United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Biloxi, MS, Employer
__________________________________________

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

Docket No. 16-1112
Issued: September 19, 2016

Case Submitted on the Record

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

JURISDICTION
On May 2, 2016 appellant, through counsel, filed a timely appeal from a March 30, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
five percent permanent impairment of her right thumb, for which she received a schedule award.
FACTUAL HISTORY
On July 22, 2011 appellant, then a 49-year-old nurse, filed a traumatic injury claim (Form
CA-1) claiming that on July 18, 2011 she sustained injury when she hit her right thumb on a
medical cart tray. OWCP initially accepted that appellant sustained a sprain of hand (right
thumb) and it later expanded her claim to include acceptance of ulnar collateral ligament rupture
of her right thumb.3
On July 21, 2011 Dr. Alexander Blevins, an attending Board-certified orthopedic
surgeon, performed an ulnar collateral ligament repair of the metacarpophalangeal joint of
appellant’s right thumb. The surgery was authorized by OWCP.
In a June 12, 2012 report, Dr. Blevins noted that appellant reported her right thumb
condition was “still the same” and that she was unable to bring her thumb all the way up to her
palm. He indicated that she had five percent permanent impairment of her right thumb under
Table 15-2 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009) (A.M.A., Guides).
On November 20, 2014 appellant filed a claim for compensation (Form CA-7) claiming a
schedule award due to her accepted work injury.
Due to a lack of a recent impairment evaluation, OWCP referred appellant in March 2014
for an examination and impairment evaluation to Dr. Joseph McGowin, III, a Board-certified
orthopedic surgeon.
In an April 15, 2015 report, Dr. McGowin described appellant’s factual and medical
history and detailed the findings of his physical examination on that date. He noted that she
reported pain in the metacarpophalangeal joint of her right thumb. Dr. McGowin recorded right
thumb range of motion findings and noted that neurovascular examination of both hands was
unremarkable. He diagnosed right thumb sprain, ulnar collateral ligament rupture, and surgical
repair with objective findings of laxity and limited range of motion and subjective complaints of
pain along the ulnar border of the metacarpophalangeal joint of the right thumb. Appellant had
15 degrees of laxity of the right metacarpophalangeal joint upon extension and 10 degrees of
laxity of the right metacarpophalangeal joint upon flexion. Dr. McGowin noted, “Impairment
Rating from Table 15-2, page 392, is a class 1 impairment with a [grade modifier for functional
history] equal to 1, a [grade modifier for physical examination] equal to 2, and [grade modifier
for clinical studies] equal to 0. This results in an adjustment of 0 and a default impairment of
five percent of the digit.”

3

After her injury, appellant began working in a light-duty position for the employing establishment. She returned
to full duty in April 2012.

2

In a supplemental report dated April 28, 2015, Dr. McGowin noted, “Utilizing Table 15-2
as provided in your notice, the five percent impairment rating of the thumb noted on the
April 15, 2015 [second opinion evaluation] would translate to a two percent impairment of the
hand or a two percent impairment of the upper extremity.”
On May 1, 2015 an OWCP medical adviser indicated that he had reviewed the medical
evidence of record, including the reports of Dr. McGowin. He noted that, under Table 15-2 on
page 392 of the sixth edition of the A.M.A., Guides, appellant’s right thumb condition fell under
the diagnosis category of thumb metacarpophalangeal sprain with 10 to 20 degrees of laxity.
The medical adviser indicated that appellant fell under the class 1, grade C default value of five
percent and noted that he agreed with Dr. McGowin’s assessment that she had a total right thumb
impairment of five percent.
In a May 1, 2015 report, another OWCP medical adviser indicated that appellant’s right
thumb was the only area affected by the July 18, 2011 work injury.
In a May 7, 2015 decision, OWCP granted appellant a schedule award for five percent
permanent impairment of her right thumb. The award ran for 3.75 weeks from June 12 to July 8,
2012 and was based on the impairment rating of OWCP’s medical adviser who evaluated the
medical findings of record, including those of Dr. McGowin.
Appellant, through counsel, requested a telephone hearing with an OWCP hearing
representative. During the hearing held on January 12, 2016, counsel argued that appellant
should have been given an impairment rating for her right hand or upper extremity.
By decision dated March 30, 2016, OWCP’s hearing representative affirmed OWCP’s
May 7, 2015 decision noting that appellant had not shown that she has more than five percent
permanent impairment of her right thumb, for which she received a schedule award. She
determined that the evidence of record did not show that appellant had permanent impairment
that extended beyond her right thumb into other parts of her right hand or right upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

W.B., Docket No. 14-1982 (issued August 26, 2015). For OWCP decisions issued after May 1, 2009, the sixth
edition of the A.M.A., Guides is used. B.M., Docket No. 09-2231 (issued May 14, 2010).

3

In determining impairment for the upper extremity under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the right thumb, the relevant portion of the right upper extremity for
the present case, reference is made to Table 15-2 (Digit Regional Grid) beginning on page 391.7
After the Class of Diagnosis (CDX) is determined from the Digit Regional Grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).8
OWCP procedures provide that where the residuals of an injury to a member of the body
specified in the schedule award provisions of FECA extend into an adjoining area of a member
also enumerated in the schedule, such as an injury of the finger into the hand, or of the hand into
the arm, the schedule award should be made on the basis of the percentage loss of use of the
larger member.9 OWCP procedures also advise that in general, loss of one digit should be
computed in terms of impairment to the digit itself, unless there is impairment extending to an
adjoining member.10
ANALYSIS
OWCP found that on July 18, 2011 appellant sustained a sprain of the hand (right thumb)
and ulnar collateral ligament rupture of her right thumb. On July 21, 2011 she underwent
OWCP-authorized ulnar collateral ligament repair of the metacarpophalangeal joint of her right
thumb. Appellant claimed entitlement to schedule award compensation and on May 7, 2015
OWCP granted her a schedule award for five percent permanent impairment of her right thumb.
The award was based on the May 2015 impairment rating of OWCP’s medical adviser who
evaluated the medical findings of record, including those obtained by Dr. McGowin.
The Board finds that appellant did not meet her burden of proof to establish that she has
more than five percent impairment of her right thumb, for which she received a schedule award.
The Board finds that the May 1, 2015 evaluation of OWCP’s medical adviser shows,
which includes the clinical findings of Dr. McGowin, that appellant does not have more than five
percent impairment of her right thumb. The medical adviser properly noted that, under Table 152 on page 392 of the sixth edition of the A.M.A., Guides, appellant’s right thumb condition fell
under the diagnosis category of thumb metacarpophalangeal sprain with 10 to 20 degrees of
laxity.11 He indicated that appellant fell under the class 1, grade C default value of five percent
7

See A.M.A., Guides 391-405 (6th ed. 2009).

8

Id. at 405-11.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5e (February 2013); see Tonya D. Bell, 43 ECAB 845, 849 (1992).
10

See id.

11

A.M.A., Guides 392, Table 15-2.

4

on Table 15-2 and correctly noted that application of the net adjustment formula to the grade
modifiers (grade modifier for functional history of 1, grade modifier for physical examination of
2, and grade modifier for clinical studies of 0) meant that appellant did not move from the default
value of five percent.12 Therefore, appellant has a total right thumb impairment of five percent.
The record does not contain a rationalized impairment rating showing that appellant has more
than five percent permanent impairment of her right thumb.
On appeal counsel argues that appellant’s impairment rating extends beyond her right
thumb into her right upper extremity and that she has two percent permanent impairment of her
right upper extremity. As noted above, when residuals of an injury to a member of the body
specified in the schedule award provisions of FECA extend into an adjoining area of a member also
enumerated in the schedule, the schedule award should be made on the basis of the percentage of
loss of use of the larger member.13 In the present case, the evidence demonstrates that appellant
sustained five percent permanent impairment of her right thumb. There is no evidence that
residuals of appellant’s work injury extended into an adjoining area of the affected member.14
Therefore, there is no basis for converting the schedule award to an award for the right hand or
right upper extremity. For these reasons, appellant has not shown that she has more than five
percent impairment of her right thumb.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she has
more than five percent permanent impairment of her right thumb, for which she received a
schedule award.

12

See supra note 7.

13

See supra note 8.

14

In a report dated April 28, 2015, Dr. McGowin noted, “Utilizing Table 15-2 as provided in your notice, the five
percent impairment rating of the thumb noted on the April 15, 2015 [second opinion evaluation] would translate to a
two percent impairment of the hand or two percent impairment of the upper extremity.” However, Dr. McGowin
did not provide any explanation of how appellant’s right thumb impairment extended into her right hand or right
upper extremity.

5

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 19, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Norfolk, VA, Employer
__________________________________________

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

Docket No. 09-1933
Issued: July 7, 2010

Case Submitted on the Record

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

JURISDICTION
On July 27, 2009 appellant filed a timely appeal from a February 26, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her claim for a recurrence of
disability and a May 5, 2009 decision denying her request for an oral hearing as untimely.
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 appellant established that she sustained a recurrence of
disability on or after June 30, 2008 causally related to her accepted employment injury; and
(2) whether the Office properly denied her request for an oral hearing on the grounds that it was
untimely filed.
On appeal, appellant contends that her employment required her to work with heavy
machinery and that she did not perform any work outside her federal employment. She also
claimed that, although her shoulder pain was continuous, it had substantially worsened.

FACTUAL HISTORY
On September 24, 2002 appellant, then a 55-year-old materials expeditor, filed an
occupational disease claim (Form CA-2) alleging that around November 2000 she began
experiencing pain about the right shoulder related to her job duties requiring repetitive lifting
above her shoulder.1 The Office accepted the claim for exacerbation of right rotator cuff tear.
On August 18, 2008 appellant filed a claim for a June 30, 2008 recurrence claiming both
time lost from work and further medical treatment. She stated that her right arm pain had never
gone away and that over the past few years her symptoms had worsened such that she was
unable to lift her right arm very high.
The record reveals that appellant intermittently used her sick and annual leave for
medical treatment and physical therapy during the period June 30 through October 7, 2008.
On June 23, 2008 Dr. Richard Holden, appellant’s treating physician and a Boardcertified orthopedic surgeon, diagnosed right subacromial tendinosis. He provided work
restrictions including no lifting, pushing or pulling over 15 pounds frequently and 20 pounds
occasionally and no overhead work.
In a June 30, 2008 medical note, Dr. Holden reported appellant’s complaints of right
shoulder pain continuing for 8 to 10 years and that she was slowly losing motion and strength.
He discussed her history of carpal tunnel syndrome and right rotator cuff tear, as well as right
acromioclavicular (AC) arthritis. Dr. Holden noted that appellant did not undergo surgery at that
time. Physical examination revealed mild weakness on external rotation and pain with abduction
and internal rotation. X-rays showed irregularities of the greater tuberosity, a small cyst in the
humeral head and changes of the AC joint. Dr. Holden performed an injection in the right
subacromial space, which provided excellent relief of symptoms and returned appellant’s
strength, elevation and internal and external rotation to normal. He diagnosed rotator cuff
tendinitis and tear by history without marked weakness. In a corresponding form, Dr. Holden
indicated that appellant could return to full duty and diagnosed right subacromial tendinosis.
On July 23, 2008 Dr. Holden reported appellant’s complaints that her pain had returned
since the last treatment. He noted that she also experienced paresthesia in her hand, which he
opined was due to a cervical condition. Dr. Holden diagnosed impingement lesion of the right
shoulder.
In an August 11, 2008 note, Dr. Holden relayed appellant’s history of AC joint arthrosis
with spurring and impingement of the rotator cuff, a supraspinatus tendon with tendinosis, a tear
of the rotator cuff and a degenerative articular surface lesion of the anterior superior glenoid, for
which she never had surgery. He also reported appellant’s claims of worsening pain. Further, on
August 25, 2008 Dr. Holden reviewed an MRI scan revealing a full thickness tear of the
supraspinatus without significant retraction and fluid. He noted that appellant also had AC joint
arthrosis. Dr. Holden opined that her condition had been going on and off for eight years and
1

The record reveals that, after her injury, appellant’s physician placed her on light duty. It is unclear whether she
missed any time for work due to her employment injury or when she returned to regular duty.

2

that it had worsened within the past few months. He recommended surgery and referred
appellant for a consultation. In a separate August 25, 2008 form, Dr. Holden indicated that she
should continue to work restricted duty due to right shoulder tendinitis and rotator cuff sprain.
In a September 2, 2008 medical report, Dr. Samuel I. Brown, a Board-certified
orthopedic surgeon, stated that appellant had a long and complicated history regarding her right
shoulder, dating back to 2000 when she experienced a work-related injury. Appellant reported
that she experienced right shoulder pain for several years and that, despite working restricted
duty, she was having difficulty carrying out her employment duties. Dr. Brown stated that most
of a physical examination could not be carried out because of appellant’s claims of severe pain
and her unwillingness to participate. He reviewed x-rays of the shoulder, revealing mild
degenerative change. An MRI scan showed a focal, full-thickness, small rotator cuff tear at the
insertion of the supraspinatus and degenerative changes at the AC joint. Dr. Brown diagnosed
right shoulder rotator cuff tear with AC joint arthrosis, which was becoming chronic, and
apparent adhesive capsulitis with symptom magnification. In an attached form, he prescribed
physical therapy to restore full range of motion prior to surgery and diagnosed right rotator cuff
tear.
Appellant further submitted physical therapy reports dated June 30 through October 3,
2008 and an August 21, 2008 MRI scan report.
By letter dated October 22, 2008, the Office notified appellant of the deficiencies in her
recurrence claim and requested that she provide additional factual and medical information.
In an October 29, 2008 statement, appellant claimed that, during the early part of the
year, she was placed on a special project requiring extensive lifting and pulling of materials
ranging from light weight to over 40 pounds, as well as constant standing and carrying of
materials. The project lasted until about April or May, at which time she noticed sharp pains in
the right arm and shoulder.
By decision dated February 26, 2009, the Office denied appellant’s claim for a recurrence
of disability on the grounds that the factual and medical evidence did not establish that she
sustained a disabling condition causally related to her accepted work injury.
By letter postmarked April 15, 2009, appellant submitted a request for an oral hearing
before an Office hearing representative.2
In a May 5, 2009 decision, the Branch of Hearings and Review denied appellant’s request
for an oral hearing before an Office hearing representative on the grounds that her request for an
oral hearing, postmarked on April 15, 2009, was not submitted within 30 days of the
February 26, 2009 Office decision. It further found that the issue on appeal could be equally
well addressed by requesting reconsideration from the Office with the submission of new
evidence.

2

On March 20, 2009 appellant requested that the Office provide a copy of her file so that she could request a
hearing for the denial of the recurrence of her employment-related injury.

3

LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”3 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial, reliable,
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.4 Where no such rationale is present, medical evidence
is of diminished probative value.
A recurrence of a medical condition is defined in the Office’s procedure manual as “the
documented need for further treatment of the accepted condition when there has been no work
stoppage.”5 When a claim for a recurrence of medical condition is made more than 90 days after
release from medical care, an employee is responsible for submitting a medical report that
contains a description of objective findings and supports causal relationship between the
employee’s current condition and the previous work injury.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an exacerbation of a right rotator cuff tear in
November 2000. The issue is whether she sustained a recurrence of disability or medical
condition on or after June 30, 2008.
Appellant filed a recurrence claim for both time lost from work and further medical
treatment. It does not appear from the record that appellant was disabled after June 30, 2008 due
to the claimed injury. Although Dr. Holden provided work restrictions, it appears as though the
employing establishment accommodated the work restrictions and appellant continued to receive
the wages she was receiving prior to the claimed recurrence.7 It appears as the only time she lost
from work was for intermittent medical appointments and physical therapy. Office procedures

3

R.S., 58 ECAB 362 (2007); 20 C.F.R. § 10.5(x).

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

J.F., 58 ECAB 124 (2006); Mary A. Ceglia, 55 ECAB 626, 629 (2004); Federal (FECA) Procedure Manual,
Part 2 -- Claims, Recurrences, Chapter 2.1500.3(a) (January 1998).
6

J.F., supra note 5; Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(b)
(September 2003).
7

The term disability is defined as the incapacity because of an employment injury to earn the wages the employee
was receiving at the time of the injury. This meaning for brevity is expressed as “disability for work.” See e.g.,
Cheryl L. Decavitch, 50 ECAB 397, 401 (1999); John W. Normand, 39 ECAB 1378, 1381 (1988); 20 C.F.R.
§ 10.5(f).

4

provide that wages lost for compensable medical examinations or treatment may be reimbursed.8
Thus, in order for appellant to receive compensation for these periods of lost time, she must
establish that she sustained a recurrence of medical condition.
Appellant submitted a series of reports from her treating physician, Dr. Holden, dated
June 23 through August 11, 2008. Dr. Holden reported appellant’s complaints of right shoulder
pain continuing for the past eight years and worsening in the past few months. He also noted her
history of right rotator cuff tear and right AC arthritis, which had been going on and off for eight
years. Dr. Holden diagnosed right subacromial tendinosis, right rotator cuff tendinitis and strain
and impingement lesion of the right shoulder, but he did not provide an opinion as to the cause of
appellant’s current condition or explain the worsening of her pain symptoms. He did not fully
discuss the history of her prior work injury, beyond noting that she previously sustained a right
rotator cuff tear that had been going on and off for eight years, and did not describe how this
prior injury was related to appellant’s current condition. As Dr. Holden did not provide a
rationalized medical opinion bridging the symptoms of appellant’s current right arm condition to
the November 8, 2000 work injury, his report does not support appellant’s recurrence claim.9
In a September 2, 2008 medical report, Dr. Brown diagnosed right shoulder rotator cuff
tear with AC joint arthrosis and apparent adhesive capsulitis with symptom magnification. He
stated that appellant had a long and complicated history regarding her right shoulder, dating back
to 2000 when she experienced a work-related injury. Dr. Brown also noted her complaints of
right shoulder pain for years. Although he opined that appellant had a history of right shoulder
injury and referenced the 2000 work injury, he did not address the cause of appellant’s current
right shoulder condition or provide an opinion as to whether it was related to her previous work
injury. Therefore, Dr. Brown’s report is insufficient to establish appellant’s claim.10
Appellant also submitted physical therapy reports dated June 30 through October 3, 2008.
As physical therapist is not included in the definition of a physician under the Act, these reports
are of diminished probative value.11 Further, the August 21, 2008 MRI scan report is only a
diagnostic report and does not address causation. Therefore, this report is also of diminished
probative value.12
Moreover, in an October 29, 2008 statement, appellant stated that she noticed sharp pains
in the right arm and shoulder around April or May after participating in a special project at work
requiring extensive lifting and pulling of materials, as well as constant standing and carrying.
8

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995). See also Amelia S. Jefferson, 57 ECAB 183 (2005).
9

See Ricky S. Storm, 52 ECAB 349 (2001).

10

A physician’s opinion which does not provide an opinion on causation is of diminished probative value. See
Robert Broome, 55 ECAB 339 (2004). See also Mary A. Ceglia, supra note 5.
11

Under section 8101(2), the definition of a physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2). See Jerre R. Rinehart, 45 ECAB 518 (1994).
12

See Conard Hightower, 54 ECAB 796 (2003).

5

Here, she appears to attribute her right shoulder injury to exposure to new work factors instead of
a spontaneous change of the November 8, 2000 employment injury. Thus, appellant’s claim
does not meet the definition of a recurrence but is better characterized as a claim for a new
occupational disease.13
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Federal Employees’ Compensation Act14 provides that a
claimant not satisfied with a decision of the Office is entitled to a hearing before an Office
hearing representative when the request is made within 30 days after issuance of the Office’s
decision.15 Under the implementing regulations, a claimant who has received a final adverse
decision by the Office is entitled to a hearing by writing to the address specified in the decision
within 30 days (as determined by postmark or other carrier’s date marking) of the date of the
decision for which a hearing is sought.16 If the request is not made within 30 days or if it is made
after a reconsideration request, a claimant is not entitled to a hearing or a review of the written
record as a matter of right.17
ANALYSIS -- ISSUE 2
The Office denied appellant’s claim for a recurrence of disability in a decision dated
February 26, 2009. Appellant requested an oral hearing before an Office hearing representative
by letter postmarked April 15, 2009. As her request was not filed within 30 days of the
February 26, 2009 decision, she is not entitled to an oral hearing as a matter of right.18
The Office exercised its discretion and determined that appellant’s request for an oral
hearing could be equally well addressed by requesting reconsideration and submitting additional
evidence. This is a proper exercise of the Office’s discretionary authority.19
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability on or after June 30, 2008 causally related to her accepted employment injury. The
Board also finds that the Office did not abuse its discretion when it denied appellant’s request for
an oral hearing on the grounds that it was untimely filed.
13

See Bryant A. Blackmon, 56 ECAB 752 (2005).

14

5 U.S.C. §§ 8101-8193.

15

Id. at § 8124(b)(1).

16

20 C.F.R. § 10.616(a); 5 U.S.C. § 8124(b)(1).

17

Teresa Valle, 57 ECAB 542 (2006).

18

See Hubert Jones, Jr., 57 ECAB 467 (2006).

19

See R.T., 60 ECAB ___ (Docket No. 08-408, issued December 16, 2008). See also André Thyratron, 54 ECAB
257 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the May 5 and February 26, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 21-1025
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On June 21, 2021 appellant filed a timely appeal from a June 1, 2021 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.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of the $69,177.66
overpayment of compensation which occurred due to his concurrent receipt of Social Security
Administration (SSA) retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018; and (2) whether OWCP properly required recovery of
the overpayment by deducting $400.00 from appellant’s continuing compensation payments every
28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 4, 2001 appellant, then a 56-year-old data entry technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 20, 2001 he twisted his right knee when his
knee caught on a black residue under his desk as he rose from his chair while in the performance
of duty. He stopped work on August 29, 2001. OWCP accepted the claim for right knee strain
and right knee medial meniscus tear. The record reflects that OWCP paid appellant wage-loss
compensation on the periodic rolls as of July 14, 2002.
By letter dated July 31, 2002, OWCP explained appellant’s entitlement to compensation
benefits. In an accompanying EN1049 form, it advised him, that, since he was covered under the
Federal Employees Retirement System (FERS), it would have to deduct at least part of his SSA
retirement benefit to which he would be entitled based on age, explaining that a portion of a FERS
benefit was included in SSA retirement benefits. Appellant was, therefore, advised to notify
OWCP immediately after filing for or receiving SSA retirement benefits.
On December 26, 2017 SSA forwarded a completed FERS/SSA dual benefits calculation
form to OWCP, noting appellant’s SSA age-related retirement benefit rates with and without
FERS. It noted that appellant began receiving retirement benefits effective September 2010.
In a FERS offset overpayment calculation form dated May 21, 2018 OWCP documented
its calculation of the total overpayment in the amount of $69,177.66 for the period September 1,
2010 until April 28, 2018.
On June 28, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $69,177.66 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that he received from September 1, 2010
through April 28, 2018 was based on credits earned while working for the Federal Government,
and this portion of his SSA was a prohibited dual benefit. OWCP found him at fault in the creation
of the overpayment as he had not reported receipt of SSA retirement benefits on his EN1032 forms.
It informed him of his review rights, via an overpayment action request form, and instructed him
to complete an enclosed overpayment recovery questionnaire Form OWCP-20 and submit
supporting documentation including copies of tax returns, bank account statements, bills and
cancelled checks, pay slips, and other records which supported the income and expenses listed.
OWCP allotted 30 days for him to respond.
On a July 2, 2018 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. He contested OWCP’s findings regarding the fact and
amount of overpayment, and requested waiver of recovery of the overpayment.

2

Docket No. 19-0334 (issued August 7, 2020).

2

On a Form OWCP-20 dated October 10, 2018, appellant noted total monthly income of
$4,312.22 and total monthly expenses of $3,547.61, with assets of $795.00. He attached financial
information to substantiate his expenses.
A prerecoupment hearing was held on October 10, 2018. By decision dated November 14,
2018, the OWCP hearing representative finalized the preliminary determination, finding that an
overpayment of compensation in the amount of $69,177.66 occurred for the period September 1,
2010 through April 28, 2018 because appellant received FECA benefits and benefits from SSA
without the appropriate offset.3 She further found he was at fault in the creation of the overpayment
because he failed to report his SSA retirement benefits and that recovery of the overpayment,
therefore, could not be waived. The hearing representative found that recovery of the overpayment
would be made by deducting $500.00 every 28 days from appellant’s continuing FECA
compensation payments.
Appellant appealed the November 14, 2018 decision to the Board on November 30, 2018.
By decision dated August 7, 2020,4 the Board affirmed in part and set aside in part the
November 14, 2018 decision. The Board found that OWCP properly determined that an
overpayment in the amount of $69,177.66 had been created because appellant concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018. The Board determined, however, that appellant was
without fault in the creation of the overpayment of compensation. The Board remanded the case
for OWCP to consider waiver of recovery of the overpayment.
On remand from the Board’s decision, OWCP provided appellant with another Form
OWCP-20 for his completion, noting that updated financial information was needed for
consideration of waiver of recovery of the overpayment.
In a letter dated February 8, 2021, OWCP’s hearing representative informed appellant that
an oral hearing would be held pursuant to the Board’s remand instructions to consider waiver of
recovery of the overpayment. She requested he complete an updated Form OWCP-20 and provide
supporting financial documentation. Appellant was informed that under 20 C.F.R. § 10.438 the
failure to submit the requested financial information would result in denial of waiver of the
overpayment.
On a Form OWCP-20 dated March 1, 2021, appellant noted monthly income of $2,760.00
from SSA and $144.14 from other benefits, for a total monthly income, without FECA benefits,
of $2,904.14. He listed monthly expenses of $3,490.00, which included $860.00 for rent, $500.00
for food, $100.00 for clothing, $605.00 for utilities, and $225.00 for miscellaneous expenses, he
also noted $1,000 in monthly installment payments to a credit union , and $200.00 in monthly
installment payments to a bank. He listed assets of $4,687.90. He attached numerous financial
documents to substantiate his expenses.

3

The Board notes that the hearing representative incorrectly identified the period of the overpayment as from
September 1, 2010 through December 1, 2017.
4

Supra note 2.

3

A hearing before an OWCP hearing representative was held on March 10, 2021.
By decision June 1, 2021, OWCP’s hearing representative found that, based on the
evidence appellant submitted regarding his income and expenses, his total monthly income was
$4,510.54 and his ordinary and necessary living expenses did not exceed $ 3,886.99. She
determined that recovery of the overpayment would not defeat the purpose of FECA as his monthly
income exceeded his monthly expenses by more than $50.00. The hearing representative further
found that there was no evidence that appellant relinquished a valuable right in reliance on the
additional compensation or changed his position for the worse in reliance on the erroneous
compensation payment such that recovery would be inequitable or against good conscience. The
hearing representative related that recovery of the overpayment would be made by deduction of
$400.00 every 28 days from appellant’s continuing FECA compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA 5 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 FECA 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.
OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 7 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. 8
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

5

Supra note 1.

6

J.T., Docket No. 21-0010 (issued September 30, 2021); G.L., Docket No. 19-0297 (issued October 23, 2019).

7

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide those assets must not exceed a resource base of
$6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4(a)(2) and (3) (September 2020).
8

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

4

payments or on notice that such payments would be made, gives up a valuable right or cha nges
her position for the worse. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The Board notes that after it remanded the case to OWCP for consideration of waiver,
OWCP provided appellant with another Form OWCP-20 to complete with updated financial
information. A prerecoupment hearing was held on March 10, 2021.
As appellant was found to be without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. The hearing
representative noted that the financial documentation appellant submitted prior to the hearing
represented his current monthly income and expenses. OWCP considered app ellant’s updated
financial information, as reported on appellant’s Form OWCP 20, to determine if recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience.
The evidence of record establishes that appellant has monthly income totaling $4,510.54
and average monthly necessary expenses totaling $3,886.99. Appellant’s monthly income,
therefore, exceeds his monthly expenses by $623.55. As appellant’s monthly income exceeds his
ordinary and necessary living expenses by more than $50.00, he has not established that he needs
substantially all of his income for ordinary and necessary living expenses. 10
Appellant also has not established that recovery of the overpayment would b e against
equity and good conscience. He has not submitted evidence that he would experience severe
financial hardship in attempting to repay the debt, or that in reliance on the overpayment he gave
up a valuable right or changed his position for the worse.11 Therefore, OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and good
conscience.
LEGAL PRECEDENT -- ISSUE 2
Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,

9

20 C.F.R. § 10.437(b)(1).

10

See G.L., Docket No. 19-0297 (issued October 23, 2019).

11

J.T., supra note 6; L.D., Docket No. 18-1317 (issued August 17, 2019); William J. Murphy, 41 ECAB 569 (1989).

5

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.”12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly requested recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation.
In determining whether appellant could repay the overpayment through $400.00
deductions from continuing compensation, OWCP took into account his financial information as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method would minimize resulting
hardship. The Board finds that OWCP gave due regard to the financial information provided,
noting that appellant was not deemed to need substantially all of his monthly income to meet
current and ordinary living expenses as monthly income exceeds monthly expenses by $623.55.
Therefore, the Board finds that OWCP properly required recovery of the overpayment by
deducting $400.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment. The
Board also finds that OWCP properly required repayment of the overpayment by deduction of
$400.00 every 28 days from his continuing compensation payments.

12

20 C.F.R. § 10.441(a); J.T., supra note 6; A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler,
39 ECAB 1056, 1062 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE-REGULAR
EMPLOYEE FUNCTIONS, Asheville, NC,
Employer
__________________________________________

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Appearances:
Timothy Welborn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0280
Issued: November 18, 2015

Case Submitted on the Record

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

JURISDICTION
On November 19, 2014 appellant, through counsel, filed a timely appeal of an October 6,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from August 6, 2012, the date of the most recent OWCP merit decision on
the disputed issue, to the date of this appeal, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits as his request was untimely filed and failed to demonstrate clear
evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 17, 2010 appellant, then a 60-year-old engineer equipment operator, was
injured when he felt a sharp pain in his left elbow, radiating down to the arm and hand when he
struck a machine with a hammer. OWCP accepted the claim for sprain of the left elbow and
forearm; lateral epicondylitis; and other specified disorder of bursae and tendons in the left
shoulder. Appellant underwent authorized surgery on June 29, 2011 for left extensor carpi
radialis brevis release and debridement by the attending physician, Dr. Christopher Bensen, a
Board-certified orthopedic surgeon. He did not return to work after the surgery. Appellant
received compensation benefits.
In a report dated November 15, 2011, Dr. Bensen treated appellant for complaints of pain
and indicated that appellant remained disabled. He also recommended a second opinion
examination as he was uncertain of the etiology of appellant’s symptoms.
On November 22, 2011 OWCP referred appellant to Dr. Harrison Latimer, a Boardcertified orthopedic surgeon, for a second opinion. In a December 19, 2011 report, Dr. Latimer,
noted appellant’s history and examined him. He determined that appellant had full range of
motion of these joints passively, showed no effort whatsoever actively during the examination.
Dr. Latimer determined that the work-related conditions had not resolved as appellant had
residual left elbow symptoms due to sprain/strain of underlying epicondylitis changes, based
upon subjective complaints of pain. However, he opined that appellant had reached maximum
medical improvement and was capable of returning to the date-of-injury job. Dr. Latimer further
explained that, while it was not uncommon for patients to have some residual symptoms after
lateral elbow surgery, appellant’s lack of participation in the motion and strength examination of
the entire left arm had no medical rationale and showed extreme evidence of symptom
exaggeration.
On February 2, 2012 OWCP proposed to terminate wage-loss compensation benefits
based on the report of Dr. Latimer which established that appellant could return to his date-ofinjury position.2 Appellant was provided 30 days to submit additional evidence or argument in
support of any objection to the proposed termination.
The record reflects that appellant returned to full-duty work on February 27, 2012.
In an April 11, 2012 decision, OWCP terminated appellant’s wage-loss compensation,
effective that date. It found that the weight of the medical evidence rested with the second
opinion physician, Dr. Latimer who found that appellant was no longer disabled as a result of his
August 17, 2010 traumatic injury.

2

OWCP specifically noted that Dr. Latimer opined that: “your work-related conditions have not resolved; that
you have residual left elbow symptoms due to sprain/strain of underlying epicondylitis changes, based on your
subjective complaints of pain. However, you have reached maximum medical improvement and based on the
physical requirements of an Engineer Equipment Operator as enumerated in the statement of accepted facts; you are
completely capable of returning to your date-of-injury job as such.”

2

On April 30, 2012 appellant requested an examination of the written record and
submitted additional evidence.
In a letter dated June 20, 2012 addressed to the employing establishment, OWCP
requested comments from the employing establishment and explained that appellant had
requested an examination of the written record.
On July 17, 2012 OWCP received additional submissions from appellant through her
United States Senator. This included a June 11, 2012 letter to appellant from Mark Mallette, a
maintenance mechanic supervisor with the employing establishment. Mr. Mallette informed
appellant that he had determined that the employing establishment was unable to accommodate
his restrictions. He noted restrictions provided by appellant’s physician, Dr. Bensen, and advised
that the employing establishment was unable to restructure or delete the essential functions of an
engineering equipment operator without undue hardship and he could not identify any
identifiable position to which appellant could be reassigned. Mr. Mallette advised appellant that
his request for a reasonable accommodation was denied. He indicated that appellant could use
any accrued leave or apply for leave without pay under the Family Medical Leave Act.
In an August 6, 2012 decision, an OWCP hearing representative affirmed the April 11,
2012 decision, which terminated appellant’s wage-loss compensation, effective that date.3 He
did not address the July 17, 2012 submissions.
Counsel requested reconsideration on August 8, 2013. He argued that the August 6, 2012
decision terminating appellant’s wage loss was made in part because appellant had returned to
work on February 27, 2012. However, counsel explained that appellant was unable to fully
perform the duties associated with the job. He advised that, by March 22, 2012, appellant was
unable to perform the essential functions of his job, and that on June 11, 2012 appellant’s request
for accommodation was denied. Counsel indicated that the decision to terminate appellant was
based upon an incorrect assumption that appellant was able to work. He argued that the treating
physician, Dr. Benson, clarified that appellant was unable to perform three of the five essential
functions of his job. Additionally, counsel argued that it was error to accord great weight to the
second opinion physician, who only examined appellant once, as opposed to his treating
physician.
OWCP received additional medical evidence, including several later reports from
Dr. Benden. It also received: several CA-7 forms for wage-loss compensation; a June 11, 2012
letter from the employing establishment pertaining to appellant’s request for a reasonable
accommodation and a description of the duties of an engineering equipment operator; a
September 9, 2012 letter to appellant’s United States Senator; and an October 7, 2012 response
from appellant to OWCP’s recurrence questionnaire, in which he indicated that he had to leave
his job because the employing establishment could not accommodate his restrictions. It also
received a letter dated February 12, 2013, in which counsel requested that Dr. Bensen provide an
updated medical report.

3

On August 29, 2012 OWCP granted appellant a schedule award of five percent permanent impairment to the left
arm.

3

In an October 6, 2014 decision, OWCP denied appellant’s request for reconsideration as
it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.4 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.5 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.6
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, OWCP must
nevertheless undertake a limited review to determine whether it establishes clear evidence of
error. If an application demonstrates clear evidence of error, OWCP will reopen the case for
merit review.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.8 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.9

4

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a).

6

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
8

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

9

Id.

4

ANALYSIS
In its October 6, 2014 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its last merit decision regarding the termination of
wage-loss compensation on August 6, 2012. The reconsideration request of counsel was
received on August 8, 2013, more than one year after the August 6, 2012 merit decision and was,
therefore, untimely.
The Board finds that the evidence submitted in the untimely request for reconsideration
raises a substantial question as to the correctness of OWCP’s decision and is sufficient to
demonstrate clear evidence of error.
On reconsideration, counsel argued that evidence in the record established that appellant
was unable to fully perform the duties associated with the job. The Board has reviewed the
record and the August 6, 2012 decision. The Board notes that prior to issuing the August 6, 2012
decision, OWCP had received documentation in which the employing establishment had advised
appellant that it could no longer accommodate his restrictions effective June 11, 2012. There is
no indication that the hearing representative considered this submission.
Board precedent requires OWCP to review all evidence submitted by a claimant and
received by it prior to the issuance of its final decision, including evidence received on the date
of the decision.10 It makes no difference that the claims examiner may not have been directly in
possession of the evidence. Indeed, Board precedent envisions evidence received by OWCP but
not yet associated with the case record when the final decision is issued. The Board finds that
OWCP committed error when it failed to review the documentation from the employing
establishment dated June 11, 2012 which advised appellant that they were unable to
accommodate his restrictions.11
Consequently, the Board finds that appellant has shown clear evidence of error on the
part of OWCP such that OWCP erred in denying merit review.
CONCLUSION
The Board finds that appellant has established clear evidence of error in the August 6,
2012 decision and thus OWCP improperly denied his request for reconsideration.

10

See Yvette N. Davis, 55 ECAB 475 (2004); see also William A. Couch, 41 ECAB 548 (1990) (OWCP did not
consider new evidence received four days prior to the date of its decision); see Linda Johnson, 45 ECAB 439 (1994)
(applying Couch where OWCP did not consider a medical report received on the date of its decision).
11

Thu M. McGill, Docket No. 98-1867 (issued July 14, 2000); see also Ruth Hickman, Docket No. 91-831 (issued
July 31, 1991).

5

ORDER
IT IS HEREBY ORDERED THAT the October 6, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.12
Issued: November 18, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

12

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE NAVY,
PEARL HARBOR NAVAL SHIPYARD,
Pearl Harbor, HI, Employer
__________________________________________

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Appearances:
Stephen M. Shaw, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-743
Issued: April 3, 2012

Case Submitted on the Record

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

JURISDICTION
On February 2, 2011 appellant, through his attorney, timely appealed the August 9, 2010
merit decision of the Office of Workers’ Compensation Programs (OWCP), which found that
appellant received an overpayment of compensation. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant received an overpayment in the amount of $185,222.30.

1
2

5 U.S.C. §§ 8101-8193.

Appellant’s counsel submitted evidence to the Board that had not previously been submitted to OWCP. The
Board’s appellate review is limited to evidence that was in the case record at the time OWCP issued its final
decision. 20 C.F.R. § 501.2(c) (2010). Accordingly, any new evidence received after OWCP’s August 9, 2010
decision will not be considered on appeal.

FACTUAL HISTORY
This case has previously been before the Board.3 Appellant, a 57-year-old former pipe
insulator, has an accepted claim for concussion, cervical strain and temporomandibular joint
dysfunction, which occurred on November 10, 1980. He stopped work on December 17, 1985.
In March 1986, OWCP placed appellant on the periodic compensation rolls and he continued to
receive disability compensation for almost two decades.4
In January 1998, appellant started a handyman services business, which he and his wife
later incorporated under the name of Repairs With Care Home Service, Inc. (RWC),5 which
remained in business through the latter part of 2004.
OWCP periodically received financial disclosure statements Form CA-1032 from
appellant. While appellant informed OWCP of his involvement with the family-owned business,
he failed to report earnings from his work with RWC.6 He would later acknowledge that he
intentionally omitted his RWC earnings so that OWCP would not reduce his wage-loss
compensation.
Based on misinformation provided on Form CA-1032, appellant was indicted under 18
U.S.C. § 1920 for making false statements to obtain federal employees’ compensation benefits.
On November 20, 2006 he pled guilty to one count of knowingly and willfully making materially
false and fraudulent written representations in connection with the receipt of FECA benefits.
Appellant received a sentence of five years probation. He was also ordered to make restitution to
the Department of Labor (DOL) in the amount of $45,119.29.
As a consequence of his fraudulent activity, OWCP terminated appellant’s compensation
and medical benefits pursuant to 5 U.S.C. § 8148(a).7 It also found that he forfeited his right to
compensation for the period December 3, 1996 through October 29, 2005. Appellant had
received $302,146.88 in wage-loss compensation for the period in question, which OWCP
declared an overpayment. He was found at fault in creating the overpayment, and thus, he was
not entitled to waiver of recovery. OWCP credited appellant $45,119.29 for court-ordered
restitution.

3

Docket No. 08-2425 (issued August 3, 2009).

4

Appellant received wage-loss compensation through October 29, 2005.

5

Appellant’s 1998 federal income tax records (Form 1040) showed that he was self-employed as a handyman,
with calendar year gross business receipts of $41,757.00.
6

Appellant filed Form CA-1032 on March 3, 1998, September 20, 1999, April 9, 2001, June 3, 2002 and
February 18, 2003. On each of the above-noted forms, he reported a $0.00 rate of pay and $0.00 actual earnings
with respect to his handyman business activities.
7

Any individual convicted of a violation of section 1920 of title 18 or any other federal or state criminal statute
relating to fraud in the application for or receipt of any benefit under this subchapter or subchapter III of this
chapter, shall forfeit (as of the date of such conviction) any entitlement to any benefit such individual would
otherwise be entitled to under this subchapter or subchapter III for any injury occurring on or before the date of such
conviction. Such forfeiture shall be in addition to any action the Secretary may take under section 8106 or 8129.
5 U.S.C. § 8148(a).

2

When the case was previously on appeal, the Board disagreed with OWCP’s
determination that appellant forfeited compensation for the entire period December 3, 1996 to
October 29, 2005. Instead, the Board found that appellant forfeited compensation for the period
December 3, 1996 to March 3, 1998, June 20, 1998 to September 20, 1999 and January 9, 2000
to February 18, 2003.8 The wage-loss compensation appellant received during that timeframe
was properly declared an overpayment. The Board further found that he was at fault in creating
the overpayment, and therefore, he was not eligible for a waiver of recovery. Because the record
was unclear regarding the amount of compensation appellant received during the above-noted
periods, the Board remanded the case for OWCP to calculate the amount of overpayment. The
Board’s August 3, 2009 decision is incorporated herein by reference.9
On remand, OWCP calculated a forfeiture/overpayment of $185,222.30 for the period
December 3, 1996 to March 3, 1998, June 20, 1998 to September 20, 1999 and January 9, 2000
to February 18, 2003. This figure was derived by subtracting the compensation paid for the
excluded periods from the previous overpayment figure of $302,146.88.10 OWCP also noted
various credits, including $45,119.29 for court-ordered restitution.
By decision dated August 9, 2010, OWCP found that appellant had an outstanding
overpayment of $98,334.88.11
LEGAL PRECEDENT
A partially disabled employee may be required to report his earnings from employment
or self-employment, by affidavit or otherwise, in the manner and at the times specified by
OWCP.12 If an employee knowingly omits or understates any earnings or work activity in
making a report, he shall forfeit the right to compensation with respect to any period for which
the report was required.13 Forfeiture results in an overpayment of compensation for the period of
the forfeiture and is subject to recovery under 5 U.S.C. § 8129.14

8

The forfeiture/overpayment was justified based on CA-1032 forms dated March 3, 1998, September 20, 1999,
April 9, 2001, June 3, 2002 and February 18, 2003. Each Form CA-1032 covered a 15-month period prior to the
date signed by appellant. The Board set aside OWCP’s finding with respect to forfeiture/overpayment for the period
March 4 to June 19, 1998, September 21, 1999 to January 8, 2000 and February 19, 2003 to October 29, 2005
because the record did not include any corresponding Form CA-1032 forms or other evidence to support forfeiture
for those periods.
9

The Board subsequently denied reconsideration by order dated November 19, 2009 (Docket No. 08-2425).

10

For the periods excluded by the Board, OWCP deducted a total of $116,924.58.

11

The overpayment balance reflected the above-noted court-ordered restitution and a credit of $44,555.06 for
funds OWCP obtained from the Office of Personnel Management (OPM) through garnishment of appellant’s
disability annuity. Appellant also received a $37.60 credit because of a discrepancy regarding the total
compensation awarded from December 3, 1996 through October 29, 2005. The $98,334.88 balance also included
what appears to be accrued interest at one percent.
12

5 U.S.C. § 8106(b); 20 C.F.R. § 10.525.

13

Id.; Id. at § 10.529(a).

14

Id.; Id. at § 10.529(b).

3

ANALYSIS
In its August 3, 2009 decision, the Board found that appellant forfeited his compensation
for the period December 3, 1996 to March 3, 1998, June 20, 1998 to September 20, 1999 and
January 9, 2000 to February 18, 2003, which resulted in an overpayment of compensation. The
Board remanded the case to OWCP for a determination of the amount of benefits appellant
received during the forfeiture period. On remand, OWCP determined that appellant received
$185,222.30 in compensation benefits during the specified period.
On appeal, counsel did not present any evidence or argument that would warrant
revisiting the Board’s prior determination that appellant forfeited his wage-loss compensation for
the period December 3, 1996 to March 3, 1998, June 20, 1998 to September 20, 1999 and
January 9, 2000 to February 18, 2003. Moreover, he did not specifically challenge OWCP’s
finding that appellant received $185,222.30 in compensation for the above-noted period. OWCP
originally calculated an overpayment of $302,146.88 for the period December 3, 1996 through
October 29, 2005. From that amount, it deducted $9,419.14 for the excluded period of March 4
to June 16, 1998 and another $9,746.79 for the excluded period of September 21, 1999 to
January 8, 2000. OWCP also deducted $97,758.65 for the excluded period of February 19, 2003
to October 29, 2005, for a total combined reduction of $116,924.58. The Board finds that the
record supports that appellant received an overpayment of compensation in the amount of
$185,222.30 for the period December 3, 1996 to March 3, 1998, June 20, 1998 to September 20,
1999 and January 9, 2000 to February 18, 2003. Counsel has not challenged the Board’s prior
findings with respect to fault or waiver of recovery of the overpayment. Accordingly, the Board
need not revisit those findings.
Counsel’s only argument on appeal is that the court-ordered restitution of $45,119.29
constituted a global settlement, and thus, represented the extent of appellant’s repayment
obligation to OWCP regarding the current forfeiture/overpayment.15 He raised this same
argument when the case was previously on appeal. Counsel also previously challenged OWCP’s
attempt at garnishing appellant’s OPM disability benefits. As noted in the Board’s August 3,
2009 decision, the scope of the court-ordered restitution and OWCP’s efforts to garnish appellant’s
OPM benefits are essentially debt collection issues, which are beyond the Board’s current
jurisdiction.16 As a result of appellant’s November 20, 2006 guilty plea and subsequent conviction,
he forfeited his right to receive any further benefits under FECA.17 Because appellant is not
currently receiving wage-loss compensation, the Board does not have jurisdiction to consider
OWCP’s methods for recovering the $185,222.30 overpayment.18

15

Counsel also submitted additional evidence regarding the March 27, 2007 criminal judgment, which included
restitution. As previously indicated, supra note 2, the Board is precluded from considering evidence that was not
before OWCP at the time of its final decision.
16

See Joan Ross, 57 ECAB 694, 703-04 (2006); Danny E. Haley, 56 ECAB 393, 402-03, n.34 (2005); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.18 (May 2004).
17

5 U.S.C. § 8148(a); 20 C.F.R. § 10.17.

18

Joan Ross, supra note 16.

4

CONCLUSION
The Board finds that appellant received an overpayment of $185,222.30 for the period
December 3, 1996 to March 3, 1998, June 20, 1998 to September 20, 1999 and January 9, 2000
to February 18, 2003. OWCP’s August 9, 2010 decision incorrectly identified “$98,334.88” as
the amount of the overpayment. Rather than representing the amount of the overpayment, that
figure purports to represent the outstanding balance owed OWCP after certain credits and
unspecified accrued interest were applied to the $185,222.30 overpayment.19 The August 9,
2010 decision is modified to reflect an overpayment of $185,222.30.
ORDER
IT IS HEREBY ORDERED THAT the August 9, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: April 3, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

19

As noted, OWCP credited appellant $37.60 for a calculation discrepancy, $45,119.29 for court-ordered
restitution and $44,555.06 for funds garnished from appellant’s OPM disability annuity, for a total credit of
$89,711.95. These credits would reduce the overpayment balance to $95,510.35. However, a July 8, 2010
memorandum indicated that OWCP calculated interest at one percent on the outstanding overpayment balance. The
exact amount of interest charge is not readily apparent from the record, but if one subtracts the preinterest balance of
$95,510.35 from the reported outstanding balance of “$98,334.88,” it appears that accrued interest totaled
$2,824.53.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
HARTSFIELD JACKSON ATLANTA
INTERNATIONAL AIRPORT,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 08-644
Issued: June 23, 2008

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 December 26, 2007 appellant filed a timely appeal from the October 22, 2007
decision of the Office of Workers’ Compensation Programs which denied his claim for benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the
merits of this claim.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on December 28, 2005, as alleged.
FACTUAL HISTORY
On August 2, 2007 appellant, then a 27-year-old transportation security officer (screener),
filed a traumatic injury claim alleging that on December 28, 2005 he lifted a bag and felt pain in

his right arm, down his left leg and back.1 He listed the nature of the injury as “herniated disc in
my back.”
By letter dated September 18, 2007, the Office instructed appellant to submit medical
evidence to support his claim within 30 days. No medical evidence was submitted.
By decision dated October 22, 2007, the Office denied appellant’s claim as he submitted
no medical evidence to establish that he sustained a medical condition causally related to the
December 28, 2005 lifting incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place and in the manner alleged.4 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to a specific condition of employment.6 Neither the fact that a
condition became apparent during a period of employment nor appellant’s belief that the
employment caused or aggravated his condition is sufficient to establish causal relationship.

1

The traumatic injury claim form indicates that appellant’s signature is dated August 2, 2005. This appears to be
a typographical error as the alleged injury occurred on December 28, 2005 and the date of notice is listed as
August 30, 2007.
2

5 U.S.C. § 8122(a).

3

Id.

4

John J. Carlone, 41 ECAB 345 (1989).

5

Shirley A. Temple, 48 ECAB 404 (1997).

6

Katherine J. Friday, 47 ECAB 591 (1996).

2

ANALYSIS
The Office accepted that the December 28, 2005 incident occurred as appellant alleged,
i.e., that he lifted a bag and experienced pain in his right arm, left leg and back. The issue on
appeal, therefore, is whether appellant submitted sufficient medical evidence to establish that he
sustained an injury as a result of this incident. Appellant failed to timely submit any medical
evidence to support his claim that he sustained an injury on December 28, 2005. Therefore, he
has not established a prima facie claim for compensation.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
his belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.8 As appellant failed to submit such evidence, the Office
properly denied his claim.9
CONCLUSION
The Board finds that appellant failed to establish that he sustained an injury in the
performance of duty on December 28, 2005, as alleged.

7

See Donald W. Wenzel, 56 ECAB 390 (2005); Richard A. Weiss, 47 ECAB 182 (1995).

8

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

9

Appellant submitted new medical evidence with his appeal. The Board has no jurisdiction to review new
evidence on appeal. See 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and request
reconsideration under 5 U.S.C. § 8128.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of he Office of Workers’
Compensation Programs dated October 22, 2007 is affirmed.
Issued: June 23, 2008
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 13-1350
Issued: December 2, 2013

Case Submitted on the Record

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

On May 14, 2013 appellant filed a timely appeal from a nonmerit decision of the Office
of Workers’ Compensation Programs (OWCP) dated April 15, 2013 that denied his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error.1 The Board docketed the appeal as No. 13-1350.
The Board has reviewed the record on appeal and finds that the case must be remanded to
OWCP for application of the appropriate standard of review because appellant’s request for
reconsideration was timely submitted.
The most recent merit decision of OWCP on the underlying issue in this case was issued
on June 17, 2011.2 In a reconsideration request dated June 13, 2012, date stamped by OWCP on
June 18, 2012, appellant, through his attorney, requested reconsideration of the June 17, 2011
1

On November 4, 2004 appellant, a work study student, filed a traumatic injury claim, alleging that he injured his
back lifting boxes on October 28, 2004. OWCP accepted that claim for lumbar strain with radiculopathy.
2

By decision dated January 8, 2013, OWCP indicated that an overpayment of compensation in the amount of
$5,172.30 had occurred because appellant was incorrectly reimbursed for nursing services. This decision was not
appealed to the Board.

decision and submitted additional medical evidence. By decision dated April 15, 2013, OWCP
denied appellant’s reconsideration request on the grounds that it was untimely filed and failed to
establish clear evidence of error.
The OWCP regulations in effect at the time OWCP issued the June 17, 2011 decision
provided:
“An application for reconsideration must be sent within one year of the date of the
OWCP decision for which review is sought. If submitted by mail, the application
will be deemed timely if postmarked by the U.S. Postal Service within the time
period allowed. If there is no such postmark, or it is not legible, other evidence
such as (but not limited to) certified mail receipts, certificate of service, and
affidavits, may be used to establish the mailing date.”3
The Board has long held that the one-year time limitation begins to run on the date
following the date of the original OWCP decision.4 Thus, in the instant case, appellant’s
reconsideration request would be considered timely if submitted on June 17, 2012. However,
June 17, 2012 was a Sunday, and the next business day was Monday, June 18, 2012, when
appellant’s reconsideration request and additional medical evidence were stamped received by
OWCP.
As appellant’s reconsideration request dated June 13, 2012 and stamped received on
Monday, June 18, 2012 was made within one year of OWCP’s merit decision dated June 17,
2011, the Board concludes that the request was timely. In its April 15, 2013 decision denying
appellant’s reconsideration request, OWCP applied the clear evidence of error legal standard.
This standard is the appropriate standard only for cases in which a reconsideration request is
untimely filed.5 Since OWCP erroneously reviewed the evidence submitted by appellant in
support of her reconsideration request under the clear evidence of error standard, the Board will
remand the case to OWCP for application of the standard for reviewing a timely request for
reconsideration as set forth at 20 C.F.R. § 10.606(b)(2).6

3

20 C.F.R. § 10.607 (1999). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations,
Chapter 2.1602.4 (October 2011).
4

Darletha Coleman, 55 ECAB 143 (2003).

5

See Donna M. Campbell, 55 ECAB 241 (2004).

6

Section 10.606(b)(2) provides that an application for reconsideration must show that OWCP erroneously applied
or interpreted a specific point of law, advance a relevant legal argument not previously considered by OWCP, or
include the submission of relevant and pertinent new evidence not previously considered by OWCP. 20 C.F.R.
§ 10.606(b)(2).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 15, 2013 is set aside and the case is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: December 2, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
TENNESSE VALLEY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-18
Issued: May 14, 2013

Case Submitted on the Record

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

JURISDICTION
On October 3, 2012 appellant, through his attorney, filed a timely appeal of an August 6,
2012 Office of Workers’ Compensation Programs’ (OWCP) merit decision denying his claim for
a pulmonary injury. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed lung
disease as a result of chemical exposures in the performance of duty.
On appeal counsel argued that there was a conflict in medical opinion regarding whether
appellant had employment-related lung disease.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 17, 2011 appellant, then a 59-year-old supervisor of maintenance, filed an
occupational disease claim alleging pneumoconiosis and bronchitis due to exposures during his
federal employment. He began working at the employing establishment in 1976 and was
exposed to asbestos-coated pipes. Appellant began work as an annual employee in 1986 and was
exposed to coal dust on a daily basis in addition to asbestos on sheet metal. He held this second
position for 10 years. In 1996 appellant worked as a pipefitter foreman and was exposed to coal
dust, asbestos and flue gas as well as asbestos from pipe insulation. He noted that he
occasionally wore a mask during this period. Appellant began working as a maintenance
supervisor in 2008. In this position, he spent the majority of his time in an office, but was
exposed to coal dust and flue gas approximately 30 percent of the time and did not wear a mask.
Appellant noted that he worked as a pipefitter in the navy from 1971 to 1972. He stated that he
worked for the Pipefitters Union Local from 1976 through 1986 while working in employing
establishment power plants. Appellant smoked cigarettes for 10 to 11 years at the rate of one
pack a day. He stopped smoking in 1980.
OWCP requested additional factual and medical evidence in a letter dated April 11, 2011.
The employing establishment submitted an employment history that appellant began work in
April 1976 and was intermittently assigned to various positions through January 2, 2009 when he
retired.
In a report dated November 8, 2010, Dr. Glen Baker, a Board-certified internist and
pulmonologist certified as a B reader, noted appellant’s employment with the employing
establishment for 33 years. He performed work as a pipefitter with exposure to coal dust, flue
gas and asbestos. Dr. Baker noted appellant’s smoking history. He found that appellant’s chest
x-ray of August 25, 2010 demonstrated occupational pneumoconiosis as well as irregular
opacities consistent with a history of exposure to asbestos. Dr. Baker stated that appellant’s
pulmonary function studies were within normal limits.
He diagnosed occupational
pneumoconiosis with pulmonary asbestosis, mild bronchitis and obstructive sleep apnea.
Dr. Baker stated, “His bronchitis and occupational pneumoconiosis are caused by his exposure to
asbestos and other dusts, odors and fumes he was exposed to during his employment.” He noted
that appellant had no permanent impairment as his pulmonary function studies were within
normal limits.
On April 12, 2011 the employing establishment submitted a job history noting that
appellant had worked in various capacities for approximately 25 years. From 1976 through
2009, appellant had exposures to coal dust and asbestos below relevant permissible exposure
limits. The employing establishment contended that, during appellant’s employment for the
prior 25 years, he was not exposed to coal dust and asbestos at or above the existing permissible
exposure limits.
OWCP referred appellant for a second opinion evaluation. The statement of accepted
facts noted his employment with the employing establishment from 1976 to 1986, his positions
from 1986 through 2009 and his alleged exposures to asbestos, coal dust and flue gas. OWCP
noted that appellant had a history of smoking one pack a day for 10 to 11 years.

2

In a report dated June 21, 2011, Dr. Peter Rosario, a Board-certified internist and
pulmonologist, reviewed appellant’s employment history and reviewed the diagnostic test. He
stated, “I am hard pressed to give this gentleman a diagnosis of occupational lung disease or
pneumoconiosis related to asbestos or coal dust exposure when objectively the physical
examination, chest x-ray and pulmonary function studies, both now and in the past are essentially
normal.” Dr. Rosario suggested that appellant either had mild pneumoconiosis or another
condition such as histoplasmosis. He stated that appellant’s history of exposure to asbestos and
coal dust was significant, but concluded that there was no asbestos or coal dust-induced lung
disease, such as pneumoconiosis.
OWCP referred the medical evidence to OWCP’s medical adviser on July 26, 2011. On
July 29, 2012 the medical adviser found that appellant had no objective evidence of occupational
lung disease. He also found that appellant had no permanent impairment of the lungs.
By decision dated August 8, 2011, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence rested with Dr. Rosario’s opinion of no asbestos or
pneumoconiosis.
Appellant requested an oral hearing, before an OWCP hearing representative, on
December 29, 2011.
Appellant testified at the April 12, 2012 oral hearing. He reported occasional shortness
of breath and a constant cough. Counsel noted that Dr. Rosario was not a B-reader.
In a form report dated March 22, 2012, Dr. Matthew A. Vuskovich, a physician Boardcertified in preventive medicine and a certified B-reader, reviewed appellant’s August 25, 2010
x-ray.
He found that appellant had abnormalities consistent with pneumoconiosis.
Dr. Vuskovich stated that appellant had small opacities with a profusion of two.
By decision dated August 6, 2012, the hearing representative found that Dr. Baker’s
report was not based on an accurate history of injury as appellant did not have a 10-year
employment exposure instead working for 2 years and 4 months.2 She found that appellant did
not establish that he developed lung disease as a result of exposures during his federal
employment.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
2

The Board notes that evidence from appellant and the employing establishment established that he worked for
25 years in various capacities.

3

diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between
the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.3
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, 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 and resolve the conflict of medical evidence.4 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.5
ANALYSIS
The employing establishment submitted evidence that appellant worked from April 1976
through January 2, 2009 in various capacities. OWCP accepted that he was exposed to asbestos,
coal dust and flue gas in the performance of his job duties. Appellant’s attending physician,
Dr. Baker, found that appellant’s chest x-ray dated August 25, 2010 demonstrated occupational
pneumoconiosis as well as irregular opacities consistent with a history of exposure to asbestos.
OWCP referred appellant for a second opinion evaluation with Dr. Rosario who completed a
report on June 21, 2011 and concluded that appellant’s x-rays and physical examination
established that there was no asbestos or coal dust-induced lung disease, pneumoconiosis.
Appellant also submitted a form report dated March 22, 2012 from Dr. Vuskovich which found
pleural abnormalities consistent with pneumoconiosis.
The Board finds that there is an unresolved conflict of medical opinion evidence
regarding whether appellant’s chest x-rays demonstrate pneumoconiosis. Appellant has
submitted evidence from two physicians that his x-rays are consistent with this diagnosis.
OWCP’s second opinion physician disagreed and found that appellant’s x-ray was not yet
consistent with pneumoconiosis. Due to the disagreement between appellant’s physicians and
the physician for OWCP, the Board finds that the case must be referred to an impartial medical
examiner to determine whether appellant has diagnostic evidence of pneumoconiosis.
CONCLUSION
The Board finds that this case is not in posture for decision as there is an unresolved
conflict of medical opinion evidence.

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

5 U.S.C. §§ 8101-8193, 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

5

R.C., 58 ECAB 238 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the August 6, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: May 14, 2013
Washington, DC

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

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

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

5