
diagnosed anxiety disorder caused by harassment from her supervisors. These reports were
received by OWCP on May 5, 2016. In its May 5, 2016 decision, OWCP denied appellant’s
1

41 ECAB 548 (1990).

claim for an emotional condition as appellant had not established that the alleged events
occurred, noting that she had not responded to the April 5, 2016 development letter and
questionnaire. It noted receiving an April 20, 2016 report from Dr. Robles, but indicated that the
medical evidence submitted did not contain diagnoses. OWCP did not note receipt or
consideration of appellant’s response to OWCP’s questionnaire or medical reports from
Dr. Robles dated March 8 to 22, 2016.
The Board finds that OWCP, in its May 5, 2016 decision, did not review appellant’s
response to the questionnaire or the medical reports form Dr. Robles received on May 5, 2016.2
For this reason, the case will be remanded to OWCP to enable it to properly consider all the
evidence submitted at the time of the May 5, 2016 decision. Following such further
development as OWCP deems necessary, it shall issue an appropriate merit decision on the
claim.
IT IS HEREBY ORDERED THAT the May 5, 2016 decision of the Office of Workers’
Compensation Programs set aside. The case is remanded to OWCP for further proceedings
consistent with this order of the Board.
Issued: December 1, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

Supra note 1. See Linda Johnson, 45 ECAB 439 (1994) (where the case was remanded for consideration of the
evidence received the same day as the issuance of OWCP’s decision).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, WEST CARRIER
ANNEX, Miami, FL, Employer
__________________________________________

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Appearances:
Victor A. Walker, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1145
Issued: February 24, 2021

Case Submitted on the Record

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

JURISDICTION
On May 13, 2020 appellant, through her representative, filed a timely appeal from
March 17 and April 7, 2020 merit decisions 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.
ISSUES
The issues are: (1) whether appellant received an overpayment of wage-loss compensation
in the amount of $33,948.89 from June 1, 2017 through August 17, 2019 for which she was without
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.

fault because she concurrently received FECA wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits without an appropriate offset; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether it properly
required recovery of the overpayment by deducting $300.00 every 28 days from appellant’s
continuing compensation payments.
FACTUAL HISTORY
On January 18, 2012 appellant, then a 60-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 14, 2012 she injured her lower back and both legs
while in the performance of duty. She stopped work on January 14, 2002. OWCP accepted the
claim for lumbar sprain and displacement of an intervertebral disc without myelopathy at L3-4 and
L4-5. It paid appellant wage-loss compensation on the supplemental rolls effective February 29,
2012, and on the periodic rolls effective July 29, 2012.
In an EN1032 form signed June 13, 2018, appellant advised that she received benefits from
SSA as part of an annuity for federal service in the monthly amount of $1,886.00. In a June 21,
2019 EN1032, she indicated that she received $2,986.82 monthly from SSA for age-related
retirement benefits.
On July 31, 2019 SSA provided OWCP with a Federal Employees Retirement System
FERS/SSA dual benefit calculation worksheet setting forth appellant’s SSA rate with FERS and
without FERS from June 2017 through December 2018. The form indicated that, with FERS,
appellant was entitled to a monthly payment of $1,981.30, effective June 2017, $2,020.90,
effective December 2017, and $2,077.40, effective December 2018. Without her federal service
contributions, she was entitled to a monthly payment rate of $737.50, effective June 2017,
$752.20, effective December 2017, and $773.20, effective December 2018.
OWCP completed a FERS offset calculation form on September 9, 2019. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from June 1, 2017
through August 17, 2019. OWCP found that, effective June 1, 2017, the monthly offset was
$1,243.80 ($1,981.30-$737.50) or $1,148.12 every 28 days, effective December 1, 2017, the
monthly offset was $1,268.70 ($2,020.90-$752.20), or $1,171.11 every 28 days and, effective
December 1, 2018, the monthly offset was $1,304.20 ($2,077.40 - $773.20), or $1,203.88 every
28 days. It divided the 28-day offset amount to find the daily amount, which it multiplied by the
number of days in each period from June 1, 2017 through August 17, 2019 to find the amount that
it had overpaid appellant for each period. OWCP added the amounts for each period and
determined that it should have offset $33,948.89 from her wage-loss compensation.
In a preliminary overpayment determination dated September 16, 2019, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $33,948.89
because it had failed to reduce her wage-loss compensation benefits for the period June 1, 2017
through August 17, 2019 by the portion of her SSA benefits that were attributable to federal
service. It further advised her of its preliminary determination that she was without fault in
creating the overpayment of compensation. OWCP provided appellant with an overpayment
action request form and an overpayment recovery questionnaire (Form OWCP-20). Additionally,

2

it notified her that, within 30 days of the date of the letter, she could request a telephone conference,
a final decision based on the written evidence, or a prerecoupment hearing.
In a September 29, 2019 overpayment action request form, appellant requested a telephonic
prerecoupment hearing before a representative of OWCP’s Branch of Hearings and Review. She
requested waiver of recovery of the overpayment. In an accompanying OWCP-20 form, appellant
provided her monthly income as $5,837.90. She indicated that she and her spouse had a total of
$8,271.91 in cash, checking, and savings accounts. Appellant provided her monthly expenses as
$1,008.00 for housing, $800.00 for food, $300.00 for clothing, $411.39 for utilities, and $900.00
for other miscellaneous expenses.
Appellant submitted financial documentation verifying monthly expenses of $1,008.90 for
housing, $221.39 for telephone, $20.34 for water, $180.41 for electricity, $188.12 for cable,
$484.05 for a car loan, $48.09 for satellite radio, $70.99 for internet service, $99.00 for pest
control, and $69.94 for automobile insurance. She provided documentation showing minimum
monthly credit card expenses totaling $1,475.50.
A telephonic prerecoupment hearing was held on February 11, 2020. Appellant’s
representative advised that she received a different monthly amount from SSA than the amount
provided to OWCP and questioned whether the amount included the Medicare deduction. He
indicated that he was resubmitting some supporting financial documentation and had itemized her
monthly income and expenses. Appellant’s representative asserted that appellant’s monthly food
expense was high because of dietary restrictions.
Appellant’s representative submitted figures showing her total monthly income as
$5,830.44. He indicated that she had monthly expenses of $1,008.95 for housing, $210.00 for
telephone, $200.00 for electricity, $120.00 for lawn care, $25.00 for water and sewer, $188.12 for
cable, $74.99 for internet, and $33.00 for pest control, which he added to find housing expenses
of $1,860.06. Appellant also paid $484.05 for one car payment, $232.59 for vehicle insurance,
$7.50 for car registrations, $228.00 for two extended car warranties, $33.33 for maintenance, and
$48.09 for satellite radio, for total car expenses of $1,033.56. She further listed monthly credit
and loan expenses totaling $1,394.66. Appellant provided monthly life insurance expenses of
$181.66 and food expenses of $800.00. She further indicated that she paid $286.32 for pet
expenses, $39.00 for medical expenses, $60.00 for hair and nail expenses, and $135.00 for
clothing. Appellant totaled her monthly expenses as $5,790.26 and subtracted this amount from
her monthly income to find a difference of $40.18 in income over expenses monthly.
Appellant submitted supporting financial documentation showing minimum monthly credit
card expenses totaling $160.87. She also submitted documentation supporting her expenses for
auto insurance, mortgage, and water.
By decision dated March 17, 2020, OWCP’s hearing representative finalized the finding
that appellant had received a $33,948.89 overpayment of compensation for the period June 1, 2017
through August 17, 2019 because she received wage-loss compensation and age-related SSA
benefits without the appropriate offset. She found that appellant was without fault in the creation
of the overpayment, but denied waiver of recovery of the overpayment as her monthly income
exceeded her monthly expenses by more than the allotted amount. The hearing representative

3

required recovery of the overpayment by deducting $300.00 every 28 days from appellant’s
continuing compensation benefits.
By decision dated April 7, 2020, OWCP finalized the finding that appellant had received a
$33,948.89 overpayment of compensation from June 1, 2017 through August 17, 2019 because
she had received wage-loss compensation and SSA retirement benefits without the appropriate
offset. It found that she was without fault in the creation of the overpayment, but was not entitled
to wavier of recovery of the overpayment, noting that OWCP’s hearing representative had found
that she had documented monthly income of $5,837.90 and monthly expenses of $3,811.48.
OWCP noted that, as found by OWCP’s hearing representative, it would recover the overpayment
by deducting $300.00 from appellant’s continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.3 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.5 FECA Bulletin No. 97-09 states that FECA benefits have to be
adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned as a
federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.6
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received a $33,948.89
overpayment of compensation for the period June 1, 2017 through August 17, 2019 because she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits
without an appropriate offset.
OWCP paid appellant wage-loss compensation for total disability beginning
February 29, 2012. Effective June 1, 2017, appellant received SSA age-related retirement
benefits. In an EN1032 signed June 13, 2018, she advised that she received benefits from SSA as
part of an annuity for federal service. As noted, a claimant cannot receive compensation for wage-

3

Id. at § 8102

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

6

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

4

loss compensation and SSA retirement benefits attributable to federal service for the same period.7
The information provided by SSA indicated that a portion of appellant’s SSA age-related
retirement benefits were attributable to her federal service. As OWCP neglected to offset her
FECA benefits for the period June 1, 2017 through August 17, 2019, she received an overpayment
of wage-loss compensation.8
Based on the rates provided by SSA, OWCP calculated the overpayment of compensation
by determining the portion of SSA benefits that were attributable to appellant’s federal service.
SSA provided appellant’s SSA rate with FERS and without FERS beginning June 1, 2017.9
OWCP provided its calculations of the amount that it should have offset for each relevant period
based on the SSA worksheet. The Board has reviewed OWCP’s calculations and finds that it
properly determined that appellant received prohibited dual benefits totaling $33,948.89, creating
an overpayment of compensation in that amount.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”11
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.12 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.13 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
7

Id.; A.C., Docket No. 18-1550 (issued February 21, 2019).

8

Id.

9

SSA’s worksheet provided applicable rates, effective the following dates: June 1 and December 1, 2017, and
December 1, 2018.
10

A.S., Docket No. 19-0171 (issued June 12, 2019).

11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Determinations, Chapter 6.400.4a(3) (September 2018). OWCP’s procedures further provide that assets must not
exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent, plus
$1,200.00 for each additional dependent. Id. at Chapter 6.400.4a(2).
13
Id. at Chapter 6.400.4(a)(3); C.B., Docket No. 20-0031 (issued July 27, 2020); N.J., Docket No. 19-1170 (issued
January 10, 2020).

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spouse or dependent plus $1,200.00 for each additional dependent.14 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.15
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.16
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.18
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown that she needs substantially all of her current income to meet
ordinary and necessary living expenses.
Appellant has monthly income of $5,837.90. Subsequent to the hearing, she advised that
her monthly expenses for housing, electricity, telephone, lawn care, water, cable, internet, and pest
control totaled $1,860.06. Appellant provided vehicle expenses of $1,033.56, including $48.09
for satellite radio. She listed monthly credit expenses of $1,394.66, food expenses of $800.00, life
insurance expenses of $181.66, medical expenses of $39.00, hair and nail expenses of $60.00,
$286.32 for pet expenses, and clothing expenses of $135.00, for total monthly expenses of
$5,790.26. Excluding the monthly expenses of $48.09 for satellite radio and $286.32 for pet care,
which are not considered ordinary and necessary expenses, yields $382.05 in monthly income over
expenses.19 As appellant’s current income exceeds her current ordinary and necessary living
14

Id. at Chapter 6.400.4(a)(2).

15

Id. at Chapter 6.400.4(b)(3).

16

20 C.F.R. § 10.437(a)(b).

17

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

18

See J.R., Docket No. 17-0181 (issued August 12, 2020); L.S., 59 ECAB 350 (2008).

19

Supra note 12 at Chapter 6.400.4(b)(2). See G.W., Docket No. 12-1171 (issued October 25, 2012);

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expenses by more than $50.00, she has not shown that she needs substantially all of her current
income to meet current ordinary and necessary living expenses.20 Thus, she has not established
that recovery of the overpayment would defeat the purpose of FECA.
Appellant also has not established that recovery of the overpayment would be against
equity and good conscience. She has not submitted evidence to substantiate that she would
experience severe financial hardship in attempting to repay the debt, or that in reliance on the
overpayment she gave up a valuable right, or changed her position for the worse. Therefore,
OWCP properly found that recovery of the overpayment would not defeat the purpose of FECA
or be against equity and good conscience.21
On appeal appellant’s representative contends that OWCP’s hearing representative erred
in failing to rely only on the financial information submitted after the hearing in considering waiver
of recovery of the overpayment. As noted, however, as appellant’s monthly income exceeds her
monthly expenses by more than $50.00, she is not entitled to waiver of recovery of the
overpayment.
As appellant has not established that recovery of the overpayment would defeat the purpose
of FECA or be against equity and good conscience, OWCP properly denied waiver of recovery of
the $33,948.89 overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.22
Section 10.441 of OWCP’s regulations23 provides that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.24
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$300.00 every 28 days from appellant’s continuing compensation payments.

20

See J.B., Docket No. 19-1734 (issued November 5, 2020).

21

20 C.F.R. § 10.437(a)(b). See J.R., Docket No. 20-0436 (issued October 19, 2020).

22

Id. at § 10.441. See M.P., Docket No. 18-0902 (issued October 16, 2018).

23

Id. at § 10.441(a).

24

Id.; see L.G., Docket No. 19-1274 (issued July 10, 2020).

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Appellant’s monthly income exceeds her monthly expenses by more than $300.00 per
month. In setting the rate of recovery, OWCP gave due regard to the factors set forth in section
10.441. The Board, thus, finds that OWCP properly required recovery of the overpayment by
deducting $300.00 from appellant’s compensation payments, every 28 days.25
CONCLUSION
The Board finds that appellant received an overpayment of wage-loss compensation in the
amount of $33,948.89 from June 1, 2017 through August 17, 2019 for which she was without fault,
because she concurrently received FECA wage-loss compensation and SSA age-related retirement
benefits without an appropriate offset. The Board further finds that OWCP properly denied waiver
of recovery of the overpayment and properly required recovery of the overpayment by deducting
$300.00 every 28 days from appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the April 7 and March 17, 2020 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 24, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

25

See R.L., Docket No. 20-0186 (issued September 14, 2020); J.B. supra note 20.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTERS FOR MEDICARE &
MEDICAID SERVICES, Woodlawn, MD,
Employer
__________________________________________

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

Docket No. 08-1580
Issued: December 24, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 12, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ March 25, 2008 merit decision denying her claim. 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 established that she sustained an injury in the performance
of duty on September 21, 2006, as alleged.
FACTUAL HISTORY
On November 2, 2006 appellant, then a 37-year-old information technology specialist,
filed a traumatic injury claim (Form CA-1) alleging that on September 21, 2006 she injured her
back while moving heavy books from her desk to her file cabinet. She did not notice any pain
until she woke up the next morning.

On October 5, 2006 appellant sought medical treatment from Dr. Pankaj Desai, a Boardcertified internist, who reported that appellant presented with sharp and intense lower back pain,
radiating slightly into her right thigh, beginning approximately 10 days prior. Physical
examination showed a mild paraspinal muscle spasm, tenderness over the sciatic notch and pain
in the paraspinous muscles of the lumbar spine. Dr. Desai diagnosed back pain and sciatica. He
returned appellant to light-duty work on October 9, 2006, recommending two to three hours per
day for the following two weeks.
Dr. Desai referred appellant to physical therapy, where she was treated for leg and back
pain. Appellant submitted physical therapy notes dated October 10 through November 21, 2006,
reflecting her history that she injured herself while lifting heavy books at work. Dr. Desai again
examined appellant on November 27, 2006. He advised that appellant had a history of lower
back pain related to moving heavy boxes at work. Dr. Desai restricted appellant’s bending,
stooping, lifting, pushing, and pulling and recommended a magnetic resonance imaging (MRI)
scan. An MRI scan dated December 13, 2006 showed displacement of the lumbar invertebral
disc without myelopathy and Tarlov’s cysts on her right side. On December 19, 2006 Dr. Desai
diagnosed impingement of the nerve at the fourth lumbar vertebrae and bilateral canal stenosis.
In an attending physician’s report dated December 19, 2006, Dr. Desai stated that
appellant suffered a herniated lumbar disc. As to whether he believed the condition was caused
or aggravated by employment activity, he checked the box marked “yes.” Dr. Desai advised that
appellant should take time off from work to rest and relieve her pain and not stand for longer
than 30 minutes or sit continuously for longer than one hour.
On February 11, 2008 appellant filed a claim for compensation (Form CA-7) for the
period October 1, 2006 through January 6, 2007.
In correspondence dated February 14, 2008, the Office informed appellant that the
medical evidence was insufficient to establish her claim and provided 30 days for the submission
of additional evidence.
Appellant subsequently submitted a personal narrative and a letter from Dr. Desai, each
dated February 25, 2008. She described the alleged employment incident, explained that she
attempted to self-treat her back pain for two weeks prior to seeking medical treatment and
indicated that she did not have any symptoms prior to the her injury. Dr. Desai stated that
appellant sustained an injury to her back around September 21, 2006 while lifting and moving
heavy books and computer equipment. He summarized her treatment and MRI scan results,
stating that, in his opinion, her back pain was caused by lifting heavy books and computer
equipment while organizing her cubical.
In a decision dated March 25, 2008, the Office denied appellant’s traumatic injury claim.
It accepted that on September 21, 2006 she moved books at work; however, it found that she did
not submit sufficient medical evidence to establish an injury related to this employment incident.

2

LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4 The employee must
also establish that she sustained an injury in the performance of duty as alleged and that her
disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment incident. The opinion of the physician must be based on a complete
factual and medical background of the employee, 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

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

7

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
8

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

3

ANALYSIS
The Office accepted that on September 21, 2006 appellant was lifting heavy books at
work, as alleged. The issue, therefore, is whether she submitted sufficient medical evidence to
establish that her claimed back injury was caused by the employment incident.
The Board finds the medical evidence insufficient to establish that appellant sustained
injury on September 21, 2006. Appellant submitted a statement attributing her injury to lifting
heavy books at work. However, her statement is insufficient to establish causation. The fact that
appellant believes her condition was caused by employment is not sufficient to meet the
causation burden of proof.9 Meeting this burden of proof requires a physician’s opinion
explaining the nature of the relationship between the diagnosed condition and the accepted
employment incident.10
Appellant submitted medical reports from Dr. Desai, a Board-certified internist. On
November 27, 2006 Dr. Desai noted appellant’s history that she was injured while moving heavy
boxes at work. Based on MRI scan results, on December 19, 2006 he diagnosed nerve
impingement and bilateral canal stenosis. In a February 28, 2008 letter, Dr. Desai attributed
appellant’s back injury to the lifting of heavy books at work on September 21, 2006. While he
related appellant’s injury to her accepted employment incident, this is not enough to meet
appellant’s burden of proof. A physician’s opinion on the causal relationship between a
claimant’s injury and an employment incident is not dispositive simply because it is rendered by
a physician. To be of probative value, Dr. Desai must provide rationale for his opinion on causal
relation.11 He did not explain how appellant’s diagnosed nerve impingement and stenosis were
caused or contributed to by her moving heavy books at work. As noted, the incident at work
occurred on September 21, 2006. On examination some two weeks later, Dr. Desai noted mild
muscle spasms of the lumbar spine and returned appellant to duty on October 9, 2006. An MRI
scan of December 13, 2006 revealed a displaced lumbar disc and the physician subsequently
diagnosed spinal stenosis with impingement. Dr. Desai related the herniated disc to the incident
at work by checking a box marked “yes” on a form. The Board has held that when a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, without
supporting medical rationale, that opinion has little probative value and is insufficient to
establish a causal relationship.12 Dr. Desai did not submit a medical narrative report explaining
how the accepted incident caused or aggravated her back conditions. He did not provide a full
history of any preexisting condition or address how the MRI scan findings related to the lifting

9

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

10

See Robert Broome, 55 ECAB 339 (2004); Linda I. Sprague, 28 ECAB 386 (1997).

11

See Jean Culliton, 47 ECAB 728 (1996); Lucrecia M. Nielsen, 42 ECAB 583 (1991).

12

See Lucrecia M. Nielson, 42 ECAB 583, 594 (1991).

4

incident some three months prior.13 For these reasons, the Board finds that the opinion of
Dr. Desai is of reduced probative value.
Appellant also submitted several physical therapy reports pertaining to her treatment. A
physical therapist is not a “physician” as defined under 5 U.S.C. § 8101(2). Therefore these
reports are of no probative value.14
CONCLUSION
The Board finds that appellant has not established that she sustained an injury in the
performance of duty on September 21, 2006, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 25, 2008 is affirmed.15
Issued: December 24, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See Linda L. Mendenhall, 41 ECAB 532 (1990) (the Board has held that when diagnostic testing is delayed
uncertainty arises regarding the cause of the diagnosed condition and may reduce the probative value of a medical
opinion if not explained).
14

A “physician” includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101.2. See
Thomas R. Horsfall, 48 ECAB 180 (1996); Jerre R. Rinehart, 45 ECAB 518 (1994).
15

The Board notes following the issue of the Office’s March 25, 2008 decision appellant submitted additional
evidence. Pursuant to 20 C.F.R. § 501.2(c), the Board is precluded from reviewing evidence for the first time on
appeal. However, appellant may submit evidence to the Office with a formal, written request for reconsideration
under 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
U.S. POSTAL SERVICE, HATO REY
STATION, San Juan, PR, Employer
__________________________________________

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Appearances:
Richard Schell-Asad, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1771
Issued: May 29, 2019

Case Submitted on the Record

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

JURISDICTION
On September 19, 2018 appellant, through counsel, filed a timely appeal from a June 15,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to 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.

Federal Employees’ Compensation Act3 (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 his burden of proof to establish total disability
commencing January 1, 2014 causally related to his accepted employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On July 23, 2009 appellant, then a 44-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that he sustained severe anxiety causally related
to factors of his federal employment. He stopped work on July 8, 2009.
On November 17, 2009 appellant filed a claim for compensation (Form CA-7) for wage
loss commencing October 24, 2009.
By decision dated January 8, 2010, OWCP denied appellant’s emotional condition claim,
finding that he had not met his burden of proof to establish a compensable employment factor. On
January 15, 2010 appellant requested an oral hearing before an OWCP hearing representative.
Following a May 5, 2010 oral hearing, by decision dated July 20, 2010, OWCP’s hearing
representative affirmed the January 8, 2010 decision.
Appellant appealed to the Board. By decision dated July 20, 2011, the Board set aside the
July 20, 2010 hearing decision, finding that he had not established harassment, discrimination,
overwork, or error by the employing establishment in issuing disciplinary action, reassigning him,
or failing to provide reasonable accommodation. The Board found, however, that appellant had
established as a compensable factor of employment that on July 14, 2008 a customer had died in
the parking lot of the employing establishment after an accident and that his supervisor had
instructed him to manage traffic in the parking lot after the customer’s death. The Board remanded
the case for OWCP to review the medical evidence and determine whether he had established an
emotional condition causally related to the compensable employment factor.
In a report dated June 25, 2012, Dr. Fernando J. Cabrera, Jr., a Board-certified psychiatrist,
diagnosed panic disorder aggravated by the events of July 2008. He attributed the aggravation of
appellant’s condition to difficulties with coworkers, coping with his son’s death, and the
customer’s death at the employing establishment. Dr. Cabrera diagnosed post-traumatic stress
disorder (PTSD), recurrent major depression, and recurrent panic disorder, all of which were in

3

5 U.S.C. § 8101 et seq.

4

Docket No. 15-0243 (issued April 26, 2016); Docket No. 10-2159 (issued July 20, 2011).

2

partial remission. He opined that the death of the customer on July 14, 2008 caused appellant’s
PTSD and determined that appellant was totally disabled from work.
In a report dated September 25, 2012, Dr. Jose Rios-Robles, a Board-certified psychiatrist
and internist and OWCP’s second opinion physician, discussed appellant’s history of PTSD and
trauma after his son was killed and he witnessed a person killed at work. He diagnosed PTSD, in
remission. Dr. Rios-Robles opined that appellant had no current disability from a psychological
standpoint, but might benefit from continued treatment.
Based on Dr. Rios-Robles’ report, OWCP accepted a temporary aggravation of PTSD that
had resolved no later than September 25, 2012.
By decision dated November 16, 2012, OWCP terminated appellant’s compensation,
effective that date, finding that the opinion of Dr. Rios-Robles constituted the weight of the
evidence and established that he had no further disability due to his accepted employment injury.
On December 4, 2012 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
Following a preliminary review, by decision dated March 5, 2013, OWCP’s hearing
representative vacated the November 16, 2012 decision. He found that a conflict existed between
Dr. Cabrera and Dr. Rios-Robles regarding whether appellant had continued employment-related
PTSD and disability and instructed OWCP to refer him for an impartial medical examination to
resolve the conflict.
OWCP referred appellant to Dr. Rafael Perez-Espejo, a Board-certified psychiatrist, for an
impartial medical examination.
In a report dated December 13, 2013, Dr. Perez-Espejo found that appellant’s symptoms
were consistent with major depression and PTSD and that he also had borderline and histrionic
traits. He opined that appellant had exaggerated his symptoms for secondary gain. Dr. PerezEspejo noted that with medication appellant did not have nightmares or flashbacks, and opined
that the temporary aggravation of his PTSD had resolved. He found that appellant was disabled
from his usual employment. Dr. Perez-Espejo related, “In view of how heavily medicated he is
and his alleged need to continue these medications -- or else his symptoms rapidly resurface -- he
would be unable to perform those duties.”
By decision dated September 23, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date. It found that Dr. Perez-Espejo’s opinion
constituted the special weight of the evidence and established that he had no further residuals of
his accepted employment injury.
Appellant appealed to the Board. By decision dated April 26, 2016, the Board reversed
OWCP’s September 23, 2014 termination decision. The Board found that OWCP had improperly
characterized the issue as a termination of both wage-loss compensation and medical benefits as it
was not, at that time, paying appellant wage-loss compensation. The Board remanded the case for
OWCP to adjudicate his claim for wage-loss compensation beginning October 24, 2009, noting
that Dr. Perez-Espejo had not addressed the issue. The Board further found that the opinion of
3

Dr. Perez-Espejo was insufficient to meet OWCP’s burden of proof to terminate appellant’s
authorization for medical treatment as he had not explained whether appellant had no further
symptoms of his temporary aggravation of PTSD because he was adequately medicated or because
his condition had resolved.
OWCP reopened appellant’s claim for medical benefits. It determined that a conflict
existed between Dr. Cabrera and Dr. Perez-Espejo regarding whether appellant was disabled from
employment beginning October 24, 2009 and whether he required further medical treatment.
OWCP referred appellant to Dr. Allen Singer, a Board-certified psychiatrist, for an impartial
medical examination.
On April 4, 2017 counsel questioned the scope of Dr. Singer’s examination, given that the
Board had determined that Dr. Perez-Espejo had not addressed disability after October 24, 2009.
In a report dated April 22, 2017, Dr. Singer reviewed appellant’s work history, including
managing a parking lot in July 2008 after a vehicular homicide. He noted that appellant had begun
taking the medication Seroquel after a transfer to another work location, which eased his
symptoms, but caused disability from employment. Dr. Singer advised that appellant believed that
his current condition resulted from unfair treatment by the employing establishment, and that he
could work if he relocated and continued to receive medication. He diagnosed PTSD largely in
remission and related, “It is not clear if the accepted temporary aggravation of PTSD is in
remission or has resolved or if it is adequately treated….” Dr. Singer found that appellant had
limited residual symptoms, but they would not prevent him from resuming work, especially if
provided with reasonable accommodations. He opined that, based on his review of the evidence,
his employment-related disability had resolved by 2014. Dr. Singer related:
“Based on the accepted events that are [f]actors of [e]mployment, [appellant] is
currently capable of performing his regular work duties with reasonable
accommodations. The particular aspects that are potentially problematic are
limited to his sleep disorder and his sensitivity to environmental stimuli that remind
him of the PTSD/accepted event that was a factor of employment.”
Dr. Singer opined that appellant should work in a location that was close to home, that was
different from the location where the customer had died, and that did not involve night hours.
By letter dated June 7, 2017, OWCP requested that Dr. Singer clarify whether appellant
was disabled from work due to employment factors beginning July 7, 2009 and discuss any
accommodations required for a return to work.
In an addendum dated June 20, 2017, Dr. Singer opined that appellant was disabled due to
compensable employment factors until 2014. He found that he had no employment-related
disability after 2014, noting that both Dr. Perez-Espejo and Dr. Robles found that his PTSD was
“significantly ameliorated by that time.” Dr. Singer indicated that the required accommodations
would not impair his ability to perform his date-of-injury position and related, “With these
accommodations, he is not disabled based on symptoms associated with accepted medical facts.”
In a work capacity evaluation (Form OWCP-5c) dated June 26, 2017, he found that appellant could
work eight hours per day in his usual job with accommodations of an alternative location, work

4

hours not interfering with sleep, and possible vocational rehabilitation. Dr. Singer related that
appellant could work as a customer service supervisor “with reasonable accommodations for sleep
[and] location/supervision.”
On June 14, 2018 OWCP paid appellant wage-loss compensation on the supplemental rolls
for the period October 24, 2009 through December 31, 2013.
By decision dated June 15, 2018, OWCP found that appellant had not established
employment-related disability commencing January 1, 2014. It determined that the opinion of
Dr. Singer constituted the special weight of the evidence and established that he had been disabled
from work from July 7, 2009 through 2013 due to his employment injury.
On appeal counsel asserts that Dr. Singer found that appellant had continued residuals of
his PTSD, noting that he diagnosed PTSD in partial remission.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.6 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.7 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.8
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.9 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.10 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages that he or she was receiving
at the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.11 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.12

5

Supra note 3.

6

See T.A., Docket No. 18-0431 (issued November 7, 2018).

7

M.C., Docket No. 18-0919 (issued October 18, 2018).

8

See K.C., Docket No. 17-1612 (issued October 16, 2018).

9

20 C.F.R. § 10.5(f); S.T., Docket No. 18-0412 (issued October 22, 2018).

10

See L.W., Docket No. 17-1685 (issued October 9, 2018).

11

See D.G., Docket No. 18-0597 (issued October 3, 2018).

12

See D.R., Docket No. 18-0232 (issued October 2, 2018).

5

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.13 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.14
ANALYSIS
The Board finds that the case is not in posture for decision.
Initially, the Board notes that OWCP referred appellant to Dr. Singer for an impartial
medical examination after finding a conflict existed between Dr. Cabrera and Dr. Perez-Espejo
regarding whether appellant was disabled from employment beginning October 24, 2009. In its
April 26, 2016 decision, however, the Board determined that Dr. Perez-Espejo had not addressed
the issue of disability beginning 2009. Thus, at the time of OWCP’s referral of appellant to
Dr. Signer, there was no conflict in medical opinion on the issue of disability. Consequently, the
opinion of Dr. Singer is that of a second opinion physician on this issue.15
On April 22, 2017 Dr. Singer diagnosed PTSD, mainly in remission. He found that
appellant had no further employment-related disability after 2014. Dr. Singer opined that appellant
could return to work at a location near his residence that was different from the one where he had
worked when the customer died in the parking lot and with hours that did not interfere with his
sleep. In an addendum dated June 20, 2017, he opined that appellant was disabled until 2014.
Dr. Singer found that after 2014 appellant’s symptoms of PTSD had lessened such that he could
resume his usual employment at an alternate location with work hours that did not interfere with
his sleep schedule. In a work capacity evaluation (Form OWCP-5c) dated June 26, 2017, he
indicated that appellant could work as a customer service supervisor “with reasonable
accommodations for sleep [and] location/supervision.”
OWCP found that appellant had not established employment-related disability
commencing on January 1, 2014 based on the opinion of Dr. Singer. However, Dr. Singer’s
opinion supports that appellant had continued restrictions due to his accepted employment injury.
He found that appellant could only work in a location different from that where the compensable
employment factor occurred, and further indicated that he required a location close to his home
with hours that allowed him to maintain his sleep schedule.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter.16 Once OWCP undertakes development of the case record, it must do a complete job in
procuring evidence that will resolve the relevant issues in the case.17 On remand, OWCP should
13

A.D., Docket No. 17-1984 (issued March 19, 2018).

14

20 C.F.R. § 10.121.

15

See S.D., Docket No. 17-0272 (issued April 25, 2017); T.P., Docket No. 16-0718 (issued August 1, 2016).

16

B.B., Docket No. 18-1321 (issued April 5, 2019).

17

T.L., Docket No. 17-1391 (issued July l3, 2018).

6

obtain clarification from Dr. Singer regarding appellant’s disability status commencing January 1,
2014 given his findings that he had continued employment-related limitations.18 After such further
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 29, 2019
Washington, DC

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

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

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

18

J.W., Docket No. 17-0715 (issued May 29, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Jamaica, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1815
Issued: April 7, 2011

Case Submitted on the Record

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

JURISDICTION
On July 1, 2010 appellant, through his attorney, filed a timely appeal from a May 20,
2010 nonmerit decision of the Office of Workers’ Compensation Programs denying his request
for reconsideration. As the last merit decision dated December 15, 2009 was issued more than
180 days before the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case pursuant to 20 C.F.R. §§ 501.2(c). Pursuant to the Federal Employees’ Compensation Act1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the May 20, 2010 nonmerit
decision.
ISSUE
The issue is whether the Office properly denied appellant’s request to reopen his claim
for further review of the merits under 5 U.S.C. § 8128.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 4, 2008 appellant, then a 51-year-old supervisory transportation security officer,
filed a claim alleging that on June 1, 2008 he experienced pain in his left leg and knee while
moving baggage. The Office accepted the claim for a tear of the medial meniscus of the left
knee. It paid him compensation beginning July 23, 2008.
By decision dated December 15, 2009, the Office terminated appellant’s entitlement to
compensation effective December 20, 2009 on the grounds that he refused an offer of suitable
work. It noted that it had previously considered a statement he submitted on July 20, 2009 in
which he explained that he could not perform the offered position as he could not travel to his
worksite or adequately navigate at work while performing his duties. The Office found that the
employing establishment had sufficiently responded to appellant’s arguments and thus
determined that he had not provided an acceptable reason for refusing the offered position. It
further found that the medical evidence established that the position was within the restrictions
agreed to by both the second opinion examiner and his attending physician.
On January 12, 2010 appellant, through his attorney, requested reconsideration. Counsel
argued that the medical evidence showed that he was unable to perform the duties of the position
“including the commuting requirements associated therewith.” (Emphasis in the original). He
asserted that the inability to commute to work constituted an acceptable reason for refusing a
position according to the Office’s procedures. Counsel resubmitted appellant’s undated
statement previously received by the Office on July 20, 2009 that explained why he could not
accept the limited-duty position.
By decision dated May 20, 2010, the Office denied appellant’s request for
reconsideration after finding that the evidence and arguments submitted on reconsideration were
repetitive and insufficient to warrant reopening the case for merit review. It determined that it
had already considered the statement appellant submitted with his request for reconsideration.
The Office further found that it had previously considered the argument raised by appellant’s
attorney that he was unable to perform the duties of the position or commute to the job.
On appeal appellant’s attorney generally contends that the Office improperly terminated
appellant’s compensation as the position offered by the employing establishment was not
suitable. He asserts that the Office’s decision on reconsideration did not negate the evidence
contained in his reconsideration request.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the 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

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.”

2

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
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.6 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.7
ANALYSIS
The Office accepted that appellant sustained a tear of the medial meniscus of the left knee
on June 1, 2008 in the performance of duty. He received compensation for total disability
beginning July 23, 2008. By decision dated December 15, 2009, the Office terminated
appellant’s compensation effective December 20, 2009 after finding that he refused an offer of
suitable work under section 8106. On June 12, 2010 appellant requested reconsideration.
The Board does not have jurisdiction over the December 15, 2009 Office decision. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(2) requiring the Office to reopen the case for review of the merits of the claim. In
the June 12, 2010 request for reconsideration, his attorney argued that he was unable to perform
the duties of the position and could not commute to or around his workstation. Counsel noted
that an inability to commute was an acceptable reason for refusing suitable work according to
Office procedures. The Office, however, previously considered appellant’s allegation that he
could not commute to or around the work location but found that the employing establishment
had adequately addressed his allegations. It concluded that he had not established an acceptable
reason for refusing suitable work. In its termination of his compensation for refusing suitable
work, the Office also weighed the medical evidence and found that it established that he could
perform the duties of the position. On reconsideration appellant’s attorney generally alleged that
the Office did not follow its procedures but did not identify a specific legal error committed by
the Office in finding that he had not provided acceptable reasons for refusing the position.
Evidence or argument which repeats or duplicates evidence already in the case record has no
evidentiary value and does not constitute a basis for reopening a case.8 Consequently, appellant
has failed to identify a specific point of law erroneously applied or interpreted or advance a new
and relevant legal argument.
3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

7

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

8

Richard Yadron, 57 ECAB 207 (2005).

3

A claimant may also be entitled to merit review by submitting pertinent new and relevant
evidence. Appellant, through his attorney, submitted an undated statement that duplicated a
statement previously received by the Office on July 20, 2009. As this statement duplicated
evidence already in the case record and considered by the Office prior to terminating his
compensation for refusing suitable work, it does not constitute a basis for reopening the case.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). On appeal appellant’s attorney generally contends that the job offered by
the employing establishment was not suitable. He does not, however, identify any specific error
of law by the Office in its decision. Counsel also maintains that the Office failed to negate his
arguments. He has the burden, however, to establish that the case should be reopened for further
consideration of the merits by showing that the Office erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered, or submit
relevant and pertinent evidence not previously considered. As he failed to submit evidence of
argument that meets this standard, pursuant to 20 C.F.R. § 10.608, the Office properly denied
merit review.
CONCLUSION
The Board finds that the Office properly denied appellant’s request to reopen his claim
for further review of the merits under section 8128.

9

D.K., 59 ECAB 151 (2007); Mary A. Ceglia, 55 ECAB 626 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 20, 2010 is affirmed.
Issued: April 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5