United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, NELLIS AIR
FORCE BASE, NV, Employer
__________________________________________

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)
)
)
)
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)
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)

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

Docket No. 20-1241
Issued: February 9, 2021

Case Submitted on the Record

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

JURISDICTION
On June 30, 2020 appellant filed a timely appeal from a May 12, 2020 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 appellant received an overpayment of compensation in the
amount of $54,495.41 for which she was without fault because she concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset for the period October 1, 2015 to January 4, 2020; (2) whether
OWCP properly denied waiver of recovery of the overpayment; and (3) whether it properly

1

5 U.S.C. § 8101 et seq.

required recovery of the overpayment by deducting $479.25 from appellant’s continuing
compensation payments every 28 days.
FACTUAL HISTORY
On June 5, 2001 appellant, then a 51-year-old grocery manager, filed an occupational
disease claim (Form CA-2) alleging that she developed extreme stress due to the employing
establishment’s failure to provide a safe work environment. She noted that she first became aware
of her condition, and first realized its relationship to her federal employment on April 24, 2001.
On the reverse side of the claim form the employing establishment indicated that appellant stopped
work on May 2, 2001. Appellant’s retirement coverage was noted as Federal Employees
Retirement System (FERS). OWCP subsequently accepted her claim for anxiety disorder. It paid
appellant wage-loss compensation on the daily rolls as of April 2, 2002 and on the periodic rolls
as of August 2, 2002.
On November 20, 2019 SSA forwarded a completed FERS/SSA dual benefits calculation
form to OWCP. The form indicated that, beginning in October 2015, appellant’s SSA rate with
FERS was $1,112.90 and without FERS was $71.40, beginning in December 2015 her SSA rate
with FERS was $1,112.90 and without FERS was $71.40, beginning in December 2016 her SSA
rate with FERS was $1,116.20 and without FERS was $71.60, beginning in December 2017 her
SSA rate with FERS was $1,138.50 and without FERS was $73.00, and beginning in
December 2018 her SSA with FERS was $1,170.30 and without FERS was $75.00.
In a February 4, 2020 notice of telephone call (Form CA-110), OWCP notified appellant
that her compensation would be offset by the portion of her SSA age-related retirement benefits
attributable to her federal service.
In a preliminary determination dated April 8, 2020, OWCP notified appellant that she had
received an overpayment of compensation in the amount of $54,495.412 because her wage-loss
compensation benefits had not been reduced for the period October 1, 2015 through January 4,
2020 by the portion of her SSA benefits that were attributable to her federal service. It calculated
the overpayment amount by determining the difference between her SSA amount with and without
FERS for the stated period and adding this amount to find a total overpayment of $54,495.41.
OWCP further advised appellant of its preliminary determination that she was without fault in the
creation of the overpayment and requested that she complete an overpayment action request form
and an overpayment recovery questionnaire (Form OWCP-20), and submit supporting financial
documentation. Additionally, it notified her that she could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing. OWCP allotted 30 days for
appellant to respond.
On April 20, 2020 appellant completed an overpayment action request form and requested
that OWCP make a decision based on the written evidence. She indicated that she was requesting
waiver of recovery of the overpayment because she had provided correct and complete information

2
The Board notes that the preliminary overpayment determination had calculated an overpayment in the amount of
$54,495.40, not $54,495.41.

2

as required by SSA and OWCP. Appellant contended that she should not be held responsible for
an overpayment that occurred without her knowledge.
On May 5, 2020 appellant submitted a Form OWCP-20 dated May 4, 2020, which
indicated that she had a monthly income of $8,144.58, including FECA compensation benefits of
$1,917.67 for herself and $2,028.31 for her spouse, SSA benefits of $1,044.00 for herself and
$1,113.00 for her spouse, and other retirement income of $2,041.60 for her spouse. She reported
that her monthly expenses included: $3,065.43 for rent or mortgage, $600.16 for food; $250.00
for clothing; $1,180.09 for utilities; $800.00, $150.00, and $100.00 for Navy Federal Credit Union;
$143.00 for Home Depot; $46.50 for Military Star; $12.96 for Hulu; $29.50 for Prime Video;
$14.06 for Netflix; $2.99 for Apple iCloud storage; $137.72 for Allstate automobile insurance (last
payment); $163.02 for Allstate automobile insurance starting May 7, 2020; $98.54 for Allstate life
insurance; $229.79 for USAA automobile insurance; $15.10 for AGI travel insurance; $8.00 for
AGI life insurance; and $694.94 for Lincoln Automotive Financial Services, totaling $7,737.86.
Appellant indicated that she had available assets of $125.00 cash on hand, $7,745.85 in a checking
account, and $7,013.43 in a savings account, totaling $14,884.28.
By decision dated May 12, 2020, OWCP finalized the preliminary determination that
appellant had received an overpayment of compensation in the amount of $54,495.41 for the period
October 1, 2015 through January 4, 2020 for which she was not at fault, because her FECA
compensation payments were not offset by the portion of her SSA age-related retirement benefits
attributable to her federal service. It found that she was without fault in the creation of the
overpayment, but denied waiver of recovery because the evidence of record did not establish that
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience. OWCP required recovery of the overpayment by deducting $479.25 from appellant’s
continuing wage-loss compensation every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 However, section 8116 also limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.4 When an overpayment has been made
to an individual because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which the individual is
entitled.5
Section 10.421(d) of OWCP’s implementing regulations requires that it reduce the amount
of compensation by the amount of any SSA benefits that are attributable to the federal service of

3

5 U.S.C. § 8102(a).

4

Id. at § 8116.

5

Id. at § 8129(a).

3

the employee.6 FECA Bulletin No. 97-09 states that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$54,495.41 for which she was without fault, because she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits without an appropriate offset for the period
October 1, 2015 to January 4, 2020.
In its May 12, 2020 decision, OWCP found that an overpayment of compensation was
created for the period October 1, 2015 to January 4, 2020. The overpayment was based on the
evidence received from SSA with respect to retirement benefits paid to appellant. As noted, a
claimant cannot receive both compensation for wage loss and SSA age-related retirement benefits
attributable to federal service for the same period.8 The information provided by SSA established
that appellant received SSA age-related retirement benefits that were attributable to federal service
beginning October 1, 2015. OWCP, however, neglected to offset her FECA benefits until
January 4, 2020. Accordingly, the Board finds that it properly determined that appellant received
an overpayment of wage-loss compensation for the period October 1, 2015 through
January 4, 2020.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided appellant’s SSA rates with FERS and without FERS for the
period October 1, 2015 through January 4, 2020. OWCP provided its calculations of the amount
that it should have offset during the relevant period based on the SSA worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period October 1, 2015 through January 4, 2020 and finds that an overpayment of compensation
in the amount of $54,495.41 was created.9

6

20 C.F.R. § 10.421(d); see R.R., Docket No. 19-0104 (issued March 9, 2020); T.B., Docket No. 18-1449 (issued
March 19, 2019); L.J., 59 ECAB 264 (2007).
7

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

8

5 U.S.C. § 8116(d)(2); see R.D., Docket No. 19-1598 (issued April 17, 2020); C.M., Docket No. 19-1451 (issued
March 4, 2020); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).
9

See M.S., Docket No. 18-0740 (issued February 4, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.10
Section 10.436 of OWCP’s implementing regulations provides that recovery of an
overpayment would defeat the purpose of FECA if such recovery would cause hardship because
the beneficiary from whom OWCP seeks recovery needs substantially all of his or her current
income (including compensation benefits) to meet current ordinary and necessary living expenses
and, 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.11 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.12
Section 10.437 of OWCP’s implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship attempting to repay the debt;
and when an individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse.13 OWCP’s procedures
provide that, to establish that a valuable right has been relinquished, an individual must
demonstrate that the right was in fact valuable, that he or she was unable to get the right back, and
that his or her action was based primarily or solely on reliance on the payment(s) or on the notice
of payment.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.15

10

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).
11

20 C.F.R. § 10.436. OWCP’s procedures provide that the 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 6.400.4a (3) (September 2018).
12

Federal (FECA) Procedure Manual id. at Chapter 6.400.4(a)(3) (September 2018).

13

20 C.F.R. § 10.437; see E.H., Docket No. 18-1009 (issued January 29, 2019).

14

FECA Procedure Manual, supra note 11 at Chapter 6.400.4c(3) (September 2018).

15

20 C.F.R. § 10.436.

5

Appellant provided her current monthly income and expenses in Form OWCP-20 on
May 5, 2020 as well as a summary of her liquid assets. OWCP properly determined that she listed
available assets totaling $14,884.28. This amount exceeds the base asset amount of $10,300.00
for individuals with a spouse or dependent.16 It was therefore unnecessary for OWCP to consider
whether appellant’s monthly income exceeds her monthly ordinary and necessary expenses by
more than $50.00.17 OWCP therefore properly denied waiver of recovery.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or his or her attention is called to the same.
If no refund is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial circumstances of
the individual, and any other relevant factors, so as to minimize any hardship.18
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$479.25 from appellant’s continuing compensation payments every 28 days.
In setting the recovery rate, OWCP explained that the factors set forth at 20 C.F.R.
§ 10.441(a) had been considered to minimize hardship, while liquidating the debt, as appellant had
financial resources sufficient for more than ordinary needs.19 As noted, appellant submitted a
Form OWCP-20 on May 5, 2020 showing that she had available assets totaling $14,884.28, which
included $125.00 cash on hand, $7,745.85 in a checking account, and $7,013.43 in a savings
account. Thus, OWCP did not abuse its discretion in setting the rate of recovery.20 The Board
therefore finds that OWCP properly required recovery of the overpayment from appellant’s
continuing compensation payments at the rate of $479.25 every 28 days.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$54,495.41 for which she was without fault, because she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits without an appropriate offset for the period
October 1, 2015 to January 4, 2020. The Board further finds that OWCP properly denied waiver

16

Supra note 11; see R.D., supra note 8.

17

Id.

18

20 C.F.R. § 10.441(a); see C.M., supra note 8.

19

See J.C., Docket No. 20-0204 (issued October 16, 2020); D.S., Docket No. 18-1447 (issued July 22, 2019).

20

See J.C., id.; T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

6

of recovery of the overpayment and properly required recovery of the overpayment by deducting
$479.25 from her continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 9, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, ARMY ROTC, )
Edwardsville, IL, Employer
)
__________________________________________ )
J.M., Appellant

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

Docket No. 15-1008
Issued: September 4, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 30, 2015 appellant, through counsel, filed a timely appeal of a March 2, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because more
than 180 days has elapsed since the most recent merit decision dated September 22, 2014 and the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On October 16, 2012 appellant, then a 22-year-old Reserve Officers’ Training Corps
(ROTC) student cadet, filed a traumatic injury claim alleging that on September 22, 2012 he
sustained a right shoulder and left knee injury while climbing walls and running during obstacle

1

5 U.S.C. §§ 8101-8193.

course training. Appellant’s supervisor and professor of military science, noted with a
checkmark “yes” that appellant was injured in the performance of duty.
Appellant underwent physical therapy from October 8 to 15, 2012.
By letter dated May 29, 2013, OWCP advised appellant of the type of factual and
medical evidence needed to establish his claim. It requested that he submit a physician’s
reasoned opinion addressing the relationship of his claimed condition and specific employment
factors. OWCP also requested that appellant provide a line of duty determination from the
military science officer of the ROTC program.
Appellant was treated by Dr. Kevin Bell, a Board-certified family practitioner, on
October 5, 2012 for right upper extremity discomfort. He reported injuring his right upper
extremity while participating in ROTC. Dr. Bell noted limited range of motion of the right upper
extremity and good strength of biceps and triceps. He diagnosed limb pain and acute situational
stress. Dr. Bell recommended physical therapy to evaluate and treat the right arm pain possibly
related to his neck, post-traumatic stress, and acute situational depression. In a prescription note
dated October 5, 2012, he diagnosed right upper extremity pain and left knee and neck pain and
recommended physical therapy. Appellant was treated by Dr. Mark Eavenson, a chiropractor,
from October 9 to 17, 2012 for cervical strain, possible right rotator cuff tear and left knee
internal derangement. Dr. Eavenson noted findings of limited range of motion of the left knee,
no sensory loss or motor weakness, and positive varus and valgus pain.
In a decision dated July 9, 2013, OWCP denied appellant’s claim, finding that he did not
meet the requirements for establishing that he sustained an injury while performing his ROTC
duties.
On July 11, 2013 appellant requested an oral hearing which was held on
November 25, 2013.
In a February 10, 2014 decision, an OWCP hearing representative vacated the July 9,
2013 decision and remanded the case for further development. She noted that appellant’s sworn
testimony regarding the incident and the agency’s initial acknowledgment that appellant’s injury
was in the performance of duty was sufficient to establish the incident occurred in the
performance of duty. The hearing representative remanded the matter for OWCP to request that
the agency provide a detailed statement confirming whether appellant was performing his ROTC
duties at the time of the injury.
In a statement dated October 17, 2012, a professor of military science alleged that
appellant failed to provide timely notification to the ROTC department of his injuries, but he
acknowledged that appellant sustained an injury in the line of duty and his injuries were the
proximate result of performance of scheduled military training.
In a decision dated February 21, 2014, OWCP denied appellant’s claim as he failed to
submit any medical evidence containing a medical diagnosis in connection with the alleged
injury or events.

2

On February 27, 2014 appellant requested an oral hearing which was held on
July 28, 2014. He submitted a report from Dr. Bell dated October 5, 2012, a physical therapy
report dated October 8, 2012, and a statement from the professor of military science dated
October 17, 2012, all previously of record. Also submitted were physical therapy notes dated
October 17, 2012. Appellant submitted a June 19, 2012 report from Dr. Rodney Lupardus, a
Board-certified family practitioner, dated June 19, 2012, who treated him for hypogonadism.
Dr. Lupardus noted physical examination revealed mild tenderness of the lumbar muscles
bilaterally without spasm and the neurological examination revealed no focal deficits. He
diagnosed hypogonadism, allergic rhinitis, tonsillar hypertrophy with possible obstructive sleep
apnea and acne.
In a decision dated September 22, 2014, an OWCP hearing representative affirmed the
decision dated February 21, 2014 as modified. It noted that appellant established fact of injury,
but, he failed to establish a causal relationship between the September 22, 2012 work incident
and a diagnosed medical condition.
On December 11, 2014 appellant, through counsel, requested reconsideration. He
referenced an October 23, 2014 report from Dr. Greg Harbach, a Board-certified orthopedist, and
asserted that based on this new evidence the prior decision should be vacated and overturned. In
the October 23, 2014 report, Dr. Harbach noted that appellant presented with right shoulder and
left knee pain with an onset of symptoms in 2012. He noted appellant’s symptoms were
consistent with patellofemoral syndrome. Appellant reported that his symptoms started two
years ago when he was in ROTC while participating in an obstacle training course and injured
his knee and shoulder. Dr. Harbach noted findings on examination of right shoulder pain, mild
tenderness to palpation over the acromioclavicular joint, mildly positive Hawkins test, positive
Neer test, good strength with internal and external rotation against resistance, negative drop arm
test, there was no sign of scapular winging noted, he was neurovascularly intact distally with no
skin lesions, abrasions, or contusions. He noted x-rays of the right shoulder revealed no fractures
or other major bony abnormalities and type II acromion and mild arthritic changes of the
acromioclavicular joint. Dr. Harbach diagnosed left shoulder pain, acromioclavicular joint
arthritis, and impingement syndrome. He recommended an anti-inflammatory and physical
therapy.
In a March 2, 2015 decision, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant a merit review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(3) of the implementing federal regulations, which provides that a claimant may

2

5 U.S.C. § 8128(a).

3

obtain review of the merits of his or her written application for reconsideration if the request,
including all supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by the
(OWCP); or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
OWCP denied appellant’s traumatic injury claim, finding that the medical evidence did
not demonstrate that the claimed medical condition was causally related to the established workrelated events. Thereafter, it denied appellant’s reconsideration request, without conducting a
merit review.
The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. In his December 11, 2014 request for reconsideration,
counsel referenced an October 23, 2014 report from Dr. Harbach and asserted that based on this
new evidence, the prior decision should be vacated and overturned. These assertions do not
show a legal error by OWCP or a new and relevant legal argument. The underlying issue in this
case is whether appellant submitted medical evidence establishing that his right shoulder and left
knee conditions were causally related to the September 22, 2012 work incident. That is a
medical issue which must be addressed by relevant new medical evidence.5 However, appellant
did not submit any new and relevant medical evidence in support of his claim.
Appellant submitted an October 23, 2014 report from Dr. Harbach who noted that
appellant presented with right shoulder and left knee pain with an onset of symptoms in 2012.
He reported that his symptoms started two years ago when he was in ROTC while participating
in obstacle training course and injured his knee and shoulder. Dr. Harbach noted findings on
examination of right shoulder pain and mild tenderness to palpation over the acromioclavicular
joint. He noted x-rays of the right shoulder revealed no fractures but type II acromion and mild
arthritic changes of the acromioclavicular joint. Dr. Harbach diagnosed left shoulder pain,
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.608(b).

5

See Bobbie F. Cowart, 55 ECAB 746 (2004).

4

acromioclavicular joint arthritis, and impingement syndrome of the left shoulder. He
recommended an anti-inflammatory and physical therapy. Although this report is new, it is not
relevant because Dr. Harbach merely repeats the history of injury as reported by appellant
without providing his own opinion regarding whether the diagnosed medical condition was
causally related to the September 22, 2012 work incident. Therefore, this new evidence is
irrelevant and is insufficient to warrant reopening the case for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
Appellant did not submit any evidence or argument in support of his reconsideration
request that warrants reopening of his claim for a merit review under 20 C.F.R. § 10.606(b)(3).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Ashland, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-616
Issued: August 1, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 24, 2013 appellant filed a timely appeal of an October 30, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying an additional
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than nine percent permanent impairment of his
left arm for which he received a schedule award.
On appeal, appellant contends that clinical evaluation notes of an attending physician are
sufficient to establish greater impairment.
FACTUAL HISTORY
OWCP accepted that on March 11, 2007 appellant, then a 42-year-old senior officer
specialist, sustained a ruptured left biceps tendon while in the performance of duty. Appellant
1

5 U.S.C. § 8101 et seq.

felt a popping and pulling sensation in his lower left bicep area when he lifted a washing
machine to look under it during a shakedown at work.
In a decision dated September 25, 2007, OWCP granted appellant a schedule award for
nine percent impairment of the left arm.
On September 5, 2012 appellant filed a claim for an additional schedule award for
impairment to his left upper extremity.
In a clinical evaluation note dated August 10, 2012, Dr. Ralph Touma, an attending
Board-certified orthopedic surgeon, listed a history that appellant sustained a biceps tendon
rupture five years prior. Appellant’s condition had worsened as he was unable to use his upper
extremity and experienced pain. He developed carpal tunnel syndrome and ulnar nerve
entrapment at the elbow level, which showed atrophy of the hyperthenar eminence. Appellant
had numbness and tingling to the index and little fingers and to a lesser extent to the remaining
three fingers. He also had a positive Tinel’s sign at the wrist and elbow. Appellant’s biceps
muscle weakened the whole upper arm. In an August 22, 2012 note, Dr. Touma advised that a
magnetic resonance imaging scan revealed a biceps tendon rupture at the distal attachment that
happened five years prior and was never treated. Appellant subsequently lost complete function
of the biceps muscle and had no biceps at the present time. Flexion was relying on his
brachioradialis. Appellant had very poor flexion and resistance to flexion, yet he could bend his
elbow to 120 degrees and fully extend. Dr. Touma concluded that his carpal and ulnar tunnel
release was not related to his biceps tendon, but acquired from using his arm. In an attending
physician’s report dated August 21, 2012, Dr. Touma referenced his office notes regarding a
history of the March 11, 2007 employment injury, his examination findings and appellant’s
diagnosis. He indicated with a checkmark “yes” that appellant sustained a condition caused or
aggravated by an employment activity.
By letter dated September 17, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish greater impairment. It requested that he submit additional medical
evidence, including an impairment evaluation from his attending physician in accordance with
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Appellant was afforded 30 days to submit the requested
evidence. He did not respond.
In an October 30, 2012 decision, OWCP denied appellant’s claim for an additional
schedule award, finding that the medical evidence of record was insufficient to establish that he
had more than nine percent impairment of the left upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA,2 and its implementing federal regulations,3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.4 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides6 as the appropriate edition for all awards
issued after that date.7
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).9
ANALYSIS
OWCP accepted that on March 11, 2007 appellant sustained a ruptured left biceps
tendon. By decision dated September 25, 2007, it granted him a schedule award for nine percent
permanent impairment to the left arm. Appellant requested an increased award. In an
October 30, 2012 decision, OWCP found that he was not entitled to an additional schedule award
for the left upper extremity. The Board finds that appellant did not meet his burden of proof to
establish that he sustained greater impairment.
In an August 21, 2012 report, Dr. Touma, an attending physician, indicated that the date
of injury was March 11, 2007. He noted with a checkmark “yes” that appellant sustained a
condition caused or aggravated by an employment activity. Dr. Touma’s report did not provide
any opinion as to whether appellant sustained permanent impairment due to the accepted injury.
It is of limited probative value and insufficient to establish appellant’s schedule award claim.
Dr. Touma’s clinical evaluation notes do not provide an opinion on whether appellant sustained
permanent impairment due to the accepted employment injury, are also insufficient to establish
his claim.
On September 17, 2012 OWCP requested that appellant provide a report from his
attending physician addressing permanent impairment in accordance with the sixth edition of the
A.M.A., Guides; however, no additional evidence was submitted. The Board finds that there is
no probative medical evidence establishing that appellant has more than nine percent impairment
of his left upper extremity causally related to the March 11, 2007 accepted employment injury.
Appellant is not entitled to an increased schedule award.

4

Ausbon N. Johnson, 50 ECAB 304 (1999).

5

20 C.F.R. § 10.404; Mark A. Holloway, 55 ECAB 321, 325 (2004).

6

A.M.A., Guides (6th ed. 2008).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
8

A.M.A., Guides at 494-531.

9

Id. at 521.

3

On appeal, appellant contended that Dr. Touma’s clinical evaluation notes are sufficient
to establish his entitlement to an additional schedule award. For the reasons stated, Dr. Touma’s
clinical notes are of diminished probative value and not sufficient to establish greater impairment
than that previously granted.
Appellant may request a 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 establish that he sustained greater than nine
percent impairment of his left upper extremity impairment for which he received a schedule
award.
ORDER
IT IS HEREBY ORDERED THAT the October 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2013
Washington, DC

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

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

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

4


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

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

Docket No. 18-1134
Issued: January 17, 2019

Case Submitted on the Record

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

JURISDICTION
On May 14, 2018 appellant filed a timely appeal from an April 12, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted February 6, 2018 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 6, 2018 appellant, then a 38-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she injured her left lower back when loading and
unloading heavy boxes in the performance of duty. She stopped work on the date of injury.
Appellant provided a February 6, 2018 form report and notes signed by Lorie Quigley, a
registered nurse practitioner. The employing establishment also provided appellant with an
authorization for examination and/or treatment (Form CA-16) on February 6, 2018.
In a February 12, 2018 radiology report, Dr. Cory C. Duffek, a Board-certified diagnostic
radiologist, reviewed appellant’s lumbar spine x-rays and diagnosed minimal degenerative disease
at L3-4 and L4-5.
On March 6, 2018 appellant provided notes from Daniel A. Nalepka, a physician assistant.
In a development letter dated March 6, 2018, OWCP requested additional factual and
medical evidence in support of appellant’s traumatic injury claim. It informed her that she must
provide medical evidence signed by a physician, not a nurse practitioner or a physician assistant,
and that pain was not considered a valid medical diagnosis. OWCP afforded appellant 30 days for
a response.
OWCP thereafter received additional medical evidence. Notes dated February 12 and 26
and March 5, 2018 from Mr. Nalepka include the notation, “My supervising physician for this visit
is Karen Calkins, MD.” The electronic signatures were provided only by Mr. Nalepka.
Dr. Paul J. Fortier, a Board-certified internist, completed a treatment note and form report
on March 9, 2018 and diagnosed acute left-sided low back pain with left-sided sciatica.
Dr. Jamal Ksar, a Board-certified diagnostic radiologist, performed a magnetic resonance
imaging (MRI) scan on March 10, 2018, which demonstrated no significant abnormality.
Appellant also submitted progress notes from Kevina Willis and Mickey Jones, physical therapists.
By decision dated April 12, 2018, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish a medical diagnosis causally related
to the accepted employment incident and, thus, she had not met the requirements for establishing
an injury under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
2

Id.

2

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 first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.4 Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.6 The weight of the medical evidence
is determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.7
ANALYSIS
The Board finds that the evidence of record is sufficient to establish a diagnosed medical
condition, based upon Dr. Duffek’s diagnosis of minimal degenerative disease at L3-4 and L4-5.
Therefore, the issue pending before the Board is whether appellant has met her burden of proof to
establish that the diagnosed back condition was causally related to the accepted February 6, 2018
employment incident.
Medical evidence submitted to support a claim for compensation should reflect a correct
history and the physician should offer a medically-sound explanation of how the claimed
employment incident caused or aggravated the claimed condition.8 The Board finds that no
physician did so in this case.
On March 9, 2018 Dr. Fortier completed both a treatment note and form report diagnosing
acute left-sided low back pain with left-sided sciatica. This finding is of no probative value as he

3

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

4

A.L., Docket No. 18-0420 (issued August 21, 2018).

5

A.D., supra note 3; T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

7

Id.; James Mack, 43 ECAB 321 (1991).

8

M.C., Docket No. 17-1983 (issued August 17, 2018).

3

is describing symptoms rather than a clear diagnosis of a medical condition.9 The Board has held
that the mere diagnosis of “pain” does not constitute the basis for payment of compensation.10
Appellant also submitted diagnostic studies including x-rays and an MRI scan to the record
from Drs. Duffek and Ksar, respectively. While Dr. Duffek’s x-ray report establishes a diagnosis,
these diagnostic studies are of limited probative value as appellant’s MRI scan reported no findings
and as the x-ray report did not address whether the employment incident caused any of the
diagnosed conditions.11 The Board has held that reports of diagnostic tests lack probative value
as they do not provide an opinion on causal relationship between appellant’s employment and a
diagnosed condition.12
The remainder of the medical evidence was from physician assistants,13 registered nurse
practitioners, and physical therapists. The Board has held that treatment notes signed by such
health care providers have no probative value as they are not considered physicians under FECA.14
Thus, this evidence is insufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.15

9

M.M., Docket No. 16-1617 (issued January 24, 2017); K.B., Docket No. 16-0122 (issued April 19, 2016).

10

Id.; Robert Broome, 55 ECAB 339 (2004).

11

C.M., Docket No. 18-0146 (issued August 16, 2018).

12

See K.V., Docket No. 18-0723 (issued November 9 2018).

While some of Mr. Nalepka notes provided, “My supervising physician for this visit is Karen, Calkins MD.”
There is no evidence that these treatment notes were acknowledged and electronically countersigned by Dr. Calkins.
A report from a physician assistant or certified nurse practitioner will be considered medical evidence only if
countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship,
Chapter 2.805.3a(1) (January 2013). C.M., supra note 11; K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57
ECAB 316, 320 n.11 (2006).
13

14

See David P. Sawchuk, id. (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within
the scope of their practice as defined by State law).
15

The Board notes that the employing establishment issued a Form CA-16 Authorization for Medical Treatment.
A properly completed CA-16 form authorization may constitute a contract for payment of medical expenses to a
medical facility or physician, when properly executed. The form creates a contractual obligation, which does not
involve the employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the
claim. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed back condition was causally related to the accepted February 6, 2018 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2018 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: January 17, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
White Stone, NY, Employer
__________________________________________

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

Docket No. 09-2090
Issued: September 21, 2010

Case Submitted on the Record

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

JURISDICTION
On August 14, 2009 appellant filed a timely appeal from a July 13, 2009 merit decision
of the Office of Workers’ Compensation Programs terminating his entitlement to monetary
compensation for refusing suitable work. The Board also has jurisdiction over an October 21,
2008 Office decision denying his request for an oral hearing. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s entitlement to
monetary compensation effective June 27, 2008 on the grounds that he refused an offer of
suitable work; and (2) whether the Office properly denied appellant’s request for an oral hearing
pursuant to 5 U.S.C. § 8124(b).
FACTUAL HISTORY
On August 11, 1997 appellant, then a 49-year-old tractor trailer operator, injured his left
shoulder while cranking a landing gear on a trailer. The Office accepted the claim for

impingement syndrome left shoulder, left shoulder strain, left biceps tendon rupture and left
brachial neuritis. It paid wage-loss compensation and authorized left shoulder surgeries of
March 16, 1998, December 17, 2002 and February 3, 2004. Appellant returned to a modified
tractor trailer operator position on August 14, 2006. On October 25, 2006 the Office found that
his actual earnings as a modified tractor trailer operator fairly and reasonably represented his
wage-earning capacity. It reduced his wage-loss compensation to zero as his actual earnings met
or exceeded the current wages of the job held when injured. On December 19, 2006 appellant
filed a claim for a recurrence (Form CA-2a) of total disability beginning December 8, 2006. In a
March 23, 2007 decision, the Office accepted the recurrence claim.
In November 3 and 6, 2006 and January 22, 2007 reports, Dr. Jeffrey Rosen, a Boardcertified orthopedic surgeon, advised that appellant was unable to return to work. Appellant was
unable to take his medications when he had to drive to work due to side effects of drowsiness
and imbalance. Moreover, he had shoulder pain at work when he did not take his pain
medication. Dr. Rosen advised that appellant was restricted from repetitive activities, overhead
lifting or reaching and carrying, lifting, pushing or pulling with the left upper extremity.
In a December 1, 2006 report, Dr. Todd R. Schlifstein, a Board-certified physiatrist,
found that appellant was having difficulty at work secondary to increasing pain. He stated that
appellant could not take his pain medication during the day due to its sedating effect.
Dr. Schlifstein advised this effected appellant’s work, travel and driving. He stated that
appellant’s pain at the end of the day increased dramatically and worsened because he could not
take medication during the day for proper pain control.
To determine the nature and extent of residuals due to the work injury, the Office referred
appellant, to Dr. Robert Allen Smith, a Board-certified orthopedic surgeon, and Dr. Gilbert S.
Tausch, a Board-certified neurologist, for second opinion evaluations.
In a March 19, 2007 report, Dr. Smith reviewed appellant’s medical and occupational
history and set forth findings on examination. He advised that while appellant had some
objective residuals he was not totally disabled. Dr. Smith opined that appellant could work in a
light or sedentary position with no lifting of more than 20 pounds and no use of the left upper
extremity for lifting or reaching above the horizontal. He further found that, other than use of
appropriate medication, no further medical treatment was necessary.
In a March 29, 2007 report, Dr. Tausch noted the history of injury, review of appellant’s
medical records and set forth his examination findings. Appellant’s neurological diagnoses were
left-sided cervical radiculopathy at C5-6, carpal tunnel at the left wrist and a possible brachial
plexus injury that could not be documented by electromyogram (EMG) or nerve conduction
study. Dr. Tausch opined that the brachial nerve traction could be directly attributed to
appellant’s work injury, while the other conditions of cervical radiculopathy and carpal tunnel
syndrome did not result from the work injury. He found that appellant could work with
restrictions and perform the duties of the modified tractor trailer operator position. Dr. Tausch
provided work restrictions.
The Office determined that a conflict of medical opinion arose between appellant’s
physicians and the second opinion examiners. It referred him to Dr. Michael C. Raklewicz, a

2

Board-certified orthopedic specialist, for an impartial medical examination. In an October 12,
2007 report, Dr. Raklewicz reviewed the history of injury and appellant’s medical treatment. He
found that appellant was able to drive, as he drove about an hour and a half to come to the
appointment and was able to use his left arm to clean himself. Dr. Raklewicz provided
examination findings and determined that appellant’s cervical spondylosis was not due to the
work injury. He stated that appellant had residuals of the left shoulder injury with a chronic
ruptured biceps tendon, a repaired rotator cuff and subacromial tendinitis and bursitis for which
he had permanent limited use. Dr. Raklewicz stated that appellant could perform the tasks of his
modified tractor trailer operator position, such as issuing vehicle service schedules, answering
telephones, completing forms, copying, filing and other administrative tasks. Appellant was
observed when he was dressing and was able to get his t-shirt on with full 180-degree abduction
of his left arm over his head, seemingly without pain. Dr. Raklewicz stated, “this, with the fact
that [appellant] has no atrophy in the left upper extremity and no symptoms of increased sweat
pattern, clearly demonstrates that [he] has magnification of symptoms.” He provided physical
restrictions for appellant.
On November 13, 2007 the Office advised the employing establishment that
Dr. Raklewicz’ opinion established that appellant could work. It requested that the employer
offer him a position within the physician’s recommended restrictions.
On November 21, 2007 the employing establishment offered appellant a modified motor
vehicle position with duties of issuing motor vehicle service schedules and keys, occasional
answering of telephones with his right hand, to complete forms with basic arithmetic and filing,
copying and other administrative clerical duties as assigned.1 It noted the assignment was for
eight hours a day from 4:00 a.m. to 12:00 p.m. No reaching or working above the shoulder level
was required and appellant would not be required to push, pull or lift more than 20 pounds.
In a January 2, 2008 letter, the Office notified appellant that it had reviewed the modified
motor vehicle position and found it suitable to his physical limitations. It directed him to accept
the position within 30 days or provide a written explanation for rejecting the offer; otherwise, his
monetary compensation entitlement would be terminated.
Additional evidence was received. In a December 21, 2007 attending physician’s report,
Dr. Rosen reiterated that appellant was totally disabled as he was unable to lift his left arm. In a
July 30, 2007 report, he indicated that appellant reached maximum medical improvement with
respect to the left arm and had permanent disability with respect to the left shoulder and brachial
neuritis. Dr. Rosen found that appellant was unable to work without taking medications to help
alleviate pain. He indicated that the side effects of medication prevented appellant from driving
or operating machinery.
In a December 10, 2007 report, Dr. Schlifstein advised that appellant was under his care
for pain management of frozen shoulder, upper extremity causalgia and brachial plexopathy. He
indicated that appellant experienced severe pain and discomfort and extreme difficulty

1

The Board notes that this is the same position for which a loss of wage-earning capacity was issued on
October 25, 2006 with a different title.

3

performing regular duties of daily living secondary to his condition. Dr. Schlifstein advised that
appellant was permanently and totally disabled.
In a March 18, 2008 letter, the Office advised appellant that his refusal to accept or report
to work for the offered position was not valid. He was provided an additional 15 days to accept
the offered position without penalty or his benefits would be terminated. Appellant’s physician’s
submitted additional progress reports advising that appellant was totally disabled.
On June 17, 2008 the employing establishment verified that appellant’s refusal of the
offered position continued and that it remained available to him.
In response to the Office’s April 15, 2008 request to complete a form work-capacity
evaluation, Dr. Raklewicz set forth appellant’s restrictions on June 18, 2008. He advised that
appellant reached maximum medical improvement and could work eight hours a day with
restrictions. The restrictions included no pushing, pulling or lifting more than 20 pounds and no
reaching above the shoulder for more than four hours per day.
In a June 30, 2008 decision, the Office terminated appellant’s monetary compensation
effective June 27, 2008 on the grounds he failed to accept suitable work.
On September 3, 2008 appellant requested a telephone hearing. In an October 21, 2008
decision, the Office denied his request for a hearing as untimely.
On April 22, 2009 appellant requested reconsideration. He submitted additional reports
from Dr. Rosen and Dr. Schlifstein. Both physicians reiterated that appellant was totally
disabled due to his left shoulder condition. Dr. Rosen stated that appellant could not work
because of the side effects of pain medication and the need to drive. In a July 11, 2008 report,
Dr. Schlifstein stated that appellant continued with pain, sedation medication and was
permanently disabled. A January 12, 2008 x-ray report noted old post-traumatic changes about
the left acromial joint without significant change from a February 18, 2005 x-ray, except for soft
tissue prominence which was now seen superior to the distal left clavicle.
By decision dated July 13, 2009, the Office denied modification of the June 30, 2008
decision.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is properly determined, it
remains undisturbed regardless of actual earnings or lack of earnings.2 A modification of such a
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated
or the original determination was in fact erroneous. The burden is on the Office to establish that
there has been a change so as to affect the employee’s capacity to earn wages in the job

2

Sharon C. Clement, 55 ECAB 552, 555 (2004).

4

determined to represent her earning capacity. Compensation for loss of wage-earning capacity is
based upon loss of the capacity to earn and not on actual wages lost.3
In addition, Chapter 2.814.11 of the Office’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. Office procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If the Office is seeking modification, it must establish that the original rating was in error,
that the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.4
ANALYSIS -- ISSUE 1
The Office terminated appellant’s compensation benefits effective June 27, 2008 on the
grounds that he refused an offer of suitable work. However, it did not meet its burden of proof to
terminate appellant’s compensation for refusing suitable work. Following his injury and
treatment, appellant returned to work at modified duty. He had actual earnings after he returned
to work on August 14, 2006 and the Office issued a formal loss of wage-earning capacity
decision on October 25, 2006. The Office did not address this loss of wage-earning capacity
decision or otherwise formally modify this determination prior to the time of the suitable work
determination on June 30, 2008.
Board precedent holds that a formal loss of wage-earning capacity decision remains
undisturbed unless appropriately modified.5 Office procedures provide that an acceptable reason
for refusing an offer of suitable work is that the claimant has found other work that fairly and
reasonably represents his wage-earning capacity.6 The Office’s October 25, 2006 decision found
that appellant’s actual earnings fairly and reasonably represented his wage-earning capacity.
Office procedures provide that, where a claimant stops work after reemployment and where a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss. The Office is to
evaluate the request according to the customary criteria for modifying a formal wage-earning
capacity decision. The procedures provide that a penalty decision under 5 U.S.C. § 8106(c)
should not be issued.7 Following the 2006 wage-earning capacity determination, appellant
stopped work and received compensation. The Office accepted a recurrence of disability and
3

Id.

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.11 (July 1997).
5

Supra note 2 (the Board reversed an Office decision terminating compensation for refusal of suitable work
where there was a previous loss of wage-earning capacity determination, based on the claimant’s actual earnings,
which the Office had not appropriately modified).
6

See supra note 4 at Chapter 2.814.5(a) (July 1997).

7

See supra note 4 at Chapter 2.814.9(a) (December 1995).

5

began development that led to the termination of monetary compensation under section 8106(c).
It did not follow its procedures directing that the matter be evaluated according to the customary
criteria for modifying a formal wage-earning capacity decision.
As the Office did not appropriately consider appellant’s loss of wage-earning capacity,
the suitable work termination was an abuse of discretion under the procedure manual.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s wage-loss
compensation on the grounds that he refused an offer of suitable work.8
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 13, 2009 is reversed.9
Issued: September 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8

Due to the disposition of this case, the second issue, pertaining to the denial of appellant’s hearing request, is
rendered moot.
9

Appellant’s attorney filed a brief with the Board on September 16, 2010. In view of the Board’s disposition, it
will not address the arguments raised by appellant’s attorney on appeal.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
El Paso, TX, Employer
__________________________________________

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

Docket No. 12-175
Issued: May 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2011 appellant filed a timely appeal from a June 20, 2011 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 the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on April 27, 2011.
FACTUAL HISTORY
On May 4, 2011 appellant, then a 36-year-old customs and border protection officer, filed
a traumatic injury claim alleging that she sustained lower back pain during a vehicle inspection
1

5 U.S.C. § 8101 et seq.

on April 27, 2011. She stopped work on April 28, 2011 and returned to full-time modified duty
on May 4, 2011.
OWCP informed appellant in a May 16, 2011 letter that additional information was
needed to establish her claim. It gave her 30 days to submit a medical report from a physician
explaining how the reported April 27, 2011 employment incident caused or contributed to a
diagnosed condition.
Appellant submitted medical evidence. An April 28, 2011 work release form signed by
Dr. Jeremy C. White, a Board-certified emergency physician, placed her on temporary restricted
duty for the period May 4 to 12, 2011.
In a May 7, 2011 report, Dr. Mitchell J. Farrell, a Board-certified emergency physician
and family practitioner, related that appellant was lifting a tire at work when she experienced
acute back pain nine days earlier. On examination, he observed decreased lumbar range of
motion and pain radiating to the bilateral lower extremities. Dr. Farrell diagnosed lower back
pain.
By decision dated June 20, 2011, OWCP denied appellant’s claim, finding the medical
evidence insufficient to demonstrate that the accepted April 27, 2011 employment incident was
causally related to a lower back condition.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of her claim by the weight of reliable, probative and substantial evidence,2
including that she is an “employee” within the meaning of FECA and that she filed her claim
within the applicable time limitation.3 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.5
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

2

evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
While the case record supports that appellant lifted a tire during a vehicle inspection on
April 27, 2011, the Board finds that she did not establish her traumatic injury claim because the
medical evidence did not sufficiently establish that this accepted employment incident caused or
contributed to a lower back condition.
Dr. Farrell stated in a May 7, 2011 report that appellant was lifting a tire at work when
she experienced acute back pain nine days earlier. Following a physical examination, he
diagnosed lower back pain. Dr. Farrell appears to be merely relating appellant’s belief that an
injury condition resulted from her job duties.7 To the extent that this represents his own opinion
on causal relationship, he failed to provide medical rationale explaining how lifting a tire on
April 27, 2011 pathophysiologically caused or contributed to a lower back condition.8 Medical
reports consisting solely of conclusory statements without supporting rationale are of diminished
probative value.9 Likewise, Dr. White’s April 28, 2011 work release form is of limited probative
value because he did address whether appellant sustained a lower back injury due to her federal
employment.10 In the absence of rationalized medical opinion evidence explaining how
performing a vehicle inspection caused a diagnosed low back condition, appellant did not meet
her burden of proof.
Appellant contends on appeal that OWCP did not receive all the pertinent evidence. As
noted, the employee bears the burden of submitting reliable, probative and substantial evidence.
Here, the medical evidence of record did not sufficiently establish appellant’s claim. Moreover,
appellant failed to provide evidence demonstrating that OWCP disregarded information that was
timely submitted. Alternatively, she argues that it did not adequately clarify what was needed
from her physician. However, OWCP’s decision and this decision of the Board have explained
that the medical evidence is insufficient to explain how appellant’s work activity on April 27,
2011 caused or aggravated a diagnosed low back condition. Furthermore, appellant may submit
new evidence or argument as part of a formal written request for reconsideration to OWCP

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

See P.K., Docket No. 08-2551 (issued June 2, 2009) (an award of compensation may not be based on a
claimant’s belief of causal relationship).
8

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

9

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

10

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

3

within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a traumatic injury in
the performance of duty on April 27, 2011.
ORDER
IT IS HEREBY ORDERED THAT the June 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 24, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 21-0968
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On June 10, 2021 appellant filed a timely appeal from a March 18, 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. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 18, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 30, 2020 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 23, 2020 she injured her right hand/wrist
when a large parcel slipped from her hand and caused her hand to bend backward while in the
performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that her injury had occurred in the performance of duty. It also indicated that
appellant had previously sustained a nonoccupational hand injury. Appellant stopped work on the
date of injury.
In a November 23, 2020 statement, appellant noted that she injured her right hand at work
earlier that day when she was lifting a large box off of a skid, which was at least two feet off the
floor. She explained that the box slipped from her hand, causing her hand to bend backward, which
caused pain in her wrist. Appellant noted that she yelled out in pain and that her supervisor came
to check on her. She indicated that she drafted a statement that would be seeking medical attention.
In a separate statement of even date, appellant noted that when she was lifting a large parcel, it
slipped and injured her right wrist.
In an undated witness statement, C.D., appellant’s supervisor, noted that, on November 23,
2020 at approximately 6:30 p.m., she saw appellant return to the office with a large parcel on a
skid. She stated that she witnessed appellant yell out in pain and saw the parcel was no longer on
the skid. C.D. asserted that appellant was holding her arm and notified her that she had tried
moving the parcel to the floor when it slipped out of her hands and hurt her right wrist. Appellant
also informed C.D. that she previously had surgery on the same wrist, which was the reason why
she was currently on restrictions. C.D. noted that a coworker helped appellant write her statement
before she signed it.
On November 23, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16).
In a November 24, 2020 medical report, Dr. Paul Saccone, a cosmetic, plastic, and
reconstructive surgeon, reported that a heavy box slipped onto appellant’s right hand and wrist,
and bent them backward at work on November 23, 2020. Appellant complained that she
experienced pain in her wrist when she moved it. Dr. Saccone conducted a physical examination
and diagnosed a right wrist sprain. He noted that her right hand and wrist showed some mild
swelling, but no ecchymosis. Dr. Saccone also noted that appellant had decreased flexion and
extension of her wrist. He indicated that she previously underwent a carpal tunnel release on
September 24, 2018. In a disability certification of even date, Dr. Saccone noted that appellant
was totally incapacitated and required an x-ray to further determine the extent of her injury.
A November 25, 2020 x-ray of the right wrist revealed no fracture or dislocation. In an
attending physician’s report, Part B of the Form CA-16, also dated November 25, 2020,
Dr. Saccone again noted that a heavy box slipped onto appellant’s right hand and wrist, bending
them backward, at work on November 23, 2020. He reported that her right wrist was swelling
with decreased flexion and extension. Dr. Saccone diagnosed right wrist sprain and checked a box
marked “Yes,” indicating that appellant’s condition was caused or aggravated by the described
employment activity. He indicated that she was unable to work.

2

In a December 1, 2020 medical report, Dr. Saccone reiterated his findings and diagnosed
right wrist sprain and pain. In a disability certification of even date, he released appellant to return
to work on December 21, 2020, but indicated that her restrictions would be reevaluated on
December 15, 2020.
In a December 15, 2020 medical report, Dr. Saccone noted that appellant still experienced
pain and cramping in her right wrist. He conducted a physical examination and reiterated his
diagnoses. In a prescription slip of even date, Dr. Saccone prescribed occupational therapy and
again diagnosed a right wrist sprain.
Appellant underwent occupational therapy treatment on December 21 and 23, 2020.
In a January 8, 2021 medical report, Dr. Saccone reported that appellant was feeling better
since she began occupational therapy and that she wanted to return to work. He reiterated his
findings and diagnoses. In a prescription slip of even date, Dr. Saccone again prescribed
occupational therapy. In a disability certification of even date, he indicated that appellant could
return to work on January 9, 2021 with restrictions.
An undated report of work status (Form CA-3) completed by the employing establishment
indicated that appellant returned to full-time modified-duty work with restrictions on
January 9, 2021.
In a February 5, 2021 medical report, Dr. Saccone noted that appellant was doing well after
undergoing occupational therapy. He reiterated his findings and diagnoses. In a prescription slip
of even date, Dr. Saccone recommended that appellant continue occupational therapy. In a
disability certification of even date, he noted that appellant returned to work on January 9, 2021
with restrictions.
In a February 11, 2021 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim. It afforded her 30 days to respond. No
additional evidence was submitted.
By decision dated March 18, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between the accepted November 23, 2020 employment incident and her diagnosed right wrist
sprain.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 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. 6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occ urred.8 The
second component is whether the employment incident caused a personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and the
accepted employment incident. 12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.
In Part B of the Form CA-16, attending physician’s report, dated November 25, 2020,
Dr. Saccone diagnosed a right wrist sprain indicated by checking a box marked “Yes” that the
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

4

condition was caused or aggravated by an employment activity. The Board has held that a report
that addresses causal relationship with a checkmark, without medical rationale explaining how the
employment incident caused the alleged injury, is of diminished probative value and insufficient
to establish causal relationship. 14 Dr. Saccone did not provide any rationale in support of his
opinion. This report is, therefore, of diminished probative value and insufficient to establish
appellant’s claim.
In medical reports dated November 24, and December 1 and 15, 2020, and January 8 and
February 5, 2021, Dr. Saccone reported that a heavy box slipped onto appellant’s right hand and
wrist, bending it backward, at work on November 23, 2020. He conducted a physical examination
and consistently diagnosed a right wrist sprain. Similarly, in his December 15, 2020 prescription
slip, he diagnosed a right wrist sprain. However, Dr. Saccone did not address causation in his
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 15
Moreover, the Board has consistently held that complete medical rationalization is particularly
necessary when there is a preexisting condition involving the same body part, and has required
medical rationale differentiating between the effects of the work-related injury and the preexisting
condition in such cases. 16 For these reasons, these reports are insufficient to establish appellant’s
claim.
OWCP received disability certifications and prescription slips from Dr. Saccone dated
November 24 and December 1, 2020, and January 8 and February 5, 2021. However, Dr. Saccone
did not offer a medical diagnosis or provide an opinion as to whether a diagnosed condition was
causally related to the accepted employment incident. The Board has held that medic al evidence
that does not include a firm diagnosis or an opinion regarding the cause of an employee’s condition
is of no probative value on the issue of causal relationship. 17 This evidence is, therefore,
insufficient to establish appellant’s claim.
Appellant also submitted occupational therapy reports dated December 21 and 23, 2020,
and January 20, 2021. These documents do not constitute competent medical evidence because
an occupational therapist is not considered a “physician” as defined under FECA. 18 Consequently,

14

D.S., Docket No. 21-0037 (issued May 27, 2021); S.C., Docket No. 20-0327 (issued May 6, 2021); A.R., Docket
No. 19-0465 (issued August 10, 2020); Gary J. Watling, 52 ECAB 278 (2001).
15

See O.N., Docket No. 20-0902 (issued May 21, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019).

16

Supra note 13. See also J.H., Docket No. 20-1645 (issued August 11, 2021).

17

R.Q., Docket No. 20-0585 (issued September 10, 2021); S.C., Docket No. 20-0492 (issued May 6, 2021).

18

Section 8101(2) of FECA provides that 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); 20 C.F.R. § 10.5(t). See supra note 13 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); S.J., Docket No. 20-1061 (issued December 22, 2020); see also
J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not considered a physician under
FECA).

5

their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
compensation benefits. 19
Lastly, appellant submitted a November 25, 2020 x-ray of the right wrist. The Board has
explained, however, that diagnostic studies, standing alone, lack probative value as they do not
address whether the employment incident caused any of the diagnosed conditions. 20 Thus, this
report is also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her right wrist condition and the accepted November 23, 2020 employment
incident, the Board finds that she has not met her burden of proof to establish her claim. 21
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

19

Id.

20

M.B., Docket No. 19-1638 (issued July 17, 2020); T.S., Docket No. 18-0150 (issued April 12, 2019).

21

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee direct ly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the March 18, 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

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

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

7


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

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

Docket No. 21-0256
Issued: July 22, 2021

Case Submitted on the Record

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

JURISDICTION
On December 9, 2020 appellant filed a timely appeal from a December 1, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
have elapsed from OWCP’s last merit decision, dated May 11, 2020, to the filing of this appeal,
pursuant to FECA1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 11, 2020 appellant, then a 55-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on February 26, 2020 he felt a sharp pain in his lower back
as he attempted to restrain a subject during his defensive tactic training while in the performance
of duty. He did not stop work.
In a March 30, 2020 development letter, OWCP informed appellant that the evidence of
record was insufficient to support his claim. It advised him of the type of factual and medical
evidence needed and provided a factual questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
In an April 16, 2020 work capacity evaluation (Form OWCP-5c), Dr. Michael L.
Pomerantz, a Board-certified orthopedic surgeon, advised that appellant was capable of performing
his usual work duties without restrictions. In a work status note of even date, he released him to
work that day.
By decision dated May 11, 2020, OWCP accepted that the February 26, 2020 employment
incident occurred as alleged, but denied appellant’s traumatic injury claim, finding that the medical
evidence of record did not contain a diagnosed medical condition in connection with the accepted
employment incident. It concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA. The May 11, 2020 decision was mailed to appellant’s last known
address of record.
Appellant continued to submit additional medical evidence.
On September 25, 2020, appellant called OWCP to inquire why medical bills weren’t being
paid in relation to his claim. OWCP advised him that the claim had been denied and “that he needs
to appeal in order to have the possibility of acceptance upon additional review.” It resent appellant
a copy of the May 11, 2020 decision since it appeared appellant had misplaced his.
By appeal request form dated October 4, 2020, postmarked October 6, 2020, appellant
requested an oral hearing before a representative of OWCP’s Branch of Hearings and Review.
By decision dated December 1, 2020, OWCP’s hearing representative denied appellant’s
request for an oral hearing, finding that the request was not made within 30 days and, therefore,
was untimely filed. The hearing representative informed appellant that his case had been
considered in relation to the issue involved and that the issue could be equally addressed by
requesting reconsideration and submitting evidence not previously considered.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”2
2

Supra note 1 at § 8124(b)(1).

2

Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.3 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.4
Although there is no right to a review of the written record or an oral hearing, if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.5
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
OWCP’s regulations provide that a request for an oral hearing must be made within 30
days of the date of the decision for which a review is sought.6 Because appellant’s hearing request
was postmarked October 6, 2020, because appellant’s hearing request was postmarked October 6,
2020, which was more than 30 days after OWCP’s May 11, 2020 decision, it was untimely.
Appellant was, therefore, not entitled to an oral hearing as a matter of right.7
Although appellant’s October 6, 2020 request for a hearing was untimely, OWCP has the
discretionary authority to grant the request and it must exercise such discretion.8 The Board finds
that, in the December 1, 2020 decision, OWCP’s Branch of Hearings and Review properly
exercised its discretion by determining that the issue in the case could be equally well addressed
through a request for reconsideration before OWCP, along with the submission of additional
evidence.
The Board has held that the only limitation on OWCP’s authority is reasonableness.9 An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
3

20 C.F.R. §§ 10.616, 10.617.

4

Id. at § 10.616(a).

5

W.H., Docket No. 20-0562 (issued August 6, 2020); P.C., Docket No. 19-1003 (issued December 4, 2019); M.G.,
Docket No. 17-1831 (issued February 6, 2018); Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51
ECAB 155 (1999).
6

Supra note 4. Under OWCP’s regulations and procedures, the timeliness of a request for a hearing is determined
on the basis of the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). See also G.S., Docket No.
18-0388 (issued July 19, 2018).
7

See P.C., Docket No. 19-1003 (issued December 4, 2019); M.K., Docket No. 19-0428 (issued July 15, 2019);
R.H., Docket No. 18-1602 (issued February 22, 2019); William F. Osborne, 46 ECAB 198 (1994).
8

M.L., Docket No. 20-0294 (issued October 21, 2020); P.C., id.

9

D.M., Docket No. 20-1465 (issued March 1, 2021); O.R., Docket No. 20-0743 (issued January 28, 2021).

3

from established facts.10 In this case, OWCP did not abuse its discretion by denying appellant’s
request for an oral hearing. Accordingly, the Board finds that OWCP properly denied his request
for an oral hearing.
On appeal appellant argues the merits of his claim. The only issue before the Board,
however, is whether OWCP abused its discretion when it denied his October 6, 2020 request for
an oral hearing as untimely filed. As the Board lacks jurisdiction to review the underlying merits
of appellant’s claim, it cannot review his arguments regarding his traumatic injury claim. 11
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124(b).
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10

See A.M., Docket. No. 19-0861 (issued September 21, 2020); T.G., Docket No. 19-0904 (issued November 25,
2019); Daniel J. Perea, 42 ECAB 214 (1990).
11

R.H., Docket No. 19-1488 (issued February 20, 2020); B.S., Docket No. 18-1075 (issued February 21, 2019).

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