United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

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

Docket No. 08-917
Issued: August 19, 2009

Case Submitted on the Record

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

JURISDICTION
On February 7, 2008 appellant filed a timely appeal from a January 24, 2008 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration as it was untimely and did not establish clear evidence of error. As there is no
merit decision within one year of the filing of this appeal, the Board lacks jurisdiction to review
the merits of this case.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the January 24, 2008 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On September 24, 1994 appellant, then a 45-year-old mail handler, filed a claim for an
injury to his left ankle and low back occurring on that date in the performance of duty. The
1

20 C.F.R. §§ 501.2(c), 501.3.

Office accepted the claim, assigned file number xxxxxx440, for muscle spasms of the back. It
paid him compensation for lost premium pay from October 5, 1994 to February 25, 1995.
Appellant had previously sustained a low back injury on October 20, 1985, assigned file number
xxxxxx946.2 The Office combined all accepted claims into master file number xxxxxx946.
On August 12, 1999 appellant filed a recurrence of disability claim on December 19,
1997 due to his September 24, 1994 work injury. He indicated that he was “permanently
unemployable” beginning December 19, 1997.
By decision dated December 10, 1999, the Office found that appellant failed to establish
a recurrence of disability as of December 19, 1997 as the medical evidence did not establish that
his current condition and disability were causally related to his September 24, 1994 employment
injury.
In a decision dated September 6, 2000, a hearing representative affirmed the
December 10, 1999 decision. By decision dated February 21, 2000, a hearing representative
modified the September 6, 2000 decision to consider additional evidence and again affirmed the
September 6, 2000 decision.
In a decision dated July 30, 2001, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was immaterial and thus insufficient
to warrant reopening the case for merit review. On November 23, 2001 it denied modification of
its prior merit decision. By decision dated April 11, 2002, the Office denied appellant’s request
to reopen his case for further merit review. In a decision dated March 27, 2003, it again denied
modification of its November 23, 2001 decision.
On November 1, 2007 appellant again requested reconsideration. He contended that both
the witness statements and the medical evidence supported that he was unable to perform his
work duties since the time of his work injury on September 24, 1994. Appellant asserted that he
worked until December 19, 1997 in the union office performing no duties. The employing
establishment forced him to retire on December 19, 1997. Appellant obtained disability from the
Social Security Administration which he maintained established that he was unable to work.
With his request for reconsideration, appellant submitted evidence relevant to a thirdparty recovery. He also resubmitted witness statements already of record and numerous medical
reports from his attending physicians, including Dr. Sam Nawfel, an osteopath; Dr. John Pier, a
Board-certified physiatrist; and Dr. Stephen D. Rioux, a Board-certified neurologist. Appellant
further submitted a report dated September 6, 2007 from Dr. Laun R. Hallstrom, a Boardcertified physiatrist, who described the September 24, 1994 work injury. Dr. Hallstrom related
that his office treated appellant beginning August 2005 for fibromyalgia, cervical region pain and
lateral epicondylitis. He found that appellant continued to have work restrictions due to his
employment injury and was “unable to return to his time-of-injury job at the [employing
establishment].”
By decision dated January 24, 2008, the Office denied appellant’s request for
reconsideration on the grounds that it was untimely and did not establish clear evidence of error.
2

He also experienced work injuries in 1989.

2

LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a) of the Federal Employees’ Compensation Act.3
As once such limitations, 20 C.F.R. § 10.607, provides that an application for reconsideration
must be sent within one year of the date of the Office decision for which review is sought. The
Office will consider an untimely application only if the application demonstrates clear evidence
on the part of the Office in its most recent merit decision. The application must establish, on its
face, that such decision was erroneous.4
The term ‘clear evidence of error’ is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized medical report which, if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the Director’s own motion.5 To establish clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
the Office. The evidence must be positive, precise and explicit and must manifest on its face that
the Office committed an error.6
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.7 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.8 As appellant’s
November 1, 2007 request for reconsideration was submitted more than one year after the last
merit decision on March 27, 2003, it was untimely. Consequently, he must demonstrate clear
evidence of error by the Office in denying his claim for compensation.9
In his November 1, 2007 reconsideration request, appellant asserted that the statements
from his coworkers and supervisors established that he was disabled from employment. The
witness statements, however, are not relevant to the underlying issue of whether he sustained a

3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.607.

5

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

6

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
7

20 C.F.R. § 10.607(a).

8

Robert F. Stone, supra note 6.

9

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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recurrence of disability beginning December 19, 1997. As this issue is medical in nature, it can
only be resolved through the submission of medical evidence.10
Appellant submitted numerous medical reports which the Office had previously
determined to be insufficient to establish employment-related disability beginning
December 19, 1997. As this evidence duplicated evidence already of record, it is insufficient to
establish clear evidence of error absent showing the Office erred in its evaluation of the
evidence.11 Appellant generally alleged that the previously submitted medical reports
established that he was disabled but did not make any specific argument describing how he
believed that the Office erred in its evaluation of these reports. Consequently, he has not shown
clear evidence of error.
In a report dated September 6, 2007, Dr. Hallstrom reviewed appellant’s history of a
work injury on September 24, 1994. He noted that his office treated him for fibromyalgia,
cervical region pain and lateral epicondylitis. Dr. Hallstrom opined that appellant was unable to
perform his regular employment and had continued restrictions due to his accepted work injury.
The term “clear evidence of error” is intended to represent a difficult standard. The submission
of a detailed well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.12 Dr. Hallstrom’s report does not manifest on its face that the Office
committed an error in finding that appellant did not establish an employment-related recurrence
of disability and thus does not show clear evidence of error.
Appellant contended that the employing establishment forced him to retire. The Office
previously considered this argument and he has not explained how or why the Office erred in its
evaluation of his argument. Appellant also maintained that obtaining retirement from the Social
Security Administration shows that he is disabled from employment. The Board has long held,
however, that entitlement to benefits under statutes administered by other federal agencies does
not establish entitlement to benefits under the Act.13
The evidence submitted by appellant is not sufficient to raise a substantial question
regarding the correctness of the Office’s last merit decision; consequently, he has not shown
clear evidence of error.
On appeal appellant contends that Dr. Hallstrom’s report and the evidence from
Dr. Nawfel shows that he was disabled after his work injury. As discussed above, however, the
medical evidence submitted is insufficient to establish on its face that the Office committed an
error in finding he did not establish a recurrence of disability. Appellant also argues that
obtaining disability from the Social Security Administration establishes that he is disabled. As

10

George C. Vernon, 54 ECAB 319 (2003).

11

Id.

12

Joseph R. Santos, 57 ECAB 554 (2006).

13

Id.

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noted above, entitlement to benefits under statutes administered by other federal agencies does
not establish entitlement to benefits under the Act.14
Appellant further explained that he was unable to timely request reconsideration of the
Office’s decision due to cancer treatment. Section 10.607(a), however, is unequivocal in setting
forth the time limitation period of one year and does not indicate that late filing may be excused
by extenuating circumstances.15
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was not timely and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2008 is affirmed.
Issued: August 19, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Id.

15

20 C.F.R. § 10.607(c); Donald Booker-Jones, 47 ECAB 685 (1996). The Office’s regulations do provide that
the time to file a request for reconsideration shall not include any periods subsequent to the decision for which the
claimant can establish through probative medical evidence that he was unable to communicate in any way and her
testimony is necessary to obtain modification. Appellant has not submitted such evidence. See John Crawford, 52
ECAB 395 (2001).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 15-1544
Issued: November 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 10, 2015 appellant filed a timely appeal from a February 23, 2015 merit decision
and a June 15, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employee’s Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an occupational disease in the performance of duty; and (2) whether OWCP properly
denied appellant’s request for reconsideration of the merits of his claim under 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 31, 2014 appellant, then a 45-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained bilateral tendinitis and arthritis in both
rotator cuffs in the performance of duty. He attributed his conditions to repetitive movement and
handling of mail. Appellant advised that he became aware of his condition on January 13, 2011.
He stopped work on April 2, 2014 to undergo surgery.
By letter dated May 14, 2014, OWCP advised appellant of the type of evidence needed to
establish his claim.
In an April 2, 2014 operative report, Dr. Richard Lehman, Board-certified in orthopedic
surgery and sports medicine, diagnosed torn rotator cuff and torn labrum. He advised that he
performed a left shoulder arthroscopy, acromioplasty, rotator cuff repair, glenoid labrum repair,
extensive debridement of the glenohumeral joint and glenoid, microfracture of humeral head, and
debridement of the humeral head and anterior rotator cuff interval.
In a May 16, 2014 diagnostic report, Dr. Michael Penney, Board-certified in diagnostic
radiology, advised that a cervical spine x-ray revealed no acute abnormalities and moderate
degenerative changes at C5-6 and C6-7.
In a May 27, 2014 statement, appellant advised that he has worked for the employing
establishment since 1992. He attributed his conditions to repetitive movement, casing mail, and
handling mail and packages for delivery five to six days a week. Appellant also noted that he
played recreational softball for 1 hour to 1 hour and 15 minutes once a week from April to
July 2013.
In a May 30, 2014 attending physician’s report (Form CA-20), Dr. Lehman assessed
impingement syndrome, torn labrum, and torn rotator cuff. He attributed appellant’s condition to
repetitive use at work and checked the box marked “yes” to indicate that his condition was
caused or aggravated by employment. Dr. Lehman advised that appellant would be able to
return to work on August 1, 2014.
By decision dated July 3, 2014, OWCP denied appellant’s claim because medical
evidence was insufficient to establish that his condition was caused or aggravated by factors of
his federal employment.
On July 12, 2014 appellant requested review of the written record before an OWCP
hearing representative. A compact disc of diagnostic tests was submitted on July 7, 2014. In a
January 14, 2011 report, Dr. Albert Hammerman, a Board-certified diagnostic radiologist,
advised that a magnetic resonance imaging (MRI) scan of the left shoulder, revealed
supraspinatus tendinopathy without a discrete tear, mild hypertrophic degenerative changes at the
acromioclavicular (AC) joint, and a grossly intact glenoid labrum. In a March 2, 2011 report, he
advised that an MRI scan of the right shoulder revealed supraspinatus tendinopathy, mild
hypertrophic change at the AC joint, and a small amount of fluid within the subacromialsubdeltoid bursa.

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On March 13, 2014 Dr. David Wu, a Board-certified diagnostic radiologist, advised that a
left shoulder MRI scan revealed distal supraspinatus and infraspinatus insertional tendinosis
without discrete tear and no discrete labral tear.
Dr. Lehman, in a May 5, 2014 report, advised that he began treating appellant on
January 13, 2011 for left shoulder pain that began about one year earlier. He detailed appellant’s
work duties including: use of his extremities in a repetitive manner, casing mail, carting boxes,
opening mailboxes, reaching for packages, and performing overhead activities. Dr. Lehman
further noted that a March 3, 2011 MRI scan revealed supraspinatus tendinopathy which was
treated conservatively with an injection. He advised that appellant experienced relief, but later
returned on March 11, 2014 after developing significant shoulder pain with work and overhead
activity. Dr. Lehman noted that he performed surgery on appellant’s left shoulder on
April 2, 2014. He opined that appellant’s impingement syndrome “could definitely be
exacerbated by the fact that he has type 2 acromion and that he has to perform a lot of overhead
and repetitive high work with his shoulders causing him to reach, which could over time cause
injury to his rotator cuff in the manner that was seen under arthroscopy.” Dr. Lehman further
opined that appellant’s rotator cuff tear, impingement syndrome, and labral tear occurred as a
result of his mail carrying duties.
In a July 17, 2014 report, Dr. Lehman reiterated that appellant’s shoulder surgery was
needed due to the repetitive nature of appellant’s position as a mail carrier. He explained that
serious injuries are often due to repetitive arm and hand movement and constant lifting and
bending. Dr. Lehman advised that these activities can lead to repetitive stress in various joints
and muscles. He noted that appellant cased mail which required elevation of the arms and
reaching above the shoulder 8 to 10 hours a day for five to six days a week. Dr. Lehman noted
that appellant has performed these activities for over 20 years and opined that gradually these
activities aggravated his shoulder which initially was treated with cortisone injections and
strengthening. He attributed appellant’s diagnosed conditions to his mail carrying duties.
In a July 17, 2014 attending physician’s report, Dr. Lehman diagnosed left rotator cuff
tear, impingement, and labral teal. He checked the box marked “yes” to indicate that appellant’s
condition was caused or aggravated by his employment and attributed his condition to 20 years
of casing mail, lifting overhead, and delivering mail.
By decision dated February 23, 2015, an OWCP hearing representative affirmed the
denial of appellant’s claim because medical evidence was insufficient to establish that his
diagnosed conditions were caused by factors of his employment. She found that Dr. Lehman’s
opinion was speculative and that he did not address appellant’s history of recreational softball.
Appellant, in a March 3, 2013 letter, requested reconsideration. He disagreed with the
hearing representative’s insinuation that his injury could have been due to playing softball noting
that he only participated in softball once a week for six weeks in 2013. Appellant argued that
Dr. Lehman did not discuss the recreational softball play because he did not believe it to be the
cause of his conditions.
By decision dated June 15, 2015, OWCP denied appellant’s request for reconsideration
without a merit review.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established. To establish an occupational disease
claim, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant.5
The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.6
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained bilateral tendinitis and arthritis in his rotator cuffs in
the performance of duty. It is not disputed that his job entails casing mail, lifting overhead, and
delivering mail. However, the Board finds that the medical evidence is insufficient to establish
that these duties caused or exacerbated appellant’s rotator cuff tear, impingement syndrome, and
labral tear.
In his May 5, 2014 report, Dr. Lehman detailed appellant’s work duties and opined that
his rotator cuff tear, impingement syndrome, and labral tear occurred as a result of his mail
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

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

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

5

I.J., 59 ECAB 408 (2008); supra note 3.

6

James Mack, 43 ECAB 321 (1991).

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carrying duties. He opined that appellant’s impingement syndrome “could definitely be
exacerbated” by overhead and repetitive work with his shoulders, which caused him to reach and
“could” over time cause injury to his rotator cuff. Dr. Lehman also opined that appellant’s
overhead and repetitive work with his shoulders “could have” caused injury to his rotator cuffs
over time. The Board has held that medical opinions which are speculative or equivocal are of
diminished probative value.7 In his July 17, 2014 narrative report, Dr. Lehman explained that
serious injuries are often due to repetitive arm and hand movement and constant lifting and
bending. He advised that these activities can lead to repetitive stress in various joints and
muscles. Dr. Lehman noted that for the past 20 years appellant has cased mail, elevated his
arms, and reached above the shoulder 8 to 10 hours a day for five to six days a week. He opined
that gradually these activities aggravated his shoulder. Although Dr. Lehman attributes
appellant’s diagnosed conditions to work duties he failed to provide medical rationale to explain
how these particular duties caused the diagnosed conditions. The Board has long held that
medical opinions not containing rationale on causal relation are of diminished probative value
and are generally insufficient to meet appellant’s burden of proof.8
In May 30 and July 17, 2014 attending physician’s reports, Dr. Lehman checked the box
marked “yes” to indicate that appellant’s conditions were caused or aggravated by his
employment and attributed his condition to repetitive use at work, casing mail, lifting overhead,
and delivering mail. The Board has held that an opinion on causal relationship that consists only
of a physician checking “yes” to a medical form question on whether the claimant’s condition
was related to the history given is of little probative value.9 While, Dr. Lehman had a correct
history of the claimant’s condition, he did not provide medical rationale to explain how
particular duties caused or contributed to the diagnosed conditions.
Other medical evidence, such as diagnostic reports, is of limited probative value as it
does not specifically address whether work factors caused or aggravated a diagnosed medical
condition. The Board has held that medical evidence which does not state an opinion on causal
relationship is of little probative value.10
Consequently, appellant has submitted insufficient medical evidence to establish his
claim. As noted, causal relationship is a medical question that must be established by probative
medical opinion from a physician.11 The physician must accurately describe appellant’s work

7

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
8

Carolyn F. Allen, 47 ECAB 240 (1995).

9

Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box yes in a form report, without additional
explanation or rationale, is insufficient to establish causal relationship).
10

See Jaja K. Asaramo, 55 ECAB 200 (2004).

11

See supra note 5.

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duties and medically explain the pathophysiological process by which these duties would have
caused or aggravated his condition.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.13 Where the request from
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without opening the case for a review of the merits.14
ANALYSIS -- ISSUE 2
In a February 23, 2015 merit decision, an OWCP hearing representative affirmed the
denial of appellant’s claim finding that the medical evidence did not establish that the diagnosed
conditions were caused or aggravated by factors of his employment. Appellant submitted a
timely request for reconsideration which was denied without a merit review on June 15, 2015.
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. In his March 3, 2015 statement, appellant disagreed with the
hearing representative’s insinuation that his injury could have been due to playing softball noting
that he only participated in softball once a week for six weeks in 2013. He also argued that
Dr. Lehman did not discuss him playing recreational softball because he did not believe it to be
the cause of his diagnosed conditions. The Board has held that appellant’s belief that the
medical evidence supported causal relationship and his disagreement with OWCP’s findings on
the probative value of the medical evidence does not constitute a new and relevant legal
argument sufficient to warrant merit review of the claim.15 Consequently, this assertion does not
show that OWCP erroneously applied or interpreted a specific point of law nor does it advance a
relevant legal argument not previously considered.
Furthermore, appellant did not submit relevant evidence not previously considered by
OWCP. OWCP explained in its February 23, 2015 merit decision that additional medical
12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).
13

E.K., Docket No. 09-1827 (issued April 27, 2010). See 20 C.F.R. § 10.606(b)(2).

14

L.D., 59 ECAB 648 (2008). See 20 C.F.R § 10.606(b).

15

P.J., Docket No. 13-376 (issued May 10, 2013).

6

evidence was needed to establish the claim. However, appellant did not submit any new medical
evidence in response. While he offered his argument for why he believed his claim should be
accepted, the underlying point at issue in the claim, causal relationship, is medical in nature.
Because appellant failed to meet any of the three regulatory criteria for reopening a claim, he
was not entitled to further merit review of his claim.
CONCLUSION
The Board finds that appellant did not meet his burden to establish that he sustained an
occupational disease caused by factors of his employment. The Board further finds that OWCP
properly denied his request for reconsideration without further merit review of the claim.
ORDER
IT IS HEREBY ORDERED THAT the June 15 and February 23, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 3, 2015
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Reading, MA, Employer
__________________________________________

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Appearances:
John L. Whitehouse, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1642
Issued: March 2, 2007

Case Submitted on the Record

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

JURISDICTION
On July 12, 2006 appellant filed a timely appeal of a June 29, 2006 decision of an Office
of Workers’ Compensation Programs’ hearing representative finding that he did not establish a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether the Office properly determined that appellant established a
recurrence of disability beginning July 19, 1999 causally related to his accepted work injury of
July 11, 1978.
FACTUAL HISTORY
On July 11, 1978 appellant, then a 35-year-old letter carrier, filed a traumatic injury claim
alleging that he injured his back while in the performance of duties that day. The Office
accepted the claim for lumbar strain. Appellant underwent a spinal fusion on October 4, 1978
which was accepted by the Office. The accepted conditions included post-traumatic and

postoperative arachnoiditis with another spinal fusion surgery in 1994. Appellant stopped work
on July 11, 1978 and was placed on the periodic rolls in October 1978 for wage-loss
compensation. In a decision dated November 25, 1996, the Office determined that the position
of appointment clerk fairly and reasonably represented appellant’s wage-earning capacity.
Appellant’s compensation benefits were adjusted effective December 8, 1996 to reflect his
ability to earn wages in that position.1
On September 27, 2004 appellant filed a Form CA-2a, claiming a recurrence of disability
as of August 18, 1999 stemming from his accepted work injury of July 11, 1978. He indicated
that he did not have any other injuries since the initial injury and the date of recurrence and did
not have any hobbies nor engaged in any sport activities. Appellant contended that he had
“helped out,” with no set hours, about three to four days a week for a friend in his tackle shop
until 1989 ringing sales for fishing gear and signing for deliveries. He further stated that he was
“barely able to get around and can only walk short distances” because of leg weakness.
Appellant also indicated that he had trouble sleeping and was constantly tired.
In a January 7, 2003 report, Dr. Robert J. Banco, a Board-certified orthopedic surgeon,
advised that appellant had chronic low back pain and developed a slow transitional syndrome.
He indicated that appellant’s history dated to a work injury of July 19752 when he injured his
lower back and the spinal fusion operation went on to a nonunion. Dr. Banco indicated that he
saw appellant in April 1994. A computerized tomography (CT) myelogram demonstrated an
ongoing nonunion which was surgically repaired on November 7, 1994 with an L4-S1 posterior
fusion with instrumentation. Despite that surgical procedure, appellant continued to have back
pain. A recent discography demonstrated transitional syndrome at the L3-4 level. A March 13,
2000 CT scan demonstrated a solid posterior fusion at L4-5 and L5-S1. Disc degeneration was
noted at L3-4. Dr. Banco opined that appellant’s current back pain was related to his work
injury. He advised that his prognosis was guarded for any improvement in his low back pain and
his treatment program was to maintain himself on a daily walking program.
In a December 20, 2004 report, Dr. Mark A. Finno, a physiatrist, indicated that appellant
was evaluated for his low back pain, with the onset of such symptoms beginning “many years
ago” after a work injury in 1978. He noted appellant’s history of two spinal surgeries and
complaints of residual low back pain. Dr. Finno reported that appellant had a normal neurologic
examination. He accessed chronic low back pain and provided his recommendations. Dr. Finno
reported that he discussed the natural history and etiology of appellant’s symptoms and noted
that Dr. Banco had stated that appellant was completely disabled and did not have a work
capacity. He noted that appellant was not interested in intervention at this time and understood
the importance of staying active and continuing a regular home exercise program.

1

The record reflects that on March 15, 1991 appellant pled guilty to mail fraud and making false statements in
connection with the receipt of disability compensation. By decision dated July 22, 2002, the Board affirmed the
Office’s April 16 and August 15, 2001 decisions finding that appellant forfeited his right to monetary compensation
from August 17, 1988 through December 14, 1990 which resulted in an overpayment in the amount of $46,946.47
for which he was at fault. Docket No. 01-1447 (issued July 22, 2002).
2

This is a typographic error as appellant’s employment injury occurred on July 11, 1978.

2

In a December 23, 2004 report, Dr. Dennis M. Dimitri, a Board-certified family
practitioner, noted that appellant was unable to work since his back injury at work in 1978 and
that he had a failed fusion in 1978 and a second fusion in 1994. He opined that appellant was
completely and totally disabled due to daily back pain. Dr. Dimitri stated that appellant was
unable to maintain any single activity such as standing, sitting or walking without constant
position changes. He advised that his prognosis was poor with no improvement expected.
In a letter dated February 24, 2005, the Office advised appellant that further factual and
medical evidence were required to establish that his claimed recurrence was related to his work
injury. This included a physician’s opinion regarding the relationship between his ability to
work and the accepted work-related conditions.
By decision dated March 30, 2005, the Office denied appellant’s claim for a recurrence of
disability. On April 4, 2005 appellant, through his attorney, requested an oral hearing which was
held on March 30, 2006. Counsel confirmed that appellant did not work since 1978 and advised
that a recurrence claim was not filed earlier because of the Office’s previous decisions regarding
an overpayment of compensation. He further explained that 1999 was selected as the year of
recurrence because that was when Dr. Banco first disabled appellant from all employment.
Counsel argued that the second fusion surgery in 1994 was unsuccessful and questioned how the
Office could assume that the surgery alleviated appellant’s symptoms without referral to a
second opinion physician.
Additional medical reports dated January 12, 2004 and May 18 and June 8, 2006 from
Dr. Banco were received post hearing. In his January 12, 2004 report, Dr. Banco advised that he
“stated many times over the past years that [appellant] is completely disabled and has no work
capacity.” He stated that this would not change. In a May 18, 2006 report, Dr. Banco advised
that he had been appellant’s treating physician since April 7, 1994 and reiterated appellant’s
history of injury. He reiterated that appellant did well for a short time after his November 7,
1994 L4-S1 posterior fusion with instrumentation. Dr. Banco indicated that he continued to have
pain although a repeat CT scan on August 18, 1999 showed a solid fusion. He stated that
appellant was developing a transitional syndrome as a 2000 discogram demonstrated
deterioration of the L3-4 disc. Dr. Banco diagnosed appellant with transitional syndrome at L3-4
and opined that his low back pain and continued leg pain were the result of transitional disease
from his original work-related fusion. He rationalized that appellant’s work injury required a
spinal fusion which went to a nonunion and required reoperation with instrumentation and
resulted in a solid fusion. However, since that time, appellant developed a transitional syndrome.
Dr. Banco indicated that appellant had no work capacity due to his chronic low back pain and
bilateral leg pain. In a June 8, 2006 report, he reiterated the history of injury and appellant’s two
spinal fusions. Dr. Banco indicated that, over the years since the second spinal fusion, the CT
scans and discograms have demonstrated a solid posterior fusion at L4-5 and L5-S1. However,
appellant had significant disc degeneration at the L3-4 area which was nonoperable. Dr. Banco
opined that appellant’s back pain was related to his work injury and he was unable to work
because of the transitional syndrome. He advised that further surgical procedures would only
create further transitional syndromes at adjacent levels which was the reason why appellant
could not work.

3

By decision dated June 29, 2006, the Office hearing representative affirmed the denial of
appellant’s claim for a recurrence of disability. The Office hearing representative found that the
“current medical evidence does not establish that the claimant’s condition has deteriorated to the
point of total disability, sufficient to warrant a change in the previous LWEC [lose of wageearning capacity] decision.” The hearing representative further found that the medical evidence
lacked sufficient discussion on how or why appellant became totally disabled in 2003 and was
devoid of any sound medical reasoning on causal relationship.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.4 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.5 The
Office’s procedure manual provides: If a formal loss of wage-earning capacity decision has been
issued, the rating should be left in place unless the claimant requests resumption of compensation
for total wage loss. In this instance, the [claims examiner] will need to evaluate the request
according to the customary criteria for modifying a formal loss of wage-earning capacity.6
ANALYSIS
The Office accepted that appellant sustained a lumbar strain and post-traumatic and
postoperative arachnoiditis due to his July 11, 1978 employment injury. Spinal fusion surgeries
in 1978 and 1994 were also authorized and accepted. Appellant stopped work on July 11, 1978
and did not return. He indicated that he worked briefly for a friend in a tackle shop until 1989.
The Office determined that appellant had the capacity to perform the position of
appointment clerk and, accordingly, reduced his compensation in a formal loss of wage-earning
capacity determination dated November 25, 1996.
On September 27, 2004 appellant claimed a recurrence of disability as of August 18,
1999 causally related to his July 11, 1978 employment injury. He argued that his constant back

3

Katherine T. Kreger, 55 ECAB 633 (2004).

4

Sharon C. Clement, 55 ECAB 552 (2004).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).

4

pain was totally disabling and resulted from his employment injury. Dr. Banco, Dr. Dimitri and
Dr. Finno opined that appellant is totally disabled as a result of the employment injury.
Dr. Dimitri and Dr. Finno attribute the disability to appellant’s back pain while Dr. Banco refers
to a transitional syndrome diagnosis. Both the Office procedure manual and Board precedent
provide that, when a wage-earning capacity determination has been issued and appellant submits
evidence with respect to disability for work, the Office must evaluate the evidence to determine
if modification of a wage-earning capacity is warranted.7
In its June 29, 2006 decision, the hearing representative noted that the current medical
evidence did not establish that appellant’s condition had deteriorated to the point of total
disability sufficient to warrant a change in the previous wage-earning capacity decision and the
medical evidence lacked sufficient medical rationale and explanation on causal relationship. The
hearing representative, however, did not adjudicate the issue of whether the prior wage-earning
capacity determination should be modified. Instead the hearing representative found that the
evidence was insufficient to establish appellant’s claim for a recurrence of total disability
beginning August 18, 1999.
Board precedent and the Office’s procedure manual direct the Office to consider the
criteria for modification when the claimant requests resumption of compensation for total wage
loss.8 Appellant submitted medical evidence supporting that he sustained an increase in
disability. However, the question of whether that disability prevented him from performing the
position of appointment clerk has not been addressed. The Board finds that the Office should
have adjudicated the issue of modification of the wage-earning capacity determination.
CONCLUSION
The Board finds that appellant’s claim for compensation raised the issue of whether a
modification of the November 25, 1996 wage-earning capacity decision was warranted. The
case is remanded for appropriate decision on this issue.

7

See Sharon C. Clement, supra note 4.

8

Id. The Board notes that consideration of the modification issue does not preclude the Office from acceptance
of a limited period of employment-related disability, without a formal modification of the wage-earning capacity
determination. Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining
Wage-Earning Capacity, Chapter 2.814.9(a) (December 1995). In this case, however, appellant is claiming total
disability from August 18, 1999 onwards.

5

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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

Docket No. 07-1046
Issued: October 9, 2007

Case Submitted on the Record

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

JURISDICTION
On March 8, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ January 11, 2007 merit decision concerning an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$6,815.92 overpayment of compensation; and (2) whether the Office properly determined that

she was at fault in creating the overpayment of compensation, thereby, precluding waiver of
recovery of the overpayment.
FACTUAL HISTORY
On February 13, 2005 appellant, then a 28-year-old transportation security screener,
sustained injury to her left knee when she tripped over a golf bag and fell on her left knee. The
Office accepted that she sustained a left knee contusion. Appellant received continuation of pay
from February 14 to March 30, 2005 and returned to work in a light-duty position.
Appellant stopped work on June 20, 2005 claiming that she sustained a recurrence of
total disability due to her accepted employment injury. The Office accepted her recurrence of
disability claim and determined that she also sustained an employment-related left knee strain
and bone bruise on February 13, 2005. On October 13, 2005 Dr. Joseph Tutorino, an attending
Board-certified orthopedic surgeon, released appellant to full-duty work. On November 1, 2005
appellant returned to full-duty work for the employing establishment on a full-time basis.
In an August 24, 2005 letter, the Office advised appellant that the gross amount of her
wage-loss compensation for the period June 20 to August 6, 2005 was $2,872.49, her health
benefits premium was $113.97 and her basic life insurance premium was $14.40. The Office did
not complete the portion of the letter intended to show the amount of appellant’s “regular
payment” for the period June 20 to August 6, 2005. For the period August 7 to September 3,
2005, the Office indicated that the gross amount of appellant’s wage-loss compensation was
$1,675.62, her health benefits premium was $75.98, and her basic life insurance premium
was $9.60. The Office did not complete the portion of the letter intended to show the amount of
appellant’s “regular payment” for the period August 7 to September 3, 2005.1 The Office
advised appellant that her compensation was calculated based on her weekly pay of $600.36 and
that she was being paid at the 75 percent rate of pay because she had a dependent. The Office
previously indicated that the $600.36 figure was comprised of $558.54 of regular pay, $13.90 of
night differential pay and $27.90 of Sunday premium pay.2
On September 6, 2005 the Office advised appellant’s congressional representative that it
had been in contact with appellant every day since the prior week. The Office indicated that
appellant’s compensation payments had been processed, but that she reported on the morning of
September 6, 2005 that she had not received the payment. The Office stated that it advised
appellant that it would issue her an “emergency payment.”

1

Subtracting appellant’s total health benefits premiums and basic life insurance premiums from the total figure
for gross pay between June 20 and September 3, 2005 yields the figure $4,334.16.
2

The sum of these different types of pay actually is $600.34 rather than $600.36. The record contains documents
relating to the processing of compensation checks on August 22 and 24, 2005 but there is no indication in the record
that any checks were issued at that time or that appellant received copies of these documents. The documents
indicated that appellant was entitled to $2,744.12 for the period June 20 to August 6, 2005 and $1,590.04 for the
period June 20 to August 6, 2005.

2

In a September 6, 2005 letter, the Office advised appellant that her payment for the
period June 20 to September 3, 2005 was being processed based on a “temporary pay rate” of
$558.54 per week as information regarding her night differential and Sunday premium pay had
not been received from the employing establishment. The Office indicated that it expected to
issue a check on September 10, 2005.
On October 4, 2005 the Office determined that appellant was due $1,590.04 for the
period August 7 to September 3, 2005. It did not indicate whether a check was issued or monies
were electronically transferred at this time. In December 2005 an “electronic certification
system” document dated September 6, 2005 was added to the record which indicated that
appellant was to be paid $4,334.16 for the period June 20 to September 3, 2005. The document
contains the handwritten notation “paid September 7, 2005” and also provides the account and
routing numbers for appellant’s bank account. The record also contains “payment display”
records, produced by the Office in January 2006, which indicates that payments were processed
on September 16, 2005 for appellant to receive compensation in the amounts of $2,803.96 and
$2,744.12.3 The documents provide the account number and routing number for appellant’s
bank account. The Office produced other documents in January 2006 indicating that appellant
actually should have received $4,656.36 rather than $4,334.16 for the period June 20 to
September 3, 2005 because night differential and Sunday premium pay were not included in the
original calculation.
On January 26, 2006 the Office advised appellant of its preliminary finding that she
received a $6,815.92 overpayment of compensation because she received multiple checks for the
same period. The Office indicated that she was issued an emergency check on September 7,
2005 in the amount of $4,334.16 for the period June 20 to September 3, 2005 and then was
issued a $2,803.96 check on September 16, 2005 for the period June 20 to August 6, 2005, a
$2,744.12 check on September 16, 2005 for the period June 20 to August 6, 2005, and a
$1,590.04 check on October 7, 2005 for the period August 7 to September 3, 2005. The Office
found that appellant was only entitled to receive $4,656.36 for the period August 7 to
September 3, 2005 based on her total weekly pay of $600.36 (comprised of $558.54 of regular
pay, $13.90 of night differential pay, and $27.90 of Sunday premium pay).4 It found that the
$6,815.92 overpayment was created because appellant actually received $11,472.28 for the
period August 7 to September 3, 2005 rather than $4,656.36. The Office made a further
preliminary determination that appellant was at fault in the creation of the overpayment and
requested that she submit financial information even if she did not request waiver of the
overpayment.
Appellant submitted a financial information questionnaire which was completed on
February 22, 2006. She indicated that her monthly household income was $3,056.00. Appellant
listed various monthly expenses which included $1,164.00 for mortgage payments, $450.00 for

3

Other documents of records indicate that these payment were for the period June 20 to August 6, 2005, but it
does not appear that appellant received these documents around the time the payments were made.
4

The sum of these different types of pay actually is $600.34 rather than $600.36.

3

food, $50.00 for clothing and $343.00 for utilities. She indicated that she had to make monthly
payments totaling over $1,000.00 for various debts, including credit card balances.5
In March 2006 several documents entitlement “benefit statement” were added to the
record. The documents were addressed to appellant’s home address, but it is unclear when these
documents were sent to appellant. The documents advised appellant that she received a
$2,803.96 check, dated September 16, 2005 for the period June 20 to August 6, 2005, a
$2,744.12 check, dated September 16, 2005, for the period June 20 to August 6, 2005 and a
$1,590.04 check, dated October 7, 2005, for the period August 7 to September 3, 2005.
Appellant requested a prerecoupment hearing before an Office hearing representative
regarding the Office’s preliminary overpayment determination. At the October 18, 2006 hearing,
she testified that she did not feel that she was at fault in the creation of the overpayment because
the documents that she received regarding her compensation payments were confusing and she
did not receive the benefit statements detailing the periods that the payments were meant to
cover until months after she received the payments. Appellant indicated that the Office’s
August 24, 2005 letter did not adequately apprise her of the amount of compensation she would
receive because the Office did not complete the portions of the letter intended to show the
amount of her “regular payment” for the period June 20 to August 6, 2005 or for the period
August 7 to September 3, 2005. She indicated that she was unable to determine what pay rate
was used to calculate her compensation or what total amount she was entitled to receive.
Appellant acknowledged receiving the $4,334.16, $2,803.96, $2,744.12 and $1,590.04 payments,
but indicated that they did not come with documentation detailing which periods they covered.6
She asserted that she had not received compensation for months and was confused about how
much she was owed. Appellant provided additional details regarding her financial situation.
In a January 11, 2007 decision, the Office hearing representative finalized the
overpayment.7 The Office hearing representative stated that, through letters and telephone calls,
appellant knew that she would be receiving a compensation payment in early September 2005 for
the period June 20 to September 3, 2005 which roughly equaled $4,500.00. She indicated that
after appellant received a $4,334.16 payment on September 7, 2005, she should have known that
she was not entitled to receive the $2,803.96 and $2,744.12 payments on September 16, 2005
and the $1,590.04 payment on October 7, 2005. The Office hearing representative found that
appellant was at fault in the creation of the overpayment and denied waiver of the overpayment.
She determined that the overpayment would be recovered by deducting $300.00 from appellant’s
compensation payments every 28 days.8
5

Appellant did not submit documents to support these expenses. She indicated that she had $798.66 in assets.

6

Appellant did not provide any details about the precise dates when she was aware that she received these
payments.
7

The record contains a similar January 8, 2007 document which appears to be a draft of the January 11, 2007
decision.
8

With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is limited to reviewing
those cases where the Office seeks recovery from continuing compensation benefits under the Act. Cheryl Thomas,
55 ECAB 610 (2004). As appellant is no longer receiving wage-loss compensation, the Board does not have
jurisdiction with respect to the recovery of the overpayment under the Debt Collection Act. Id.

4

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act9 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 duty.10 Section 8129(a) of the Act provides, in
pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”11
Section 8116(a) of the Act provides that while an employee is receiving compensation or
if she has been paid a lump sum in commutation of installment payments until the expiration of
the period during which the installment payments would have continued, the employee may not
receive salary, pay or remuneration of any type from the United States, except in limited
specified instances.12
ANALYSIS -- ISSUE 1
The Board notes that the Office properly calculated that appellant received a $6,815.92
overpayment of compensation for the period June 20 to September 3, 2005. The record contains
worksheets showing that she was entitled to receive $4,656.36 for this period. The Office had
originally calculated that appellant was only entitled to receive $4,334.16 for the period June 20
to September 3, 2005 and issued her a payment in this amount. However, the Office later
indicated that the initial calculation did not account for her weekly premium pay ($13.90 of night
differential pay and $27.90 of Sunday premium pay) in addition to her weekly pay of $558.54.
There is no indication that appellant was entitled to receive any other monies for the period
June 20 to September 3, 2005. The record also reveals that she received payments totaling
$11,472.28 for the period June 20 to September 3, 200513 and the subtraction from this figure of
the total amount that she was entitled to receive for this period ($4,656.36) yields the correct
overpayment figure of $6,815.92.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Act provides that where an overpayment of compensation has
been made “because of an error of fact or law,” adjustment shall be made by decreasing later

9

5 U.S.C. §§ 8101-8193.

10

5 U.S.C. § 8102(a).

11

5 U.S.C. § 8129(a).

12

5 U.S.C. § 8116(a).

13

Appellant received payments of $4,334.16, $2,803.96, $2,744.12 and $1,590.04.

5

payments to which an individual is entitled.14 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery
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.”15 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.
In determining whether an individual is not “without fault” or alternatively, “with fault,”
section 10.433(a) of Title 20 of the Code of Federal Regulations provides in relevant part:
“An individual is with fault in the creation of an overpayment who:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect….”16
Section 10.433(c) of the Office’s regulations provides:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”17
In determining fault under section 10.433(a)(3), where the claimant receives compensation
through direct deposit, the payment goes directly from the U.S. Treasury to the claimant’s account.
The Office may not deposit compensation into a claimant’s account without authorization. The
claimant must first complete a form authorizing the electronic transfer of payment to a named
financial institution to be deposited to a designated account. It is only with the claimant’s intent
that these payments are deposited to his or her account which is something more than receipt, i.e.,
it is acceptance. When control of the funds passes to the claimant upon deposit, the acceptance
necessary under section 10.433(a)(3) is established.18

14

5 U.S.C. § 8129(a).

15

5 U.S.C. § 8129(b).

16

20 C.F.R. § 10.433(a).

17

20 C.F.R. § 10.433(c).

18

Tammy Craven, 57 ECAB ___ (Docket No. 05-249, issued July 24, 2006).

6

Even though the Office may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments she knew or should have known to be incorrect.19
The Board has found the claimant to be at fault in cases where she is receiving compensation
checks through direct deposit which involve a series of payments over several months with clear
knowledge that the payments were incorrect.20 It is not appropriate, however, to make a finding
that a claimant has accepted an overpayment via direct deposit until such time as a reasonable
person would have been aware that this overpayment had occurred. This awareness could be
established either through documentation such as a bank statement or notification from the Office
or where a reasonable period of time has passed during which a claimant could have reviewed
independent confirmation of the incorrect payment.21
ANALYSIS -- ISSUE 2
In finding that appellant was at fault in the creation of the $6,815.92 overpayment of
compensation, the Office found that she accepted payments which she knew or should have
known to be incorrect. The Board notes that, through written and telephonic communications,
appellant would have been reasonably aware that she would receive a compensation payment in
early September which covered the period June 20 to September 3, 2005. The Office advised
appellant that this payment was an “emergency payment” as prior attempts to process her
payment through the regular channels had failed. However, the Board notes that she could
reasonably have been confused about the precise amount of compensation she would receive for
this period.
In an August 24, 2005 letter, the Office advised appellant that the gross amount of her
wage-loss compensation for the period June 20 to August 6, 2005 was $2,872.49 and that the
gross amount of her wage-loss compensation for the period August 7 to September 3, 2005 was
$1,675.62. The Office advised her that, for the first period, her health benefits premium was
$113.97 and her basic life insurance premium was $14.40 and that, for the second period, her
health benefits premium was $75.98 and her basic life insurance premium was $9.60. However,
the Office did not indicate that these premiums would be subtracted from appellant’s gross
compensation or otherwise explain their effect on her net compensation. The Office did not
complete the portion of the letter intended to show the amount of her “regular payment” for the
period June 20 to August 6, 2005 or for the period August 7 to September 3, 2005. Moreover,
the Office first advised appellant that her compensation would be based on the weekly pay of
$600.36 and then told her it would be based on $558.54 despite the fact that it ultimately used the
$600.36 amount.
Given the above-noted facts, appellant would not be expected to know the precise amount
of the payment she was slated to receive in early September 2005 but she would have been
expected to know that it would be roughly $4,000.00 or $5,000.00. The record reveals that on
September 7, 2005 a payment in the amount of $4,334.16 was directly deposited into appellant’s
19

William E. McCarty, 54 ECAB 525 (2003).

20

See Karen K. Dixon, 56 ECAB ___ (Docket No. 03-2265, issued November 9, 2004).

21

See K.H., Docket No. 06-191 (issued October 30, 2006).

7

bank account. It is unclear from the record when appellant became aware that this payment was
made to her account and it does not appear that appellant was contemporaneously advised of
what period the payment covered.
On September 16, 2005, i.e., just nine days after the September 7, 2005 payment was
direct deposited to appellant’s account, the Office direct deposited payments into her bank
account in the amount of $2,803.96 and $2,744.12. The Office later indicated that appellant was
advised that these monies were intended to cover the period June 20 to August 6, 2005, i.e., a
portion of period covered by the September 7, 2005 payment, but there is no record that she was
contemporaneously advised of what periods the payments covered.22 Unlike the initial payment
of $4,334.16, appellant would not have had any notice that these payments would be made by the
Office. As these payments were direct deposited into her bank account, it is unclear when she
became aware that these monies were in her account.23
Since Office regulations define fault by what the claimant knew or should have known at
the time of acceptance, one of the consequences of electronic fund transfers is that in many cases
the claimant will not be at fault for accepting the first incorrect payment (or in this case two
incorrect payments received on the same day) because the requisite knowledge is lacking at the
time of deposit. The Board finds that, given the above-described circumstances, there is no
evidence of record to show that appellant knew or should have known that the $2,803.96 and
$2,744.12 payments were incorrect at the time that she accepted them, i.e., the date that they
were deposited into her bank account on September 16, 2005.24
A finding of no fault does not mean, however, that the claimant may keep the amount of
the overpayment created by $2,803.96 and $2,744.12 payments, only that the Office must
consider eligibility for waiver for this period, and the case must be remanded for the Office to
determine whether she is entitled to waiver for the portion of the $6,815.92 overpayment created
by these incorrect payments.
Appellant received one more payment which helped to create the overpayment. On
October 7, 2005 she was issued an incorrect payment of $1,590.04 which the Office later
indicated was intended to cover the period August 7 to September 3, 2005.25 By this time,
sufficient time had passed (a month since the Office sent appellant the $4,334.16 payment) that
22

The record contains benefit statements which advised appellant that she received a $2,803.96 check, dated
September 16, 2005, for the period June 20 to August 6, 2005 and a $2,744.12 check, dated September 16, 2005, for
the period June 20 to August 6, 2005. However, these documents were not added to the record until March 2006
and it is unclear when they were first sent to appellant. Although the documents use the word “check” it appears
that these payments were sent electronically.
23

At the hearing before an Office hearing representative, appellant did not indicate the precise date she was aware
that these monies were deposited into her account. She further testified that she had not received compensation in
months and was confused about how much she was owed and about the periods the payments were intended to
cover.
24

See Karen K. Dixon, supra note 20.

25

It is unclear whether this payment was made electronically or through a paper check.

8

she would reasonably have been aware that she had received payments totaling about
$9,900.00.26 As appellant had previously been advised that she was only entitled to receive
about $4,000.00 or $5,000.00 for the period June 20 to September 3, 2005 she now would have
been expected to know that she was not entitled to any additional payments.27 Therefore, the
Board finds that appellant was at fault in the portion of the $6,815.92 overpayment created by the
$1,590.04 payment because she accepted a payment she knew or should have known to be
incorrect.28 Consequently, she would not be entitled to waiver for this portion of the
overpayment.29
The case should be remanded to the Office to determine whether appellant is entitled to
waiver for the portion of the $6,815.92 overpayment created by the $2,803.96 and $2,744.12
payments. After such development as it deems necessary, the Office should issue an appropriate
decision detailing what monies, if any, appellant would be required to repay.30
CONCLUSION
The Board finds that the Office properly determined that appellant received a $6,815.92
overpayment of compensation. The Board finds that appellant was not at fault in the portion of
the overpayment created by the receipt of the $2,803.96 and $2,744.12 payments but that she
was at fault in the portion of the overpayment created by the receipt of the $1,590.04 payment.
The case is remanded to the Office for further development, including whether appellant would
be entitled to waiver with respect to the $2,803.96 and $2,744.12 payments.

26

The $4,334.16, $2,803.96 and $2,744.12 checks totaled about $9,900.00.

27

Appellant did not provide any argument that she felt that this check was for any period other than June 20 to
September 3, 2005.
28

20 C.F.R. § 10.433(a).

29

See supra note 15 and accompanying text.

30

In calculating the ultimate amount that appellant must repay, if any, the Office should bear in mind that
appellant was entitled to receive $4,656.36 for the period June 20 to September 3, 2005 rather than the $4,334.16
figure which was originally calculated.

9

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
January 11, 2007 decision is affirmed with respect to the fact and amount of the $6,815.92
overpayment and with respect to the finding that appellant was at fault in the portion of the
overpayment created by the receipt of the $1,590.04 payment. The decision is modified to
reflect that she was not at fault in the portion of the overpayment created by the receipt of the
$2,803.96 and $2,744.12 payments.
Issued: October 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, ATLANTA DISTRICT
SALES OFFICE, Atlanta, GA, Employer
__________________________________________

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)
)
)
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)

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

Docket No. 21-0371
Issued: November 24, 2021

Case Submitted on the Record

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

JURISDICTION
On January 13, 2021 appellant, through counsel, filed a timely appeal from a July 17, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days have elapsed from the last merit decision dated July 3, 2019, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 28, 2015 appellant, then a 59-year-old distribution window clerk, signed an
occupational disease claim (Form CA-2) alleging that she injured her knees, legs, right shoulder
and wrist, left arm, and lower back due to factors of her federal employment. She noted that she
first became aware of her conditions on March 17, 2014 and of their relationship to her federal
employment on April 28, 2015. Appellant also noted on the form that she filed her claim
immediately with her supervisor. Her supervisor signed the form on January 26, 2016 and noted
on the claim form that appellant stopped work on April 28, 2015 and reported the condition to her
on January 26, 2016.
In an attached narrative statement dated April 28, 2015, appellant advised that she had
previously filed a traumatic injury claim (Form CA-1) for a March 17, 2014 injury to both legs,
knees, and lower back. She accepted a September 15, 2014 modified job offer after being off work
for six months. On April 28, 2015 appellant’s right foot got caught in cords under her desk as she
was rising from her chair to go to the copier, causing her to fall forward onto her desk.
In a letter dated January 28, 2016, the employing establishment controverted the claim.
The employing establishment also noted that appellant was familiar with the claims process as she
had previously filed several claims and it questioned why appellant filed a Form CA-2, rather than
a claim for traumatic injury (Form CA-1).
In a development letter dated February 3, 2016, OWCP notified appellant that it had
converted her claim to a traumatic injury and advised her of the deficiencies of her claim. It
informed her regarding the medical and factual evidence required to establish her claim. OWCP
advised that the employing establishment controverted appellant’s claim and requested that she
provide factual evidence addressing the employing establishment’s challenge including witness
statements. It afforded appellant 30 days to provide the requested information.
In a report dated February 17, 2016, Dr. Jay Bender, a Board-certified physiatrist, noted
that appellant had been reevaluated for an April 28, 2015 work injury. He reported that she had
continued limited lumbar and bilateral knee flexion and extension and tenderness on palpation of
lumbar paraspinias. Dr. Bender opined that appellant remained totally disabled. He also
completed a duty status report (Form CA-17) of even date in which he noted a diagnosis of varicose
veins, clinical findings of bilateral lower extremity swelling, injury date of April 28, 2015, and
related that appellant was totally disabled.
By decision dated March 8, 2016, OWCP denied appellant’s claim, finding the evidence
insufficient to establish that the alleged April 28, 2015 incident occurred as alleged. It further
found that the medical evidence of record did not provide a medical diagnosis. OWCP concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.

2

On April 4, 2016 appellant requested a review of the written record by an OWCP hearing
representative.
In a report dated April 29, 2016, Dr. Daniel A. Nicholson, diagnosed lumbago, right elbow
pain, and left knee pain. He noted appellant’s history of tripping over a cord and landing on her
right arm. Dr. Nicholson diagnosed left knee and right elbow pain, and lumbago.
In a report dated July 12, 2016, Dr. Bender noted an injury date of March 17, 2014 and
related that appellant would remain totally disabled for 30 days. He provided examination findings
for the cervical and lumbar spines. In a Form CA-17 of even date, Dr. Bender indicated that
appellant was totally disabled, noted an injury date of March 17, 2014, and listed International
Classification of Diseases codes of M54.12 and M51.27.
By decision dated January 10, 2017, OWCP’s hearing representative affirmed the March 8,
2016 decision denying appellant’s traumatic injury claim. The hearing representative found that
appellant had failed to establish that the April 28, 2015 incident occurred as alleged.
A May 2, 2017 disability note from Dr. Bender noted that appellant would remain disabled
from work for the period May 2 to June 6, 2017. In a Form CA-17 of even date, Dr. Bender
described clinical findings of lumbar herniated disc and related that appellant was totally disabled.
On May 11, 2017 appellant provided a response to OWCP’s development letter. She
described her work duties, noted that varicose veins had been accepted under prior claims, and that
on April 28, 2015 she sustained a traumatic injury after returning to a modified job. According to
appellant, while attempting to get out of her chair to retrieve documents f rom the copier that her
right foot got caught in cord under her desk and she fell. She listed the names of coworkers she
indicated witnessed the incident and also noted that she had immediately notified her supervisor,
who came over and saw the wires on the floor.
Dr. Bender, in a June 6, 2017 disability note, indicated that appellant was evaluated that
day and that she would remain totally disabled from work until July 19, 2017. In a Form CA-17
dated June 6, 2017, he found appellant totally disabled.
In a November 15, 2017 report, Dr. Victor Osisanya, a Board-certified physiatrist, noted
appellant’s history of the April 28, 2015 incident. He related appellant’s physical examination and
diagnostic testing findings. Dr. Osisanya diagnosed cervical and lumbar radiculopathy, right
shoulder impingement syndrome, right shoulder rotator cuff strain, right elbow lateral
epicondylitis, and bilateral knee osteoarthritis. He found appellant totally disabled since her 2015
fall. Dr. Osisanya explained that appellant’s use of her outstretched arms to catch herself on the
desk when she fell caused her right rotator cuff inflammation and strain. The force of the fall and
whiplash reaction likely increased loading forces on appellant’s cervical spine resulting in
inflammation to an already strained area resulting in bulging or herniated cervical discs and
cervical radiculopathy. Dr. Osisanya attributed the remaining conditions to appellant’s repetitive
work duties.
On January 10, 2018 appellant, through counsel, requested reconsideration. Counsel
asserted that OWCP failed to consider evidence submitted under OWCP File No. xxxxxx071
supporting that she sought medical treatment at the time of the April 28, 2015 incident.
3

On January 29, 2018 OWCP received additional medical reports.
Dr. Bender, in a February 18, 2015 report, noted an injury date of February 8, 2015,
provided examination findings, and diagnosed varicose veins and lumbar strain.
An October 19, 2015 report from Dr. Natalie Chan, a chiropractor, noted a March 17, 2014
injury date, provided examination findings, and diagnosed lumbar strain per Dr. Bender.
In disability notes dated August 25 and December 2, 2015, Dr. Bender advised that
appellant was totally disabled due to a March 17, 2014 employment injury.
Dr. Bender, in reports dated December 2 and 7, 2015 report, noted a March 17, 2014 injury
date and provided examination findings. He diagnosed cervical radiculitis in the December 2,
2015 report and diagnosed peripheral vascular disease with bilateral lower extremity varicose
veins in the December 7, 2015 report.
In a February 17, 2016 disability note, Dr. Bender found appellant totally disabled due to
an April 28, 2015 work incident.
In a March 7, 2016 report, Dr. Vidyadhar S. Chitale, a Board-certified neurosurgeon, noted
that appellant was seen for an April 28, 2015 work injury and complaints of bilateral arm, low
back, neck, and bilateral leg pain due to the incident. Appellant’s physical examination findings
were noted. A review of a lumbar magnetic resonance imaging scan revealed multilevel lumbar
facet arthropathy worse at bilateral L2-5. Dr. Chitale diagnosed lumbar facet arthropathy with
effusions.
In an April 1, 2016 report, Dr. David R. Penn, Board-certified in interventional radiology
and diagnostic radiology, noted appellant’s history of venous insufficiency going back 11 years.
Physical examination findings were detailed and he diagnosed chronic peripheral venous
insufficiency, low back pain and bilateral extremity varicose veins with pain.
In a January 25, 2018 report, Dr. Osisanya noted appellant’s April 28, 2015 history of
injury. He detailed appellant’s examination findings, reviewed diagnostic testing, and diagnosed
cervical and lumbar radiculopathy, right shoulder impingement syndrome, right shoulder rotator
cuff strain, right elbow lateral epicondylitis, and bilateral knee osteoarthritis. Dr. Osisanya opined
that appellant had been totally disabled since her 2015 fall. In a duty status report (Form CA-17)
of even date, he repeated that appellant was totally disabled.
By decision dated April 6, 2018, OWCP denied modification.
Subsequent to the April 6, 2018 decision, OWCP received a March 8, 2017 report
regarding a bilateral extremity venogram and a November 28, 2017 report regarding an
endovenous laser treatment of appellant’s left greater saphenous vein. It also received reports
including CA-17 forms covering the period March 29 through June 5, 2019 from Dr. Osisanya,
which were repetitive of prior reports, a May 7, 2019 left knee x-ray interpretation, and physical
therapy notes covering the period April 5, 2018 through June 10, 2019. The record also contains
progress notes dated January 16, 2018 from Dr. Chitale detailing physical examination findings,
and diagnosing right elbow lateral epicondylitis, cervical and lumbar radiculopathy, right shoulder
4

rotator cuff muscle and tendon strain, right shoulder impingement syndrome, and bilateral knee
osteoarthritis.
On April 6, 2019 appellant, through counsel, requested reconsideration asserting that her
consistent statements established that the April 28, 2015 incident occurred as alleged.
By decision dated July 3, 2019, OWCP denied modification, finding the evidence
insufficient to establish that the April 28, 2015 incident occurred as alleged. It found counsel’s
argument not compelling to overcome the deficiencies of the claim including the nin e-month delay
in filing the claim and the failure to seek contemporaneous medical treatment for the specific
April 28, 2015 incident.
Subsequent to the denial of appellant’s claim, OWCP received physical therapy reports
covering the period July 2 through September 24, 2019. It also received reports covering the
period May 1, 2019 through January 22, 2020 cosigned by Dr. Osisanya, which reiterated findings
and diagnoses from prior reports, and a July 23, 2019 bilateral lower extremities
electromyography/nerve conduction velocity (EMG/NCV) study reviewed by Dr. Osisanya.
Dr. Osisanya also submitted CA-17 forms dated July 15, August 19, and September 23, 2019,
finding appellant totally disabled and noting an injury date of April 28, 2015.
On July 3, 2020 appellant, through counsel, requested reconsideration.
By decision dated July 17, 2020, OWCP denied appellant’s request for reconsideration. It
found the medical evidence she submitted was irrelevant to the underlying issue, which was
whether the April 28, 2015 incident occurred as alleged.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP. 4

3

5 U.S.C. § 8128(a); see D.G., Docket No. 20-1203 (issued April 28, 2021); T.K., Docket No. 19-1700 (issued
April 30, 2020); L.D., Docket No. 18-1468 (issued February 11, 2019); W.C., 59 ECAB 372 (2008).
4

20 C.F.R. § 10.606(b)(3); see D.G., id.; L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N.,
Docket No. 08-1569 (issued December 9, 2008)

5

A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 5 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 6 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On July 3, 2020 appellant requested reconsideration. She did not show that OWCP
erroneously applied or interpreted a specific point of law. Moreover, appellant has not advanced
a relevant legal argument not previously considered. As such, she is not entitled to a review of the
merits of her claim based on the first and second abov e-noted requirements under section
10.606(b)(3). 8
In support of her request for reconsideration, appellant submitted additional medical
evidence, including physical therapy reports covering the period July 2 through September 23,
2019, a July 23, 2019 bilateral lower extremities EMG/NCV study, reports covering the period
May 1, 2019 through January 22, 2020 and CA-17 forms dated July 15, August 19, and
September 23, 2019 from Dr. Osisanya. While this medical evidence is new, it is not relevant
because it does not address the underlying issue of the present case which is factual in nature, i.e.,
whether appellant submitted probative factual evidence supporting that she fell onto a desk after
her right foot got caught in cords under her desk while in the performance of duty on April 28,
2015, as alleged. The submission of this medical evidence does not warrant a review of appellant’s
claim on the merits because the Board has held that the submission of evidence or argument, which
does not address the particular issue involved does not constitute a basis for reopening a case. 9
Moreover, the contents of the reports and CA-17 forms from Dr. Osisanya were similar to
previously submitted reports from Dr. Osisanya, which have already been considered by OWCP.
The Board has held that the submission of evidence or argument which repeats or duplicates
5

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

Id. at § 10.608(a); D.G., supra note 3; F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB
231 (2007).
7

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).
8

Id. at § 10.606(b)(3); G.K., Docket No. 20-1026 (issued December 11, 2020); D.T., Docket No. 20-0456 (issued
September 1, 2020); M.S., supra note 6.
9

G.K., id.; M.K., Docket No. 18-1623 (issued April 10, 2019); Edward Matthew Diekemper, 31 ECAB 224,
225 (1979).

6

evidence or argument already in the case record does not constitute a basis for reopening a case. 10
Therefore, for the above reasons, appellant also failed to satisfy the third requirement under 20
C.F.R. § 10.606(b)(3).
The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). 11 Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT July 17, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 24, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10

G.K., id.; N.L., Docket No. 18-1575 (issued April 3, 2019); Eugene F. Butler, 36 ECAB 393, 398 (1984).

11

R.R., Docket No. 20-0378 (issued March 9, 2021); D.M., Docket No. 18-1003 (issued July 16, 2020); Susan A.
Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b), OWCP will deny the request for reconsideration without reopening the case for
a review on the merits).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilmington, DE, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1043
Issued: November 10, 2009

Case Submitted on the Record

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

JURISDICTION
On March 12, 2009 appellant filed a timely appeal from the February 3 and 27, 2009
schedule award decisions of the Office of Workers’ Compensation Programs. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than five percent impairment of his right lower
extremity.
FACTUAL HISTORY
Appellant, a 53-year-old letter carrier, injured his right knee on December 17, 2004 when
he struck it against a mail tray. The Office accepted his claim for sprain/strain of the right knee.
In a report dated May 16, 2005, Dr. Muhammad Kamali, Board-certified in orthopedic
surgery, noted that appellant had previously experienced difficulties with his right knee about 10
years prior, when he underwent a partial medial meniscectomy. He noted the recent history of
injury and advised that appellant complained of pain in the lateral aspect of his right knee. Since

conservative measures had not helped appellant’s condition, Dr. Kamali recommended
arthroscopic evaluation and a partial meniscectomy. Appellant underwent arthroscopic surgery
for chondroplasty of the medial femoral condyle and chondroplasty of the femoral groove on
October 4, 2005. The surgery was performed by Dr. Kamali.
On November 21, 2005 appellant filed a claim for a schedule award based on loss of use
of his right leg.
In a December 7, 2005 postoperative report, Dr. Kamali noted complaints of pain in the
anterior and anteromedial aspect of the right knee. He stated that appellant’s knee became
painful after a prolonged period of sitting but improved somewhat after he moved around.
Dr. Kamali noted no swelling on examination and full range of knee motion, with occasional,
minimal clicking and no laxity. He diagnosed chondromalacia of the right knee and advised
appellant to avoid excess activities. In a June 20, 2007 report, Dr. Kamali stated that appellant
had reached maximum medical improvement.
By decision dated August 20, 2007, the Office denied appellant’s claim for a schedule
award. It found that the medical evidence did not establish that he sustained any employmentrelated permanent impairment.
In a December 11, 2007 report, Dr. Kamali stated that appellant had full active and
passive range of motion with pain occurring with changes of weather and full flexion. In a report
dated February 6, 2008, he advised that appellant had 10 percent impairment of the right leg due
to his 2004 work injury.
On February 11, 2008 appellant requested reconsideration.
By decision dated April 3, 2008, the Office denied modification of the August 20, 2007
decision.
By letter dated November 5, 2008, appellant’s attorney requested reconsideration. In a
September 11, 2008 report, Dr. David Weiss, an osteopath, found that appellant had a 15 percent
impairment of the right lower extremity pursuant to the American Medical Association, Guides
to the Evaluation of Permanent Impairment (fifth edition) (A.M.A., Guides). He based this
rating on a 4/5 motor strength deficit for the right quadriceps, based on manual muscle testing,
pursuant to Table 17-8 at page 532 of the A.M.A., Guides, for a 12 percent right lower extremity
impairment. Dr. Weiss added three percent impairment for pain under Table 18-1 at page 574 of
the A.M.A., Guides.
On February 3, 2009 an Office medical adviser found that appellant had five percent
impairment for patellofemoral pain and crepitance pursuant to Table 17-31 at page 544 of the
A.M.A., Guides, Arthritis Impairments based on Roentgenographically Determined Cartilage
Intervals. He rejected Dr. Weiss’ impairment rating based on manual muscle testing of the
quadriceps, noting that section 17.2(e) at page 531 of the A.M.A., Guides, indicated that such
testing depended on the examinee’s cooperation and conscious or unconscious control, and that
other methods should be considered. The Office medical adviser also stated that a one
centimeter difference in thigh circumference was within the range of error. He also noted that

2

the three percent award for pain was inapplicable to appellant pursuant to section 18.3 at page
570 of the A.M.A., Guides.
By decision dated February 3, 2009, the Office granted appellant a schedule award for
five percent right lower extremity impairment.
On February 27, 2009 the Office granted appellant a schedule award for a five percent
permanent impairment of the right lower extremity for the period September 11 to December 20,
2008, for a total of 14.40 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 sets forth
the number of weeks of compensation to be paid for permanent loss, or loss of use of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.2 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating
schedule losses.3
ANALYSIS
The Board finds that the case is not in posture for decision as further development of the
medical evidence is warranted.
Appellant’s claim was accepted for injury to his right knee. In support of his claim for a
schedule award, he submitted the report of Dr. Weiss who rated the extent of impairment as 15
percent. He found that, under Table 17-8, page 532, appellant had 12 percent impairment based
on Grade 4 lower extremity muscle weakness in knee extension.4 To this impairment, Dr. Weiss
added three percent impairment for pain under Chapter 18. The Board notes that Table 17-2, the
cross-usage chart at page 526, provides that if impairment is rated in terms of loss of strength it
cannot be combined with pain. Moreover, Chapter 18 provides that medical examiners should
not use that chapter to rate pain-related impairment for any condition that can be adequately
rated under the other chapters of the A.M.A., Guides.5 For these reasons, the report of Dr. Weiss
does not establish more than 12 percent impairment based on muscle strength loss.

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

Id. at § 8107(c)(19).

3

20 C.F.R. § 10.404.

4

The Board notes that, at page 531, the A.M.A., Guides provide that manual muscle testing may be unreliable as
it depends on the cooperation of the individual being examined. Individuals who performance is inhibited by pain or
the fear of pain are not good candidates for this method of evaluation.
5

Page 571.

3

The Office medical adviser reviewed the evidence and determined that appellant had five
percent impairment under Table 17-31, page 544, for arthritis of the right knee.6 He noted that
the surgical report of Dr. Kamali did not support a finding of a torn medial meniscus. However,
the Board notes that the surgical report noted a prior history of a medial meniscectomy with a
partial meniscectomy. It does not appear that any consideration was given to appellant’s
preexisting impairment to the right knee in making the schedule award.7 He also advised that
manual muscle strength testing was not an appropriate basis on which to rate appellant’s right leg
impairment.
The Board will remand the case to the Office for further medical development. The
Office should refer appellant to a second opinion specialist to determine the best method under
Chapter 17 by which his impairment may be rated in conformance with Table 17-2. As part of
this consideration, the physician should give consideration to appellant’s preexisting right knee
impairment. After such further development as the Office deems necessary, it shall issue a
de novo decision on the extent of impairment to appellant’s right knee.
CONCLUSION
The Board finds that the case is not in posture for decision.

6

The footnote to Table 17-31 provides five percent impairment in cases of individuals with a history of direct
trauma to the knee and crepitation on physical examination without joint space narrowing on x-ray.
7

It is well established that preexisting impairments to a scheduled member are to be included in determining
entitlement to compensation under a schedule award. See Carol A. Smart, 57 ECAB 340 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the February 27 and 3, 2009 decisions of the Office
of Workers’ Compensation Programs be set aside. The case is remanded to the Office for further
action consistent with this decision of the Board.
Issued: November 10, 2009
Washington, DC

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

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

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

5