United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.L., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Girdwood, AK, Employer
__________________________________________

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

Docket No. 18-0767
Issued: March 10, 2020

Case Submitted on the Record

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

JURISDICTION
On February 26, 2018 appellant filed a timely appeal from a February 9, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 22, 2017 employment incident.
FACTUAL HISTORY
On January 24, 2017 appellant, then a 37-year-old law enforcement officer, filed a
traumatic injury claim (Form CA-1) alleging that at 2:55 p.m. on January 22, 2017, he was struck
by a motor vehicle while conducting a traffic stop while in the performance of duty. He indicated
1

5 U.S.C. § 8101 et seq.

that his left knee had numbness and red coloration with soreness when walking. On the reverse
side of the claim form, a supervisor noted that appellant and his vehicle were struck by another
vehicle during a traffic stop, that several other incidents ensued, that no major injuries occurred,
and that state troopers investigated the incident, finding that appellant was not at fault.
In a development letter dated February 9, 2017, OWCP advised appellant that the evidence
of record was insufficient to establish his claim. It noted that it had not received medical evidence
with a diagnosis resulting from his injury. OWCP also requested additional factual information
regarding the alleged injury. It afforded appellant 30 days to submit the requested information.
In a report dated February 1, 2017, Dr. Charles Aarons, a family medicine specialist, noted
that appellant injured his left knee on January 22, 2017 when he jumped to avoid a speeding truck
during a traffic stop. Appellant reported that he had left knee bruising which had since cleared up,
and that while his knee felt weak, it had not actually given out and that he was otherwise uninjured.
Dr. Aarons advised that an x-ray of the left knee was normal.2 His Left knee examination
demonstrated normal range of motion with no bruising. Dr. Aarons diagnosed left knee pain and
ordered a magnetic resonance imaging (MRI) scan of his left knee.
A February 7, 2017 MRI scan revealed normal major cartilaginous, ligamentous, osseous,
and tendinous structures. An incidental note indicated that a significant amount of fluid was seen
in the prepatellar bursa, probably representing prepatellar bursitis, and “perhaps related to trauma.”
In a statement dated February 26, 2017, appellant described the January 22, 2017 incident.
He reported that while on duty that day, after conducting a traffic stop, he observed a truck heading
directly toward him at a high rate of speed. Appellant reported that he jumped in order to avoid
direct impact with the truck and was knocked back into the stopped vehicle, hitting his knees.
Afterward, he checked his lower extremities and was surprised to find that he was not severely
injured. Appellant indicated that his knees were bruised, primarily on his left, and that he pulled
muscles in his upper legs and back. A crash investigation was conducted that day by an Alaska
State Trooper.
By decision dated March 13, 2017, OWCP denied appellant’s claim finding that although
the evidence of record established that the employment incident occurred as alleged, appellant had
not submitted sufficient evidence to establish a diagnosed medical condition causally related to the
accepted January 22, 2017 employment incident. OWCP explained that “pain” was a symptom
and not a diagnosis.
On January 18, 2018 appellant requested reconsideration of OWCP’s March 13, 2017
decision. In an accompanying letter dated January 9, 2017, he asserted that the evidence submitted
established fact of injury. Appellant noted that a physician found severe bruising to the knee. He
further asserted that the fact that diagnostic testing was ordered, including a left knee MRI scan,

2

The record includes a February 1, 2017 left knee x-ray report that revealed no arthritic, degenerative, or posttraumatic abnormalities, with no evidence of malignancy, infection, or acute post-traumatic change. Soft tissues were
also normal.

2

was sufficient to establish fact of injury. Appellant also resubmitted Dr. Aaron’s February 1, 2017
report and an image of his left knee.
By decision dated February 9, 2018, OWCP denied modification of its March 13, 2017
decision.
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 whether a federal employee has sustained a traumatic injury in the performance of
duty, it must first be determined whether fact of injury has been established. First, the employee
must submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged. Second, the employee must submit sufficient
evidence to establish that the employment incident caused a personal injury.6
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.7 Rationalized medical opinion evidence is
medical evidence that includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and compensable employment factors.8
The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.9

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).
6

F.H., Docket No. 18-0869 (issued January 29, 2020).

7

T.H., Docket No. 19-0599 (issued January 28, 2020).

8

K.C., Docket No. 18-0529 (issued January 21, 2020).

9

D.J., Docket No. 19-1301 (issued January 29, 2020).

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted January 22, 2017 employment incident.
Dr. Aarons, in his February 1, 2017 report, only diagnosed left knee pain. The Board has
consistently held that pain is a description of a symptom and not, in itself, considered a firm
medical diagnosis.10 Dr. Aarons’ description of left knee pain is, therefore, insufficient to establish
that appellant sustained a diagnosed condition causally related to his employment incident.11
Appellant also submitted a February 1, 2017 x-ray and a February 7, 2017 MRI scan of his
left knee which revealed a significant amount of fluid in the prepatellar bursa, probably
representing prepatellar bursitis, “perhaps related to trauma.” However, the Board has held that
reports of diagnostic tests lack probative value as they fail to provide an opinion on causal
relationship between his employment duties and the diagnosed conditions.12 Therefore, they are
also insufficient to establish appellant’s claim.
As appellant has not submitted medical evidence sufficient to establish a medical condition
causally related to the accepted employment incident, the Board finds that he has not met his
burden of proof to establish his claim.
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 a medical
condition causally related to the accepted January 22, 2017 employment incident.

10

See M.L., Docket No. 18-0153 (issued January 22, 1980); B.P., Docket No. 12-1345 (issued November 13, 2012);
C.F., Docket No. 08-1102 (issued October 10, 2008).
11
Id. Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical
determination. Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4.a(6)
(August 2012).
12
K.S., Docket No. 18-1781 (issued April 8, 2019); G.S., Docket No. 18-1696 (issued March 26, 2019); J.M.,
Docket No. 17-1688 (issued December 13, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, San Juan, PR, Employer
__________________________________________
Appearances:
Elaine Rodriguez-Frank, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-944
Issued: September 18, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 12, 2013 appellant, through counsel, filed a timely appeal from a
November 29, 2012 decision of the Office of Workers’ Compensation Programs concerning the
denial of her occupational disease claim for a left foot tendon tear. The Board assigned Docket
No. 13-944.
On January 11, 2012 appellant, then a 38-year-old nurse, filed an occupational disease
claim alleging that on February 6, 2009 she first became aware of her left foot tendon tear, which
she alleged developed as a complication of a prior employment injury. A review of the record
indicates that the medical and factual evidence including appellant’s statement and hearing
testimony that her left foot tendon tear might be a consequential injury of an accepted left ankle
sprain were filed under OWCP File No. xxxxxx514. By decision dated April 17, 2012, OWCP
denied appellant’s claim. At the hearing following the April 17, 2012 OWCP denial, appellant
testified about her accepted July 8, 2008 employment injury and how her walking at work
aggravated the accepted employment injury resulting in a left foot tendon tear. On
November 29, 2012 an OWCP hearing representative affirmed the denial of her claim. She
noted that appellant had filed a claim for a recurrence of disability for this same condition under
OWCP File No. xxxxxx514, which had been denied.

The Board has duly considered the matter and concludes that the case is not in posture for
a decision. As the record before the Board contains no evidence from the prior claim, the Board
is unable to properly address and adjudicate the issue of whether appellant’s left tendon foot tear
was properly denied.
On remand, OWCP should combine the present case record, OWCP File No. xxxxxx424,
with OWCP File No. xxxxxx514. After combining these two case records on remand, OWCP
should consider the evidence contained in the combined case record and, following any
necessary further development, issue a de novo decision. Accordingly, the November 29, 2012
decision denying her occupational disease claim should be set aside.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2012 is set aside and the case remanded for further
proceedings consistent with this order of the Board.
Issued: September 18, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2


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

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

Docket No. 06-1762
Issued: May 1, 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 May 12, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 18, 2005 which denied his occupational
disease claim. Pursuant to C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.1
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty.
FACTUAL HISTORY
On April 27, 2005 appellant, then a 57-year-old rural carrier, filed an occupational
disease claim alleging that he experienced pain, weakness and loss of strength in his right hand
1

The record includes evidence received after the Office issued the July 18, 2005 decision. The Board cannot
consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c) (2004).

and fingers caused by repetitive motion while sorting and handling mail and while steering a
vehicle. He first realized that the condition was related to his employment on April 1, 2005.
A letter dated April 27, 2005 from appellant to the postmaster was submitted to the
Office. Appellant described the pain symptoms in his hands as well as previous fractures in his
hands. In a progress report dated May 12, 2005, Dr. Matthew Bliss, a Board-certified orthopedic
surgeon, described the follow-up visit for appellant’s left thumb surgery.
In a June 16, 2005 letter, the Office requested additional medical information from
appellant. Subsequently, a functional capacity evaluation and a summary of functional abilities
were submitted.
By decision dated July 18, 2005, the Office denied appellant’s claim. It found that the
evidence was insufficient to establish that the claimed medical condition was related to the
established work events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and 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 or specific condition for which compensation is claimed is
causally related to the employment injury.2
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 the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the 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 factors identified by the claimant.3
ANALYSIS
Appellant alleged that his right hand condition was causally related to factors of his
employment. To establish that appellant sustained an injury, medical evidence establishing the
existence of a disease or condition must be submitted. No evidence was submitted to support
appellant’s alleged right hand condition. The only evidence submitted was Dr. Bliss’ report
which addressed appellant’s left hand surgery and function testing results. None of the
documents diagnose a condition or disease in appellant’s right hand.
2

Anthony P. Silva, 55 ECAB 179 (2003).

3

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

2

Moreover, none of the medical evidence of record establishes that the alleged factors of
employment caused appellant’s right hand condition. The Board finds that the medical evidence
does not establish that appellant has a diagnosed condition or disease of the right hand causally
related to his federal employment.
CONCLUSION
The Board finds that appellant failed to establish that he sustained an occupational
disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 18, 2005 decision the Office of Workers’
Compensation Programs is affirmed.
Issued: May 1, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE ARMY, CORPUS
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CHRISTI DEPOT, Corpus Christi, TX, Employer )
__________________________________________ )
G.H., Appellant

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

Docket No. 07-2099
Issued: February 7, 2008

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 14, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ July 19, 2007 merit decision finding that he received an overpayment
of compensation and denying waiver and a June 15, 2007 decision denying his request for a
prerecoupment hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly denied his request for a prerecoupment
hearing; (2) whether appellant received an overpayment of $1,374.13 for the period August 22 to
November 25, 2006; and (3) whether the Office properly denied waiver of the overpayment.
FACTUAL HISTORY
On September 3, 2003 appellant, then a 77-year-old retired hydraulics repairer, filed an
occupational disease claim for a hearing loss condition as a result of being exposed to high

frequency noise in his job duties.1 On April 29, 2004 the Office accepted his claim for binaural
hearing loss and paid appropriate benefits.
By decision dated October 15, 2004, the Office granted appellant a schedule award for a
65 percent binaural hearing loss. The period of the award ran for 130 weeks from February 24,
2004 to August 21, 2006.
On February 23, 2007 the Office notified appellant of its preliminary determination that
he received an overpayment in the amount of $1,374.13 for the period August 22 to
November 25, 2006. The Office noted that he received schedule award payments in the amount
of $71,549.64 for the period February 24, 2004 to November 25, 2006, when he was only
entitled to receive $70,175.51 for the period February 24, 2004 to August 21, 2006, when his
schedule award entitlement of 130 weeks of compensation ended. The Office subtracted
$71,549.64 from $70,175.51 and determined that appellant received an overpayment of
$1,374.13 for the period August 22 to November 25, 2006. The Office further informed him of
its preliminary determination that he was without fault in creating the overpayment and
requested that he submit an enclosed overpayment recovery questionnaire and supporting
financial information within 30 days. It noted that waiver would be denied if appellant failed to
furnish the information requested on the enclosed overpayment recovery questionnaire or any
other information needed to address a request for waiver within the 30 days.
In a March 16, 2006 letter, appellant requested additional time to repay the overpayment
and asserted that the overpayment should be waived. No financial evidence or request for a
prerecoupment hearing accompanied the letter.
In a letter dated March 31, 2007 and postmarked May 14, 2007, appellant requested a
prerecoupment hearing on the issues that an overpayment had occurred and waiver of the
overpayment. His daughter indicated that appellant had invested in a parcel of real estate while
in receipt of the schedule award and stated that repaying the overpayment would cause undue
hardship as he had put down a large cash down payment. No financial information was
submitted.
By decision dated June 15, 2007, the Office denied appellant’s request for a
prerecoupment hearing on the grounds that it was not submitted within 30 days of the
February 23, 2007 preliminary overpayment determination.
In a letter dated July 5, 2007, appellant indicated that he should be entitled to waiver as
the Office had previously found him to be without fault in the creation of the overpayment. No
financial information was submitted.
By decision dated July 19, 2007, the Office determined that appellant was not entitled to
waiver of the $1,374.13 overpayment of compensation. It directed that appellant either repay the
overpayment in full or contact the Office to arrange a repayment plan.2
1

Appellant retired on July 3, 1996. He had previously filed a hearing loss claim on April 11, 1975.

2

The Office’s memorandum explaining the reasons for its denial of the waiver of overpayment is not of record.

2

LEGAL PRECEDENT -- ISSUE 1
Section 10.432 of the Office’s regulations provides that, in response to a preliminary
notice of an overpayment, a claimant may request a prerecoupment hearing within 30 days of the
written notice of overpayment. Failure to request the hearing within this 30-day time period
shall constitute a waiver of that right.3
ANALYSIS -- ISSUE 1
In a letter postmarked May 14, 2007, appellant requested a prerecoupment hearing of the
Office’s February 23, 2007 preliminary overpayment determination. By decision dated June 15,
2007, the Office denied his request for a prerecoupment hearing on the grounds that it was not
timely filed within 30 days of the February 23, 2007 preliminary overpayment determination.
Appellant did not file his request for a prerecoupment hearing within 30 days of the February 23,
2007 preliminary overpayment determination. Therefore, his right to a hearing is deemed
waived.
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Federal Employees’ Compensation Act4 provides that, if there is a
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function. The Office’s procedure manual provides that an overpayment of compensation can
occur under various circumstances, including when a schedule award expires, but compensation
continues to be paid.5
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained binaural hearing loss as a result of his
employment activities. On October 15, 2004 the Office granted appellant a schedule award for a
65 percent binaural hearing loss, with the award covering 130 weeks and running from
February 24, 2004 to August 21, 2006. However, the Office paid him compensation of
$71,549.64 for the period February 24, 2004 to November 25, 2006, although appellant was only
entitled to receive $70,175.51 in compensation, or 130 weeks of compensation, for the period
February 24, 2004 to August 21, 2006, as stated in his schedule award decision. The Office
subtracted $71,549.64 from $70,175.51 and determined that appellant received an overpayment
of $1,374.13 for the period August 22 to November 25, 2006. The record substantiates that an
overpayment of $1,374.13 resulted during the period August 22 to November 25, 2006.

3

20 C.F.R. § 10.432.

4

5 U.S.C. §§ 8101-8193.

5

Federal (FECA) Procedure Manual, Part 6 -- Initial Overpayment Actions, Identification of Overpayments and
Debts, Chapter 6.200.2(c) (May 2004).

3

LEGAL PRECEDENT -- ISSUE 3
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.6 The statutory
guidelines are found in section 8129(b) of the Act which states: Adjustment recovery of an
overpayment by the United States may not be made when an 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.7
Section 10.436 of the implementing regulations8 provides that recovery of an
overpayment would defeat the purpose of the Act if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: the beneficiary from whom the Office seeks
recovery needs substantially all of his or her current income (including compensation benefits) to
meet current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined by the Office from data furnished by the Bureau of
Labor Statistics.9 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.10
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.11
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses and assets as
specified by the Office. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of the Act or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in the denial
of waiver.12

6

See Robert Atchison, 41 ECAB 83, 87 (1989).

7

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361, 363 (1994).

8

20 C.F.R. § 10.436.

9

An individual assets must exceed a resource based on $4,800.00 for an individual or $8,000.00 for an individual
with a spouse or one dependent plus $960.00 for each additional dependent. This base includes all of the
individual’s assets not exempt from recoupment. See Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.6(a)(1), (b) (December 23, 2004).
10

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

11

20 C.F.R. § 10.437.

12

Id. at § 10.438.

4

ANALYSIS -- ISSUE 3
The Office found appellant to be without fault and eligible for consideration of waiver
with regard to its finding that he received an overpayment in the amount of $1,374.13. Although
appellant argued that, repayment of the overpayment would cause undue hardship, he did not
timely submit any information regarding his financial situation. The applicable regulations
provide that the individual who receives an overpayment is responsible for providing financial
information. Failure to submit the requested financial information within 30 days of the request
shall result in the denial of the waiver.13 As appellant failed to submit the requested financial
evidence, the Office, pursuant to its regulations, properly denied waiver of recovery of the
overpayment amount of $1,374.13.14
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,374.13 for the period August 22 through November 25, 2006 and that the Office properly
denied wavier of such overpayment.

13

See id.; R.W., (J.T.), 59 ECAB ___ (Docket No. 07-1845, issued December 7, 2007).

14

As the Office is not seeking recovery from continuing compensation, the Board does not have jurisdiction to
review the manner of recovery of the overpayment. See Miguel A. Muniz, 54 ECAB 217 (2002).

5

ORDER
IT IS HEREBY ORDERED THAT the July 19 and June 15, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 7, 2008
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
__________________________________________
G.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRAION,
Hines, IL, Employer
__________________________________________

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

Docket No. 10-2231
Issued: July 1, 2011

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 September 1, 2010 appellant filed a timely appeal from a June 29, 2010 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on December 14, 2007.
FACTUAL HISTORY
On August 8, 2009 appellant, then a 49-year-old environmental maintenance cleaner,
filed a traumatic injury claim (Form CA-1) alleging that on December 14, 2007 he sustained a
1

5 U.S.C. § 8101 et seq.

sciatic pinched nerve when he was disposing garbage and felt a sharp pain in his low back. He
stated that his pinched nerve caused him back and groin pain which shot down to the knee. The
employing establishment stated that appellant never reported his injury.
By letter dated October 6, 2009, the Office requested additional factual and medical
evidence from appellant and asked that he respond to the provided questions within 30 days.
In a July 24, 2008 radiology report, Dr. Blake Gornowicz, a treating physician, found no
acute fracture or subluxation with moderate, diffuse degenerative changes present, greatest at the
T9-12 thoracic and L5 lumbar levels. In an August 20, 2008 radiology report, he found anterior
flowing osteophytes over four contiguous vertebral bodies in the lower thoracic spine and a large
anterior osteophyte in the L5 vertebral body. Dr. Gornowicz also noted mild disc desiccation at
the L4-5 level with no significant loss of disc height and mild-to-moderate broad-based disc
bulges at the L3-4, L4-5 and L5-S1 levels, greatest at L4-5.
In a June 16, 2009 medical report, Dr. Jonathan Stone, Board-certified in physical
medicine and rehabilitation, reported that appellant started having back pain in 2008 when he
was pushing a dumpster at work and heard his back crunch.2 He noted that appellant was unable
to continue his job and was terminated. Dr. Stone stated that the low back pain radiated into the
bilateral groin and the mid-thigh. Pain was worse with sitting, standing, lying down, walking,
twisting, a change in weather and leaning. Dr. Stone evaluated an August 2008 magnetic
resonance imaging scan which revealed mild-to-moderate broad-based disc bulges at L3-4, L4-5
and L5-S1 levels, no significant loss of lumbar disc height and a large anterior osteophyte on the
L5 vertebral body. The spine showed moderate diffuse degenerative changes greatest at the T9
to T12 and L5 levels. Dr. Ebby Varghese, Board-certified in physical medicine and
rehabilitation, noted that he consulted with appellant on May 18, 2009 for lumbar epidural
steroid injections to treat the back pain. He recommended bilateral sacroiliac joint injections.
In an October 19, 2009 note, appellant stated that he did not provide notice to his
supervisor within 30 days because he did not know his injury was serious. He noted that he did
not have any similar disability or symptoms prior to the incident.
In an undated letter, Dr. Thomas Randoll, a Board-certified doctor of osteopathic
medicine, reported that appellant’s original back injury occurred in December 2007 when he was
lifting trash and felt his back go out. He stated that he did not treat appellant in 2007 but began
seeing him for primary care on September 20, 2008. Dr. Randoll noted that diagnostic testing
had been obtained which showed disc space narrowing and multiple levels of disc bulging. He
further stated that appellant underwent physical therapy and steroid injections but continued to
have back pain and required daily pain medication.
By decision dated November 18, 2009, the Office denied appellant’s claim finding that
the evidence did not establish that the claimed medical condition was related to the established
work-related event.

2

During the April 19, 2010 oral hearing, appellant’s attorney argued that though Dr. Stone stated that appellant’s
back pain began in 2008, Dr. Stone probably meant December 2007.

2

On November 25, 2009 appellant, through his attorney, requested a telephone hearing
before an Office hearing representative.
In a December 11, 2009 letter, Dr. Randoll repeated appellant’s medical history as noted
in his previous letter. He further stated that though he had not seen appellant in 2007, that based
on the mechanism of injury and symptoms alleged, the December 14, 2007 incident, was more
likely than not, the cause or an aggravation of his low back symptoms.
In a December 16, 2009 letter, appellant stated that his injury occurred in December 2007
when he was disposing trash at work and felt a sharp pain in his lower back. He informed his
supervisor about the injury and reported that he was going to the emergency room. At the
emergency room, appellant reported that the physician diagnosed him with a sciatic pinched
nerve and he was restricted from lifting over 10 pounds, twisting and bending.
At the April 19, 2010 hearing, appellant testified that he had been employed by the
employing establishment since November 1, 2007 and his injury occurred on
December 14, 2007. He stated that he followed up at the Veteran’s Administration emergency
room on December 21, 2007 and noted that though he had chronic back pain for many years
prior, it did not prohibit him from doing any work. Appellant further indicated that he did not
have any back related injuries prior to December 2007 and had never experienced the sharp pain
that he felt on December 14, 2007. He testified that he had no back injuries after December 14,
2007 but was unable to do his job. Appellant’s attorney argued that there was enough medical
evidence to send appellant for a second opinion evaluation. The record was held open for 30
days.
In Veteran’s Administration Medical Center reports dated January 13 to December 14,
2009, Dr. Randoll noted that appellant continued to have back injections for his back pain.
February 27, 2009 lab results for plasma, urine and blood were also submitted.
In a January 15, 2010 operative report, Dr. Varghese stated that appellant underwent a
successful right L3 to S1 median branch radiofrequency ablation.
By decision dated June 29, 2010, an Office hearing representative affirmed the Office’s
November 18, 2009 decision. The hearing representative specifically noted that the medical
reports did not warrant further medical development on the part of the Office and that there was
no rationalized medical evidence establishing that the employment event resulted in a low back
condition.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed are causally related to the

3

employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a 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 based on a complete factual and medical background, supporting such
a causal relationship.6 Rationalized medical opinion evidence 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. 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.7
ANALYSIS
The Office accepted that the December 14, 2007 incident occurred as alleged. The issue
is whether appellant established that the incident caused a low back injury. The Board finds that
he did not submit sufficient medical evidence to support that his back injury is causally related to
the December 14, 2007 employment incident.8 Appellant’s decision to delay filing his claim for
over a year and a half after his traumatic incident significantly hampers the ability of the Office
to investigate the factual and especially the medical circumstances of his claim. It is more
difficult to determine whether any physiological change might have resulted from appellant’s
episode of pain and a “crunch” sensation.
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

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

7

James Mack, 43 ECAB 321 (1991).

8

See Robert Broome, 55 ECAB 339 (2004).

4

In medical reports dated January 30 to December 14, 2009, Dr. Randoll noted that
appellant continued to have injections for his back pain. In a December 11, 2009 letter, he
reported that appellant’s original back injury occurred in December 2007 when he was lifting
trash and felt his back go out. Dr. Randoll stated that he did not treat appellant then but began
seeing him for primary care on September 20, 2008. He noted that diagnostic testing had been
obtained which showed disc space narrowing and multiple levels of disc bulging. Dr. Randoll
further stated that based on the mechanism of injury and the symptoms after the incident, it was
more likely than not, that the episode could have caused or prompted his low back symptoms.
The Board finds that the opinion of Dr. Randoll is not well rationalized. Dr. Randoll had
no contact with appellant prior to September 20, 2008. While he stated that appellant’s original
back injury occurred in December 2007 when he was lifting trash, Dr. Randoll did not determine
that appellant’s actual diagnosed conditions were work related and did not offer a detailed,
rationalized opinion explaining the causal relationship between appellant’s condition and the
December 14, 2007 employment incident.9 Though he diagnosed appellant’s injury, he failed to
explain how appellant’s employment incident contributed to or caused the low back condition.
Dr. Randoll’s broad statement that the episode more likely than not could have caused
appellant’s low back symptoms based on the mechanism of injury and symptoms after the
incident, does not offer meaningful support to the conclusion that the December 14, 2007
incident caused an injury. Medical reports without adequate rationale on causal relationship are
of diminished probative value and are insufficient to meet an employee’s burden of proof.10 The
opinion of a physician supporting causal relationship must be based on a complete factual and
medical background with affirmative evidence. The opinion must address the specific factual
and medical evidence of record and explain the relationship between the diagnosed condition and
the established incident or factor of employment.11 Without medical reasoning explaining how
appellant’s employment incident caused the low back injury, Dr. Randoll’s reports are
insufficient to meet appellant’s burden of proof.12
The remaining medical evidence of record is also insufficient to establish a causal
relationship between appellant’s back condition and the December 14, 2007 employment
incident. Dr. Gornowicz’s July 24, 2008 radiology report found degenerative changes at the T912 and L5 levels. The August 20, 2008 radiology report found ostephytes over four contiguous
vertebral bodies in the lower thoracic spine and a larger anterior osteophyte in the L5 vertebral
body along with disc desiccation at L4-5 and disc bulges at the L3-4, L4-5 and L5-S1 levels.
Dr. Stone’s June 16, 2009 report noted that appellant started having back pain in 2008 when he
was pushing a dumpster and heard his back crunch.13 He assessed appellant’s radiology reports
9

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996); Robert Broome, supra note 8.

12

C.B., Docket No. 08-1583 (issued December 9, 2008).

13

The Board notes that appellant does not claim an injury in 2008 and that Dr. Stone does not offer information
or insight on a December 14, 2007 incident. See supra note 2.

5

and made the same findings as Dr. Gornowicz. Dr. Varghese consulted with appellant on
May 18, 2009 for lumbar epidural steroid injections to treat his back pain. Appellant had surgery
on January 15, 2010 and he reported that she underwent a successful right L3 to S1 median
branch radiofrequency ablation.
While the above medical records addressed appellant’s treatment and injury, the
physicians failed to state any causal relationship between appellant’s back condition and the
December 14, 2007 employment incident. The Board has held that medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.14 Without medical reasoning explaining how
appellant’s employment caused his back condition, the reports are not sufficient to meet his
burden of proof.15
Appellant’s attorney argues that the medical reports submitted are sufficient to establish
his claim or to warrant further development of the evidence. Proceedings under the Act are not
adversarial in nature, nor is the Office a disinterested arbiter. While the Office shares
responsibility in the development of the evidence to see that justice is done, it is appellant’s
burden of proof to submit the evidence necessary to establish his claim.16 The Board has
reviewed the medical evidence and no physician has provided a clear opinion that the
December 14, 2007 employment incident caused or aggravated appellant’s back condition. The
single, conclusory statement by Dr. Randoll that a causal connection probably exists is not
sufficient to require further development by the Office.
Appellant himself has alleged that the December 14, 2007 employment incident caused
his back injury. His statements however, do not constitute the medical evidence necessary to
establish causal relationship. In the instant case, the record is without rationalized medical
evidence establishing a causal relationship between the accepted employment incident and
appellant’s low back condition. Thus, appellant has failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on December 14, 2007 in the performance of duty, as alleged.

14

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

15

C.B., supra note 12.

16

Phillip L. Barnes, 55 ECAB 426 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the June 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2011
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, CINCINNATI
)
PERFORMANCE CLUSTER, Cincinnati, OH,
)
Employer
)
__________________________________________ )
G.T., Appellant

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

Docket No. 12-1016
Issued: November 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 12, 2012 appellant filed a timely appeal from an October 20, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for an
oral hearing. The most recent OWCP merit decision of record is dated April 22, 2009. Since
more than 180 days elapsed from issuance of the most recent merit decision of April 22, 2009 to
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.2
The Board only has jurisdiction to review the October 20, 2011 nonmerit decision.

1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, the Board’s regulations provided up to one year to file
an appeal. 20 C.F.R. § 501.3(d)(2). For OWCP decisions issued on and after November 19, 2008, a claimant has
180 days to appeal. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely under 5 U.S.C. § 8124.
FACTUAL HISTORY
This case was previously before the Board. In a nonmerit decision dated September 8,
2010, the Board affirmed an October 26, 1999 OWCP decision which found that appellant had
filed an untimely request for an oral hearing from an April 22, 2009 decision.3 By decision dated
April 22, 2009, OWCP terminated appellant’s compensation benefits and modified his
August 25, 1999 loss of wage-earning capacity decision to zero effective April 22, 2009. The
Board noted that it did not have jurisdiction over the April 22, 2009 OWCP decision. The facts
of the case as set forth in the Board’s September 8, 2010 decision are incorporated herein by
reference.
In an appeal request form dated September 22, 2011 and postmarked September 23,
2011, appellant requested an oral hearing before a hearing representative of OWCP’s Branch of
Hearings and Review.
By decision dated October 20, 2011, OWCP’s Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds that it was untimely. It exercised its
discretion and further denied his request on the basis that the issue in the case could be addressed
by requesting reconsideration before OWCP and submitting evidence not previously considered.4
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.5
Section 10.615 of the federal regulations implementing this section of FECA provide that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.6 The
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)

3

Docket No. 10-315 (issued September 8, 2010).

4

Subsequent to appellant filing his appeal with the Board, OWCP issued nonmerit decisions dated May 8 and
June 8, 2012 denying appellant’s request for an oral hearing as untimely under 5 U.S.C. § 8124. As appellant filed
his appeal with the Board on April 12, 2012, OWCP’s May 8 and June 8, 2012 decisions are null and void as they
pertain to the same issue over which the Board has jurisdiction; see Russell E. Lerman, 43 ECAB 770 (1992);
Douglas E. Billings, 41 ECAB 880 (1990).
5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.615.

2

of the date of the decision for which a hearing is sought.7 A claimant is entitled to a hearing or
review of the written record as a matter of right if the request is filed within 30 days.8
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.9
ANALYSIS
The record shows that the last merit decision of OWCP was rendered on April 22, 2009.
In that decision, OWCP terminated appellant’s compensation benefits and modified his loss of
wage-earning capacity dated August 25, 1999 to zero effective April 22, 2009. Appellant’s
request for a hearing before an OWCP hearing representative was postmarked September 23,
2011, more than 30 days after the April 22, 2009 decision. Therefore, his hearing request was
not timely and appellant was not entitled to an oral hearing as a matter of right.10
OWCP has the discretionary authority to grant a hearing even though a claimant is not
entitled as a matter of right. In its October 20, 2011 decision, it properly exercised its discretion.
OWCP considered the issue and denied appellant’s request for an oral hearing on the basis that
his claim on the issue of whether he was entitled to compensation benefits could be adequately
addressed through the reconsideration process and the submission of additional evidence. The
Board has held that the only limitation on OWCP’s authority is reasonableness. Abuse of
discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deduction from
established facts.11 In the present case, OWCP did not abuse its discretion in denying a
discretionary hearing.
On appeal, appellant argues the merits of his case. However, as previously noted, the
Board does not have jurisdiction over the merits of this case.12
CONCLUSION
The Board finds that OWCP properly found that appellant had filed an untimely request
for an oral hearing.
7

Id. at § 10.616(a).

8

Leona B. Jacobs, 55 ECAB 753 (2004).

9

See id.; Cora L. Falcon, 43 ECAB 915 (1992); Mary B. Moss, 40 ECAB 640 (1989); Rudolph Bermann, 26
ECAB 354 (1975).
10

20 C.F.R. § 10.616(a).

11

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

12

Appellant submitted new medical evidence subsequent to OWCP’s April 22, 2009 decision. The Board has no
jurisdiction to review new evidence on appeal. See 20 C.F.R. § 501.2(c). Appellant can resubmit this evidence to
OWCP and request reconsideration under 5 U.S.C. § 8128.

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated October 20, 2011 is affirmed.
Issued: November 7, 2012
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
COLUMBUS AIR FORCE BASE,
Columbus, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1327
Issued: April 6, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 28, 2009 appellant filed a timely appeal from a January 22, 2009 decision of the
Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether the Office properly found an $8,085.65 overpayment of
compensation as it deducted health insurance premiums for single rather than family coverage
for the period December 5, 1997 to April 12, 2008; (2) whether the Office properly denied
waiver of recovery of the overpayment; and (3) whether the Office properly required repayment
at the rate of $150.00 every 28 days from continuing compensation payments.
On appeal, appellant does not contest the fact or amount of the overpayment. He asserts
that he should not have to repay the overpaid amount as the Office failed to pay more than

$8,085.65 in medical bills related to his accepted injuries. Appellant also contends that he
submitted all financial information requested.
FACTUAL HISTORY
The Office accepted that on September 4, 1997 appellant, then a 42-year-old painter,
fractured two cervical vertebrae when he fell off a ladder. It later accepted cervical stenosis, a
neck sprain, complications of an implant device,1 disturbance of cutaneous sensation, genital
contusions and psychosexual dysfunction. Appellant stopped work on October 29, 1997 and did
not return. He received compensation on the periodic rolls beginning in April 2004, retroactive
to December 1997. Appellant remained under medical treatment.
Appellant was enrolled in the Federal Employees’ Health Benefit (FEHB) plan at the
time he was injured. It is not clear whether he had selected family or individual coverage. In a
December 1, 2002 form, appellant noted that he had family health insurance coverage under
FEHB plan 105. On May 23, 2003 the employing establishment indicated that he was enrolled
in FEHB plan 104, providing “self only” benefits. The Office deducted health benefits
premiums based on plan code 104.
Effective April 13, 2008, the Office corrected the amount of appellant’s health benefits
deduction from plan code 104 to 105. It calculated that, for the period December 5, 1997 to
April 12, 2008, it should have deducted $14,310.10 from appellant’s compensation for family
coverage under plan code 105. Instead, it deducted only $6,224.45 based on plan code 104. The
underdeduction of $8,085.65 constituted an overpayment of compensation.
By notice dated May 15, 2008, the Office advised appellant of its preliminary
determination that an $8,085.65 overpayment of compensation was created in his case as the
Office failed to deduct the correct health insurance premiums for the period December 5, 1997 to
April 12, 2008. It found that he was not at fault in creating the overpayment. The Office
afforded him 30 days to provide financial information and to request a hearing.
On May 30, 2008 appellant requested a prerecoupment hearing. He submitted an
overpayment recovery questionnaire (Form OWCP-20) and supporting documentation.
Appellant listed monthly income of $1,485.00 in compensation, $117.00 in Veterans’
Administration benefits and $860.00 from his wife’s salary. He lived with his wife and minor
child. Appellant listed monthly household expenses of $350.00 for food, $75.00 for clothing,
$780.00 for utilities and $548.00 for medication, burial insurance, internet and cable. He also
noted approximately $1,000.00 in monthly debt and insurance payments. Appellant and his wife
had no bank accounts, stocks, bonds or valuable personally.
At the hearing, held October 29, 2009, appellant asserted that he intended to have family
insurance coverage under code 105. He noted that he and his wife owned their home and there
was no mortgage on it. In addition, appellant’s wife owned half an acre of land valued at
1

On December 8, 1997 appellant underwent a C4-5 discectomy and fusion with plating from C3 to 6. He
underwent implantation of a spinal cord stimulator at C1-2 on April 29, 2002. The implant required emergency
removal on September 11, 2002 due to infection.

2

approximately $1,100.00. Also, his wife was laid off shortly before the hearing and received
unemployment benefits. Appellant noted an additional expense for gas heating but that he had
not yet received a bill. The Office hearing representative afforded him 30 days to submit
verification of his wife’s unemployment benefits, the cost of gas heat and a valuation of his
wife’s real property. The hearing representative noted that it appeared that the Office had not yet
reimbursed appellant for work-related medical expenses. She advised him to submit his medical
bills to the Office for payment.
By decision dated and finalized January 22, 2009, the Office hearing representative
finalized the fact and amount of overpayment and that appellant was not at fault in its creation.
The Office noted that he did not submit information regarding his wife’s unemployment benefits,
real property or his gas heating bill as instructed. Without this information, the amount of
income, assets and expenses could not be calculated to determine if waiver could be granted.
Therefore, the hearing representative directed recovery of the overpayment by deducting $150.00
from appellant’s continuing compensation, with interest, from February 15, 2009 to
June 30, 2013.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act2 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 duty.3 Section 8129(a) of the Act provides, in
pertinent part, that 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.”4
The regulations of the Office of Personnel Management (OPM), which administers the
FEHB program, provide guidelines for registration, enrollment and continuation of enrollment of
federal employees. In this connection, 5 C.F.R. § 890.502(a)(1) provides:
“[A]n employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during which the
enrollment continues. An employee or annuitant incurs an indebtedness due the
United States in the amount of the proper employee or annuitant withholding
required for each pay period that health benefit withholdings or direct premium
payments are not made but during which the enrollment continues.”5

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8129(a).

5

5 C.F.R. § 890.502(a)(1).

3

In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than the proper health benefits contributions from
an individual’s pay, annuity or compensation must submit an amount equal to the
sum of the uncollected contributions and applicable agency contributions required
under section 8906 of Title 5 United States Code, to OPM for deposit in the
Employees’ Health Benefits Fund.”6
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.7 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.8 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.9
ANALYSIS -- ISSUE 1
Appellant received total disability compensation on the periodic rolls. During the period
December 5, 1997 to April 12, 2008, the Office deducted health insurance premiums at an
incorrect rate. Appellant was enrolled in family health insurance coverage under plan code 105.
He does not dispute that he received family health insurance benefits. However, the Office
deducted premiums at the lower individual coverage rate under plan code 104. It calculated that
it should have deducted $14,310.10 in health insurance premiums during the period in question,
but only deducted $6,224.45, a difference of $8,085.65. The Board finds that the Office properly
determined that appellant received an overpayment of compensation in the amount of $8,085.65
for the period December 5, 1997 to April 12, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act10 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.”
Thus, a finding that appellant was without fault does not automatically result in waiver of the
overpayment. The Office must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of the Act or would be against equity and good
conscience.11
6

Id. at § 890.502(c).

7

Id. at § 890.502(a)(1).

8

Supra note 5.

9

T.S., 60 ECAB ___ (Docket No. 08-1604, issued March 13, 2009); 5 C.F.R. § 890.502.

10

5 U.S.C. § 8129.

11

Wade Baker, 54 ECAB 198 (2002).

4

Section 10.436 of the implementing federal regulations12 provide that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to “defeat the purpose of the Act.”
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.13
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by the
Office, as this information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the Act or be against equity and good conscience.14 This
information would also be used to determine the repayment schedule, if necessary. Section
10.438(b) provides that failure to submit the requested information within 30 days of the request
shall result in denial of waiver.15
ANALYSIS -- ISSUE 2
In its May 15, 2008 preliminary overpayment determination, the Office informed
appellant of actions available to him if he believed that he should receive a waiver. It advised
him to submit a completed overpayment recovery questionnaire as well as information and
evidence regarding his income and expenses.
Appellant submitted a completed overpayment recovery questionnaire with financial
information outlining his income and expenses, but there was additional information needed
regarding his home heating bill and his wife’s income and assets. On appeal, he asserts that he
did submit the information as requested by the hearing representative, but there is no indication
in the record that he provided such documents.
As appellant did not submit complete financial information, there was insufficient
evidence before the Office establishing that recovery of the overpayment would defeat the
purpose of the Act or would be against equity and good conscience.16 As he failed to submit the
requested information, as required by section 10.438 of its regulations, he was not entitled to a
12

20 C.F.R. § 10.436.

13

Id. at § 10.437.

14

Id. at § 10.438(a).

15

Id. at § 10.438(b).

16

See id. at § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).

5

waiver.17 The Board finds that the Office properly denied waiver of recovery of the
overpayment of compensation.
On appeal, appellant contends that he should not have to repay the overpaid
compensation as the Office failed to pay a greater amount of medical bills. However, whether
the Office paid appellant’s medical bills is unrelated to the issue of whether the Office deducted
the appropriate amount of health benefit premiums from his compensation. The Board notes that
at the prerecoupment hearing, the Office hearing representative advised appellant to submit his
medical bills to the Office for payment.
LEGAL PRECEDENT -- ISSUE 3
Office regulations provide that, when an overpayment has been made to an individual
who is entitled to further payments, the individual shall refund to the Office the amount of the
overpayment, as soon as the error is discovered or his attention is called to same. If no refund is
made, it shall decrease later payments of compensation taking into account the probable extent of
future payments, the rate of compensation, the financial circumstances of the individual and any
other relevant factors, so as to minimize any hardship.18
ANALYSIS -- ISSUE 3
The Board finds that the Office did not abuse its discretion by ordering the deduction of
$150.00 every four weeks from appellant’s continuing compensation payments.
Section 10.441(a) of the Office’s regulations direct it to take certain matters into
consideration in establishing the repayment schedule, including the probable extent of future
payments, the rate of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.19 In this case, it was disadvantaged by
appellant’s failure to provide complete financial documentation. The Board notes that the Office
did consider the information available. The Board finds that the Office gave due consideration to
the relevant factors and properly imposed a repayment schedule of $150.00 every 28 days from
appellant’s continuing compensation.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $8,085.65 for
the period December 5, 1997 through April 12, 2008. The Board further finds that the Office
properly denied waiver and did not abuse its discretion in requiring repayment at the rate of
$150.00 every 28 days from continuing compensation payments.

17

Id.

18

Id. at § 10.441(a).

19

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 22, 2009 is affirmed.
Issued: April 6, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Baton Rouge, LA, Employer
)
___________________________________________ )
R.C., Appellant

Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-1986
Issued: June 4, 2009

Oral Argument April 23, 2009

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

On July 15, 2008 appellant filed a timely appeal of a decision of the Office of Workers’
Compensation Programs dated July 2, 2008 which denied modification of a decision denying his
request for disability after February 5, 1991. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this decision.
ISSUE
The issue is whether appellant met his burden of proof to establish that he had disability
after February 5, 1991, due to his January 17, 1988 employment injury.
FACTUAL HISTORY
This is the sixth appeal in this case. On November 19, 1992 the Board affirmed Office
decisions finding that the Office met its burden of proof to terminate appellant’s compensation
benefits effective February 5, 1991.1 The Board found that the weight of the medical evidence
rested with Dr. Gordon P. Nutik, a Board-certified orthopedic surgeon and an impartial medical
specialist, who found that appellant had no residuals after February 5, 1991 due to his
1

Docket No. 92-1352 (issued November 19, 1992).

January 17, 1988 employment injury.2 On June 2, 1997 the Board found that appellant did not
meet his burden of proof to establish that he was disabled after February 5, 1991 due to his
January 17, 1988 work injury.3 The Board noted that, as the Office properly terminated
appellant’s compensation effective February 5, 1991, the burden of proof shifted to him to show
that he was disabled after that date. On July 29, 2002 the Board set aside a July 20, 2000 Office
decision and found that appellant submitted new and relevant medical evidence that required
reopening of his claim for a merit review.4 In August 3, 20045 and January 12, 20076 decisions,
the Board found that he did not meet his burden of proof to establish that he had disability on or
after February 5, 1991 due to his 1988 work injury. The facts and the circumstances of the case
as set forth in the Board’s prior decisions are incorporated herein by reference.
On December 8, 2007 appellant requested reconsideration and submitted additional
evidence. He submitted copies of previously received evidence pertaining to his claim for an
injury on November 27, 1990, which was denied under claim No. xxxxxx992. Appellant alleged
that Dr. Nutik’s selection as an impartial medical examiner was in error. He also alleged that his
physicians were aware of his history, including the November 27, 1990 motor vehicle accident.
With appellant’s request he submitted a March 29, 2007 report from Dr. Jack F. Loupe, a Boardcertified orthopedic surgeon, who noted being aware that appellant was in a motor vehicle
accident on November 27, 1990. Dr. Loupe opined that he “did n[o]t think that it was relevant
since [appellant] had been disabled since an accident on the job in 1988.” He added that the
“accident of November 27, 1990 was an injury that occurred on the job and only temporarily
increased his chronic, disabling lower back pain from the accident of January of 1988.”
Dr. Loupe added that he had previously made an annotation regarding the incident in his report
of October 23, 1991. He advised that the accident “caused an aggravation of [appellant’s] lower
back pain” which was treated by another physician. Dr. Loupe advised that appellant “told me
that this accident had no lasting affect on his chronic lower back pain and that he remained
disabled from the original injury ever since.” He opined that he “did not think that it played a
significant role in his chronic back pain and disability, and did n[o]t seem to have caused any
lasting effect or lasting increased pain.”
In an April 23, 2007 report, Dr. James Butler, a Board-certified orthopedic surgeon, noted
that appellant came in for follow up with complaints of chronic back pain. He indicated that he
was responding to the issue of whether he was aware of appellant’s November 1990 motor
vehicle accident. Dr. Butler opined that the motor vehicle accident did “not affect [appellant’s]
long-term prognosis and was not a contributory factor to his long-term condition in my opinion.”
By decision dated July 2, 2008, the Office denied modification of the previous decision.
2

Dr. Nutik also noted that appellant indicated that, on November 27, 1990, appellant was rear-ended in a
nonwork-related incident.
3

Docket No. 94-2110 (issued June 2, 1997).

4

Docket No. 01-1157 (issued July 29, 2002).

5

Docket No. 03-698 (issued August 3, 2004).

6

Docket No. 06-515 (issued January 12, 2007).

2

LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that he had an employment-related disability, which continued after termination of compensation
benefits.7
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.8
ANALYSIS
The Board has previously determined that the Office met its burden of proof to terminate
appellant’s compensation, effective February 5, 1991, on the grounds that he had no residuals
after that date due to his January 17, 1988 employment injury. The Board found that the weight
of the medical evidence rested with the February 5 and May 2, 1991 reports of Dr. Nutik, a
Board-certified orthopedic surgeon, who served as an impartial medical specialist.9 Therefore, it
is not necessary for the Board to now consider the probative value of Dr. Nutik’s opinion or the
validity of the Office’s termination effective February 5, 1991.10 After the Office’s proper
termination of compensation effective February 5, 1991, the burden of proof shifted to appellant
to show employment-related disability after that date.11 Moreover, it is not necessary for the
Board to revisit the medical evidence it considered in its previous decisions when it determined
that the medical evidence appellant submitted after the February 5, 1991 termination did not
contain sufficient probative value to show that he had continuing employment-related disability.
7

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

8

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

9

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part: “If there is
disagreement between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.” 5 U.S.C. § 8123(a). In
situations where there exist opposing medical reports of virtually equal weight and rationale and the case is referred
to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special weight. Jack R.
Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).
10

In the absence of further review by the Office on the issue addressed by a Board decision, the subject matter
reviewed is res judicata and is not subject to further consideration by the Board. 5 U.S.C. § 8128; Clinton E.
Anthony, Jr., 49 ECAB 476 (1998). A decision of the Board is final upon the expiration of 30 days from the date of
the decision. 20 C.F.R. § 501.6(d).
11

Wentworth M. Murray, supra note 7.

3

Following the Board’s January 12, 2007 decision, appellant requested reconsideration
and submitted additional medical evidence. He made arguments related to the selection of
Dr. Nutik as the impartial medical examiner. However, as noted above, the Board has already
reviewed this issue in the prior appeal, and this issue is res judicata and not subject to further
consideration.12
Appellant also provided two new medical reports from Drs. Loupe and Butler, in which
they confirmed that they were aware of the November 27, 1990 motor vehicle accident. In his
March 29, 2007 report, Dr. Loupe related that appellant “told me that this accident had no lasting
affect on his chronic lower back pain and that he remained disabled from the original injury ever
since.” He opined that he “did not think that it played a significant role in his chronic back pain
and disability, and did n[o]t seem to have caused any lasting effect or lasting increased pain.”
Additionally, in his April 23, 2007 report, Dr. Butler opined that the motor vehicle accident did
“not affect [appellant’s] long-term prognosis and was not a contributory factor to his long-term
condition in my opinion.” However, these reports are insufficient to establish that appellant’s
claimed condition or disability after February 5, 1991 is related to his accepted employment
injuries. For example, the physicians merely acknowledged that they were aware of the
November accident. They did not address with medical rationale that appellant was disabled on
or after February 15, 1991 as a result of the employment injury of January 17, 1988, they do not
contain sufficient medical reasoning explaining how and why appellant would continue to be
disabled on or after February 5, 1991 without corresponding findings on physical examination.13
These reports are therefore not sufficient to meet appellant’s burden of proof and the Office
properly denied his claim for continuing disability.
Although appellant alleged that his disability commencing after February 5, 1991 was
due to his accepted employment injury, the medical evidence of record does not establish that his
claimed disability or condition during the time frame was related to his accepted employment
injuries. The Board finds that appellant has failed to submit rationalized medical evidence
establishing that his disability from February 5, 1991 was causally related to his accepted
employment injury, and thus, he has not met his burden of proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he was
disabled after February 5, 1991 due to his January 17, 1988 employment injury.

12

See supra note 10.

13

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

4

ORDER
IT IS HEREBY ORDERED THAT the July 2, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 4, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
C.B., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0234
Issued: August 1, 2018

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 November 10, 2016 appellant filed a timely appeal from an October 5, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than one year has
elapsed from the last merit decision, dated January 12, 2001, to the filing of this appeal,1 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.3

1

For adverse final decisions issued by OWCP prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R.
§ 501.3(d)(2) (2008).
2
3

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with his appeal. The Board’s jurisdiction, however, is limited to the
evidence that was before OWCP at the time of its final decision. Thus, the Board is precluded from considering this
evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied appellant’s July 11, 2016 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances set forth in
the prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On March 5, 1985 appellant, then a 39-year-old shipfitter, filed a traumatic injury claim (Form
CA-1) alleging that he sustained injuries to his right knee and lower back in the performance of
duty on January 16, 1985. He indicated that his injury occurred while bending and squatting to
get plans from below. Under OWCP File No. xxxxxx783, OWCP accepted appellant’s January 16,
1985 traumatic injury for “[reaction to right sacroiliac area and medial right knee].”5 Appellant
received wage-loss compensation for temporary total disability, and OWCP placed him on the
periodic compensation rolls effective June 9, 1985.
By decision dated June 16, 1993, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 27, 1993 because he no longer suffered residuals of the
January 16, 1985 employment injury and had no remaining injury-related disability. It based its
decision on the June 11 and August 20, 1992 reports from Dr. Harle B. Grover, a Board-certified
orthopedic surgeon and OWCP referral physician, who examined appellant on May 28, 1992. A
representative of OWCP’s Branch of Hearings and Review affirmed the termination of
compensation benefits, by decision dated March 28, 1994, and OWCP subsequently denied
modification in a November 29, 1994 decision. When the case was first on appeal, the Board
found that OWCP properly terminated compensation benefits effective June 27, 1993. The Board
further found that appellant failed to establish any continuing injury-related residuals or disability
after June 27, 1993. Accordingly, the Board affirmed both the March 28 and November 29, 1994
merit decisions.6
Between July 1997 and April 1998, appellant requested reconsideration on four separate
occasions. In response to appellant’s various requests, OWCP issued decisions dated July 30 and
October 15, 1997, and March 10 and May 14, 1998, which either denied modification or denied
merit review. By decision dated May 18, 2000, the Board found that appellant had not established
entitlement to compensation after June 27, 1993.7 The Board affirmed OWCP’s July 30, 1997
4

Docket No. 95-0755 (issued June 2, 1997); Docket No. 98-1824 (issued May 18, 2000); Docket No. 03-0168
(issued March 13, 2003); and Docket No. 03-1866 (issued February 3, 2005).
5

Appellant previously injured his lower back in the performance of duty on January 15, 1980 (OWCP File No.
xxxxxx656), May 2, 1983 (OWCP File No. xxxxxx285), and November 23, 1983 (OWCP File No. xxxxxx219). In
each instance, OWCP accepted his claim for either lumbar or lumbosacral strain/sprain. It administratively combined
the four case records for appellant’s lumbar-related injuries, and designated OWCP File No. xxxxxx783 as the master
file.
6

Docket No. 95-0755, supra note 4.

7

Docket No. 98-1824, supra note 4.

2

merit decision, but set aside a subsequent nonmerit decision finding instead that appellant
submitted sufficient evidence to warrant further merit review. Therefore, the Board remanded the
case to OWCP for further merit review.
In three merit decisions dated August 9, and 22, 2000, and January 12, 2001, OWCP denied
modification of its prior decision(s). By decision dated April 16, 2002, it denied further merit
review of its January 12, 2001 decision. On August 1, 2002 appellant again requested
reconsideration of OWCP’s January 12, 2001 merit decision. By decision dated October 3, 2002,
OWCP denied appellant’s August 1, 2002 request for reconsideration, finding that it was untimely
filed and failed to demonstrate clear evidence of error. In a March 13, 2003 decision, the Board
affirmed both the April 16 and October 3, 2002 nonmerit decisions.8
Appellant again requested reconsideration on June 6, 2003, which OWCP denied by
decision dated July 2, 2003. In a decision dated February 3, 2005, the Board affirmed OWCP’s
July 2, 2003 nonmerit decision.9
Appellant requested reconsideration in a letter dated July 5, 2016 and received by OWCP
on July 11, 2016 as recorded in the Integrated Federal Employees’ Compensation System (iFECS).
With his request, he submitted medical evidence.
A January 26, 2016 right lower extremity electromyography (EMG) and nerve conduction
velocity (NCV) study revealed abnormalities “possibly suggestive for mild sensory neuropathic
process on right lower extremity.” There was no evidence of lumbosacral radiculopathy. The
EMG/NCV report also noted a history of diabetes and that the right thigh paresthesia over the
anterolateral aspect might indicate for meralgia paresthetica.
A January 28, 2016 lumbar spine magnetic resonance imaging (MRI) scan demonstrated
endplate spurs anteriorly at L1-2, a one millimeter posterior protrusion at L2-3, mild bilateral
neural foraminal stenosis at L3-4, mild left neural foraminal stenosis at L4-5, a one millimeter
broad-based posterior protrusion at L5-S1, mild dextroscoliosis of the lumbar spine, and colonic
diverticulosis.
In an April 6, 2016 report, Dr. Linda Choe, a Board-certified physiatrist and pain medicine
specialist, indicated that appellant had been under her care since June 2012 for lumbar spine issues.
She opined that appellant had “changes in his spine consistent with age.” Dr. Choe asserted that
the EMG testing performed in 2016 showed no electrophysiological abnormalities, however, there
was a comment made about clinical presentation of meralgia paresthetica. She reported that she
last saw appellant in February 2016 and an updated MRI scan showed a triangulated canal at L2-3.
Dr. Choe indicated that on March 1, 2016 she performed a caudal epidural steroid injection
procedure on appellant.

8

Docket No. 03-0168 (issued March 13, 2003).

9

Docket No. 03-1866 (issued February 3, 2005).

3

By decision dated October 5, 2016, OWCP denied appellant’s July 11, 2016 request for
reconsideration because it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
OWCP regulations provide that to be entitled to a merit review of an OWCP decision, an
application for reconsideration must be received by OWCP within one year of the date of the
OWCP decision for which review is sought.10 Timeliness is determined by the document receipt
date of the request for reconsideration as indicated by the “received date” in the iFECS.11
OWCP, however, may not deny an application for review solely because the application
was untimely filed. It may consider an untimely application for reconsideration if the evidence or
argument contained in the reconsideration request demonstrates clear evidence of error on the part
of OWCP.12 In this regard, OWCP will conduct a limited review of how the newly submitted
evidence bears on the prior evidence of record.13 Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.14
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue decided by OWCP. The evidence must be positive, precise, and explicit, and it must manifest
on its face that OWCP committed an error.15 It is not enough merely to show that the evidence
could be construed so as to produce a contrary conclusion.16 The evidence submitted must not
only be of sufficient probative value to create a conflicting medical opinion or establish a clear
procedural error, but must be of sufficient probative value to shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.17
The Board makes an independent determination of whether a claimant has demonstrated
clear evidence of error on the part of OWCP such that it abused its discretion in denying merit
review in the face of such evidence.18

10
20 C.F.R. § 10.607; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.4 (February 2016).
11

Id. at Chapter 2.1602.4b.

12

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

13

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

14

Jimmy L. Day, 48 ECAB 652 (1997).

15

20 C.F.R. § 10.607(b); Fidel E. Perez, 48 ECAB 663 (1997).

16

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

17

Annie L. Billingsley, 50 ECAB 210 (1998).

18

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Matthews, 44 ECAB 765 (1993).

4

ANALYSIS
The last merit decision of record is dated January 12, 2001, and OWCP received
appellant’s latest request for reconsideration on July 11, 2016. A request for reconsideration is
considered timely if received within one year of the date of OWCP’s decision for which review is
sought.19 As more than 15 years elapsed between OWCP’s January 12, 2001 merit decision and
appellant’s July 11, 2016 request for reconsideration, the Board finds that OWCP properly
determined that the request for reconsideration was untimely filed.20 Because appellant’s request
for reconsideration was untimely filed, he must demonstrate clear evidence of error on the part of
OWCP in its most recent merit decision.21
OWCP’s January 12, 2001 merit decision denied modification of the termination of
appellant’s FECA benefits effective June 27, 1993. At that time, it found appellant’s then newly
submitted medical evidence was insufficient to overcome the weight previously afforded
Dr. Grover’s May 28, 1992 second opinion evaluation. In support of his latest, July 11, 2016,
request for reconsideration, appellant submitted January 2016 diagnostic studies, as well as an
April 6, 2016 report from Dr. Choe who opined that appellant had “changes in his spine consistent
with age.” She asserted that EMG testing performed in 2016 showed no electrophysiological
abnormalities, but also commented about a clinical presentation of meralgia paresthetica.
Dr. Choe further noted that an updated MRI scan showed a triangulated canal at L2-3. She failed
to provide a well-rationalized explanation as to how and whether these conditions, which have not
been accepted by OWCP, are causally related to the January 16, 1985 employment injury.22 Thus,
the Board finds that this evidence does not demonstrate clear evidence of error because it does not
show that OWCP committed an error in terminating appellant’s compensation benefits, nor raise
a substantial question as to the correctness of OWCP’s decision.
The EMG/NCV study dated January 26, 2016 and the MRI scan of the lumbar spine dated
January 28, 2016 do not constitute competent medical evidence because they do not contain
rationale by a physician relating appellant’s conditions to his employment.23 Therefore, the Board
finds that this report does not demonstrate clear evidence of error because it does not show that
OWCP committed an error in terminating appellant’s compensation benefits, nor raise a substantial
question as to the correctness of OWCP’s decision.
To demonstrate clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is

19

20 C.F.R. § 10.607(a).

20

Id.; see Alberta Dukes, 56 ECAB 247 (2005).

21

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

22

See T.M., Docket No. 08-975 (issued February 6, 2009) (for conditions not accepted or approved by OWCP as
being due to an employment injury, the claimant bears the burden of proof to establish that the condition is causally
related to the employment injury through the submission of rationalized medical evidence).
23

See Paul Foster, 56 ECAB 208, 212 n.12 (2004).

5

intended to represent a difficult standard.24 None of the evidence submitted manifests on its face
that OWCP committed an error in terminating appellant’s compensation benefits. Appellant has
not otherwise submitted evidence of sufficient probative value to raise a substantial question as to
the correctness of OWCP’s decision. Thus, the evidence is insufficient to demonstrate clear
evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s July 11, 2016 request for
reconsideration because it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2018
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

24
Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.1602.5.a (February 2016); see Dean D. Beets, 43
ECAB 1153 (1992).

6