United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF TREASURY, U.S. MINT,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 08-2259
Issued: May 12, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 15, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decisions dated February 26 and March 24, 2008. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained a right shoulder condition in the performance of duty; and (2) whether the Office
properly refused to reopen appellant’s case for reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On October 31, 2007 appellant, a 56-year-old program assistant, filed an occupational
disease claim for benefits, alleging that she developed a right shoulder condition causally related to
factors of her employment. She asserted that her keyboard was not moved under her desk, causing
pain in her right arm and right shoulder.

In a Form CA-17 report dated October 31, 2007, Dr. Norman L. Cheung, Board-certified in
orthopedic surgery and appellant’s treating physician, diagnosed right shoulder tendinitis and
outlined restrictions on lifting, carrying, sitting, standing, walking, simple grasping and activities
requiring fine manipulation, including keyboarding.
By letter dated November 16, 2007, the Office advised appellant that it required additional
information to determine whether she was eligible for compensation benefits. It asked her to
submit a comprehensive medical report from her treating physician describing her symptoms and
the medical reasons for her condition and an opinion as to whether her claimed condition was
causally related to her federal employment. The Office requested that appellant submit the
additional evidence within 30 days.
In a report received by the Office on November 16, 2007, Dr. Cheung diagnosed right
shoulder impingement syndrome and right shoulder tendinitis.
The employing establishment controverted appellant’s claim. In a November 20, 2007
statement, it noted that appellant sustained serious cervical and lumbar injuries in a 1993 car
accident, she also hurt her shoulder while at the Naval Air Station in 1992. The employing
establishment noted that appellant alleged that she sustained her current condition because the
keyboard was not under her desk and caused pain to her arm and shoulder. It asserted that
appellant has not submitted factual evidence to support how 10 days of using a keyboard on top of
a desk, versus under a desk, would cause shoulder impingement. The employing establishment
stated that, with regard to the causal relationship of her conditions to her work, appellant’s own
physician noted that her conditions were not work related. It asserted that appellant’s problems are
degenerative in nature and that she has failed to submit sufficient evidence to support that her
work-related activities are aggravating her preexisting conditions.
In a report dated November 20, 2007, Dr. Cheung stated that appellant had been
experiencing work-related right shoulder and left thumb pain. He noted that her right shoulder
appeared normal on examination. Dr. Cheung also diagnosed chronic low back pain.
In a December 4, 2007 report, Dr. Cheung noted appellant’s complaints of her right
shoulder pain, which she attributed to being transferred to a new position in July 2006 in which
the keyboard position was too high for her. He stated that he gave her an injection to ameliorate
her right shoulder pain.
By decision dated February 26, 2008, the Office denied appellant’s claim finding that she
failed to submit medical evidence sufficient to establish that she sustained the claimed right arm
and right shoulder conditions in the performance of duty.
On February 26, 2008 appellant requested reconsideration. The Office did not receive any
additional evidence from her.
By decision dated March 24, 2008, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability and/or specific condition
for which compensation is claimed are causally related 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
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and, must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed cervical condition and her federal
employment. This burden includes providing medical evidence from a physician who concludes
that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.5

1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

ANALYSIS -- ISSUE 1
Appellant alleged that she sustained injury as a result of using a keyboard at work which
was placed on a desk, rather than below the desk. The employing establishment has
acknowledged that for a period of at least 10 days appellant did use a keyboard on her desk. The
Board finds however that appellant has failed to submit any medical evidence containing a
rationalized, probative report which relates her claimed right shoulder condition to factors of her
employment. For this reason, appellant has not discharged her burden of proof to establish her
claim that this condition was sustained in the performance of duty.
Appellant submitted reports from Dr. Cheung, but none of the reports he submitted
provided a probative, rationalized medical opinion that the claimed right shoulder condition was
causally related to employment factors.
Dr. Cheung advised in his October 31 and
November 16, 2008 reports that appellant had right shoulder tendinitis and right shoulder
impingement syndrome. In his December 4, 2007 report, he noted appellant’s belief that her
right shoulder pain was caused by typing at a keyboard which was positioned at an
uncomfortably high level. However, the reports from Dr. Cheung did not contain a probative,
rationalized medical opinion that the claimed right shoulder condition was causally related to
employment factors. His opinion is of limited probative value as it does not contain any medical
rationale explaining how or why appellant’s claimed right shoulder condition was currently
affected by or related to factors of employment.6 The weight of medical opinion is determined
by the opportunity for and thoroughness of examination, the accuracy and completeness of
physician’s knowledge of the facts of the case, the medical history provided the care of analysis
manifested and the medical rationale expressed in support of stated conclusions.7 Dr. Cheung
did not sufficiently describe appellant’s job duties or explain the medical process through which
such duties would have been competent to cause the claimed condition. His reports, the only
evidence appellant submitted in support of her claim, did not constitute sufficient medical
evidence to establish that her claimed right shoulder condition was causally related to her
employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
the belief that her condition was caused, precipitated or aggravated by her employment sufficient
to establish causal relationship.8 Causal relationship must be established by rationalized medical
opinion evidence and appellant failed to submit such evidence.
The Office advised appellant of the evidence required to establish her claim, however,
she failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed right shoulder condition was causally related to her employment.
The Board therefore affirms the Office’s February 26, 2008 decision denying benefits for her
claimed right shoulder condition.
6

William C. Thomas, 45 ECAB 591 (1994).

7

See Anna C. Leanza, 48 ECAB 115 (1996).

8

Id.

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LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that the Office erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not previously considered by the Office; or by submitting
relevant and pertinent evidence not previously considered by the Office.9 Evidence that repeats
or duplicates evidence already in the case record has no evidentiary value and does not constitute
a basis for reopening a case.10
ANALYSIS -- ISSUE 2
In the present case, appellant has not shown that the Office erroneously applied or
interpreted a specific point of law, she has not advanced a relevant legal argument not previously
considered by it and she has not submitted relevant and pertinent evidence not previously
considered by the Office. Her reconsideration request failed to show that it erroneously applied
or interpreted a point of law nor did it advance a point of law or fact not previously considered
by the Office. The Office did not abuse its discretion in refusing to reopen appellant’s claim for
a review on the merits.11
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
right shoulder condition was sustained in the performance of duty. The Board finds that the
Office properly refused to reopen appellant’s case for reconsideration on the merits of her claim
under 5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

10

Howard A. Williams, 45 ECAB 853 (1994).

11

The Office received a number of documents pertaining to appellant’s claim following the March 24, 2008
decision. The Board may only review evidence which was before it at the time of its final decision.
20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the March 24 and February 26, 2008 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: May 12, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.I., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 11-1823
Issued: March 19, 2012

Case Submitted on the Record

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

JURISDICTION
On August 2, 2011 appellant filed a timely appeal from a February 28, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than 180 days elapsed between the most recent merit decision of
April 26, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 4, 2010 appellant, then a 51-year-old assistant director of field operations and
mission support, filed a traumatic injury claim alleging that on March 1, 2010 he contracted
methicillin-resistant staphylococcus aureus (MRSA) while using a treadmill in the governmentprovided gym.
On March 19, 2010 OWCP received treatment reports and diagnostic testing from West
Jefferson Medical Center regarding appellant’s treatment for cellulitis. The history of the injury
listed in a March 2, 2010 consultation report noted that appellant performed recent outdoor tasks
when “he may or may not have rubbed up against a (sic) some bushes or weeds” and denied any
breakage of the skin or puncture wounds. A discharge sheet noted that appellant was admitted
on March 2, 2010 for treatment of right arm cellulitis and released on March 5, 2010. He
attributed the condition to an abrasion he sustained at a health club.
By correspondence dated March 19, 2010, OWCP advised appellant that the evidence of
record was insufficient to support his claim. Appellant was asked to submit additional medical
and factual evidence to support his claim and given 30 days to provide the requested information.
Appellant subsequently submitted reports dated March 7 and 17, 2010 from
Dr. Thomas P. Melancon, a treating Board-certified internist, who diagnosed cellulitis as a result
of appellant’s arm swelling up after sustaining an abrasion while using a treadmill at the
employing establishment. Dr. Melancon checked “yes” to a form question of whether the
condition was employment related.
By decision dated April 26, 2010, OWCP denied appellant’s claim. It found the medical
evidence insufficient to establish a causal relationship between the cellulitis condition and his
employment.
On February 14, 2011 appellant requested reconsideration and resubmitted medical and
factual evidence. In a July 27, 2007 report, Dr. Melancon noted that appellant sustained an
abrasion on March 1, 2010 while walking on an employing establishment owned treadmill. He
attributed appellant’s MRSA to the abrasion as this type of medical emergency normally
occurred within 24 hours. Dr. Melancon found it very unlikely that the infection had been
contracted from appellant working in his yard on February 28, 2010.
By decision dated February 28, 2011, OWCP denied reconsideration.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
2

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.

2

considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
The only decision before the Board on this appeal is the February 28, 2011 nonmerit
decision denying appellant’s application for reconsideration of OWCP’s April 26, 2010 decision
that denied his cellulitis claim. The issue on appeal is whether appellant’s February 14, 2011
reconsideration request met any of the conditions of 20 C.F.R. § 10.606(b)(2), requiring OWCP
to reopen the case for further review of the merits as to whether he has established that his
infection was causally related to his employment. Appellant’s February 14, 2011 request for
reconsideration did not allege nor demonstrate that OWCP erroneously applied or interpreted a
specific point of law. The only new evidence submitted by appellant is a July 27, 2010 report
from Dr. Melancon, who attributed appellant’s cellulitis to an abrasion he sustained on the
treadmill. However, this report is essentially duplicative to his March 7 and 17, 2010 reports,
which were previously reviewed by OWCP. As Dr. Melancon’s report is repetitious of his
earlier reports, the Board finds that it is insufficient to reopen appellant’s claim for further merit
review.6 The record contains no additional medical evidence submitted on reconsideration.
The Board finds that appellant did not submit arguments or evidence showing that
OWCP erroneously applied or interpreted a specific point of law; advanced a relevant legal
argument not previously considered; or constituted relevant and pertinent new evidence not
previously considered by OWCP. Appellant did not meet any of the regulatory requirements and
OWCP properly declined to reopen his claim for further merit review.7
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b)(2). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
4

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).
5

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
6

Eugene F. Butler, 36 ECAB 393 (1984).

7

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630
(2006) (when an application for reconsideration does not meet at least one of the three requirements enumerated
under section 10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a
review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2011 is affirmed.
Issued: March 19, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 10-2389
Issued: June 22, 2011

Case Submitted on the Record

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

JURISDICTION
On September 27, 2010 appellant filed a timely appeal from the June 7, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning an
overpayment of compensation. Pursuant to Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether appellant received a $2,890.00 overpayment of
compensation; and (2) whether OWCP abused its discretion by refusing to waive recovery of the
overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In a March 24, 2009 notice, OWCP advised appellant of its preliminary determination
that she received a $2,890.00 overpayment of compensation for the period January 18 to
March 14, 2009.2 OWCP stated that the overpayment occurred because appellant was paid
compensation for the period January 18 to March 14, 2009 for temporary total disability despite
the issuance of a January 16, 2009 wage-earning capacity decision reducing her compensation
effective January 18, 2009.3 OWCP also made a preliminary determination that appellant was
not at fault in the creation of the overpayment. It advised appellant that she could submit
evidence challenging the fact or amount and request waiver of the overpayment. OWCP
requested that she complete and return an enclosed financial information questionnaire within
30 days even if she was not requesting waiver of the overpayment.
In an April 29, 2009 decision, OWCP determined that appellant received a $2,890.00
overpayment of compensation and found that she was not at fault in the creation of the
overpayment but that the overpayment was not subject to waiver. It stated, “No response has
been received to the preliminary decision. The claimant has not contested the finding and it
should be finalized as correct for the reasons set forth in the preliminary decision. Since the
claimant has not shown that recovery would defeat the purpose of [OWCP] or be against equity
and good conscience, the entire overpayment will be collected….”
Appellant appealed the April 29, 2009 OWCP decision to the Board. In a May 24, 2010
order, the Board set aside the April 29, 2009 decision and remanded the case to OWCP for
further development.4 The Board found that OWCP did not review evidence received prior to
the issuance of its April 29, 2009 decision, i.e., a financial information questionnaire (Form
OWCP-20), completed by appellant on April 23, 2009, which contained information about
income and expenses as well as arguments regarding why she felt that the amount of the
overpayment was incorrect and why the overpayment should be waived.5 The Board remanded
the case to OWCP for it to fully consider the evidence that was properly submitted by appellant
prior to the issuance of the April 29, 2009 decision. Following such further consideration and
after such further development as it deemed necessary, OWCP was directed to issue an
appropriate decision regarding its overpayment determination.
On remand, OWCP issued a June 7, 2010 decision finding that appellant received a
$2,890.00 overpayment of compensation and that, given the circumstances of her case, waiver of
recovery of the overpayment was not warranted. It indicated that the March 24, 2009
2

OWCP accepted that on March 11, 2004 appellant, then a 41-year-old clerk/machinist, sustained a left brachial
plexus injury due to performing her work duties. In a January 16, 2009 decision, it reduced appellant’s
compensation effective January 5, 2009 due to its determination that the constructed position of receptionist
represented her wage-earning capacity.
3

OWCP noted that appellant received $2,995.48 in compensation for the period January 18 to March 14, 2009
but was only entitled to receive $105.48 for this period.
4

Docket No. 09-2070 (issued May 24, 2010).

5

Appellant reported monthly income of $56.00, monthly expenses of $1,125.00 and no assets.

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preliminary determination was incorporated by reference into its June 7, 2010 decision and noted
that she was not at fault in the creation of the overpayment. OWCP indicated that it was
considering the information submitted by appellant as directed by the Board and stated:
“The financial information questionnaire provided your expenses and assets.
However, you did not provide any documentation to support the information
provided. Also, your argument that the overpayment was not your fault would
not preclude collection. Since supporting financial documentation was not
provided, a waiver is not granted. The information provided was insufficient to
justify waiving recovery of the overpayment.
“The claimant has not provided justification for [OWCP] to waive recovery of the
overpayment.
“Furthermore, you noted ‘there is no set-off for the increase due pursuant to the
letter from Wm Ernst dated February 19, 2009.’ In that letter, you were advised
you should have been paid at the 75 percent compensation rate instead of 66 2/3
percent due to your dependent son for the period May 16. 2004 to
January 17, 2009. This payment processed on or about May 4, 2009. It is
important to note in a letter dated May 5, 2009 you were advised you were
entitled to approximately $11,000[.00] due to the difference in compensation
rates. You were also advised that the outstanding overpayment in the amount of
$2,890[.00] was deducted from the compensation due.
“Thus, the overpayment of compensation previously identified in your case in the
amount of $2,890[.00] has been repaid in full. Your overpayment account has
thus been fully liquidated and closed.”
LEGAL PRECEDENT
FECA provides that OWCP shall determine and make findings of fact in making an
award for or against payment of compensation after considering the claim presented by the
employee and after completing such investigation as OWCP considers necessary with respect to
the claim.6 OWCP procedure provides the financial information questionnaire (Form OWCP-20)
is designed to obtain information on income, expenses and assets. If adequate documentation is
not supplied, OWCP examiner should conference the case and request that additional
documentation be submitted.7
ANALYSIS
The Board finds that after it directed OWCP to adequately consider evidence submitted
by appellant (including financial information on a Form OWCP-20), it issued a June 7, 2010
6

5 U.S.C. § 8124(a)(2).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200a(4)
(October 2004).

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decision which did not contain adequate facts and findings regarding the fact and amount of the
claimed overpayment. The Board set aside OWCP’s prior overpayment determination and, in its
June 7, 2010 decision, OWCP concluded that appellant received a $2,890.00 overpayment of
compensation. However, OWCP did not provide a sufficient explanation of how it made this
determination. It also rejected the financial information appellant provided in her Form OWCP20 completed on April 23, 2009 by indicating that the figures were not adequately documented.
OWCP procedure provides that in such a situation OWCP’s examiner should conference the case
and request that additional documentation be submitted.8 Therefore, it was premature for OWCP
to determine that waiver of the overpayment was not warranted.
For these reasons, the June 7, 2010 OWCP decision is set aside and the case remanded to
OWCP for further consideration of the issues of fact, amount and waiver of the claimed
overpayment. After such development it deems necessary, OWCP shall issue an appropriate
decision on these matters.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received a $2,890.00 overpayment of compensation and whether OWCP abused its discretion by
refusing to waive recovery of the overpayment. The case is remanded to OWCP for further
development.

8

See id.

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ORDER
IT IS HEREBY ORDERED THAT the June 7, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded to OWCP for further proceedings
consistent with this decision of the Board.
Issued: June 22, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, YBOR PROCESSING
& DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________
Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0259
Issued: September 30, 2021

Case Submitted on the Record

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

On December 15, 2020 appellant filed a timely appeal from a June 17, 2020 non-merit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned Docket No. 21-0259.
On September 20, 2017 appellant, then a 41-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on September 15, 2017 she injured her knees, left shoulder, neck, low
back, left leg, and left arm when she tripped and fell over a pole while in the performance of duty.
She stopped work on September 20, 2017.2
1

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

The present claim was assigned OWCP File No. xxxxxx318. OWCP previously accepted a December 5, 2015
traumatic injury claim under File No. xxxxxx430 for cervical disc disorder with myelopathy and bursitis/tendinitis of
the shoulders. Appellant’s claims have not been administratively combined.

Appellant submitted medical evidence in support of her claim.
By decision dated December 1, 2017, OWCP denied appellant’s traumatic injury claim,
finding that she had not submitted sufficient medical evidence to establish causal relationship
between the accepted September 15, 2017 work incident and her diagnosed medical conditions.
Consequently, it found that she had not met the requirements to establish an injury as defined by
FECA.
Appellant subsequently requested reconsideration and submitted additional medical
evidence. By decisions dated April 25, 2018 and May 29, 2019, OWCP denied modification.
OWCP continued to receive evidence. A June 13, 2019 work capacity evaluation (Form
OWCP-5c), signed by Dr. Patel, indicated that appellant was able to return to full-time sedentary
duty with no prolonged sitting, standing, walking, reaching, bending, stooping, or kneeling. The
note also related that she believed she may have exacerbated her right knee recently.
On May 29, 2020 appellant requested reconsideration of OWCP’s May 29, 2019 decision.
By decision dated June 17, 2020, OWCP denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board has duly considered the matter and finds that the case is not in posture for
decision.
Under its procedures, OWCP has determined that cases should be administrative ly
combined where a new injury case is reported for an employee who previously filed an injury
claim for the same part of the body and where correct adjudication depends on cross-referencing
between files.3 This will allow OWCP to consider all relevant claim files in developing this
schedule award claim. 4
As OWCP File No. xxxxxx430 also involves a claim to appellant’s shoulders for a full and
fair adjudication, the Board will remand the case to OWCP to administratively combine the case
records for File Nos. xxxxxx318 and xxxxxx430. Following this and other such further
development as deemed necessary, OWCP shall issue an appropriate decision.

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000). See also Order Remanding Case, M.W., 20-1221 (issued July 6, 2021).
4

Id.

2

IT IS HEREBY ORDERED THAT the June 17, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: September 30, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


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

)
)
)
)
)
)
)
)

Appearances:
Al Shiyou, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1913
Issued: December 13, 2018

Case Submitted on the Record

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

JURISDICTION
On August 29, 2017 appellant, through counsel, filed a timely appeal from a March 6, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish acute stress disorder
and generalized anxiety disorder causally related to the accepted March 17, 2016 employment
incident.
FACTUAL HISTORY
On May 11, 2016 appellant, then a 53-year-old regular rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 17, 2016 a motorcycle driver lost control and was
catapulted onto her truck. She alleged that she sustained situational anxiety and acute stress
disorder due to the traumatic event. On the reverse side of the claim form, appellant’s supervisor
checked a box marked “yes” indicating that appellant was in the performance of duty when
injured.3 The supervisor further indicated that the injury was caused by a third party, and noted
that her knowledge of the facts about the injury agreed with the statements of the employee and or
witnesses.
OWCP subsequently received an April 14, 2016 attending physician’s report (Form CA20) from Rebecca Hartzog, a nurse practitioner. Ms. Hartzog noted that appellant had situational
anxiety disorder, not otherwise specified, poor appetite, flashbacks of motor vehicle accident,
anhedonia, fear of driving, and riding in a car.
By development letter dated May 17, 2016, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of evidence needed
and requested that she complete a questionnaire describing the incident. OWCP afforded her 30
days to submit the requested evidence.
In a May 31, 2016 response to the development questionnaire, appellant explained that the
injury was reported to her supervisor at the time of the injury. She noted that she was delivering
mail when a man on a motorcycle lost control and was ejected onto her truck and was killed.
Appellant exclaimed that it was a “horrible sight.” She noted that the immediate results were that
she could not drive; that she was very upset; that she could not sleep and that she saw a doctor
regarding the trauma. Appellant denied having any other injuries on or off duty between the date
of the injury and the date it was first reported to her supervisor. She also denied having similar
symptoms before the injury.
In a March 17, 2016 Columbia, Mississippi police department report, the officer noted that
he was dispatched to the scene of a two-vehicle collision involving a motorcycle. He advised that
the driver of the motorcycle was lying in the middle of the road, unconscious and not breathing.
In a June 6, 2016 report, Dr. Beverly Bryant, a Board-certified psychiatrist, noted that
appellant had been under her care since March 31, 2016. She explained that a psychiatric
evaluation was conducted and appellant was diagnosed with acute stress disorder and generalized
anxiety disorder. Dr. Bryant opined that acute stress disorder was the result of a recent traumatic
3
The employing establishment indicated that appellant stopped work on October 17, 2016; however, this appears
to be a typographical error as the form was filed on May 11, 2016.

2

event. She related that appellant indicated that she could no longer drive a vehicle and that she
was being treated with medication for severe anxiety and melatonin for insomnia. Dr. Bryant
indicated that appellant continued to have severe anxiety when riding in a vehicle and could not
drive. She explained that she was unsure how long this would be an issue and she was continuing
to receive treatment once every two weeks until she was able to drive again. Dr. Bryant completed
a duty status report advising that appellant was unable to work and filled in that she was unable to
drive due to anxiety.
By decision dated June 21, 2016, OWCP denied appellant’s claim, finding that she failed
to establish that the March 17, 2016 injury occurred, as alleged.
On July 5, 2016 appellant requested a telephonic hearing, which was held before an OWCP
hearing representative on January 26, 2017. She explained that she reported the claimed incident
to her supervisor within minutes of its occurrence. Appellant further noted that she was in shock
and not aware that elements of the incident would linger indefinitely.
During the hearing, appellant explained that a hailstorm “came out of nowhere.” She
described the incident of being in her vehicle on March 17, 2016, and getting ready to deliver a
package when she turned into a driveway and heard a thump. Appellant subsequently discovered
a motorcycle spinning in circles, sliding down the road. She explained that she discovered a man
lying in the road “and the hail was beating him to death and there was blood coming out of his
mouth.” Appellant then called 911 for emergency assistance.
By decision dated March 6, 2017, OWCP’s hearing representative modified the prior
decision to find that appellant had established that the March 17, 2016 incident occurred as alleged
as she provided a sufficiently descriptive account of the incident. However, the claim remained
denied as the evidence of record was insufficient to establish a diagnosed medical condition
causally related to the accepted March 17, 2017 incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.5 The second component is whether the employment incident caused a personal

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

3

injury.6 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.7
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence sufficient to establish such causal relationship.8 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by the claimant. This medical opinion must include an accurate history of the employee’s
employment injury and must explain how the condition is related to the injury. The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
The Board finds that the evidence of record is insufficient to establish causal relationship
between the diagnosed medical conditions and the accepted March 17, 2016 employment incident.
In support of her claim, appellant submitted a June 6, 2016 report from Dr. Bryant, who
noted that appellant had been under her care since March 31, 2016. Dr. Bryant conducted a
psychiatric evaluation and diagnosed acute stress disorder and generalized anxiety disorder as a
result of a recent traumatic event. She advised that appellant indicated that she could no longer
drive a vehicle. Dr. Bryant also noted that appellant was being treated with medication for severe
anxiety and also received treatment for insomnia. She explained that appellant continued to have
severe anxiety when riding in a vehicle and could not drive. Dr. Bryant noted that she was unsure
how long this would be an issue and appellant was continuing to receive treatment once every two
weeks until she was able to drive again. She completed a duty status report advising that appellant
was unable to work and unable to drive due to anxiety. However, Dr. Bryant did not explain how

6

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. Robert G. Morris, 48 ECAB 238 (1996). A physician’s
opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment
factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical
certainty, and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed
condition and appellant’s specific employment factor(s). Id.
7

James Mack, 43 ECAB 321 (1991).

8

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

9

K.V., Docket No. 18-0723 (issued November 9, 2018); supra note 7.

4

the March 16, 2017 motor vehicle accident caused or contributed to appellant’s acute stress
disorder and generalized anxiety disorder. Her report is, therefore, of limited probative value.10
Appellant also submitted an April 14, 2016 attending physician’s report (Form CA-20)
from a nurse practitioner. However, health care providers such as nurses, acupuncturists, physician
assistants, and physical therapists are not considered physicians under FECA. Thus, their opinions
do not constitute medical evidence and are of no probative value on the issue of causal
relationship.11
Because the medical reports submitted by appellant do not adequately address how the
March 17, 2016 employment incident either caused or aggravated acute stress disorder and
generalized anxiety disorder, these reports are insufficient to establish entitlement under FECA.12
Accordingly, appellant has failed to meet her burden of proof to establish a traumatic injury claim.
On appeal, counsel contends that the June 6, 2016 report of Dr. Bryant establishes that
appellant’s diagnosed conditions were causally related to the March 17, 2016 employment
incident. However, as explained above, Dr. Bryant did not provide an opinion on causal
relationship supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factors.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish that her diagnosed acute stress disorder
and generalized anxiety disorder conditions are causally related to the accepted March 17, 2016
employment incident.

10

Victor J. Woodhams, supra note 6.

11
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law); S.J., Docket No. 17-0783, n.2
(issued April 9, 2018) (nurse practitioners are not considered physicians under FECA).
12

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

5

ORDER
IT IS HEREBY ORDERED THAT the March 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 13, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Sonoita, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0072
Issued: June 24, 2019

Case Submitted on the Record

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

JURISDICTION
On October 11, 2018 appellant filed a timely appeal from a July 3, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on June 26, 2017, as alleged.
FACTUAL HISTORY
On July 10, 2017 appellant, then a 38-year-old border patrol agent, filed a traumatic injury
claim (Form CA-1) alleging that he sustained severe irritation, redness, and swelling of the right
eye on June 26, 2017 while in the performance of duty. He indicated that he was injured while
putting a seismic sensor in the ground and got something in his eye.
In hospital records dated July 17 and 18, 2017, Dr. Rachelle Halasa, an emergency
medicine physician, diagnosed episcleritis right eye and related that appellant reported debris got
into his right eye on June 23, 2017 and he developed blurred vision three days after the injury with
episodes of no vision in the right eye. Appellant indicated that he was unsure as to what may have
flown into his eye and reported that it was “maybe grass, or dust.” He went to the emergency
department because he was concerned with changes in his vision in the right eye and reported
seeing spots and experiencing hazy vision. Appellant also reported that he was diagnosed with
corneal abrasion on “June 26th” and was given antibiotic ointment by an optometrist. The records
further indicated that he was previously seen on January 29, 2016 and at that time, was noted to
have a history of traumatic mydriasis caused by an injury to his right eye while playing golf in
high school. Dr. Halasa released appellant back to work on July 18, 2017.
In reports dated August 3, September 12, and November 1, 2017, Dr. Todd Altenbernd, a
Board-certified ophthalmologist, diagnosed subacute iritis and related that appellant had a history
of trauma to the right eye in June 2017. He found that appellant had an iris atrophy in the right
eye temporally and the reaction had remained despite aggressive medication use. Dr. Altenbernd
further related that appellant had an iritis since July 2015 and noted a prior episode of herpes zoster
in the right V1 distribution during high school. He provided a presumptive diagnosis of herpes
zoster and prescribed medication. Dr. Altenbernd opined that appellant’s condition “may also
represent post-traumatic iritis, but the granulomatous nature does not go along with this diagnosis.”
In reports dated October 12, 25, and 30, 2017, Dr. Shree Kurup, a Board-certified
ophthalmologist, diagnosed posterior cyclitis, right eye, and related that appellant “got something
in the eye” on June 26, 2017. Appellant related that “his cornea was scratched and he had iritis.”
He also reported that he had been treated elsewhere but because his condition was not improving
he was referred to Dr. Kurup.
In a report of injury, for the State of Arizona dated October 25, 2017, appellant described
the cause of his alleged work incident as having experienced something small flying into his eye
on a windy day. He indicated that it may have been dirt or grass, but did not know. Appellant
used artificial tears in the eye, but when his condition did not improve after a few days he visited
an eye doctor.
In a development letter dated January 23, 2018, OWCP indicated that when appellant’s
claim was received it appeared to be a minor injury that resulted in minimal or no lost time from

2

work and, based on these criteria and because the employing establishment did not controvert
continuation of pay or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It noted that it had reopened the claim for formal consideration of the
merits because the medical bills had exceeded $1,500.00. OWCP requested additional evidence
and afforded appellant 30 days to respond to its inquiries.
In response, appellant submitted a February 9, 2018 narrative statement indicating that he
was driving on his way to work on a sensor at the top of Saddle Mountain, south of Patagonia,
Arizona. Shortly after he got out of his vehicle, appellant felt some debris in his right eye. The
wind was blowing, so he figured he got dust in his eye. He stated that it “didn’t hurt -- just felt
like an eyelash was in there.” Appellant asserted that he was working alone that shift. His right
eye felt uncomfortable, but it was not painful. He had some sterile artificial tears that he applied
when he got to his car that he used for dry eyes hoping that it would flush out any debris that was
in there. Appellant still had the feeling of something being in his eye even after he had applied the
drops. He called his eye doctor to see if she could take a look at it. Appellant noted that when he
was 16 years old he had a shingles reaction in his right eye that was treated with medication. He
asserted that he had some scarring, but it did not affect his vision. Appellant was treated in El Paso,
Texas in 1995 and he had no medical records from this incident.
In an attending physician’s report (Form CA-20) dated February 20, 2018, Dr. Kurup
found uveitis, right eye, and diagnosed traumatic iritis complicated by viral keratitis. He opined,
by checking a box marked “yes” that appellant’s had sustained a corneal abrasion at work on
June 26, 2017.
On March 8, 2018 Dr. Kurup indicated that appellant had been his patient for the past six
months and the date of injury related to his job was June 2017. He explained that appellant had a
herpes simplex virus (HSV) associated uveitis which “can reactivate under stress.” Dr. Kurup
opined that appellant’s condition was directly related to work and it was associated with the
recurrence of the inflammation in the eye as this was typical for this condition.
By decision dated March 22, 2018, OWCP denied the claim finding that the evidence of
record failed to establish that the injury and/or events occurred on June 26, 2017, as alleged. It
concluded, therefore, that appellant had not met the requirements to establish an injury as defined
under FECA.
On April 10, 2018 appellant requested reconsideration and submitted an April 10, 2018
narrative statement indicating that he had worked as a border patrol agent since December 2007.
He stated that for the past 14 months he had been working a detail on the sensor team with seven
other agents. Appellant worked the early day shift for 10 hours per day maintaining buried ground
sensors, camera sensors that were mostly in trees, and other various electronic equipment
throughout a mountainous 750+ square mile Sonora Desert. He indicated that he had mistakenly
identified his date of injury as June 26, 2017, when it was actually June 22, 2017. Appellant
explained that his task for that day on June 22, 2017 was to hike up Saddle Mountain to replace a
dead battery. He stated that the vehicle he was driving slid off the side of the road and when he
exited the vehicle to attempt to get the vehicle back on the road a strong gust of wind peppered
him with dirt, dust, and debris and although he was wearing sunglasses, he immediately felt
something hit his right eye. Appellant started blinking his eye to help lubricate it hoping that

3

whatever debris/dust flew into his eye would come out. He was eventually able to pull his vehicle
back on the road and drive down the mountain to his station, but decided not to report his injury
to his supervisor that day. Appellant continued to use artificial tear drops for the rest of the day
and his eye was noticeably red and irritated. After his condition remained unchanged, he called
his doctor and scheduled an eye appointment for Monday, June 26, 2017. Appellant further noted
that his lupus condition had never affected his vision before and his HSV condition had only caused
an occasional cold sore every couple of years.
In an April 23, 2018 report, Dr. Dominick Sudano, a rheumatologist, indicated that he had
been following appellant’s case of lupus for several years. Appellant came to his office on July 10,
2017 for an irritation in his right eye after debris got into it while at work. Dr. Sudano opined that
appellant’s lupus was not active and this was confirmed by laboratory work that was drawn that
same day. No changes were made to his lupus medication. Dr. Sudano concluded that based on
appellant’s history, examination, and laboratory work, the eye irritation was not related to his lupus
condition.
By decision date July 3, 2018, OWCP denied modification of its prior decision. It found
discrepancies, inconsistencies, and contradictions in appellant’s statements describing his injury
that created serious doubt that the injury was sustained in the manner alleged, particularly
regarding the specific date of injury and what type of object went into his eye.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7
An employee has the burden of establishing the occurrence of an injury at the time, place,
and in the manner alleged, by a preponderance of the reliable, probative, and substantial evidence.
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that an
employee sustained an injury in the performance of duty, as alleged, but the employee’s statements
must be consistent with surrounding facts and circumstances and his or her subsequent course of
action.8 An employee has not met his or her burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s statement
in determining whether a prima facie case has been established. An employee’s statement alleging
that an injury occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on June 26, 2017, as alleged.10
In R.M.,11 the claimant alleged that a coworker shook an umbrella with wet debris towards
her and some of this fluid got into her eye causing an injury. The employee had provided one
basic account of the mechanism of the employment incident, reported the incident to a supervisor
that same evening, as well as upon her arrival to work the next morning, and a witness statement
from another coworker who saw water being splashed on her face causing her to use both hands
to wipe her face clean. The Board found that the factual evidence of record overwhelmingly and
consistently stated that the employee’s coworker shook a wet umbrella towards her and, therefore,
the claimant had alleged with specificity that the incident occurred at the time, place, and in the
6

D.B., Docket No. 18-1359 (issued May 14, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

7

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

See T.M., Docket No. 17-1194 (issued February 4, 2019); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
9
See L.D., Docket No. 19-0039 (issued May 7, 2019); Constance G. Patterson, 41 ECAB 206 (1989); Thelma S.
Buffington, 34 ECAB 104 (1982).
10

See A.B., Docket No. 14-0522 (issued November 9, 2015) (fact of injury not established where there was
substantial inconsistency between the employee’s account of events and the accounts of coworkers and supervisor
with regard to the time and place of his alleged injury); V.J., Docket No. 13-1460 (issued January 7, 2014) (claimed
incident not established where employing establishment investigation revealed inconsistencies between the
employee’s account of the claimed incident and those of coworkers); J.W., Docket No. 12-0926 (issued October 1,
2012) (claimed incident not established where there were inconsistencies between the employee’s statements and
evidence at the scene of the alleged incident).
11

Docket No. 12-1448 (issued December 4, 2012).

5

manner alleged.12 Herein, appellant provided two different dates of injury, and provided no
definitive mechanism of injury, as he was unsure as to what may have flown in his eye and there
were no witnesses to corroborate appellant’s claim that he injured his right eye at the time of the
alleged June 26, 2017 employment incident.
In hospital records dated July 17 and 18, 2017, Dr. Halasa diagnosed episcleritis right eye
and related that appellant was injured at the end of June when he was at work “when something
flew into his eyes.” In reports dated October 12, 25, and 30, 2017, Dr. Kurup diagnosed posterior
cyclitis, right eye, and related that appellant “got something in the eye” on June 26, 2017. The
Board finds that these statements are insufficient to establish appellant’s claim because the reports
from Dr. Halasa and Dr. Kurup are not contemporaneous with the alleged June 26, 2017 work
incident and they failed to identify specific details of the time and location of the incident in
question.
Thus, the Board finds that appellant has not met his burden of proof to establish an injury
in the performance of duty on June 26, 2017, as alleged. Since appellant failed to establish the
first component of fact of injury, it is unnecessary to discuss whether he submitted medical
evidence sufficient to establish that a medical condition existed and whether the condition was
causally related to the employment exposure alleged.13
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on June 26, 2017, as alleged.

12

See also Willie J. Clements, 43 ECAB 244 (1991).

13

As appellant failed to establish that the claimed event occurred as alleged, it is not necessary to discuss the
probative value of medical evidence. See S.S., Docket No. 18-0242 (issued June 11, 2018); S.J., Docket No. 17-1798
(issued February 23, 2018).

6

ORDER
IT IS HEREBY ORDERED THAT the July 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 24, 2019
Washington, DC

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

Janice B. Askin, 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
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS, VA )
MEDICAL CENTER, Wilmington, DE, Employer )
__________________________________________ )
T.B., Appellant

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

Docket No. 22-0074
Issued: January 31, 2022

Case Submitted on the Record

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

On October 21, 2021 the Clerk of the Appellate Boards inadvertently assigned Docket No.
22-0074 to a purported appeal from a September 15, 2020 decision of the Office of Workers’
Compensation Programs (OWCP).
The Board has duly considered this matter and finds that the appeal is invalid. Section
501.3(a) of the Board’s Rules of Procedure provides that a “person adversely affected by a final
decision of the Director [of OWCP] or his or her authorized Representative, may file an appeal of
such decision by the Board.”1 The AB-1 form received by the Clerk of the Appellate Boards was
filed by “Sara L. @ First State Ortho”. Appellant did not sign the appeal form, nor did she
authorize “Sara L.” to represent her. The Board, therefore, concludes that neither a “person
adversely affected” by a final OWCP decision, nor an “authorized representative,” has filed an
appeal to the Board. As such, there is no valid appeal before the Board.
The Board further finds that the Board’s jurisdiction is limited to review final adverse
decisions of OWCP issued under the Federal Employees’ Compensation Act. 2 This jurisdiction
1

20 C.F.R. § 501.3(a)

2

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

encompasses any final adverse decision issued by OWCP within 180 days of the date of the
appeal.3 The September 15, 2020 decision is a notice of acceptance of the claim, not a final adverse
decision of OWCP. There is no final adverse decision issued by OWCP over which the Board
may properly exercise jurisdiction. 4 Accordingly,
IT IS HEREBY ORDERED THAT the purported appeal docketed as No. 22-0074 is
dismissed.
Issued: January 31, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3

20 C.F.R. § 501.3(e).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
4

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 08-498
Issued: June 6, 2008

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 June 11, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated May 18, 2007. Under 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $5,261.77 for the period January 2 through February 18, 2006;
(2) whether the Office properly found appellant was at fault in creating the overpayment.
FACTUAL HISTORY
Appellant, a 39-year-old customs inspector, injured his left shoulder and right elbow on
January 31, 2005 when he became lightheaded and fell down an escalator. He filed a claim for
benefits on the date of injury, which the Office accepted for contusion of the left shoulder and

upper arm and contusion of the right elbow and forearm. In its April 26, 2005 letter accepting
the claim, the Office advised:
“Once you return to work or obtain new employment, notify this [O]ffice
immediately. Full compensation is payable only while you are unable to perform
the duties of your regular job because of your accepted employment-related
condition. If you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.” [Emphasis added].
The Office paid appellant appropriate compensation for total disability and placed him on
the periodic rolls. Appellant returned to full duty without restrictions with the employing
establishment on January 2, 2006. The Office, however, continued to pay him temporary total
disability compensation until February 18, 2006.
By letter dated April 7, 2006, the Office made a preliminary determination that an
overpayment of compensation had occurred in the amount of $5,261.77, covering January 2 to
February 18, 2006. The Office found that appellant was at fault in creating the overpayment
because he should have known that he was not entitled to receive compensation payments after
he returned to work. The Office informed appellant that if he disagreed with the decision he
could, within 30 days, submit evidence or argument to the Office or request a prerecoupment
hearing with the Branch of Hearings and Review. He did not respond to this letter.
On February 6, 2007 the Office called appellant at his home and conducted a
teleconference regarding the overpayment. The Office advised him that it had sent him the
preliminary overpayment notice in April 2006 but that he had failed to respond.1 The Office
advised appellant that he owed an overpayment in the amount of $5,261.77 and that he would
have to repay the money with a payment plan.
In a decision dated May 18, 2007, the Office finalized the preliminary determination
regarding the overpayment of $5,261.77. The Office also found that appellant was at fault in
creating the overpayment of compensation in the amount of $5,261.77 for the period January 2
through February 18, 2006. The Office stated that appellant knew or reasonably should have
known that he was not entitled to receive compensation checks after he returned to work on
January 2, 2006.

1

A January 31, 2007 Office memorandum indicates that a claims examiner called appellant at home on
January 31, 2007 and left a message, requesting that he return the call as soon as possible. Appellant did not return
the call.

2

LEGAL PRECEDENT -- ISSUE 1
Compensation for total disability under the Federal Employees’ Compensation Act is
payable when the employee starts to lose pay.2 Compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him from earning the wages earned before the work-related injury.3
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $5,261.77 for the period January 2 through
February 18, 2006. The record shows that appellant received an overpayment during the period
in question because he continued to receive checks for temporary total disability compensation
after returning to full-time work on January 2, 2006. The Office calculated the $5,261.77
overpayment by totaling the amount of temporary total disability compensation appellant
received from December 25, 2005 to February 18, 2006, $6,229.38 and subtracting the amount
of compensation to which he was entitled from December 25, 2005 to January 1, 2006, $967.61,
for an overpayment of $5,261.77.4 Based on this determination, the Office properly found that
appellant received an overpayment of compensation in the stated amount during that period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act5 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.6

2

20 C.F.R. § 10.401(a) (2003).

3

Id. at § 500(a) (2003).

4

The Office arrived at these amounts by taking the net amount of his compensation check for the period
December 25, 2005 through January 21, 2006, $3,132.22 and adding it to the net amount of his compensation check
for the period January 22 through February 18, 2006, $3,097.16, for a total of $6,229.38. It then subtracted the
amount to which appellant was entitled while still disabled from December 25, 2005 to January 1, 2006, $967.61, to
arrive at the total overpayment of $5,261.77.
5

5 U.S.C. § 8129(a)-(b).

6

Bonnye Mathews, 45 ECAB 657 (1994).

3

In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment-(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or
(2) Failed to provide information which the individual knew or should
have known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.”7
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment.
Even if the overpayment resulted from negligence on the part of the Office, this does not
excuse the employee from accepting payment which he knew or should have expected to know
he was not entitled.8 Appellant was informed by the Office on April 26, 2005 that he was to
immediately report to the Office a return to work and return any compensation received after a
return to work or otherwise an overpayment of compensation would be created. He returned to
work on January 2, 2006 but did not report his return to work to the Office; he therefore knew or
should have known that an overpayment would be created if he accepted compensation benefits
after his return to work.
Appellant’s receipt of the January 21, 2006 direct deposit in the amount of $3,132.22
contained the first overpayment of $2,154.61, covering 20 days from January 2 to 21, 2006. The
Board has held that an employee who receives payments from the Office in the form of direct
deposit may not be at fault the first time incorrect funds are deposited into his account, as the
acceptance of the resulting overpayment lacks the requisite knowledge.9 After appellant’s
7

20 C.F.R. §10.433(a).

8

See Russell E. Wageneck, 46 ECAB 653 (1995).

9

That Board has found the claimant to be at fault in cases where he or she is receiving compensation checks
through direct deposit which involve a series of payments over several months, with clear knowledge that the
payments are incorrect. See George A. Hirsch, 47 ECAB 520 (1996); Kveta M. Kleven, Docket No. 99-2472 (issued
August 10, 2000); William J. Loughrey, Docket No. 01-1861 (issued July 12, 2002). The Board notes that it is not
appropriate to make a finding that a claimant has accepted 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.
In the instant case, by the time appellant accepted the February 18, 2006 check -- the second direct deposit check
containing an overpayment -- a sufficient amount of time had passed for him to become aware of the fact that the
checks contained an overpayment.

4

receipt of the first direct deposit, for which fault may not be imputed to him, it could be
presumed that he knew the amount of compensation contained in subsequent direct deposit
checks exceeding the amount to which he was entitled. Therefore, for receipt of the January 21,
2006 direct deposit, the Board finds that appellant was without fault. While the appellant
accepted the overpayment by gaining control of the funds deposited into his account pursuant to
his authorization, he did not know that he would receive an incorrect payment on that day.
Unlike the situation in which a claimant receives a physical check and is aware of the amount of
the payment before depositing it into his account, appellant was not on notice of the amount of
the payment until after it was deposited electronically into his account.
For these reasons, the Board finds that, under the circumstances of this case, the Office
properly found appellant at fault for the overpayment after January 21, 2006. However, the
Office improperly found that appellant was at fault in the creation of the overpayment in the
amount of $2,164.61, the portion of the overpayment directly deposited into his account on
January 21, 2006. As appellant was without fault under the third standard outlined above,
recovery of the overpayment of compensation in the amount of $2,164.61 may be considered for
waiver. Thus, the May 18, 2007 Office decision is affirmed, as modified.10
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $5,261.77 for the period January 2 through
February 18, 2006. The Board further finds that the Office properly found that appellant was at
fault for the overpayment paid after January 21, 2006, but reversed as to fault for the portion of
the overpayment paid from January 2 to 21, 2006. The case is remanded for determination of
waiver on the portion of the overpayment for which appellant was found to be at fault.

10

The Board notes that appellant submitted additional evidence to the record following the May 18, 2007 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified and remanded for further
proceedings consistent with this opinion.
Issued: June 6, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL LAW ENFORCEMENT TRAINING
CENTER, Glynco, GA, Employer
__________________________________________

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

Docket No. 19-1194
Issued: November 5, 2019

Case Submitted on the Record

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

JURISDICTION
On May 7, 2019 appellant filed a timely appeal from an April 29, 2019 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,109.86 for the period February 3 through
March 2, 2019, for which she was not at fault; and (2) whether OWCP abused its discretion by
denying waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 23, 2015 appellant, then a 51-year-old training technician, filed a traumatic
injury claim (Form CA-1) alleging that while in the performance of duty on November 18, 2015,
she experienced a slightly swollen and sore left knee as a result of banging her left knee against
the side of her computer desk. OWCP accepted the claim for contusion, initial encounter, sprain,
initial encounter, effusion, and other specified arthritis of the left knee.
On May 8, 2018 appellant filed a claim for a schedule award (Form CA-7).
By decision dated November 5, 2018, OWCP granted appellant a schedule award for 12
percent permanent impairment of the left leg. The award covered a period of 34.56 weeks from
June 15, 2018 through February 11, 2019, plus a fraction of a day. Appellant’s weekly pay of
$1,116.94 was multiplied by her augmented compensation rate of 66 2/3 percent for employees
with no eligible dependents, yielding a weekly compensation rate of $744.63. After cost-of-living
adjustments, the weekly compensation was increased to $776.25 per week, totaling $3,105.00 in
continuing payments every four weeks.
In a manual adjustment form, OWCP documented that it paid appellant an additional sum
of $3,109.86 for the period February 3 through March 2, 2019 after her schedule award
compensation ended. Copies of fiscal worksheets were provided.
By notice dated March 28, 2019, OWCP informed appellant of its preliminary
determination that an overpayment of compensation in the amount of $3,109.86 had been created
for the period February 3 through March 2, 2019. It explained that the overpayment occurred
because a computer system error continued to make an additional schedule award payment on
March 2, 2019 after the period of the schedule award had ended. OWCP found that appellant was
not at fault in the creation of the overpayment because she received a compensation payment
deposited by electronic funds transfer (EFT) and less than 30 days had elapsed since the EFT
deposit was made, which did not allow her ample time to receive and review a statement from her
financial institution showing the details of the improper payment. Specifically, it noted that on
March 2, 2019 she received a payment by direct deposit for the period February 3 through
March 2, 2019. However, 30 days had not passed since the EFT deposit was made and, therefore,
she would not have been reasonably aware of receiving the payment as of that day. OWCP advised
appellant that she could submit evidence challenging the fact, amount, or fault finding and request
waiver of recovery of the overpayment. Additionally, it informed her that, within 30 days, she
could request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. OWCP requested that appellant complete an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documentation.
In an overpayment action request signed April 9, 2019, appellant checked a box requesting
a final decision based on written evidence. She also requested waiver of recovery of the
overpayment as repayment would be against equity and good conscience and result in financial
loss.
Appellant submitted a Form OWCP-20 completed on April 9, 2019, in which she listed
monthly income of $3,092.00, monthly expenses of $3,375.00, and assets of $100.12.

2

By decision dated April 29, 2019, OWCP finalized the preliminary overpayment
determination that appellant received an overpayment of compensation in the amount of $3,109.86
because she received an additional schedule award payment for the period February 3 through
March 2, 2019, and that she was not at fault in the creation of the overpayment. It denied waiver
of recovery of the overpayment as there was no evidence to support that recovery of the
overpayment would defeat the purpose of FECA or be against equity and good conscience. OWCP
noted that appellant had not submitted financial documentation in support of her completed Form
OWCP-20. Therefore, it set repayment at $100.00 per month.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. Section 20 C.F.R. § 10.404
provides that compensation is awarded for specified periods of time for the permanent loss or loss
of use of certain members.4
OWCP’s procedures provide that an overpayment is created when a schedule award
expires, but compensation continues to be paid.5
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision regarding whether OWCP
properly determined that appellant received an overpayment of compensation in the amount of
$3,109.86 for the period February 3 through March 2, 2019, for which she was not at fault.
OWCP granted appellant a schedule award for 12 percent permanent impairment of the left
leg on November 5, 2018 for the period June 15, 2018 through February 11, 2019 plus a fraction
of a day, for a total of 34.56 weeks. The evidence of record establishes that on March 2, 2019 she
received a schedule award payment for the period February 3 through March 2, 2019.
Consequently, the payment appellant received from OWCP for the period after February 11, 2019,
the date the schedule award expired, constituted an overpayment of compensation.6 The Board
accordingly affirms OWCP’s finding of fact of overpayment.

2

Id.

3

20 C.F.R. § 10.404.

4

Id. Effective May 1, 2009, OWCP began determining schedule awards in accordance with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2009); Federal (FECA) Procedure Manual,
Part 2 – Claims, Schedule Award and Permanent Disability Claims, Chapter 2.808.6 (March 2017); see also Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010); A.B., Docket No. 18-0922 (issued January 3,
2019); E.V., Docket No. 17-2026 (issued July 11, 2018).
5

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1f (1)(i) (September 2018).
6

A.B., Docket No. 18-0922 (issued January 3, 2019); R.S., Docket No. 17-1985 (issued March 23, 2018).

3

With regard to the amount and period of the overpayment, OWCP found an overpayment
of compensation in the amount of $3,109.86 for the period February 3 through March 2, 2019.
The Board finds, however, with regard to the period of the overpayment, that the record
reflects that, based on the November 5, 2018 schedule award decision, appellant was entitled to
receive schedule award compensation through February 11, 2019. OWCP did not exempt the
period February 3 through 11, 2019 during which she was entitled to receive a schedule award
payment from its overpayment calculation. Therefore, the Board finds that the period and amount
of the overpayment have not been established.
The Board will set aside OWCP’s finding regarding the period and amount of the
overpayment. The case will be remanded for OWCP to properly calculate the period and amount
of the overpayment of compensation. Following this and other such further development as it
deems necessary, OWCP shall issue a de novo decision.

4

CONCLUSION
The Board finds that OWCP correctly determined the fact of overpayment of
compensation. The Board further finds, however, that the period and amount of the overpayment
are not in posture for a decision.7
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
action consistent with this decision of the Board.
Issued: November 5, 2019
Washington, DC

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

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

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

7

In light of the Board’s disposition as to Issue 1, Issue 2 is rendered moot.

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