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

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

Docket No. 15-1618
Issued: March 7, 2016

Case Submitted on the Record

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

JURISDICTION
On July 23, 2015 appellant filed a timely appeal from a July 16, 2015 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 met her burden of proof to establish an injury in the
performance of duty on December 8, 2014.

1
2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument in this case. By order dated December 29, 2015, the Board
denied her request for oral argument as the Board does not have jurisdiction over the merits of the case and oral
argument would further delay issuance of a Board decision and not serve a useful purpose. Order Denying Request
for Oral Argument, Docket No. 15-1618 (issued December 29, 2015).

FACTUAL HISTORY
On May 30, 2015 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on December 8, 2014 she sustained a strain of the right hip and
buttock when she slipped on ice while carrying a package. She first received medical care on the
date of injury and did not stop work. Appellant notified her supervisor on June 1, 2015. On the
reverse side of the form, the employing establishment challenged the claim arguing that it was
not filed within 30 days.
By letter dated June 11, 2015, OWCP notified appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and was afforded 30 days to respond.
By letters dated June 5 and 23, 2015, the employing establishment controverted the claim
arguing that appellant did not file a timely claim and failed to establish fact of injury and causal
relationship. It further argued that the medical evidence of record indicated that her injury was
not work related.
In a December 8, 2014 CentraCare Health medical report, Dr. Bruce W. Kuhlmann, a
doctor of osteopathic medicine, reported that appellant complained of pain in the right sacroiliac
and right buttocks region which occurred when she was carrying packages and slipped. He noted
that she worked as a rural carrier and as of December 1, 2014 had begun parcel delivery which
entailed pushing large wheeled flats to load the truck which she would then drive around and
deliver. Dr. Kuhlmann provided findings on physical examination noting tenderness to palpation
over the gluteal muscles on the right side and anterior cecum on the right side. He reported that
appellant suffered a new injury to the lumbar and pelvis region.
In a December 12, 2014 medical report, Dr. Kuhlmann reported that appellant’s original
date of injury was May 6, 2009 when she worked as a rural carrier. Appellant recently returned
after a long hiatus and reported that her duties required a lot of lifting and arm work to deliver
parcel packages. She believed that she had reached maximum medical improvement, but then
had significant deterioration since returning back to work. Dr. Kuhlmann noted pain in the upper
back and neck.
In a February 13, 2015 medical report, Dr. Kuhlmann provided appellant work
restrictions due to pain in the lateral epicondyles bilaterally given that her work involved the use
of her hands.
Progress notes dated December 9, 2014 through May 5, 2015 from CentraCare Health
were also submitted from certified medical assistants and registered nurses. In a December 22,
2014 progress note, Joanna Myers, a certified medical assistant, reported that appellant called
complaining of back pain. Ms. Myers noted a history of back surgery one and a half years prior.
She noted that appellant slipped at work and was seen on December 8, 2014 for this injury with
complaints of difficulty sitting, walking, and standing. In a December 29, 2014 note, Ms. Myers
reported that Dr. Kuhlmann did not believe the back issue to be work related.

2

In a July 6, 2015 medical report, Dr. Joel C. Shobe, a Board-certified orthopedic surgeon,
reported that appellant returned for a follow-up due to left hip and leg symptoms with difficulty
sitting. He noted a history of laminectomy surgery at L4-5 with left L4-5 discectomy and facet
joint cyst excision in March 2014. Review of a May 11, 2015 magnetic resonance imaging
(MRI) scan of the lumbar spine revealed evidence to suggest recurrent disc herniation on the left
at L4-5 with some facet hypertrophy contributing to subarticular recess stenosis. Dr. Shobe
further noted collapse of the L2-3 and L4-5 disc. He recommended surgical intervention by
redoing the left L4-5 laminectomy and discectomy. Dr. Shobe provided appellant work
restrictions.
By decision dated July 16, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that her diagnosed condition of recurrent disc herniation on
the left at L4-5 was causally related to the accepted December 8, 2014 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence supporting such a causal relationship.6 The opinion of the physician
must be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant. This medical opinion must include an accurate history of the
employee’s employment injury and must explain how the condition is related to the injury. The
3

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

4

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

5

Elaine Pendleton, supra note 3 at 1143.

6

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

3

weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.7
ANALYSIS
OWCP accepted that the December 8, 2014 employment incident occurred as alleged and
that the claim was timely filed. While the employing establishment controverted appellant’s
claim alleging that it was untimely filed, there is no requirement that a claim be filed on the date
of injury. In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides
that an original claim for compensation for disability or death must be filed within three years
after the injury or death.8 The issue is whether appellant established that the incident caused an
injury. The Board finds that she did not submit sufficient medical evidence to support that she
sustained an injury causally related to the December 8, 2014 employment incident.9
In a December 8, 2014 medical report, Dr. Kuhlmann reported that appellant complained
of pain in the right sacroiliac and buttocks region which occurred when she was carrying
packages as a rural carrier and her feet slipped. He provided findings on physical examination
noting tenderness to palpation over the gluteal muscles on the right side and anterior cecum on
the right side. Dr. Kuhlmann reported that appellant suffered a new injury to the lumbar and
pelvis region. Pain and tenderness upon examination are, however, symptoms and not diagnoses
of a verifiable condition.10 In a December 12, 2014 medical report, Dr. Kuhlmann reported that
appellant’s original date of injury was May 6, 2009 when she worked as a rural carrier, noting
complaints of pain in the upper back and neck. On February 13, 2015 he provided her work
restrictions due to pain in the lateral epicondyles bilaterally.
The Board finds that the opinion of Dr. Kuhlmann is not well rationalized. While
Dr. Kuhlmann had some understanding of the December 8, 2014 employment incident, he failed
to establish a firm medical diagnosis and did not provide a rationalized opinion on causal
relationship. He failed to provide a detailed medical history, only briefly noting an original
May 6, 2009 injury. A well-rationalized opinion is particularly warranted when there is a history
of a preexisting condition.11
Subsequent to his December 8, 2014 report, Dr. Kaufmann noted complaints to the upper
neck, back, and elbows. The findings in these reports are of no probative value as appellant has
7

James Mack, 43 ECAB 321 (1991).

8

5 U.S.C. § 8122(a); section 10.100(b) of OWCP regulations also provides that for injuries sustained on or after
September 7, 1974, a notice of injury must be filed within three years of the injury. 20 C.F.R. § 10.100(b). See
also A.D., Docket No. 15-0732 (issued September 29, 2015).
9

See Robert Broome, 55 ECAB 339 (2004).

10

See P.O., Docket No. 14-1675 (issued December 3, 2015) hip tenderness is a report of a symptom without a
diagnosis of a verifiable medical condition. See D.N., Docket No. 15-1587 (issued December 23, 2015) pain is a
symptom not a diagnosis.
11

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

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alleged a right hip and buttock injury in this claim. Thus, Dr. Kaufmann’s medical reports do not
constitute probative medical evidence because he failed to provide a clear diagnosis and does not
adequately explain the cause of appellant’s injury.12
The remaining medical evidence of record is also insufficient to establish that appellant
sustained an injury causally related to the December 8, 2014 employment incident. Dr. Shobe’s
July 6, 2015 report is of limited probative value as he failed to provide findings pertaining to the
right hip and buttock as alleged by appellant in this traumatic injury claim.13 Rather, he
referenced a history of left L4-5 laminectomy and discectomy in March 2014 and recommended
redoing the surgery after a May 11, 2015 MRI scan of the lumbar spine revealed recurrent disc
herniation on the left at L4-5. Dr. Shobe’s report provides support for a preexisting condition
unrelated to the December 8, 2014 employment incident as he submitted no findings related to
the right hip and buttock injury as alleged by appellant in this claim. It is appellant’s burden to
specify the nature of her claim.14
The progress notes dated December 9, 2014 through May 5, 2015 from CentraCare
Health are also insufficient to establish appellant’s claim as the reports were submitted by
certified medical assistants and registered nurses. Registered nurses, physical therapists, and
physician assistants, are not considered physicians as defined under FECA and their opinions are
of no probative value.15 Any medical opinion evidence appellant may submit to support her
claim should reflect a correct history and offer a medically sound explanation by the physician of
how the specific employment incident pathophysiologically caused or aggravated her right hip
and buttock injury.16
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.17 An award of compensation may not
be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.18 Appellant’s honest belief that the December 8, 2014 employment incident caused her
medical injury is not in question, but that belief, however, sincerely held, does not constitute the
medical evidence necessary to establish causal relationship. To establish a firm medical
12

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

13

The Board notes that appellant has a November 22, 2006 occupational disease Claim No. xxxxxx223 and a
May 6, 2009 occupational disease Claim No. xxxxxx517. The record before the Board contains no other
information pertaining to these claims.
14

O.S., Docket No. 13-438 (issued July 15, 2014).

15

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005) wherein the Board noted that as registered nurses,
licensed practical nurses, and physician assistants were not physicians as defined by FECA, their opinions were of
no probative value.
16

T.G., Docket No. 14-751 (issued October 20, 2014).

17

Daniel O. Vasquez, 57 ECAB 559 (2006).

18

D.D., 57 ECAB 734 (2006).

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diagnosis and causal relationship, she must submit a physician’s report in which the physician
reviews those factors of employment alleged to have caused her condition and, taking these
factors into consideration, as well as findings upon examination and her medical history, explain
how these employment factors caused or aggravated any diagnosed condition, and present
medical rationale in support of his opinion.19
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between the December 8, 2014 employment incident and a medical condition. Thus,
appellant has failed to meet her burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish an injury
causally related to the December 8, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 16, 2015 is affirmed.
Issued: March 7, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
19

Supra note 10.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
INTELLIGENCE AGENCY, Washington, DC,
Employer
__________________________________________

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

Docket No. 14-1475
Issued: November 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On June 18, 2014 appellant filed a timely appeal from the May 28, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant filed a timely claim for work-related hearing loss.
FACTUAL HISTORY
On March 28, 2014 appellant, then a 66-year-old former combat contracting officer
technical representative, filed an occupational disease claim (Form CA-2) alleging that he
sustained bilateral hearing loss (severe in his left ear and moderate in his right ear) while
1

5 U.S.C. §§ 8101-8193.

working at Camp Slayer in Baghdad, Iraq. He indicated that the hearing loss was caused by his
proximity to loud random noises, including mortar round explosions, other explosive detonations
and unmuffled generators. Appellant stated that he first became aware of his claimed condition
on May 12, 2010 and that he first realized on that date that the condition was caused or
aggravated by his work. He noted that he did not file his claim earlier because there was no exit
health examination upon his return from Iraq and the termination of his employment.2
In an accompanying statement, appellant indicated that he worked as a combat
contracting officer technical representative for the employing establishment from May 2004 to
July 2005 in Baghdad.3 He stated that he was at his duty station around the clock during this
period and that he worked 13-hour shifts for six days per week. Appellant was exposed to
hazardous noise including random gunfire, mortar round explosion and constant unmuffled
generator noise. The mortar explosions occurred both day and night and sometimes the
explosions were in close proximity. Appellant indicated that no noise abatement safety devices
were issued. He stated that the employing establishment denied his request for an out-processing
medical examination when his employment was terminated. When appellant returned home, his
wife began to notice that he had hearing problems.
By letter dated April 7, 2014, OWCP requested that appellant submit additional evidence
in support of his hearing loss claim, including any audiograms from the testing of his hearing.
Appellant was asked to provide additional detail regarding why he was not aware of a possible
work-related cause for his hearing loss until May 12, 2010. OWCP indicated that it did not
appear that appellant’s claim was timely because it was not filed within three years of May 12,
2010, the date he reasonably would have been aware of the possible relationship between his
claimed hearing loss and work factors. Moreover, there was no indication that an immediate
supervisor had actual knowledge of a work-related medical condition within 30 days of the
injury.
Appellant submitted an audiogram from a May 12, 2010 evaluation conducted by an
audiologist for a private provider. It was indicated that appellant had slight to moderate hearing
loss in his right ear and slight to moderate/severe hearing loss in his left ear. The audiogram was
not signed or otherwise approved of by a physician. Appellant submitted other evidence
including administrative documents regarding his work in Iraq, a February 21, 2014 rating for
tinnitus from the Department of Veterans Affairs, letters from July and August 2013 that were
sent between his senator and the employing establishment, and a May 25, 2014 statement from
his wife regarding his worsening hearing loss after returning from Iraq.

2

On the same form, Lori Derfler, a human resources specialist for the employing establishment, stated that
appellant was terminated on May 3, 2004 at the end of his temporary appointment. She appears to have
inadvertently listed an improper date for appellant’s termination as other evidence of record shows that he worked
for the employing establishment from May 3, 2004 to July 13, 2005. Ms. Derfler stated that appellant did not report
his claimed condition to the employing establishment until March 7, 2014. A document in the record shows that a
search by the employing establishment revealed that it had no case records regarding health matters for appellant.
3

The record contains notification of personnel action forms showing that appellant worked in this temporary
position from May 3, 2004 to July 13, 2005. Appellant listed other federal and private industry jobs he held, but he
indicated that he was not exposed to hazardous noise in these jobs.

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In an April 9, 2014 statement, Ms. Derfler acknowledged that appellant would have been
exposed to hazardous noise while he worked for the employing establishment between May 3,
2004 and July 13, 2005. She stated that the employing establishment had no record that
appellant complained about his working environment at or around the time that he worked for
the employing establishment.
In an April 25, 2014 statement, appellant asserted that he made attempts in late 2012 and
early 2013 to inform the employing establishment about his hearing problems, but he
acknowledged that he had not kept records of these attempts. He repeated his earlier statement
that he did not become aware of his hearing loss until May 12, 2010 when he underwent
audiological testing.
In a May 28, 2014 decision, OWCP denied appellant’s hearing loss claim as it was
untimely. It noted that May 12, 2010 was the date of appellant’s awareness that the claimed
hearing loss could be related to work factors, but that appellant did not file a claim for hearing
loss until March 2014. Appellant failed to file a claim within three years of the claimed injury
within the meaning of FECA or show that an immediate supervisor had actual knowledge of the
injury within 30 days.
LEGAL PRECEDENT
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.4 In cases of injury on or after
September 7, 1974, section 8122(a) of FECA provides that an original claim for compensation
for disability or death must be filed within three years after the injury or death. Compensation
for disability or death, including medical care in disability cases, may not be allowed if a claim is
not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably
on notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”5
Section 8119 of FECA provides that a notice of injury or death shall be given within 30
days after the injury or death; be given to the immediate superior of the employee by personal
delivery or by depositing it in the mail properly stamped and addressed; be in writing; state the
name and address of the employee; state the year, month, day and hour when and the particular
locality where the injury or death occurred; state the cause and nature of the injury, or in the case
of death, the employment factors believed to be the cause; and be signed by and contain the

4

Charles Walker, 55 ECAB 238 (2004); see Charles W. Bishop, 6 ECAB 571 (1954).

5

5 U.S.C. § 8122(a).

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address of the individual giving the notice.6 Actual knowledge and written notice of injury under
section 8119 serve to satisfy the statutory period for filing an original claim for compensation.7
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his condition and his employment. Such awareness is competent to start the limitation
period even though the employee does not know the precise nature of the impairment or whether
the ultimate result of such affect would be temporary or permanent.8 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.9 Section
8122(b) of FECA provides that the time for filing in latent disability cases does not begin to run
until the claimant is aware or by the exercise of reasonable diligence should have been aware, of
the causal relationship between the employment and the compensable disability.10 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.11
ANALYSIS
On March 28, 2014 appellant filed an occupational disease claim alleging that he
sustained bilateral hearing loss (severe in his left ear and moderate in his right ear) while
working in Iraq between May 2004 and July 2005. OWCP denied appellant’s hearing loss claim
as untimely.
The Board finds that the evidence of record establishes that appellant was aware, or by
the exercise of reasonable diligence should have been aware, of the causal relationship between
his employment and the claimed compensable disability on May 12, 2010. In his occupational
disease claim, filed on March 28, 2014, appellant stated that he first became aware of his claimed
condition on May 12, 2010 and that he first realized on May 12, 2010 that it was caused or
aggravated by his work. In a supplemental statement dated April 25, 2014, he indicated that he
did not become aware of his hearing loss until May 12, 2010 when he underwent audiological
testing.12 Appellant’s explicit linking of work conditions with his development of hearing loss
shows that he knew on May 12, 2010 of the possible relationship between these employment

6

Id. at § 8119; Larry E. Young, 52 ECAB 264 (2001).

7

Laura L. Harrison, 52 ECAB 515 (2001).

8

Larry E. Young, supra note 6.

9

Id.

10

5 U.S.C. § 8122(b); see Luther Williams, Jr., 52 ECAB 360 (2001).

11

Debra Young Bruce, 52 ECAB 315 (2001).

12

The record contains a copy of a May 12, 2010 audiogram from a hearing evaluation conducted on that date.
The employing establishment conducted a search of its records for appellant but it found no health-related files.

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incidents and his claimed medical condition.13 He did not file his claim for an employmentrelated emotional condition until March 28, 2014 and therefore he did not file his claim within
the requisite three years of his awareness of the possible relationship between the implicated
employment incidents and the claimed medical condition.14
Appellant’s claim would still be regarded as timely under section 8122(a)(1) of FECA if
his immediate superior had actual knowledge of the injury within 30 days or under section
8122(a)(2) if written notice of injury was given to his immediate superior within 30 days as
specified in section 8119. Appellant has not made any claim that he has satisfied either of these
provisions nor does the record support a finding that he has satisfied either of them.15
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 did not file a timely claim for work-related hearing loss.

13

Appellant was exposed to the implicated work factors no later than July 13, 2005, his last day of work before
being terminated from his temporary appointment. There is no indication that he continued to be exposed to
injurious working conditions after his awareness of a possible work-related cause of his claimed hearing loss. See
supra notes 8 through 10.
14

Appellant noted that he did not file his claim earlier because there was no exit health examination upon his
return from Iraq, but he did not show that truly exceptional circumstances prevented him from filing a timely claim.
See 20 C.F.R. § 10.100(2).
15

There is no indication in the record that appellant provided a statement to his immediate superior such that he
satisfied the provisions of sections 8119 and 8122(a) of FECA. See supra notes 5 through 7. Appellant submitted
various document, including administrative records regarding his work in Iraq, a February 21, 2014 rating for
tinnitus from the Department of Veterans Affairs, letters from July and August 2013 that were sent between his
senator and the employing establishment, and a May 25, 2014 statement from his wife regarding his worsening
hearing after returning from Iraq. None of these documents show that appellant’s immediate supervisor had the
requisite notice within 30 days of the date of injury.

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ORDER
IT IS HEREBY ORDERED THAT the May 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


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

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

Docket No. 07-2402
Issued: May 16, 2008

Case Submitted on the Record

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

JURISDICTION
On September 24, 2007 appellant filed a timely appeal from a July 3, 2007 decision of
the Office of Workers’ Compensation Programs, terminating her wage-loss compensation and
medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
FACTUAL HISTORY
On February 14, 2006 appellant, then a 55-year-old expeditor, bumped her left knee on a
table leg and sustained a contusion. She sustained a recurrence of disability on April 21, 2006.
On October 23, 2006 appellant underwent arthroscopic surgery consisting of a left knee partial

medial meniscectomy and medial femoral condyle chondroplasty performed by Dr. Robert J.
Smolinski, an attending orthopedic surgeon.1
In a report dated January 15, 2007, Dr. John H. Ring, an orthopedic surgeon and an
Office referral physician, reviewed appellant’s medical history and described her job
requirements. He provided findings on physical examination and diagnosed a tear of the medial
meniscus of the left knee, status post surgery. Dr. Ring stated:
“Diagnosis: A tear of the medial meniscus of the left knee. [Appellant] … has
the scars from her surgery. She has no other objective findings. [Appellant] has
tenderness, which is a subjective finding, of the medial joint line and medial to the
patella and superior to the patella. Residuals: She has residual pain, but why this
has not resolved I do not know. [Appellant] did have a tear of the medial
meniscus, and this was found at the time of surgery … and on MRI.
“I would feel that [appellant’s] work-related condition is not yet resolved. I
would continue her in therapy twice a week for another six weeks. It is still early
in her convalescence, again about a little less than three months since the surgery,
and I would anticipate she will continue to improve.”
***
“I would not feel [that] [appellant] can work as an expeditor at the time I
examined her on January 15, 2007, as a result of the work injury on
February 14, 2006.”
***
“[Appellant] is capable of working; however, I would recommend avoiding all
kneeling and squatting and I would restrict her lifting to less than 40 pounds. I
feel she would need a job where she could sit and stand as necessary to be
comfortable. I would feel these restrictions are temporary and would reassess
them in another six weeks. [Appellant] is able to work eight hours a day.”
In notes dated February 19 to May 17, 2007, two physicians provided findings on
physical examination and opined that appellant was totally disabled due to knee pain and
effusion following her meniscal repair.
The Office requested that Dr. Ring conduct a second examination of appellant and
provide a supplemental report in order to clarify some issues related to her medical condition and

1

A magnetic resonance imaging (MRI) scan dated July 21, 2006 revealed a horizontal degenerative tear
involving the posterior horn of the medial meniscus of the left knee.

2

ability to work. In a March 15, 2007 report, Dr. Ring reviewed appellant’s medical history and
provided findings on physical examination. He stated:
“[Appellant] had no fluid in either knee. Range of motion is 3 degrees of
hyperextension to 120 degrees in the left knee, 3 degrees of hyperextension to 120
degrees on the right knee…. [She] has numbness in the front of the left knee
between the two scars which are the portals from the arthroscopic surgery.
[Appellant] still has tenderness in the medial and also in the lateral joint line. The
knee is perfectly stable.”
***
“[Appellant] can return to her regular duties as far as her knee is concerned. She
has other problems in the neck, the cervical spine and the lumbosacral spine,
which I did not assess, which are not related to [the employment injury] of
February 14, 2006.”
***
“[Appellant] is no longer going to physical therapy. This was stopped in January.
I would not feel that she needs any additional medical care for her knee. I would
not feel she needs further diagnostic testing.”
***
“I would feel she has achieved maximum medical improvement.”
***
“[Appellant] does have a mild disability as a result of the injury to her left knee,
which is by direct cause. At this point, I would feel that it is too early to assess
permanency, but would anticipate that she will have some permanency.”
***
“[Appellant], I would feel, greatly exaggerates the complaints about her knee.”
The Office requested further clarification from Dr. Ring. In an April 26, 2007 report,
Dr. Ring stated:
“At the present time [appellant] have complaints of pain anteromedially and
buckling in her knee. [She] has a full range of motion in the knee. [Appellant]
has some numbness in front of the knee between [the] two scars. She has some
tenderness medially. On the basis of the complaint and the pain and on the basis
of having some numbness of the knee, I fe[el] [appellant] did have a mild
disability. I did review her position description and would feel[,] as far as her
knee is concerned, she could return to work. [Appellant] has a full range of
motion of her knee, her knee is stable, no fluid.”

3

On May 29, 2007 the Office advised appellant of its proposed termination of her
compensation benefits on the grounds that the weight of the medical evidence established that
she had no residuals from her accepted left knee condition.
On July 3, 2007 the Office terminated appellant’s wage-loss compensation and medical
benefits on the grounds that the weight of the medical evidence established that she had no
residual medical condition or disability causally related to her accepted left knee contusion
sustained on February 14, 2006.2
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 The Office may not terminate compensation without
establishing that the disability ceased or that it is no longer related to the employment.4 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.5 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that require further medical treatment.6
ANALYSIS
The Office terminated appellant’s wage-loss compensation and medical benefits based on
the reports of Dr. Ring, an Office second opinion physician. The Board finds, however, that his
reports are not sufficient to warrant the termination of her compensation benefits. Dr. Ring
stated that appellant’s left knee was “perfectly stable” and she could return to her regular duties
for eight hours a day. He also opined that she did not require further medical care for her knee.
However, there are other statements in his reports that are not consistent with his opinion that
appellant’s accepted left knee condition had resolved and that she had the ability to perform her
regular work. Dr. Ring noted that she had residual tenderness and pain in her knee. Appellant
also experienced buckling of her knee, a finding which contradicts his description of a stable
knee. Dr. Ring stated that she had a mild disability due to pain and numbness as a direct result of
the work-related injury to her left knee. He anticipated that this mild disability would “have
some permanency.” These statements regarding pain, tenderness, knee buckling and a mild
disability, possibly permanent, conflict with his stated opinion that she had no further need for
medical treatment for her accepted left knee condition and, that her knee was stable and that
2

Subsequent to the July 3, 2007 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

Barry Neutach, 54 ECAB 313 (2003); Lawrence D. Price, 47 ECAB 120 (1995).

4

Id.

5

See Del K. Rykert, 40 ECAB 284 (1988).

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

appellant could perform her regular work. For these reasons, the reports of Dr. Ring are not
sufficient to establish that appellant’s accepted left knee condition has resolved and she is no
longer disabled from work due to her February 14, 2006 left knee contusion and associated knee
surgery for a meniscal tear.
CONCLUSION
The Board finds that the Office has not met its burden of proof in terminating appellant’s
wage-loss compensation and medical benefits.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 3, 2007 is reversed.
Issued: May 16, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 12-1646
Issued: March 26, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 30, 2012 appellant filed a timely appeal of a June 4, 2012 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
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,759.68 for the period June 13 through July 2,
2011; and (2) whether OWCP properly found that appellant was at fault in the creation of the
overpayment and not entitled to waiver of recovery of the overpayment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the June 4, 2012 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that the overpayment was not his fault as he acted in good
faith. He requested a waiver of recovery of the overpayment or a reduction of the overpayment
amount.
FACTUAL HISTORY
OWCP accepted that appellant, then a 40-year-old rural carrier, sustained left knee and
leg sprain, tear of left medial meniscus and pulmonary embolism and infarction while in the
performance of duty on February 7, 2011. It authorized left knee arthroscopic surgery which he
underwent on March 31, 2011. OWCP paid wage-loss compensation for total disability by check
and placed appellant on the periodic rolls effective April 10, 2011.
By letter dated April 29, 2011, OWCP informed appellant about his entitlement to
compensation benefits and his responsibility upon return to work. Appellant was advised that
compensation benefits were only payable when he could not perform his job duties due to his
injury and to immediately notify OWCP when he returned to work. OWCP explained that he
was to immediately return any payments that he received for any portion of the period after he
returned to work in order to prevent an overpayment of compensation.
Appellant returned to work in a full-time, full-duty capacity effective June 13, 2011.
Despite his return to full-time employment, OWCP paid him wage-loss compensation for total
disability through July 2, 2011. The period of the payment was listed on each check that he
received.
On September 23, 2011 OWCP issued a preliminary determination that an overpayment
of $1,759.68 arose because appellant received wage-loss compensation for total disability for the
period June 13 to July 2, 2011, after he returned to full-time work on June 13, 2011. It found
that appellant received $1,878.49 in gross compensation for the period June 13 to July 2, 2011
and after deducting health benefits insurance (HBI) of $108.53 and basic life insurance (BLI) of
$10.29, or a net overpayment of compensation in the amount of $1,759.68. OWCP found that
appellant was with fault in creating the overpayment because he was advised in the April 29,
2011 letter that he was not entitled to compensation for total disability after he returned to work.
Appellant was informed of his options if he wished to challenge the fact of overpayment or to
request waiver of recovery of the overpayment. He was advised to submit, within 30 days,
financial information by completing an overpayment recovery questionnaire (Form OWCP-20).
On October 18, 2011 appellant requested a prerecoupment hearing before an OWCP
hearing representative. He contended that the overpayment occurred through no fault of his own
and requested waiver. Appellant submitted an October 18, 2011 overpayment recovery
questionnaire (Form OWCP-20) outlining his monthly income and expenses. He also provided
documentation supporting the various reported expenses. As to the issue of fault, appellant
stated that he submitted a pay form for each missed workday up to June 13, 2011 and was going
through an unexpected martial separation and relocation. When he received the check, he
assumed it was correct as there was no reason for OWCP to overpay him. Appellant indicated
that his supervisor was informed of his return to work date well in advance.

2

At the March 13, 2012 hearing, appellant reiterated that he was not at fault in the creation
of the overpayment. Subsequently, he submitted additional financial documentation.
By decision dated June 4, 2012, an OWCP hearing representative found that appellant
received an overpayment in the amount of $1,759.68. Appellant was found at fault in creating
the overpayment because he accepted payments that he knew or reasonably should have known
were incorrect. Because he was at fault, he was not entitled to waiver of recovery of the
overpayment. OWCP ordered payment in the amount of $150.00 per month until the $1,759.68
overpayment was repaid.
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 FECA, however, also places limitations on an employee’s right to receive
compensation benefits. Section 8116 provides that, while an employee is receiving benefits he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.4 OWCP regulations further state that compensation for wage loss due to
disability is available only for the period where an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related injury.5 A claimant
is not entitled to receive temporary total disability and actual earnings for the same period.6
OWCP procedures provide that an overpayment in compensation is created when a claimant
returns to work and has earnings but continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,759.67. The record reflects that he returned to full-time work at the employing
establishment on June 13, 2011; however, he received wage-loss compensation benefits for total
disability until July 2, 2011. OWCP determined that the amount of compensation he received for
the period June 13 through July 2, 2011 totaled $1,878.49 and, after deducting HBI of $108.53
and BLI of $10.29, an overpayment existed in the amount of $1,759.68. However, it incorrectly
calculated the overpayment amount as $1,759.68 instead of $1,759.67.8 With this adjustment,
his outstanding balance is $1,759.67, rather than $1,759.68 as noted by OWCP in its June 4,
2012 decision. The June 4, 2012 OWCP decision will be modified to reflect an overpayment
balance of $1,759.67.
3

5 U.S.C. § 8102(a).

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

6

See Daniel Renard, 51 ECAB 466, 469 (2000).

7

See L.S., 59 ECAB 350 (2008); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (September 2010).
8

$1,878.49 - $108.53 - $10.29 = $ 1,759.67.

3

Because appellant received regular full-time wages from the employing establishment
during the period June 13 through July 2, 2011, he was not entitled to disability compensation
from OWCP. His receipt of wage-loss payments created an overpayment of compensation.
There is no contrary evidence nor does appellant contest the amount and period of the
overpayment. Thus, the Board finds that he received an overpayment in the amount of $1,759.67
for the period June 13 through July 2, 2011.
LEGAL PRECEDENT -- ISSUE 2
According to section 8129(a) of FECA, adjustment or recovery shall be made under
regulations prescribed by the Secretary of Labor when an overpayment of compensation was
made because of an error of fact or law.9 The only exception is if the individual is without fault
in the creation of the overpayment and when adjustment or recovery would defeat the purpose of
FECA or would be against equity and good conscience.10 Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from OWCP are proper.11 A recipient is at fault in the creation or acceptance of an
overpayment if he or she has done any of the following: (1) made an incorrect statement as to a
material fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known to be incorrect.12
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault in the creation of the overpayment because he
accepted a payment which he knew or should have known to be incorrect, applying the third
criterion listed above.13 To establish that he was at fault, OWCP must establish that at the time
appellant accepted the compensation check in question he knew or should have known that the
payment was incorrect.
When a disabled employee is placed on the periodic compensation rolls, OWCP routinely
advises the employee of this fact and issues a CA-1049 identifying the weekly pay rate, the
compensation rate, the gross payment, any applicable deductions, and the net amount to be
disbursed.14 The CA-1049 is generally accompanied by an EN1049, which explains the
employee’s rights and responsibilities with respect to the receipt of compensation.15 This latter
9

5 U.S.C. § 8129(a).

10

Id. at § 8129(b).

11

20 C.F.R. § 10.433(a). See K.C., Docket No. 11-1307 (issued January 10, 2012).

12

Id. See B.H., Docket No. 09-292 (issued September 1, 2009).

13

20 C.F.R. § 10.433(a)(3).

14

See K.C., supra note 12; Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability
Cases, Chapter 2.812.4 (March 2010).
15

Id.

4

document provides pertinent information regarding returning to work and how to avoid an
overpayment of benefits. It also includes a certification that the benefits recipient has read and
understands the terms and conditions under which he or she may receive compensation. OWCP
provided appellant this same information by letter dated April 29, 2011.
In this case, appellant received wage-loss compensation for total disability by check and
also received wages from the employing establishment for the period June 13 through
July 2, 2011. The period of the payment was listed on each check that he received. In the
April 29, 2011 letter, OWCP properly advised appellant of his responsibilities to immediately
inform OWCP upon his return to work to avoid an overpayment in compensation and that, if he
worked during any period covered by a compensation payment, he was obligated to return the
payment to OWCP. Under these circumstances, appellant knew or should have known that he
could not receive wage-loss compensation during any period that he worked or continued to
receive wages from the employing establishment.16 OWCP was notified that he returned to work
on June 13, 2011. Appellant did not return the compensation check for the period June 13
through July 2, 2011. The Board finds that he knew or should have known at the time he
returned to work on June 13, 2011 and began to receive wages from employment that he was not
entitled to concurrently receive wage-loss compensation for the same period.17 Under section
10.433(a) of OWCP regulations, appellant is at fault and is not entitled to waiver of recovery of
the overpayment of compensation in the amount of $1,759.67.18
On appeal appellant contends that the overpayment was not his fault as he acted in good
faith and requests a waiver of recovery of the overpayment. The Board has held that, even if
OWCP was at fault for issuing compensation checks after appellant returned to full-time work,
on June 13, 2011, this fact does not relieve him from responsibility for repayment of the debt if
he was at fault for accepting the payment he knew to be incorrect.19 As noted, appellant knew or
should have known that the check he received represented wage-loss payment after the date of
his return to work. Since he is at fault on the issue of overpayment, recovery cannot be waived.
Alternatively, appellant requests a reduction of the overpayment amount. The Board
notes that it does not have jurisdiction to review OWCP’s determination of recovery by monthly
payment. The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks
recovery from continuing compensation under FECA.20 As appellant was not in receipt of
continuing compensation benefits at the time the final decision was entered in this matter, the
Board lacks jurisdiction to review recovery of the overpayment.

16

See K.C., supra note 12; G.S., Docket No. 11-459 (issued October 27, 2011); Neill D. Dewed, 57 ECAB
451 (2006).
17

Id.

18

Id.

19

See R.H., Docket No. 09-1981 (issued June 11, 2010); M.J., Docket No. 09-469 (issued August 24, 2009).

20

See Judith A. Cardio, 55 ECAB 348, 353 (2004).

5

CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $1,759.67 for the period June 13 through July 2, 2011. The Board further finds that OWCP
properly found that he was at fault in the creation of the overpayment and is not entitled to
waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2012 decision of the Office of Workers’
Compensation Programs is affirmed, as modified.
Issued: March 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD &
SAFETY INSPECTION SERVICE, OFFICE OF
FIELD OPERATIONS, Minneapolis, MN,
Employer
__________________________________________

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

Docket No. 09-1081
Issued: December 22, 2009

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant, through counsel, filed a timely appeal from the merit
decision of the Office of Workers’ Compensation Programs dated June 24, 2008 and February 2,
2009 denying his claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
an occupational disease in the performance of duty causally related to factors of his federal
employment.
On appeal, appellant alleged that he has daily pain in his shoulders, neck and back. He
noted that the repetitiveness of his work activity caused him pain and fatigue which radiated
down his legs from his back after long periods of standing. Appellant noted that he did not have
medical insurance to cover his doctor’s bills.

FACTUAL HISTORY
On March 31, 2008 appellant, then a 53-year-old inspector, filed an occupational disease
claim alleging that as a result of the repetitive work he did inspecting 40 chickens per minute and
working back to back shifts for 5 years (17 hours with a 3-hour rest between shifts), he sustained
injuries to his back, shoulder, right and left arm and neck. He also indicated that he was “laid
off.” The employing establishment alleged that appellant was a part-time food inspector and was
responsible for conducting post-mortem examinations on poultry carcasses that are presented to
his inspection station at the rate of 35 carcasses per minute. They noted that he had specific hand
motions that must be performed. The employing establishment noted that this job does require
much repetition with his hands, but that appellant’s description of the length of his workdays was
incorrect.1 The employing establishment also noted that appellant had not been laid off but
rather was an intermittent employee that only can work 1280 hours during his 12-month work
periods, and that, once this figure is reached, appellant was unable to work any more hours until
his anniversary date, April 12, arrived. The employing establishment noted that appellant
reached his maximum number of hours for the year in February.
In support of his claim, appellant submitted discharge instructions dated March 27, 2008
and signed by a nurse at Southwest Mississippi Regional Medical Center, indicating that he was
seen by Dr. Rutz and that his diagnosis was lumbar/shoulder strain. He also submitted a nurse
practitioner’s prescription for medication.
By decision dated June 24, 2008, the Office denied appellant’s claim as he failed to
demonstrate that his claimed medical condition was related to the established work events.
On July 21, 2008 appellant requested an oral hearing. At the hearing held on
December 10, 2008, he testified that the problems with his back, neck and shoulder started in
2000 when he had a work injury when a hydraulic hose in the lift stand came loose and hit him in
the back of the neck. Appellant noted that the Office denied this claim.2 He noted that he
worked part time inspecting about 60 chickens a minute for an eight-hour shift. Appellant noted
that in the 90s he used to work 17 hours straight for five years, but does not work those hours
anymore. He stated that he cannot get recommended medical tests because he has no health
insurance.
By decision dated February 2, 2009, the hearing representative affirmed the denial of his
claim as appellant had not submitted medical evidence in support of a causal relationship
between an injury and appellant’s employment.

1

The employing establishment reviewed appellant’s work records and noted that he worked an average of 14.69
hours per week in 2004, 11.43 hours per week in 2005; 22.87 hours per week in 2006 and 29.92 hours/week in 2007.
Appellant noted there was only one day when he worked over 10 hours and two days when he worked 9 hours.
Accordingly, the employing establishment stated that it was unaware of the figures used by appellant to calculate
that he worked back-to-back shifts for five years at 17 hours a day with 3 hours’ rest between shifts.
2

By decision dated September 28, 2004, the Board affirmed this denial in Office File No. xxxxxx370. Docket
No. 04-1016 (issued September 28, 2004).

2

LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act3
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence,4 including that he is an “employee” within the meaning of
the Act5 and that he filed her claim within the applicable time limitation.6 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.7 These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated on a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
Causal relationship is a medical issue10 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,11 must be one of reasonable medical certainty,12
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.13
3

5 U.S.C. §§ 8101-8193.

4

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
5

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
6

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
7

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

10

Mary J. Briggs, 37 ECAB 578 (1986).

11

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

12

See Morris Scanlon, 11 ECAB 384, 385 (1960).

13

See William E. Enright, 31 ECAB 426, 430 (1980).

3

ANALYSIS
The Office accepted that appellant was exposed to the work conditions that he alleged
caused his injury. However, the Office denied appellant’s claim because he did not meet his
burden to submit medical evidence establishing the existence of a disease or condition that was
causally related to these established work factors. The Board finds that appellant did not meet
his burden of proof to establish that he sustained an occupational injury in the performance of
duty.
Appellant had the burden to submit medical evidence in support of establishing a causal
relationship between his medical condition and the noted factors of his federal employment.14
He submitted a prescription for medication and discharge instructions. Both of these documents
were signed by a nurse. However, as a nurse is not defined as a physician under the Act,15 these
documents do not constitute competent medical evidence to support appellant’s claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor, his belief that the condition was caused by his employment is sufficient to
establish causal relationship.16 The Board has held that the fact that a condition manifests itself
or worsens during a period of employment17 or that the work activities produce symptoms
revelatory of an underlying condition18 does not raise an inference of causal relationship between
the two. As appellant failed to provide medical evidence establishing the causal relationship
between his factors of employment and a medical condition, the Office properly denied his claim
for compensation.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an occupational disease in the performance of duty causally related to factors of his
federal employment.

14

See Elizabeth O. Kramm, 57 ECAB 117 (2005).

15

See 5 U.S.C. § 8101(2); G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007).

16

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688,
691 (1965).
17

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
18

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 2, 2009 and June 24, 2008 are affirmed.
Issued: December 22, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF EDUCATION, OFFICE
FOR CIVIL RIGHTS, Washington, DC,
Employer
__________________________________________

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

Docket No. 14-2081
Issued: February 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 30, 2014 appellant filed a timely appeal from an August 20, 2014 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.2
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $10,477.27 because she concurrently received Social Security Administration (SSA)
benefits for the period February 2, 2009 to July 27, 2013 while receiving FECA benefits;
(2) whether OWCP properly denied waiver of the overpayment; and (3) whether OWCP properly
1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted financial evidence with her appeal to the Board. The Board cannot consider this evidence
as its jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. J.T.,
59 ECAB 293 (2008); 20 C.F.R. § 501.2(c)(1).

required repayment of the overpayment by deducting $400.00 every 28 days from appellant’s
continuing compensation.
On appeal appellant asserts that some expenses were incorrectly listed by the hearing
representative and some expenses had increased, generally contending that repayment of the
overpayment would cause financial hardship.
FACTUAL HISTORY
On September 16, 1994 appellant, then a 47-year-old automation clerk, sustained an
employment-related left knee sprain when she tripped on a rug at work. She stopped work that
day. OWCP accepted that she sustained a left knee sprain and left lateral meniscus tear.
Appellant underwent arthroscopic repair on December 9, 1994. Appellant received appropriate
continuation of pay and compensation.
On July 9, 1996 appellant returned to work for one day weekly. In a December 17, 1996
decision, OWCP determined that her actual part-time earnings fairly and reasonably represented
her wage-earning capacity and reduced her compensation accordingly. Disability retirement was
approved in March 1997. By letter dated April 3, 1997, OWCP informed appellant that she must
elect either civil service annuity benefits or FECA benefits. It advised her that, if she elected
FECA benefits, these would be reduced by Social Security Act (SSA) benefits paid on the basis
of age and attributable to her federal employment. Appellant elected FECA benefits, effective
April 9, 1997. She continued to receive compensation on the periodic compensation rolls.
The record includes a series of EN1032 forms signed by appellant on March 24, 2010,
March 12, 2011, February 12, 2012, February 16, 2013, and February 18, 2014 in which she
indicated that she was not receiving SSA benefits or payments.
In July 2013 OWCP requested information from SSA as to whether appellant was
receiving SSA benefits. On July 10, 2013 SSA acknowledged that she was receiving SSA
benefits and provided the amount of SSA benefits with and without Federal Employees’
Retirement System (FERS) benefits, effective February 2009. On July 18, 2013 OWCP
informed appellant that on July 28, 2013 her FECA benefits were being reduced to reflect the
contribution from FERS to her SSA benefits.
On October 31, 2013 OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $10,477.27 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits, which she had received from February 1,
2009 to July 27, 2013, was based on credits earned while working in the Federal Government,
and that the portion of her SSA benefits based on those credits was a prohibited dual benefit.
OWCP found appellant without fault. An overpayment worksheet indicated that she received
compensation of $69,174.04 for the period February 1, 2009 to July 27, 2013 when she should
have received compensation of $58,696.77, which yielded an overpayment of $10,477.27.
Appellant requested a prerecoupment hearing and provided a completed overpayment
questionnaire in which she indicated that she had monthly household income of $3,840.79 and
expenses of $3,421.62 which increased to $3,548.38 every third month for water and sewer. She

2

submitted Maryland and federal income tax returns for the years 2010, 2011, and 2012, one page
of a bank statement, information concerning her husband’s annuity, and documentation of some
expenses.
In April 2014 OWCP additionally determined that appellant had been underpaid because
her compensation from the date of injury had been based on the 2/3 rate when, in fact, she had
been married the entire time and was therefore entitled to the augmented 3/4 rate. It determined
that for the period November 1, 1994 through March 8, 2014 she had received compensation
totaling $257,542.24 when she should have received $289,526.07 in compensation, which
yielded an underpayment of $31,983.83. On April 28, 2014 a payment in that amount was
deposited into appellant’s bank account. Her compensation was then adjusted, effective
March 9, 2014, to reflect the 3/4 compensation rate.
Appellant and her son testified at the hearing, held on June 10, 2014. She indicated that
her expenses were approximately the same as those provided on the overpayment questionnaire
and that some of the $31,983.83 underpayment remained. Appellant stated that they renovated
bathrooms and put up a fence, spending about $14,000.00, with approximately $9,000.00 spent
catching up on their mortgage. When questioned by the hearing representative, she indicated
that she could repay the overpayment at a rate of approximately $100.00 monthly. Appellant’s
son testified that both she and her husband were in poor health. The hearing representative
informed appellant that she could submit additional evidence regarding increased expenses.
By decision dated August 20, 2014, an OWCP hearing representative found that an
overpayment of compensation in the amount of $10,477.27 had been created for the period
February 1, 2009 through July 27, 2013 because appellant received dual benefits under FECA
and SSA. She found appellant without fault and denied waiver. The hearing representative
listed some of the expenses that appellant claimed, increased her monthly income to reflect the
new augmented 3/4 compensation rate, and determined that she had $4,012.00 in monthly
income and $3,464.87 in monthly expenses. She set an overpayment recovery at the rate of
$400.00 each compensation period. The hearing representative further found that, because
appellant had approximately $10,000.00 remaining from the underpayment of $31,983.83, even
if her expenses exceeded her income, she would not be entitled to waiver as she had over
$8,000.00 in assets.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 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 Section 8116 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 Section 10.421 of the implementing
regulations provide, an employee may not receive compensation for total disability concurrently

3

Id. at § 8102(a).

4

Id. at § 8116(a).

3

with separation pay.5 FECA Bulletin No. 97-9 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.6 When OWCP discovers concurrent receipt
of benefits, it must declare an overpayment in compensation and give the usual due process
rights.7
ANALYSIS -- ISSUE 1
The record supports that appellant received FECA wage-loss compensation beginning in
1994 and that she received SSA benefits from February 1, 2009 to July 27, 2013. The portion of
the SSA benefits appellant earned as a federal employee is considered a prohibited dual benefits
under FECA.8 SSA notified OWCP of the applicable SSA rates and their effective date as it
pertained to appellant. Based on these rates, OWCP was able to calculate the dual benefit
appellant received from February 1, 2009 to July 27, 2013 which yielded an overpayment of
compensation in the amount of $10,477.27. The record includes an overpayment worksheet
explaining the overpayment calculation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period February 1, 2009 to July 27, 2013 and finds that OWCP properly determined that
appellant received dual benefits totaling $10,477.27 for that period, thus creating an
overpayment in compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”9 Waiver of an overpayment is not permitted unless the claimant is “without
fault” in creating the overpayment.10
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) 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 (b) the
beneficiary’s assets do not exceed a specified amount as determined by OWCP from data
5

20 C.F.R. § 10.421(d); see L.J., 59 ECAB 264 (2007).

6

FECA Bulletin No. 97-9 (issued February 3, 1997).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.17.d(4) (April 1996).

8

Supra note 5.

9

5 U.S.C. § 8129.

10

Steven R. Cofrancesco, 57 ECAB 662 (2006).

4

furnished by the Bureau of Labor Statistics. A higher amount is specified for a beneficiary with
one or more dependents.11 Recovery of an overpayment is considered to be against equity and
good conscience when any individual who received an overpayment would experience severe
financial hardship in attempting to repay the debt.12 Recovery of an overpayment is also
considered to be against equity and good conscience when any 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
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of FECA or be
against equity and good conscience. This information will also be used to determine the
repayment schedule, if necessary.14
ANALYSIS -- ISSUE 2
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 The Board finds
that OWCP did not abuse its discretion by denying waiver of recovery of the overpayment of
compensation.
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because she has not shown both that she needs substantially all of her current income to
meet ordinary and necessary living expenses. OWCP procedures provide that 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, i.e., the amount of monthly funds available for debt repayment is the difference between
current income and adjusted living expenses plus $50.00.16 Appellant submitted an overpayment
questionnaire on November 19, 2013. She testified at the hearing that her expenses were
essentially the same as reported. In the November 2013 questionnaire, appellant reported
monthly income of $3,840.79 and monthly expenses varying between $3,421.62 with an increase
to $3,548.38 every three months to cover sewer and water bills.
The Board, however, notes that appellant’s monthly income had increased at the time the
final overpayment decision was issued. Appellant’s FECA compensation had increased to
11

20 C.F.R. § 10.436(b).

12

Id. at § 10.437(a).

13

Id. at § 10.437(b).

14

Id. at § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

15

Supra note 8.

16

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Waiver of Recovery, Chapter 6.200.6.a(1)(b)
(June 2009).

5

$1,232.39 each 28-day compensation period, or $1,334.00 monthly. When added to her
additionally reported income, this yielded monthly income of $4,114.61.17 Thus, appellant’s
documented monthly income exceeded her reported expenses by approximately $651.00.
As appellant’s reported income exceeded her reported ordinary expenses by more than
$50.00, she has not shown that she needs substantially all of her current income to meet current
ordinary and necessary living expenses. Thus, she has not met the first prong of the two-prong
test of whether recovery of the overpayment would defeat the purpose of FECA.18 It was
therefore not necessary for OWCP to consider the second prong of the test, i.e., whether
appellant’s assets exceeded the allowable resource base.
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.19 Appellant generally contends on appeal that recovery of the
overpayment would create a financial hardship and thus be against equity and good conscience,
stating that the hearing representative incorrectly listed her expenses and that some expenses had
increased.20 The Board notes that, at the hearing, appellant was advised that she could submit
additional evidence if her expenses had increased. Appellant did not do so.
Recovery of an overpayment is also considered to be against equity and good conscience
when any 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.21 OWCP
procedures provide that to establish that a valuable right has been relinquished, it must be shown
that the right was in fact valuable, that it cannot be regained and that the action was based chiefly
or solely in reliance on the payments or on the notice of payment.22 An individual must show
that he or she made a decision he or she otherwise would not have made in reliance on the
overpaid amount and that this decision resulted in a loss.23

17

Appellant reported that her SSA monthly income was $619.00, her husband’s SSA income was $1,293.00, and
his monthly annuity compensation was $868.61.
18

Supra note 10.

19

20 C.F.R. § 10.437(a).

20

OWCP procedures provide that ordinary and necessary living expenses include fixed expenses such as food,
clothing, furniture, household, and personal hygiene supplies, rent, mortgage payments, utilities, maintenance, burial
plot or prepaid burial contract; accident, health, life, and vehicle insurance; taxes; vehicle expenses and commuting
expenses not included under vehicle expenses; medical expenses, church and charitable contributions made on a
regular basis; and miscellaneous expenses not to exceed $50.00 per month. The procedures add that consumer debt
should not be calculated if the expenses are included in the fixed expenses. Supra note 15 at Chapter 6.200.6.a(3)
(June 2009).
21

20 C.F.R. § 10.437; see W.P., 59 ECAB 514 (2008).

22

Supra note 15 at Chapter 2.600.b(3) (June 2009).

23

Id. at § 10.437(b)(2) (2011); see Wayne G. Rogers, 54 ECAB 482 (2003).

6

Appellant submitted no evidence to show that she gave up a valuable right or changed her
position for the worse in reliance on anticipated compensation payments. Thus, she has not
shown that, if required to repay the overpayment, she would be in a worse position after
repayment other than if she had never received the overpayment at all. OWCP properly found
that she was not entitled to waiver on the grounds that recovery would be against equity and
good conscience.24
As appellant failed to establish that recovery of the overpayment in compensation would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying waiver of recovery.
LEGAL PRECEDENT -- ISSUE 3
OWCP’s implementing regulations provide that, if an overpayment of compensation has
been made to an individual entitled to further payments and 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.25
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the relevant factors noted above in
setting a rate of recovery of $400.00 per compensation period. The record indicates that
appellant’s monthly income exceeds her reported monthly expenses by approximately $651.00
per month. OWCP therefore did not abuse its discretion in finding that appellant should repay
the overpayment at the rate of $400.00 per compensation period.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $10,477.27 and that OWCP properly denied waiver and
required recovery of the overpayment by deducting $400.00 every 28 days from her continuing
compensation payments.

24

Supra note 15.

25

20 C.F.R. § 10.441(a).

7

ORDER
IT IS HEREBY ORDERED THAT the August 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

8