United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., son of W.H., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 18-0910
Issued: December 21, 2018

Case Submitted on the Record

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

JURISDICTION
On March 23, 2018 appellant filed a timely appeal from a March 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 over
the merits of this case.2
ISSUE
The issue is whether appellant has filed a timely claim for death benefits in accordance
with 5 U.S.C. § 8122.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On May 8, 2017 appellant, the employee’s son,3 filed a claim for survivor’s benefits (Form
CA-5), alleging that asbestos exposure caused the employee’s death.4 The employee died on
December 19, 2001. The immediate cause of death listed on the death certificate is illegible.5
Other significant conditions contributing to death were chronic obstruction pulmonary disease and
hypertension. In attached correspondence, appellant indicated that the employee had worked at
the employing establishment from 1948 to 1979 when he voluntarily retired.
In a November 25, 1998 report, Dr. Ernesto Bondarevsky, a pulmonologist, noted that he
examined the employee for possible asbestos-related disease. He noted a history that the employee
had worked from 1948 to 1979 at the employing establishment as a laborer where he had possibly
been exposed to asbestos insulation. The employee had severe shortness of breath with a
productive cough and high blood pressure. Chest x-ray demonstrated increased interstitial
infiltrates in both lungs. Spirometry was not acceptable due to poor effort. Dr. Bondarevsky
concluded that, based on significant asbestos exposure, appellant had asbestosis.6
Correspondence from a law firm, dated May 24, 2017, indicated that settlements had been
made to the employee’s estate regarding asbestos claims. Court documents dated from
September 13, 2004 to October 14, 2016 listed disbursements made to the employee’s heirs,
including appellant. The October 14, 2016 document indicated that the estate was closed.
By decision dated August 4, 2017, OWCP denied the claim, finding that it was untimely
filed.
On August 17, 2017 appellant requested a hearing with OWCP’s Branch of Hearings and
Review. In correspondence dated August 14, 2017, appellant asserted that the employee was
aware of the relationship between his asbestos and employment prior to his death on December 17,
2001, and that when he died, appellant was incompetent and under treatment for paranoid
schizophrenia. He asserted that the claim was timely filed. Appellant forwarded a Social Security
Administration (SSA) notice of award dated February 8, 2003 which indicated that appellant was
entitled to receive Supplemental Security Income (SSI) beginning March 1, 2003.
An August 7, 2003 nurse assessment form described appellant’s medication and indicated
that he recently had eye surgery. On August 7, 2003 Dr. Jeffery Stephen Seward, a psychiatrist,
prescribed medications. A Psychiatric Associates of Arkansas form listed appellant’s medications
and indicated that they had been reviewed by Dr. Philip Lewis Mizell, a Board-certified

3

Appellant’s birth certificate confirms that the employee was his father.

4

The Form CA-5 also noted that the employee had another son, W.H. Jr., who was born mentally impaired and
died on February 9, 2014.
5

In correspondence dated May 8, 2017, appellant indicated that the employee died from lung cancer.

6

Copies of the chest x-ray and spirometry were attached.

2

psychiatrist, on August 1, 2017. The form listed a diagnosis of schizoaffective disorder, bipolar
type.
A document filed with the 116th Judicial District in Dallas, Texas on May 7, 2003 indicated
that the employee’s heirs and estate had filed an asbestos-related claim against a third party. This
document noted that appellant was one of the employee’s children and that he would testify as a
witness regarding changes that occurred in the employee’s lifestyle, and appellant’s physical and
mental health incurred as a result of the employee’s illness and death.
During the hearing, held on January 10, 2018, the hearing representative informed
appellant that awareness would certainly have occurred by May 7, 2003, the date of the court
document which named appellant and indicated that he would testify in that case. Appellant
testified that he was incompetent to timely file a claim. He discussed his physical and mental
conditions and maintained that he had been declared mentally incompetent 14 months after his
father died. The hearing representative advised appellant to submit evidence substantiating that
he was incompetent.
By decision dated March 12, 2018, the hearing representative affirmed the August 4, 2017
decision, finding that, in accordance with section 8122 of FECA, the claim was untimely filed.
She noted that the employee died on December 19, 2001, and the claim was not filed until
May 8, 2017. The hearing representative found that, while appellant claimed that he was
incompetent to file a claim, he had submitted insufficient medical evidence to establish this status,
noting that the court document dated May 7, 2003 indicated that appellant was aware on that date
of the employee’s work-related asbestos exposure. She noted that she had urged him to submit
evidence establishing incompetency, noting that a document dated August 7, 2003 showed that he
was diagnosed with schizoaffective disorder, bipolar type, but that, even if that did show
incompetency on that date, it did not support that he remained incompetent until May 2017 when
he filed the instant claim.
LEGAL PRECEDENT
Whether a claim was timely filed is a preliminary jurisdictional issue that precedes any
determination on the merits of the claim.7 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 In the case of death due to a latent disability, the
time for filing a death claim does not begin to run until the employee has died and his survivors
are aware of or by the exercise of reasonable diligence should have been aware of the causal
relationship of the employee’s death to factors of his employment.9
The three-year limit on filing a claim for compensation does not apply in the following
limited circumstances: (1) the employee’s direct supervisor had actual knowledge that created
7

See M.S. (M.S), Docket No. 14-0930 (issued February 25, 2015); Charles Walker, 55 ECAB 238 (2004); see
Charles W. Bishop, 6 ECAB 571 (1954).
8

5 U.S.C. § 8122(a); E.B., 58 ECAB 642 (2007).

9

5 U.S.C. § 8122(b); E.B., id.

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reasonable notice of an on-the-job injury or death within 30 days;10 (2) an employee or survivor
gave formal written notice within 30 days of becoming aware that the injury or death was causally
related to the federal employment;11 (3) the employee filed a timely disability claim for a workrelated injury or disability and the employee’s death is based on the same injury;12 and (4) the
claimant is under 21 years old, the claimant is incompetent and has no legal representative, or the
claimant is prevented from giving notice by exceptional circumstances.13 Lack of awareness of
possible entitlement, lack of information or ignorance of the law or one’s rights and obligations
under it do not constitute exceptional circumstances that excuse a failure to file a timely claim.14
Section 8122(d)(3) of FECA provides that, time limitations for filing a claim “do not run against
any individual whose failure to comply is excused by the Secretary on the grounds that such notice
could not be given because of exceptional circumstances.”15
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 address
of the individual giving the notice.16 Actual knowledge and written notice of injury under section
8119 serve to satisfy the statutory period for filing an original claim for compensation.17 For actual
knowledge of a supervisor to be regarded as timely filing, a claimant must show not only that the
immediate superior knew that he or she was injured, but also knew or reasonably should have
known that it was an on-the-job injury.18
ANALYSIS
The Board finds that appellant has not established that he filed a timely claim for death
benefits in accordance with 5 U.S.C. § 8122.
Appellant, the son of the employee who died on December 19, 2001, filed the instant claim
for death benefits on May 8, 2017. The time to file a claim began to run on December 19, 2001,
10
Supra note 7; Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.700.5.b
(November 1996).
11

5 U.S.C. § 8122(a), (b); Federal (FECA) Procedure Manual, id. at Chapter 2.700.5.b(1).

12

Id. at § 8122(c).

13

Id. at § 8122(d).

14

E.B., supra note 8.

15

5 U.S.C. § 8122(d)(3).

16

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

17

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

18

5 U.S.C. § 8122(b); Duet Brinson, 52 ECAB 168 (2000).

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the date of the employee’s death. As appellant filed his claim for death benefits on May 8, 2017,
his claim was not timely filed within the three-year time limitation.19
Though appellant has not met his burden of proof to establish that he filed the claim within
the three-year limitation, his claim could be considered timely if he met any of the statutory
exceptions. The Board finds, however, that an exception has not been established by the appellant
and the evidence of record.
The employee worked at the employing establishment from 1948 until he voluntarily
retired in 1979. There is no evidence that the employee’s immediate supervisor had actual
knowledge that the employee’s death was caused or related to his employment within 30 days.
There is also no evidence that appellant or the employee provided written notice to the employing
establishment within 30 days of becoming aware of the possibility that the employee’s death or
illness was causally related to factors of his federal employment. The record also does not indicate
that the employee filed a disability claim under FECA for an asbestos-related condition prior to
his death on December 19, 2001.
With regard to appellant, none of the exceptions relating to his ability to file a claim apply
in this case. Appellant was not a minor at the time of the employee’s death. Although he
maintained that he was incompetent at the time of his father’s death and subsequently, there is no
probative evidence of record to support this assertion. The record merely contains an August 7,
2003 nurse assessment form and prescribed medications. A form from the Psychiatric Associates
of Arkansas, indicated that appellant’s medications had been reviewed by Dr. Mizell on August 1,
2017 who diagnosed schizoaffective disorder, bipolar type. The Board has held that it is
appellant’s burden to establish incompetency for a given period by submitting medical evidence
stating that his condition was such that he was incapable of completing a claim form or of
otherwise furnishing the relatively simple information necessary for filing a claim and satisfying
the limitation requirements.20 None of the evidence of record contains any opinion regarding
appellant’s competency from 2001 until 2017.
Appellant also submitted an SSA award dated February 8, 2003 which indicated that he
was entitled to receive SSI compensation beginning March 1, 2003. This document also does not
indicate that he was incompetent, pursuant to FECA. The Board has noted that findings of other
government agencies are not dispositive with regard to questions arising under FECA.21
Lastly, appellant has not provided evidence of an exceptional circumstance that would
excuse his failure to timely file the claim. The Board has held that unawareness of possible
entitlement, lack of access to information and ignorance of the law or one’s obligations under

19

5 U.S.C. § 8122.

20

V.M., Docket No. 12-1611 (issued January 17, 2013).

21

See A.M., Docket No. 17-1192 (issued September 19, 2018).

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FECA does not constitute exceptional circumstances that could excuse a failure to file a timely
claim.22
The evidence of record establishes that the employee was diagnosed with asbestosis in
November 1998, and thereafter his estate filed claims related to asbestos exposure with the 116th
Judicial District in Dallas, Texas. A court document filed with that court on May 7, 2003 indicated
that appellant was one of the employee’s children, and he would testify as a witness in a case
against the third party defendant. The Board finds this evidence probative that appellant was
competent on that date such that a death claim should have been filed no later than May 7, 2006.
The record did not support that appellant was incapable of filling out a claim form to satisfy the
time limitation requirement within three years after May 7, 2003.23
Section 8122(d)(3) of FECA provides that, time limitations for filing a claim “do not run
against any individual whose failure to comply is excused by the Secretary on the grounds that
such notice could not be given because of exceptional circumstances.” Appellant has not
established that he could not file a timely claim due to exceptional circumstances as that term is
used in section 8122(d)(3) of FECA. The Board finds that appellant’s failure to timely file his
claim within three years of the employee’s death on December 19, 2001, or at the latest three years
following the May 7, 2003 court document, precludes him from seeking compensation under
FECA.24
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 filed a timely claim for death benefits in accordance
with 5 U.S.C. § 8122.

22

Ralph L. Dill, 57 ECAB 248 (2005).

23

See S.A., Docket No. 14-0611 (issued October 15, 2014).

24

E.B., supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the March 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.O., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Walla Walla, WA,
Employer
__________________________________________

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

Docket No. 16-1401
Issued: February 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2016 appellant filed a timely appeal from a June 6, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective August 18, 2015 as he no longer had
residuals or disability causally related to the accepted August 17, 1983 employment injury; and
(2) whether appellant has established that he had residuals or continuing disability after
August 18, 2015 causally related to his August 17, 1983 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 14, 1983 appellant, then a 38-year-old part-time laborer, filed a traumatic
injury claim (Form CA-1) alleging that on August 17, 1983 he sustained an injury as a result of
being jerked forward when he swung a sledge hammer and missed a pole while in the
performance of duty. He stopped work on August 22, 1983. On October 1, 1983 appellant’s
temporary appointment expired. OWCP accepted his claim for lumbosacral strain, aggravation
of degenerative disc disease, and lumbar disc herniation L5-S1. It paid compensation benefits
and placed appellant on the periodic rolls.
Appellant continued to receive medical treatment for his back condition as well as for
concurrent nonwork-related conditions. He underwent back surgery in 1992. The record also
reveals that appellant had preexisting back injuries due to his military service in the Army. He
asserted that he recovered from his prior back injuries before the start of his federal employment
in 1982.
On June 4, 1999 OWCP proposed to terminate appellant’s wage-loss compensation
benefits based on a May 24, 1999 report of Dr. Charles Perkins, a Board-certified neurologist
and second opinion examiner. It finalized the proposed termination of benefits in a decision
dated July 8, 1999. On July 26, 1999 OWCP received appellant’s request for a hearing before an
OWCP hearing representative. Following a preliminary review, by decision dated September 14,
1999, OWCP’s hearing representative reversed the July 8, 1999 decision terminating appellant’s
wage-loss compensation benefits finding that OWCP did not meet its burden of proof. OWCP
reinstated appellant’s wage-loss compensation and medical benefits.
Appellant continued to receive medical treatment for his accepted conditions and
underwent several OWCP-directed examinations to determine whether he continued to suffer
residuals and remained disabled due to his August 17, 1983 employment injury.
On July 31, 2007 OWCP again proposed to terminate appellant’s wage-loss
compensation and medical benefits based on the June 11, 2007 report of Dr. Robert Aigner, a
Board-certified neurologist and impartial medical examiner (IME),2 who opined that appellant no
longer had any residuals or disability due to his August 17, 1983 employment injury.
In a letter dated September 20, 2007, OWCP determined that the July 31, 2007 notice of
proposed termination was premature because further development of Dr. Rutberg’s medical
opinion was needed. It requested an addendum report from Dr. Rutberg regarding appellant’s
employment-related conditions and any continuing disability. The evidence of record does not
contain any additional reports from Dr. Rutberg.

2

OWCP determined that a conflict in medical evidence existed between Dr. Haley Minnehan, a Board-certified
family practitioner and appellant’s treating physician, who indicated that she treated him for chronic low back and
neck pain due to the August 17, 1983 employment injury, and Dr. David L. Rutberg, a Board-certified neurospine
surgeon and second opinion examiner, who opined that appellant no longer suffered residuals of his work-related
injury and was able to return to work.

2

Appellant continued to receive medical treatment for his back, neck, and lower extremity
symptoms. The evidence of record contains very limited medical records from 2007 to 2013
with no medical reports from appellant’s physicians from 2009 to 2010.
On June 17, 2011 OWCP referred appellant to Dr. Roy T. Frizzell, a Board-certified
neurosurgeon, for a second opinion examination to determine whether he continued to suffer
residuals of his August 17, 1983 employment injury and whether he remained disabled from
work. In a July 11, 2011 report, Dr. Frizzell described appellant’s employment injury and
reviewed his history. He provided examination findings and diagnosed resolved lumbar strain,
aggravation of degenerative disc disease, and lumbar herniation L5-S1, resolved by surgery
of 1992. Dr. Frizzell opined that appellant’s condition of aggravation of disc disease was active
and continued to be related to the August 17, 1983 employment injury, but he no longer had
ongoing residuals of lumbosacral strain and disc herniation of L5-S1.
Appellant received medical treatment from Dr. T. William Hill, a Board-certified
neurosurgeon. In reports dated July 28 and September 19, 2011, Dr. Hill related that appellant
had a history of back and increasing leg pain. He reviewed appellant’s history and provided
findings on physical examination. Dr. Hill noted that a lumbar magnetic resonance imaging
(MRI) scan examination showed degenerative changes and a left paracentral disc protrusion with
possible impingement on the L5 root. He opined that appellant had back and leg symptoms,
more on the left than right, with foraminal stenosis and an eccentric disc protrusion with bony
spur on the left at L4-5. Dr. Hill recommended a series of lumbar epidural steroid injections and
advised that if appellant’s symptoms continued he would consider lumbar decompression,
instrumentation, and fusion surgery.
The record does not contain any medical reports from 2012.
On April 1, 2013 OWCP reviewed appellant’s record and noted that the last medical
report from his treating physician was from 2011. It requested that he arrange for the submission
of an updated medical report that addressed the questions presented regarding his current
medical condition.
In an April 28, 2013 narrative letter, Dr. Minnehan reported that appellant had an acute
L4-5 disc herniation, causing disability. She mentioned that he had been examined by a
neurosurgeon who recommended surgery to alleviate his pain. In an April 28, 2013 work
capacity evaluation form (OWCP 5c), Dr. Minnehan indicated that appellant was not capable of
performing his usual job or to work full time with restrictions. She explained that he was unable
to work due to constant pain. In chart notes dated April 10 and 29, 2013, Dr. Minnehan related
his continued complaints of persistent neck and back pain. She noted that his back pain was long
and extensive and related to an August 17, 1983 work injury. Dr. Minnehan reviewed
appellant’s history and provided physical examination findings. She opined that he had chronic
low back pain related to an L4-5 disc protrusion on the left.
No other medical reports were submitted to the record until 2015.
On May 18, 2015 OWCP referred appellant to Dr. Spencer Greendyke, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether appellant continued

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to suffer residuals of his August 17, 1983 employment injury and whether he required further
medical treatment.
In a June 22, 2015 report, Dr. Greendyke described the August 17, 1983 employment
injury regarding low back and cervical strain, temporary exacerbation of preexisting lumbar
degenerative disc disease, and herniated L5-S1 disc. He also noted appellant’s preexisting
service-connected back injury while serving in the U.S. Army. Dr. Greendyke discussed the
medical treatment appellant received and indicated that a thorough records review was
documented in the IME report from Dr. Frizzell dated July 11, 2011. He related appellant’s
current complaints of constant low back pain and bilateral upper and lower extremity weakness.
Upon examination of appellant’s cervical and lumbar spine, Dr. Greendyke observed no clinical
deformity, scoliosis, muscle atrophy, or visible passes. He indicated that palpation of the lumbar
spine revealed no evidence of muscle spasm, point tenderness, crepitus, or palpable masses.
Neuromuscular examination revealed grossly intact sensation to light touch and no clonus in the
lower extremities. Dr. Greendyke reported that deep tendon reflexes were +1/4 and bilaterally
symmetric in the upper and lower extremities. Straight leg raise testing was positive in both the
seated and supine positions.
Dr. Greendyke noted persistent subjective complaints of cervical and lumbar pain with
left upper and lower extremity numbness, and substantiated by objective diagnostic testing,
unrelated to the August 17, 1983 employment injury, on a more likely than not basis. He opined
that appellant’s accepted conditions had completely resolved. Dr. Greendyke noted that the
condition of lumbosacral strain had resolved completely, the condition of aggravation of
degenerative disc disease had resolved within months of the August 17, 1983 employment
injury, and the condition of herniated disc at L5-S1 had resolved after the 1992 lumbar surgery.
He reported that recent MRI scan studies showed that appellant appeared to have developed
lumbar spondylosis with arthritis, which was normal for his age. Dr. Greendyke explained that
appellant developed lumbar spine arthritis and spondylosis over the years, which was related to
the normal progression of degenerative disc disease. He believed that this condition was the
source of appellant’s ongoing complaints of low back pain. Dr. Greendyke concluded that, as a
result of the August 17, 1983 work injury, appellant sustained a temporary exacerbation of his
preexisting lumbar spine disc degeneration and previous lumbosacral strain injuries. He advised
that appellant did not have any work limitations attributable to his employment injury.
On July 13, 2015 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits based on Dr. Greendyke’s June 22, 2015 report. It determined that the weight
of the medical evidence rested with Dr. Greendyke, who opined that appellant no longer suffered
residuals of his August 17, 1983 employment injury and was no longer disabled from work.
Appellant was afforded 30 days to submit evidence or argument if he disagreed with the
decision.
In a July 29, 2015 report, Dr. Hill related that appellant was evaluated on July 27, 2015
and that he was last seen in 2011 for back and bilateral leg pain. In 2011, appellant was found to
have a herniated disc with lateral recess and foraminal stenosis at L4-5 based upon MRI scan
evaluation. Dr. Hill noted appellant’s physical examination findings and related that, due to
appellant’s current pain complaints, he may have a worsening herniation or possible extrusion.
He therefore recommended that appellant undergo another lumbar MRI scan.

4

By letter dated August 3, 2015, appellant requested that OWCP call Dr. Hill and
authorize an MRI scan. He related that Dr. Hill believed that appellant’s lumbar condition was
worsening.
OWCP finalized the proposed termination of appellant’s wage-loss compensation and
medical benefits in a decision dated August 18, 2015. It found that Dr. Greendyke’s June 22,
2015 second opinion report represented the weight of the medical evidence and established that
appellant no longer suffered residuals of or disability due to his August 17, 1983 employment
injury.
On August 24, 2015 OWCP received appellant’s request for a hearing before an OWCP
hearing representative. Appellant asserted in a letter dated September 25, 2016 that his back still
bothered him. He pointed out that he had done everything OWCP had asked him and questioned
how OWCP could terminate his wage-loss compensation benefits based on the opinion of a
physician who did not even examine him and only questioned him for six minutes. Appellant
related that his physician informed him that he needed back surgery and alleged that MRI scan
testing confirmed his treating physician’s recommendation.
On September 8, 2015 OWCP received an August 14, 2015 MRI scan report, wherein
Dr. Mark A. Terry, a Board-certified diagnostic radiologist, noted that appellant complained of
back and left leg pain. Dr. Terry related that there were no changes since the 2011 examination,
“which probably” constituted herniated nucleus pulposus L4-5 on the left side and annular tear at
the same level.
Appellant’s wife provided a statement dated October 16, 2015. She described the various
problems appellant had experienced regarding his claim. Appellant’s wife pointed out that
appellant’s treating physicians believed that he needed surgery, but OWCP’s physicians
disagreed. She asserted that appellant continued to experience severe back pain and needed
surgery to resolve his condition.
On October 28, 2015 appellant underwent lumbar surgery.
In a March 11, 2016 progress note, Dr. Hill indicated that a follow-up MRI scan revealed
good compression at L3-4, L4-5 with some scar tissues surrounding the nerve roots, but no
significant compression or displacement of the nerve roots. He related that there was still a small
bulge in the foramen at L3-4 on the left, but the nerve root did not appear to be as displaced as
his previous scans. Dr. Hill recommended that appellant undergo a series of lumbar epidural
steroid injections.
On April 12, 2016 a telephone hearing was held before an OWCP hearing representative.
Appellant alleged that he disagreed with OWCP’s decision to terminate his wage-loss
compensation and medical benefits based on Dr. Greendyke’s report. He pointed out that
Dr. Greendyke never examined him or looked at his back, but only interviewed him for six
minutes. Appellant asserted that all the physicians that OWCP referred him to did not examine
his back, but simply attributed his neck and back symptoms to his military service. He explained
that the only back injuries he sustained in the military were pulled muscles and pointed out that

5

when he left the military he underwent a physical examination, which confirmed that he was in
good shape.
By decision dated June 6, 2016, OWCP’s hearing representative affirmed the August 18,
2015 termination decision. He found that the weight of medical evidence rested with the
June 11, 2015 second opinion report of Dr. Greendyke, who opined that appellant’s August 17,
1983 employment injury had resolved and that he was no longer disabled from work as a result
of his accepted injury.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.3 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained lumbar strain, lumbar disc herniation at L5-S1,
and aggravation of degenerative disc disease as a result of an August 17, 1983 employment
injury. Appellant stopped work on August 22, 1983 and received compensation benefits on the
periodic rolls. In a June 22, 2015 second opinion report, Dr. Greendyke opined that appellant no
longer suffered residuals or disability due to his August 17, 1983 employment injury. OWCP
determined that Dr. Greendyke’s opinion constituted the weight of the evidence and thereafter
terminated appellant’s entitlement to wage-loss compensation and medical benefits effective
August 18, 2015.
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of August 18, 2015 because the medical evidence fails to
establish that he had residuals or disability causally related to the August 17, 1983 employment
injury.
3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4
Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
7

A.P., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

6

As appellant had not submitted any medical evidence to the record since April 2013 to
substantiate his ongoing residuals and disability, OWCP referred appellant to Dr. Greendyke on
May 18, 2015.8
The Board finds that OWCP properly accorded the weight of medical evidence to
Dr. Greendyke’s second opinion report. Dr. Greendyke provided an accurate description of the
August 17, 1983 employment injury and physical examination findings. He noted persistent
subjective complaints of cervical and lumbar pain with left upper and lower extremity numbness
unrelated to the August 17, 1983 employment injury. Dr. Greendyke related that appellant had
developed lumbar spine arthritis and spondylosis due to the normal progression of degenerative
disc disease. He opined that this condition was the source of appellant’s ongoing low back pain.
Dr. Greendyke reported that appellant’s accepted conditions had completely resolved. He noted
that the condition of lumbosacral strain had resolved completely, the condition of aggravation of
degenerative disc disease had resolved within months of the August 17, 1983 employment
injury, and the condition of herniated disc at L5-S1 had resolved after the 1992 lumbar surgery.
Dr. Greendyke advised that appellant did not have any work limitations attributable to his
employment injury.
The Board finds that he had full knowledge of the relevant facts and properly evaluated
the course of appellant’s condition. Dr. Greendyke’s opinion is based on a proper factual and
medical history and his report supported a detailed knowledge of this history. He reviewed
appellant’s extensive medical records and made his own examination findings to reach a
reasoned conclusion regarding appellant’s conditions.9 At the time benefits were terminated,
Dr. Greendyke found no basis for the existence of residuals of the accepted conditions or to
attribute any continued disability to appellant’s accepted conditions. His opinion as set forth in
his June 22, 2015 report is found to be probative evidence and reliable. The Board finds that
Dr. Greendyke’s opinion constitutes the weight of the medical evidence and is sufficient to
justify OWCP’s termination of benefits for the accepted conditions.10
Prior to the termination of appellant’s compensation benefits, OWCP received the
July 29, 2015 report from Dr. Hill. Dr. Hill summarized findings from appellant’s 2011
evaluation, appellant’s current complaints and he then recommended a new MRI scan evaluation.
Dr. Hill’s report was of limited probative value and was not in equipoise with that of
Dr. Greendyke as he offered no probative medical opinion, based upon objective current
findings, as to whether appellant had residuals or disability causally related to his August 17,

8

See Felipe Cordova, Docket No. 04-0297 (issued April 19, 2004) (for a discussion that medical evidence which
is two years old had grown stale and its relevance greatly diminished).
9
See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).
10

See S.G., Docket No. 16-0390 (issued September 20, 2017).

7

1983 employment injury. The Board finds therefore that Dr. Hills’s report was of limited
probative value because it was equivocal and speculative in nature.11
The Board finds therefore that OWCP properly terminated appellant’s compensation
effective August 18, 2015 based on Dr. Greendyke’s opinion.
LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s compensation benefits, the burden shifts to the
employee to establish continuing disability after that date causally related to his or her accepted
injury.12 To establish causal relationship between the accepted conditions as well as any
attendant disability claimed and the employment injury, the employee must submit rationalized
medical evidence based on a complete medical and factual background supporting such causal
relationship.13 Causal relationship is a medical issue and the medical evidence required to
establish causal relationship is rationalized medical evidence.14
ANALYSIS -- ISSUE 2
The Board finds that appellant failed to establish that he had any continuing disability or
residuals of his accepted lumbosacral strain, aggravation of degenerative disc disease, or L5-S1
disc herniation, on or after August 18, 2015.
The issue of whether appellant remains entitled to compensation for continuing disability
and whether he continued to experience residuals from his accepted condition is a medical one,
based on the medical evidence of record.15
Following the termination of his compensation benefits, appellant submitted an
August 14, 2015 MRI scan report from Dr. Terry, as well as an additional report from Dr. Hill,
and an October 16, 2015 statement from his wife.
Dr. Terry’s August 14, 2015 MRI scan report noted findings of eccentric bulge “which
probably” constituted a herniated nucleus pulposus at L4-5 and annular tear at the same level.
Terms such as “could be” or “most probably” are speculative in nature and the Board has held
that such opinions are therefore of limited probative value.16 The other diagnosis of annular tear
was not an accepted condition. The Board has found that diagnostic studies are of limited
11

See G.P., Docket No. 17-0039 (issued July 14, 2017).

12

Manuel Gill, 52 ECAB 282 (2001). See G.C., Docket No. 17-0062 (issued December 11, 2017).

13

R.D., Docket No. 16-0982 (issued December 20, 2016); R.F., Docket No. 16-0845 (issued July 25, 2017).

14

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

15

Gary R. Sieber, 46 ECAB 215 (1994); see also G.C., supra note 12.

16

S.E., Docket No. 08-2214 (issued May 6, 2009) (the Board has held that opinions such as the condition is
probably related, most likely related, or could be related are speculative and diminish the probative value of the
medical opinion).

8

probative value as they do not address the issue of continuing disability or whether the employee
still had residuals causally related to the accepted employment injury.17
OWCP also received another report from Dr. Hill. Dr. Hill related in his March 11, 2016
report that a follow up MRI scan showed good compression at L3-4, and L4-5, with some scar
tissue surrounding the nerve roots, but no significant compression or displacement of the nerve
roots. He also noted a small bulge at L3-4, but again the nerve root did not appear displaced. As
previously noted, following termination of compensation it is appellant’s burden of proof to
establish that he was disabled or currently required medical treatment due to an employmentrelated condition.18 Dr. Hill’s report does not address residuals or disability after August 18,
2015 due to the accepted conditions of lumbosacral strain, aggravation of degenerative disc
disease, or lumbar disc herniation at L5-S1. As such his report is of limited probative value.19
Appellant also submitted a statement from his wife in support of his claim for continuing
disability. A lay opinion however is of no probative value as lay individuals are not competent
to render a medical opinion.20
For the reasons discussed above, appellant has not met his burden of proof to establish
continuing residuals or disability on or after August 18, 2015.
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 OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective August 18, 2015. The Board further finds that
appellant has not established continuing residuals or disability on or after August 18, 2015
causally related to his August 17, 1983 employment injury.

17

See T.M., Docket No. 16-1033 (issued June 22, 2017).

18

Supra note 15.

19

See P.M., Docket No. 16-1321 (issued January 10, 2017).

20

See R.B., Docket No. 15-1143 (issued January 27, 2016).

9

ORDER
IT IS HEREBY ORDERED THAT the June 6, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.21
Issued: February 23, 2018
Washington, DC

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

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

21
Colleen Duffy Kiko, Judge, participated in this decision, but was no longer a member of the Board effective
December 11, 2017.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, DISTRICT OFFICE,
Omaha, NE, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 19-0880
Issued: January 6, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On February 22, 2019 appellant filed a timely appeal from a November 16, 2018 decision
of the Office of Workers’ Compensation Programs (OWCP) under File No. xxxxxx094. The Clerk
of the Appellate Boards assigned Docket No. 19-0880.
On April 4, 2018 appellant, then a 59-year-old custodian, filed an occupational disease
claim (Form CA-2) alleging that she was working when an object weighing between 200 and 300
pounds fell on top of her. Appellant asserted that this resulted in a labrum tear, meniscal tear,
sprain, unspecified ligament injury to her left ankle, left talar dome osteochondral lesions, and
aggravation of bicipital tendinitis. She noted that she first became aware of her conditions and
realized their relation to her federal employment on June 14, 2015.1

1

Appellant has a prior claim for a June 14, 2015 traumatic injury under OWCP File No. xxxxxx634 which was
accepted for left knee contusion, left knee abrasion, and lower back strain. She also has a prior claim for an August 14,
2015 traumatic injury under OWCP File No. xxxxxx362 alleging injuries to her left knee, which was denied and a
claim for an August 20, 2015 traumatic injury under OWCP File No. xxxxxx836, which was accepted for left ankle
sprain and left talar dome osteochondral lesions. OWCP File Nos. xxxxxx634, xxxxxx362, and xxxxxx836 have been
administratively combined with the later serving as the master file. The present claim, OWCP File No. xxxxxx094,
has not been administratively combined with those claims.

In a May 21, 2018 development letter, OWCP noted that appellant had filed an
occupational disease claim for a left knee injury. It noted, however, that the record was unclear as
to whether appellant was claiming a new occupational disease due to new exposure or a recurrence
due to a previously accepted work injury. OWCP asked that appellant clarify the type of injury
she experienced. It also requested additional factual and medical evidence from appellant and
provided a questionnaire for her completion. OWCP afforded her 30 days to respond.
On June 8, 2018 appellant completed the questionnaire provided by OWCP and requested
in writing that her claim be converted from one for an occupational disease under OWCP File No.
xxxxxx094 to one for a recurrence under OWCP File No. xxxxxx634. She alleged that after return
to work, she began to experience spontaneous changes directly related to the injuries in that claim
which began to interfere with her duties. Appellant described the employment incident on June 14,
2015 as a workstation smashing her into the concrete floor as the corner struck her left knee. She
noted her prior claims and explained that, following left ankle surgery on January 10, 2016, she
returned to light-duty work in August 2017. Appellant alleged that her left ankle condition was
aggravated by extensive walking on concrete floors, carrying backpack vacuum cleaners, and
opening heavy doors and cage fencing while in the performance of duty. She also submitted
medical evidence.
By decision dated June 26, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish a medical diagnosis in connection
with the implicated employment activities.
On June 6, 2018 appellant requested a review of the written record by an OWCP hearing
representative. By decision dated November 16, 2018, OWCP’s hearing representative denied
appellant’s occupational disease claim. He noted that appellant had requested that her claim be
converted to one for a recurrence under OWCP File No. xxxxxx634, but that she had not filed a
Form CA-2a under that claim.
The Board, having duly considered the matter, concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files.2 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required.3
The Board notes that appellant’s prior claims OWCP File Nos. xxxxxx634, xxxxxx836 and
xxxxxx362, also involved her left knee and/or ankle. For full and fair adjudication, the case must
be returned to OWCP to administratively combine the current case record with OWCP File Nos.
xxxxxx634, xxxxxx836, and xxxxxx362. Following this and other such further development as it
deems necessary, OWCP shall issue a de novo decision. Accordingly,

2

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); J.C., Docket No. 18-0649 (issued August 9, 2019).
3

D.L., Docket No. 17-1588 (issued January 28, 2019); K.T., Docket No. 17-0432 (issued August 17, 2018).

2

IT IS HEREBY ORDERED THAT the November 16, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: January 6, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
DEPARTMENT OF AGRICULTURE,
FORESTRY SERVICE, McCloud, CA, Employer
__________________________________________

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

Docket No. 10-937
Issued: March 28, 2011

Case Submitted on the Record

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

JURISDICTION
On February 19, 2010 appellant filed a timely appeal of a January 4, 2010 Office of
Workers’ Compensation Programs’ merit decision reducing her compensation benefits. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether the Office met its burden of proof to reduce appellant’s
compensation benefits based on her capacity to earn wages in the constructed position of office
assistant.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board on two occasions.2 On
September 22, 1988 appellant, then a 26-year-old seasonal3 engineering aide, filed a traumatic
injury claim alleging that on September 21, 1988 she injured her right knee and elbow when she
fell on stairs while carrying a door. The Office accepted her claim for right knee strain and right
elbow contusion on January 26, 1989. It expanded appellant’s claim to include bulging disc at
L4-5 and herniated disc at L4-5 on July 18, 2001. By decision dated March 2, 2004, the Office
terminated her compensation benefits effective March 21, 2004 on the grounds that she refused
an offer of suitable work. In its March 25, 2005 decision,4 the Board reversed the Office’s
March 2, 2004 decision finding that the employing establishment made no effort to determine
whether reemployment was possible in the location where appellant resided, Conception
Junction, Missouri, and that the Office had an obligation to develop this aspect of the case before
determining that she had refused suitable work.
By decision dated March 23, 2007, the Office terminated appellant’s compensation
benefits effective April 15, 2007 finding that she refused an offer of suitable work based on a
second opinion evaluation by Dr. Edward J. Prostic, a Board-certified orthopedic surgeon, dated
January 30, 2007. Dr. Prostic found that appellant could walk and stand for six hours a day and
could twist, bend and stoop for one hour a day. He also found that she could lift up to 20 pounds
for two hours a day. The Board reversed the Office’s March 23, 2007 decision on April 24,
2008,5 finding that the medical evidence did not support that she could perform the offered
position. The facts and the circumstances of the case as set out in the Board’s prior decisions are
adopted herein by reference.
The Office placed appellant on the periodic rolls on June 30, 2008. It made a preliminary
determination on November 6, 2008 that she had received an overpayment of compensation in
the amount of $8,317.64 for the period August 6, 2006 through April 14, 2007. The Office
finalized this decision on December 16, 2008.6
On November 25, 2008, based on Dr. Prostic’s January 30, 2007 report, the Office
referred appellant for vocational rehabilitation services. Appellant met with the counselor
beginning on December 22, 2008. The vocational rehabilitation counselor referred her for
computer training in Microsoft Word, Access and Excel. He selected two positions for
appellant, office assistant and customer service. These positions were light and sedentary,
respectively, with occasional lifting of up to 20 pounds and no climbing, balancing, stooping,
2

Appellant’s name was previously Teresa L. Steinke. Docket No. 04-1351 (issued March 25, 2005) and Docket
No. 07-1686 (issued April 24, 2008). Appellant married on September 23, 2006.
3

Appellant stated that she worked full time from April to September 1988.

4

Docket No. 04-1351 (issued March 25, 2005).

5

Docket No. 07-1686 (issued April 24, 2008).

6

As this decision was issued more than 180 days prior to the date of appellant’s appeal to the Board on
February 19, 2010, the Board is precluded from reviewing this issue on appeal. 20 C.F.R. § 501.3(e).

2

kneeling, crouching or crawling and only occasional reaching. The vocational rehabilitation
counselor found on January 7, 2009 that these positions were being performed in sufficient
numbers so as to make the jobs reasonably available for appellant within her commuting area.
On April 1, 2009 appellant advised the vocational rehabilitation counselor that she would like to
obtain a job in St. Joseph, Missouri or Maryville, Missouri but was willing to look for
employment in Kansas City, Missouri. The vocational rehabilitation counselor provided her with
job openings within those three locations. On June 9, 2009 appellant informed the rehabilitation
counselor that if she was not able to find work within 40 miles of her home in Maryville she
would move to Kansas City as the last resort. The vocational rehabilitation counselor completed
a report on June 25, 2009 and stated that he had completed a job search locating several positions
within a 45-mile radius of her home.
In a letter dated July 9, 2009, the Office informed appellant that she would receive 90
days of assistance to secure employment. It stated that at the end of this period her compensation
would be reduced based on a wage-earning capacity of $20,800.00 a year.
Appellant submitted a report dated July 21, 2009 from Dr. Patrick B. Harr, a Boardcertified family practitioner, stating that she should not bend or stoop. Dr. Harr also found that
she should not sit or stand for prolonged periods of time. He stated that appellant had some pain
in her back and new findings suggesting an L1-2 problem.
Appellant continued to cooperate with vocational rehabilitation services and stated that
she and her husband might move closer to Kansas City as there were no positions available in
Maryville. On November 25, 2009 the vocational rehabilitation counselor reported that appellant
had not obtained employment despite transferable skills and motivation. He stated that she had
been very cooperative in her efforts to obtain employment, but that the only jobs available in
Maryville were either labor positions beyond her capabilities or health related such as nursing.
The vocational rehabilitation counselor concluded, “I believe the reason she has not obtained
employment, is that the job market is extremely poor right now, she lives in a rural area and the
sedentary positions for which she is applying, she is competing with 60 to 200 other applicants
with more experience and bachelor degrees.” The Office provided appellant with 180 days of
placement services.
By letter dated December 3, 2009, the Office proposed to reduce appellant’s
compensation benefits. It stated that the medical evidence established that she was no longer
totally disabled and had the capacity to earn wages as an office assistant at the rate of $400.00 a
week. In an attached worksheet, the Office found that appellant’s pay rate when her disability
recurred on September 21, 1988 was $230.80 a week; the current adjusted pay rate for her job on
the date of injury was $469.60 a week and she was currently capable of earning $400.00 a week
as an office assistant. It determined that appellant had 85 percent wage-earning capacity of
$196.18 a week and that she had a loss of wage-earning capacity of $34.62 a week. At the threefourths augmented compensation rate, appellant would receive wage-loss benefits of $34.62 a
week, increased by cost-of-living adjustments to $44.50 a week, for net compensation of $178.00
every four weeks.
Appellant responded on December 21, 2009 and stated that she had cooperated with
vocational rehabilitation efforts, but there was no work available. She alleged that the vocational

3

rehabilitation counselor had not updated the availability of the selected position since
January 7, 2009. Appellant also alleged that Kansas City was outside her commuting area.7 She
alleged that the wages for an office assistant were $8.00 an hour. Appellant also stated that her
back was deteriorating as the two discs above the original injury were showing signs of problems
and that she was experiencing more pain.
By decision dated January 4, 2010, the Office reduced appellant’s compensation benefits
effective January 17, 2010 based on the finding that the position of office assistant was medically
and vocationally suitable for her and fairly and reasonably represented her wage-earning
capacity.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.8
Section 8115(a) of the Act9 provides in determining compensation for partial disability,
the wage-earning capacity of an employee is determined by her actual earnings if her actual
earnings fairly and reasonably represent her wage-earning capacity. Generally, wages actually
earned are the best measure of a wage-earning capacity and in the absence of evidence showing
they do not fairly and reasonably represent the injured employee’s wage-earning capacity, must
be accepted as such measure.10 If the actual earnings do not fairly and reasonably represent
wage-earning capacity or if the employee has no actual earnings, her wage-earning capacity is
determined with due regard to the nature of her injury, her degree of physical impairment, her
usual employment, her age, her qualifications for other employment, the availability of suitable
employment and other factors and circumstances which may affect her wage-earning capacity in
her disabled condition.11 Wage-earning capacity is a measure of the employee’s ability to earn
wages in the open labor market under normal employment conditions.12 The job selected for
determining wage-earning capacity must be a job reasonably available in the general labor
market in the commuting area in which the employee lives.13 In determining an employee’s
wage-earning capacity, the Office may not select a makeshift or odd-lot position or one not
reasonably available on the open labor market.14
7

Appellant repeated these allegations on appeal.

8

Bettye F. Wade, 37 ECAB 556, 565 (1986); Ella M. Gardner, 36 ECAB 238, 241 (1984); H.N., Docket No. 091628 (issued August 19, 2010); 5 U.S.C. § 8115(a).
9

5 U.S.C. § 8115.

10

Hubert F. Myatt, 32 ECAB 1994 (1981); Lee R. Sires, 23 ECAB 12 (1971); H.N., supra note 8.

11

Pope D. Cox, 39 ECAB 143, 148 (1988); 5 U.S.C. § 8115(a).

12

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982); H.N., supra note 8.

13

Id.

14

Steven M. Gourley, 39 ECAB 413 (1988); William H. Goff, 35 ECAB 581 (1984); H.N., supra note 8.

4

When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office or to an Office wage-earning capacity specialist for selection of a position, listed in
the Department of Labor’s Dictionary of Occupational Titles (DOT) or otherwise available in the
open labor market, that fits that employee’s capabilities with regards to her physical limitation,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service.15 Finally, application of the principles set forth
in Albert C. Shadrick will result in the percentage of the employee’s loss of wage-earning
capacity.16
ANALYSIS
Appellant’s claim was accepted for right knee strain and right elbow contusion on
January 26, 1989 as well as bulging disc at L4-5 and herniated disc at L4-5.
Dr. Prostic, the Office second opinion physician, completed a report on January 30, 2007
finding that appellant could walk and stand for six hours a day, could lift 20 pounds for two
hours a day and could twist, bend and stoop for one hour a day. Appellant submitted an
additional report from Dr. Harr, dated July 21, 2009, stating that she could neither bend, stoop
nor sit or stand for prolonged periods of time. While Dr. Harr mentioned that appellant had
some pain in her back and new findings suggesting an L1-2 problem, he did not provide a firm
diagnosis or indicate whether this condition reduced her work restrictions. The Board finds that
the weight of the medical evidence rests on Dr. Prostic’s report.
The vocational rehabilitation counselor selected the position of office assistant for
appellant. He found on January 7, 2009 that this position was being performed in sufficient
numbers so as to make the job reasonably available for her within her commuting area. This
position was light with occasional lifting of up to 20 pounds and no climbing, balancing,
stooping, kneeling, crouching or crawling and only occasional reaching. These requirements are
within appellant’s physical limitations as set by Dr. Prostic. The Board finds that the office
assistant position conforms to work restrictions set forth by Dr. Prostic and is within her work
restrictions. In a report dated June 25, 2009, the vocational rehabilitation counselor noted that
there were several appropriate positions available within a 45-mile radius of appellant’s home.
Appellant challenged the Office’s selection of the position of office assistant on the grounds that
it was not reasonably available within her commuting area.
The Office’s procedure manual provides that “[b]ecause the [rehabilitation specialist] is
an expert in the field of vocational rehabilitation, the [claims examiner] may rely on his or her
opinion as to whether the job is reasonably available and vocationally suitable.”17 In this
15

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

16

Id. See 5 ECAB 376 (1953); 20 C.F.R. § 10.403.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(b)(2) (October 2009).

5

instance, the rehabilitation counselor considered a commute of 45 miles reasonable. While
appellant argued that she would have to move to Kansas City to find a position, the Board finds
that this argument relates more to her perception of the availability of positions rather than the
extent of a 45-mile commute. Furthermore, the Board finds that she did not provide any
evidence to establish that a 45-mile commuting area was unreasonable or that a move to Kansas
City was necessary. The Board concludes that the Office properly relied on the rehabilitation
specialist’s expertise in determining that the constructed position of office assistant was
reasonably available within appellant’s commuting area.18
Because the weight of the evidence establishes that appellant had the requisite physical
ability, skill and experience to perform the position of office assistant, the Office properly referred
her to its rehabilitation counselor for the selection of a position that fit her capabilities in light of
her physical limitations, education, age and experience. The rehabilitation counselor determined
that the office assistant position was performed in sufficient numbers to make it reasonably
available to appellant within her commuting area at the weekly pay rate of $400.00. The Board has
found that the record must establish that jobs for a selected position are reasonably available in the
general labor market in the commuting area in which the employee lives.19 The Office’s procedure
manual provides that the lack of current job openings does not equate to a finding that the position
was not performed in sufficient numbers to be considered reasonably available.20 On January 7,
2009 the vocational rehabilitation counselor contacted the Missouri Job Service and confirmed the
availability of jobs within a 45-mile radius of the individual’s residence. The fact that appellant
was not successful in securing employment does not establish that the constructed position is not
vocationally suitable.21
The Office calculated appellant’s wage-earning capacity by properly applying the
principles set forth in Albert C. Shadrick.22 It compared the earnings she could earn as an office
assistant, based on her employment-related injuries, to the current pay rate of her date-of-injury
position and found that her wage-earning capacity was 85 percent. The Board notes that appellant
remains entitled to wage-loss compensation. The Office met its burden of proof to establish that
the constructed position of office assistant reflected her wage-earning capacity effective
December 3, 2009.
On appeal and before the Office, appellant contested the reduction of her compensation and
contended that the position is not reasonably available in her commuting area and that the
vocational rehabilitation counselor’s labor market survey was almost one year old. As noted
above, the position was determined to be reasonably available within her commuting area. The
18

See Dim Njaka, 50 ECAB 425 (1999) (finding that a 120-mile daily commute was reasonable and customary
based on the conclusions of the rehabilitation specialist).
19

Id. at 591-92.

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(c) (October 2009). This provision provides that the vocational rehabilitation counselor will
determine the reasonable availability of the position within appellant’s commuting area.
21

Lawrence D. Price, 54 ECAB 590 (2003).

22

Karen L. Lonon-Jones, supra note 15; see also 20 C.F.R. § 10.403.

6

vocational rehabilitation counselor found that there were enough people performing the position in
the general labor market, making it reasonably available. Furthermore, the Board does not find
that a labor market survey which is less than one year old is stale23 and notes that appellant has not
provided any evidence to support her allegation that the survey was not accurate at the time the
Office issued its decision.
CONCLUSION
The Board finds that the Office met its burden of proof to reduce appellant’s
compensation based on its determination that the constructed position of office assistant
represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2010 the Office of Workers’
Compensation Programs is affirmed.
Issued: March 28, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

23

R.H., Docket No. 10-807 (January 4, 2011) (labor market surveys conducted within one year of the Office’s
decision were not stale).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F. D., Appellant
and
DEPARTMENT OF AGRICULTURE,
AGRICULTURAL MARKETING SERVICE,
Bronx, NY, Employer
__________________________________________
Appearances:
Capp Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 17-0988
Issued: February 2, 2018

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On April 3, 2017 appellant, through his attorney, filed a timely appeal from November 2,
2016 and February 8, 2017 merit decisions of the Office of Workers’ Compensation Programs
(OWCP). The Board docketed the appeal as No. 17-0988.
On January 2, 2014 appellant, an agricultural commodity grader, filed a recurrence of
disability claim (Form CA-2a) under OWCP File No. xxxxxx474.2 He reported that, since a
1

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

File No. xxxxxx474 is not before the Board in the present appeal. Under File No. xxxxxx474, OWCP accepted
a right shoulder sprain that occurred on May 30, 2013 when appellant slipped while carrying a carton of grapes on
his right shoulder. Under that claim, appellant filed a recurrence claim on January 13, 2014. On April 9, 2014
OWCP denied the recurrence. Appellant timely requested a hearing with OWCP’s Branch of Hearings and Review
and, in a January 14, 2015 decision, an OWCP hearing representative affirmed the April 9, 2014 decision. He then
requested reconsideration, and, in an August 11, 2015 decision, OWCP vacated prior decisions, finding that the
January 2, 2014 recurrence claim would be adjudicated as a new occupational disease claim and would be assigned a
new OWCP File No.

May 30, 2013 injury, his back and neck continued to worsen, causing severe pain that limited his
job performance. Appellant indicated that he had neck and spine damage, as well as numbness
in his extremities with swelling, loss of balance, loss of range of motion, and intense neck and
back pain. He stopped work on December 11, 2003. OWCP developed the recurrence claim as a
new occupational disease claim under File No. xxxxxx795.3 On October 21, 2015 it informed
appellant of the type of evidence needed to establish the claim. Appellant, through counsel,
requested that OWCP review the medical records in File No. xxxxxx474. He submitted a
September 9, 2015 report from Dr. Arnold B. Wilson, an attending Board-certified orthopedic
surgeon, who noted seeing appellant in follow up for his neck, back, and right shoulder
conditions. In a January 8, 2016 decision, issued under File No. xxxxxx795, OWCP denied the
new occupational disease claim because the evidence provided was insufficient to establish that
the claimed work factors occurred as alleged. Counsel timely requested a hearing. which was
held on September 7, 2016. During the hearing, appellant testified regarding his employment
duties and the May 30, 2013 employment injury.
In a November 2, 2016 decision, issued under File No. xxxxxx795, an OWCP hearing
representative modified the January 8, 2016 decision to reflect that the factual component of
appellant’s claim had been established, but denied the claim, finding the medical evidence of
record insufficient to establish the claim. The decision referenced evidence found in File No.
xxxxxx474. Counsel subsequently requested reconsideration. In a merit decision dated
February 8, 2017, OWCP denied modification of the prior decisions.
The Board notes that there are no medical reports found in OWCP File No. xxxxxx795
dated between June 2013, when appellant returned to work following the May 30, 2013
employment injury, and December 13, 2013, when he stopped work and filed the recurrence
claim, now adjudicated as an occupational disease claim. The medical evidence in File No.
xxxxxx795 begins with a cervical spine magnetic resonance imaging (MRI) scan dated March 8,
2013 which demonstrated disc herniations at C3-4, C4-5, C5-6, and a disc bulge at C2-3. The
next report is a treatment note dated December 19, 2013 in which Dr. John M. Olsewski, a
Board-certified orthopedic surgeon, indicated that he was seeing appellant for the first time.
Dr. Olsewski described the May 30, 2013 work injury, listed findings, noted cervical spine MRI
scan findings, and diagnosed cervical radiculopathy.
The Board has duly considered the matter and concludes that this case is not in posture
for decision. OWCP procedures provide that cases should be combined when correct
adjudication of the issues depends on frequent cross-reference between files.4 Appellant has a
claim, adjudicated by OWCP under File No. xxxxxx474, accepted for right shoulder sprain,
caused by a May 30, 2013 employment injury. The medical evidence of record in File No.
xxxxxx795, begins on December 19, 2013 and does not contain prior medical evidence
contained in File No. xxxxxx474. As these two case files have not been administratively
combined, the Board is unable to determine whether all pertinent evidence was reviewed prior to
the denial of the instant occupational disease claim, and is unable to properly adjudicate this
appeal. As the record before the Board is incomplete and would not permit an informed
3

File No. xxxxxx795 is the claim presently before the Board.

4
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).

2

adjudication of the case by the Board, the case must be remanded to OWCP to administratively
combine the files and for further reconstruction and development deemed necessary, to be
followed by an appropriate de novo decision.5
IT IS HEREBY ORDERED THAT the February 8, 2017 and November 2, 2016
decisions of the Office of Workers’ Compensation Programs are set aside and the case remanded
for further proceedings consistent with this order of the Board.6
Issued: February 2, 2018
Washington, DC

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

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

5

See W.B., Docket No. 15-1751 (issued March 8, 2016).

6
Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WILFORD HALL MEDICAL CENTER,
LACKLAND AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 16-0742
Issued: October 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 3, 2016 appellant filed a timely appeal from a November 27, 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
ISSUES
The issues are:
(1) whether appellant received a $14,997.92 overpayment of
compensation for the period April 1, 2013 through September 19, 2015, for which she was not at
fault; (2) whether the overpayment is subject to waiver; and (3) whether OWCP properly
1
2

5 U.S.C. § 8101 et seq.

The Boards notes that appellant submitted new evidence on appeal. The Board, however, cannot consider this
evidence as its review of the case is limited to the evidence of the record which was before OWCP at the time of its
final decision. 20 C.F.R. § 501.2(c)(1); see Stevens S. Saleh 55 ECAB 169 (2003).

directed recovery of the overpayment by withholding $207.00 from appellant’s continuing
compensation payments.
FACTUAL HISTORY
OWCP accepted that on or before December 18, 1997 appellant, then a 50-year-old
medical instrument technician, sustained obstructive lung disease due to occupational exposure
to glutaraldehyde. Appellant stopped work on December 18, 1997 and returned to work shortly
thereafter with restrictions against chemical exposure. On November 16, 1998 she claimed a
recurrence of disability (Form CA-2a) commencing October 19, 1998 due to additional chemical
exposures at work. Appellant stopped work on October 19, 1998 and did not return.
Appellant received compensation on the daily rolls from October 19, 1998 to
July 17, 1999. OWCP placed her case on the periodic rolls, effective July 18, 1999. Appellant
remained under medical treatment for occupationally-related respiratory disease.
The employing establishment provided a June 12, 1994 Request for Personnel Action
(Form SF-50) demonstrating that appellant began work in 1986 as a vocational nurse. Appellant
was covered by the Federal Employees Retirement System (FERS).
On August 3, 1999 OWCP informed appellant of her obligation to report “any retirement
income you receive from any Federal agency. This is because a person who receives
compensation benefits under FECA is not permitted to receive benefits under the Civil Service
Retirement System or FERS.” It explained that if she was covered under FERS, “OWCP must
deduct from your compensation entitlement at least part of any [s]ocial [s]ecurity [r]etirement
benefits to which you are entitled based on age. This is because a portion of FERS benefits is
included in [s]ocial [s]ecurity retirement benefits. Therefore, advise OWCP immediately upon
filing for or receiving [s]ocial [s]ecurity [r]etirement benefits.” Appellant signed the form (Form
EN1049) on August 16, 1999. She executed a direct deposit authorization on August 17, 1999.
Appellant completed affidavits of earnings and employment (Forms EN1032) annually
from August 1999 through March 2015.3 She reached age 65 on April 15, 2012, converting the
Social Security Administration (SSA) disability benefits she received to age-related retirement
benefits.
On April 3, 2015 OWCP requested information from the SSA regarding appellant’s SSA
age-related retirement benefits. It forwarded a form entitled FERS and SSA Dual Benefits
Calculation, which requested the effective date of her social security benefits, as well as separate
calculations of the SSA rate with FERS and without FERS.
On September 8, 2015 SSA provided the requested information, noting the pay rates for
the following periods with and without FERS: April 1 to November 30, 2013, $665.30 without
and $1,161.40 with; December 1, 2013 to November 30, 2014, $686.60 without and $1,178.80
with; and December 1, 2014 through September 19, 2015, $686.60 without and $1,198.80 with.
3

Appellant retired from the employing establishment in early 2003. OWCP adjusted her compensation payments
to reflect the change in postretirement life insurance premiums.

2

In an October 6, 2015 memorandum, OWCP calculated that, based on the fiscal
information provided by SSA on September 8, 2015, a $14,997.92 overpayment of compensation
was created in appellant’s case for the period April 1, 2013 to September 19, 2015.4
By notice dated October 19, 2015, OWCP advised appellant of its preliminary
determination that she had received a $14,997.92 overpayment of compensation because she
received FECA benefits simultaneously with FERS retirement payments from April 1, 2013
through September 19, 2015. It provided a calculation of the overpayment, noting that she was
without fault in its creation, as she knew or should have known that she was not entitled to the
duel payments received. OWCP afforded appellant 30 days to contest the fact and amount of
over payment and to provide financial information. Appellant did not respond.
By decision dated November 27, 2015, OWCP finalized that appellant had received an
overpayment of compensation in the amount of $14,997.92 for the period April 1, 2013 through
September 19, 2015 as she had received FERS retirement benefits simultaneously with FECA
benefits. It found that she was without fault in the creation of the overpayment. Appellant did
not contest the finding of overpayment. As she did not submit financial information as
requested, OWCP was unable to determine whether she needed essentially all of her income to
meet ordinary and necessary living expenses. Therefore, OWCP determined that collection of
the overpayment would not defeat the purpose of FECA. It further found that recovery of the
overpayment would not be against equity and good conscience as appellant did not submit
evidence of financial hardship, that she relinquished a valuable right, or changed her position for
the worse based on her compensation payments. OWCP directed recovery of the overpayment
by deducting $207.00 every 28 days from her continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8129(a) of FECA provides that, in pertinent part, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.6
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee received SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.7 OWCP
4

OWCP calculated the overpayment as follows: $3,990.61 from April 1 through November 30, 2013; $6,059.80
from December 1, 2013 through November 30, 2014; and $4,947.51 from December 1, 2014 through
September 19, 2015.
5

5 U.S.C. § 8102.

6

Id. at § 8129(a).

7

Id. at § 8116(d); see also Janet K. George (Angelos George), 54 ECAB 201 (2002).

3

procedures provide that, while SSA benefits are payable concurrently with FECA benefits, the
following restrictions apply. In disability cases, FECA benefits will be reduced by the SSA
benefits paid on the basis of age and attributable to the employee’s federal service.8 Section
8116(d)(2) provides that the receipt of SSA benefits “does not affect the right of the employee to
compensation for scheduled disabilities specified by section 8107(c) of this title.”9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained obstructive lung disease due to occupational
chemical exposures.
Appellant’s June 12, 1994 personnel action form (Form SF-50)
documented her enrollment in the FERS retirement plan.
She stopped work on
October 19, 1998.
Appellant received FECA wage-loss compensation and SSA age-related retirement
benefits concurrently from April 1, 2013 to September 19, 2015. OWCP requested, and SSA
provided, information regarding her applicable SSA rates and their effective dates. Based on
these rates, it determined that appellant received a prohibited dual benefit from April 1, 2013 to
September 19, 2015 in the amount of $14,997.92, because she received compensation from
OWCP and SSA benefits without an appropriate offset. The offset provision of section
8116(d)(2) applies to SSA benefits that are attributable to federal service. Appellant received
SSA benefits under the FERS system. As noted, the receipt of concurrent FECA and FERS
benefits attributable to federal employment is a prohibited dual benefit.10 As she received SSA
benefits based on her federal service concurrently with disability compensation from OWCP
without an appropriate offset, she received an overpayment of compensation.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received and
finds that it properly determined that she received dual benefits totaling $14,997.92, creating an
overpayment of compensation in that amount. The Board notes that, on appeal, she does not
contest the fact or amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
because of an error of fact of law, adjustment or recovery shall be made by decreasing later
payment to which the individual is entitled.11 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.1000.11(a)(b) (February 1995).
9

5 U.S.C. § 8116(d)(2).

10

B.L., Docket No. 13-1422 (issued June 2, 2014).

11

5 U.S.C. § 8129(a).

4

Adjustment or recovery by the United States may not be made when incorrect payment
has been made to an individual who is without fault and when adjustment or recovery would
defeat the purpose of FECA or would be against equity and good conscience.
Thus, a finding that appellant was without fault is not sufficient, in and of itself, for
OWCP to waive the overpayment. OWCP must exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of FECA or would be against equity and
good conscience, pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations12 provide that recovery of an
overpayment will defeat the purpose of FECA if recovery would cause hardship to a currently or
formerly entitled beneficiary such that: (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 the
resource base of $4,800.00 for an individual.13 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. In other words, the amount of
monthly funds available for debt repayment is the difference between current income and
adjusted living expenses (i.e., ordinary and necessary living expenses plus $50.00).14
Recovery of an overpayment is 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.15 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.16 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.17
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of compensation
and considered whether she was entitled to waiver of recovery. Waiver is only possible if
recovery would defeat the purpose of FECA or would be against equity and good conscience. In
12

20 C.F.R. § 10.436.

13

Id. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (October 2004).
14

Id.

15

Id. at § 10.437(b).

16

See supra note 13, Chapter 6.200.6.b(3) (October 2004).
September 11, 2014).
17

20 C.F.R. § 10.438(a); Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

5

C.P., Docket No. 14-975 (issued

order to establish that repayment of the overpayment would defeat the purpose of FECA,
appellant must show that she requires substantially all of her income to meet current ordinary
and necessary living expenses and that her assets do not exceed the established limit as
determined by OWCP’s procedures.18
OWCP found that as appellant failed to submit any financial information, it could not
properly consider waiver of recovery of the overpayment. It therefore found that the
overpayment was not subject to waiver.
Additionally, the evidence does not demonstrate that repayment of the overpayment
would be against equity and good conscience. Appellant submitted no argument that she relied
upon the incorrect payments to her detriment or evidence she would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
On appeal, appellant requests waiver of recovery due to financial hardship. As explained
above, she failed to provide her financial information as requested by OWCP. Appellant did not
respond to the preliminary determination of overpayment. OWCP therefore properly found that
the overpayment was not subject to waiver of recovery.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide.
When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as soon as the
error is discovered or his or her attention is called to 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.19
ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation benefits by $207.00 per month, taking
into account the amount of the compensation, as well as the factors set forth in section 10.441. It
found that in the absence of any financial information from her, this method of recovery would
minimize any resulting hardship on her. The Board finds that OWCP properly required
repayment of the overpayment by deducting $207.00 from appellant’s ongoing compensation
payments every four weeks.

18

Id. at § 10.436.

19

20 C.F.R. § 10.441.

6

CONCLUSION
The Board finds that appellant received a $14,997.92 overpayment of compensation for
the period April 1, 2013 through September 19, 2015, for which she was not at fault. The Board
further finds that the overpayment was not subject to waiver of recovery. The Board further
finds that OWCP properly directed recovery of the overpayment by withholding $207.00 from
appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 27, 2015 is affirmed.
Issued: October 14, 2016
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
S.J., Appellant
and
DEPARTMENT OF DEFENSE, DECA
SOUTHERN REGION, Fort Lee, VA, Employer
__________________________________________

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

Docket No. 08-1608
Issued: January 6, 2009

Case Submitted on the Record

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

JURISDICTION
On May 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated April 18, 2008, which denied her request for
reconsideration. Because more than one year has elapsed between the last merit decision of the
Office dated January 5, 2007 and the filing of this appeal, the Board lacks jurisdiction to review
the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 12, 2007,
the Board affirmed Office decisions dated August 10, 2006, January 5 and February 8, 2007 that

denied her claim for a schedule award.1 The Board found that appellant’s physician, Dr. John B.
Bieltz, an orthopedic surgeon, did not provide a rationalized medical opinion explaining how her
lower extremity impairment was related to her accepted left plantar fasciitis condition. The
Board also found that the Office properly denied appellant’s request for an oral hearing and her
request for reconsideration. The findings of fact and conclusions of law from the prior decisions
are hereby incorporated by reference.
On February 27 and April 2, 2008 the Office received letters dated October 12, 2007,
February 25 and March 27, 2008 from appellant requesting reconsideration. In a September 12,
2007 report, Dr. Thomas F. Smith, a podiatrist, noted that appellant was evaluated on August 17,
2007 for protracted heel pain since an injury while standing at work in 2001. He noted that
appellant could only stand for 20 minutes or walk for 200 yards without significant pain
requiring rest. Dr. Smith diagnosed chronic plantar fasciitis with heel spur bilaterally and
inferior calcaneal spurring by radiographs. He opined that maximum medical improvement had
been reached and advised that appellant could not stand or walk for more than one hour
throughout an eight-hour shift without rests and breaks. Under Table 17-33 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001),
Dr. Smith opined that appellant had 10 percent lower extremity or 14 percent foot impairment for
her chronic plantar fasciitis. A September 12, 2007 letter from Dr. Smith to appellant’s attorney
regarding payment was also received.
By decision dated April 18, 2008, the Office denied reconsideration on the grounds that
the evidence submitted was insufficient to warrant further merit review of the case. It found that
Dr. Smith’s September 12, 2007 impairment rating was duplicative of Dr. Bieltz’ November 21,
2005 impairment rating. Dr. Smith’s September 12, 2007 letter to appellant’s attorney was
found irrelevant to the claim.
LEGAL PRECEDENT
Section 10.606(b)(2) of Office regulations provides that a claimant may obtain review of
the merits of the claim by either: (1) showing that the Office erroneously applied or interpreted a
specific point of law; (2) advancing a relevant legal argument not previously considered by the
Office; or (3) constituting relevant and pertinent new evidence not previously considered by the
Office.2 Section 10.608(b) provides that when an application for reconsideration does not meet
at least one of the three requirements enumerated under section 10.606(b)(2), the Office will
deny the application for reconsideration without reopening the case for a review on the merits.3
Evidence or argument that repeats or duplicates evidence previously of record has no evidentiary

1

Docket No. 07-1037 (issued September 12, 2007). The Office accepted that appellant suffered an exacerbation
of left plantar fasciitis.
2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.608(b).

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value and does not constitute a basis for reopening a case.4 Likewise, evidence that does not
address the particular issue involved does not constitute a basis for reopening a case.5
ANALYSIS
The Office denied merit review on the grounds that appellant did not raise a new legal
argument or submit new and relevant medical evidence. In requesting reconsideration, she did
not show that the Office erroneously applied or interpreted a specific point of law or advance a
relevant legal argument not previously considered by the Office. Thus, appellant is not entitled
to a review of the merits of her claim based on the first and second above-noted requirements
under section 10.606(b)(2).6
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
submitted evidence from Dr. Smith. The issue is whether such evidence is relevant and pertinent
new evidence. The September 12, 2007 letter from Dr. Smith to appellant’s attorney regarding
payment is irrelevant to her schedule award claim; thus, further merit review was not required.
However, the Board finds that Dr. Smith’s September 12, 2007 impairment report is relevant
new evidence as it offers additional medical opinion evidence on the issue of impairment based
on appellant’s accepted plantar fasciitis condition. The requirements for reopening a claim for
merit review do not include the requirement that a claimant submit all evidence which may be
necessary to discharge his or her burden of proof. The requirements pertaining to the submission
of evidence in support of reconsideration only specify that the evidence be relevant and pertinent
and not previously considered by the Office.7 As Dr. Smith’s report offers additional medical
evidence on the impairment issue of appellant’s accepted condition, this report is new and
relevant and requires the Office to reopen his claim for further consideration of the merits.
CONCLUSION
The Board finds that appellant submitted relevant new evidence in support of her request
for reconsideration, which warranted review of the merits of her claim by the Office. On
remand, the Office should conduct a merit review of the evidence submitted with appellant’s
request for reconsideration and issue an appropriate decision.

4

Helen E. Paglinawan, 51 ECAB 591 (2000).

5

Kevin M. Fatzer, 51 ECAB 407 (2000).

6

See supra note 2.

7

Donald T. Pippin, 54 ECAB 631 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the April 18, 2008 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development in
accordance with this decision of the Board.
Issued: January 6, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4