United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
DEPARTMENT OF ENERGY, ENERGY
INFORMATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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

Docket No. 20-0963
Issued: January 6, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 30, 2020 appellant filed a timely appeal from a January 30, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $46,507.36 for the period April 17, 2012 through January 5, 2019, for which she was
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the January 30, 2020 decision, OWCP received additional evidence. 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.

without fault, because health benefits insurance (HBI) premiums had not been properly deducted
from her FECA compensation; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.
FACTUAL HISTORY
On January 28, 1985 appellant, then a 31-year-old assistant secretary, filed a traumatic
injury claim (Form CA-1) alleging that she slipped and fell on October 29, 1984 while in the
performance of duty. OWCP initially accepted the claim for neck sprain, brachial neuritis, thoracic
and lumbosacral neuritis, lumbar disc herniation and disc bulge. It subsequently accepted cervical
radiculitis, lumbar radiculitis and an aggravation of lumbar disc herniation. OWCP paid appellant
wage-loss compensation on the supplemental rolls as of December 18, 2001 and on the periodic
rolls as of June 16, 2002.3
On November 21, 2018 appellant submitted a Health Benefits Election Form (Stan dard
Form 2809) seeking to change her current health care plan under Care First Blue Choice (2G 2) to
Blue Cross Blue Shield (113), effective January 6, 2019.4
In a May 17, 2019 worksheet for the period April 17, 2012 through January 5, 2019,
OWCP explained that health insurance premiums for Care First Blue Choice (2G2) were not
properly deducted for the above period and amounted to a total overpayment of $46,507.36. The
following deductions for code 2G2 should have been deducted: for the period April 17, 2012
through January 12, 2013, a total of $2,881.70; for the period January 13, 2013 through
January 11, 2014, a total of $4,327.44; for the period January 12, 2014 through January 10, 2015,
a total of $5,843.24; for the period January 11, 2015 through January 9, 2016, a total of $6,433.44;
for the period January 10, 2016 through January 7, 2017, a total of $7,176.00; for the period
January 8, 2017 through January 6, 2018, a total of $9,027.46; and for the period January 7, 2018
through January 5, 2019, a total of $10,818.08, for a total of $46,507.36. The overpayment was
calculated as the difference between the amount of deductions which were made ($0 .00) and the
deductions that should have been made ($46,507.36).
In a preliminary overpayment determination dated June 24, 2019, OWCP notified
appellant that an overpayment of compensation in the amount of $46,507.36 had been created
because health insurance premiums had not been properly deducted from her FECA compensation
for the period April 17, 2012 through January 5, 2019. It further advised her of its preliminary
determination that she was without fault in the creation of the overpayment. OWCP provided
3

By decision dated April 17, 2012, OWCP reduced appellant’s wage-loss compensation benefits, effective that
date, finding that the constructed position of Customer Service Representative fairly and reasonably represented
appellant’s wage-earning capacity. By decision dated December 27, 2012, an OWCP hearing representative affirmed
the April 17, 2012 loss of wage-earning capacity determination.
4

In a letter dated February 5, 2019, OWCP informed appellant that the premiums for her selected health insurance
plan cost $341.14 every 28 days. As she was only entitled to wage-loss compensation every 28 days in the amount of
$318.00, her health benefit premium resulted in a negative balance of $23.14 every 28 days, or $25.07 a month.
Accordingly, appellant was advised that, in order to keep her health insurance under Blue Cross Blue Shield, she had
to make monthly payments of $25.07. She subsequently paid the balance of her health insurance premiums for the
year.

2

appellant an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20). Additionally, it notified her that, within 30 days of the date of the letter, she could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing.
On July 23, 2019 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. She indicated that she was requesting waiver of
recovery of the overpayment as she was found without fault in the creation of the overpayment.
Attached was a July 23, 2019 completed Form OWCP-20 and supporting financial documentation.
Appellant listed her total household monthly income as $2,984.65, which included a breakdown
of her spouse’s income, which she noted was earned predominately in the first quarter of the year.
She indicated that she had no income. Appellant indicated that she had monthly expenses of
$3,618.40 including two mortgages, at $1,594.80 monthly and at $139.24 monthly, food at $685.00
monthly, clothing at $159.00 monthly and provided itemized expenses on the attached sheet,
$790.45 in utilities, $250.00 for monthly automobile maintenance. She also indicated that she had
$943.20 in monthly expenses for other debts being paid by monthly installments. Appellant
reported over $15,000.00 in personal funds, which included $100.00 cash on hand, a checking
account balance of over $11,000.00, and a savings account balance of over $4,000.00. She also
submitted copies of taxes, bank statements, and copies of billing statements for the expenses listed,
with the exception of groceries/food and clothing.
During the telephonic hearing held on November 15, 2019, appellant testified regarding
the alleged overpayment of compensation and noted that she understood that premiums for her
selected health insurance plan were not deducted from her compensation, which resulted in an
overpayment for the period April 17, 2012 through January 5, 2019. Her husband testified
regarding his income, noting that he was not a salaried employee, so his total income fluctuated.
Appellant’s husband indicated that as of July 2019, when the Form OWCP-20 was filed, his sixmonth income was $12,881.00, which equated to $2,091.00 monthly. He testified that his current
income had not changed significantly. Appellant’s husband further testified that from January to
April he was self-employed and that income was used to pay bills during the year. He testified
that the $11,000.00 was from his business account. Appellant’s husband also noted that evidence
submitted showed that the business account gets “drained down to zero by the end of the year or
close to it anyway.” He testified that they spend approximately $700.00 monthly for food, $160.00
monthly for clothing, and $790.46 for utilities. Appellant’s husband further testified that they have
two mortgages, approximately $11,000.00 in a checking account, and $4,000.00 in a savings
account.
By decision dated January 30, 2020, the hearing representative finalized the June 24, 2019
preliminary overpayment determination. The hearing representative found that appellant had
received an overpayment of compensation in the amount of $ 46,507.36 for the period April 17,
2012 through January 5, 2019, because OWCP failed to properly deduct health insurance
premiums from her FECA compensation. The hearing representative further found that appellant
was without fault in the creation of the overpayment, bu t denied wavier of recovery of the
overpayment. Based on the documentation provided, the hearing representative calculated
appellant’s monthly household income as $2,984.65 and monthly household expenses as

3

$4,561.54, noting that her monthly expenses exceeded the monthly income by $1,576.89. 5 The
hearing representative further found, however, that appellant’s assets exceeded the allowable
resource base of $10,300.00 for an individual with a spouse as the business bank statements
pertaining to appellant’s spouse’s seasonal tax work show assets of $13,883.38. Because appellant
had not met the second prong of the two-prong test of whether recovery of the overpayment would
defeat the purpose of FECA, the hearing representative found it unnecessary to conside r the first
prong of the test, i.e., whether appellant required substantially all of her income to meet ordinary
living expenses. The hearing representative required recovery of the overpayment by monthly
payments of $250.00, noting that appellant did not receive FECA compensation as the cost of her
health insurance coverage exceeded her 28-day compensation entitlement resulting in a negative
amount.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. 6 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled. 7
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employees Health Benefits (FEHB) program. The Office of Personnel
Management (OPM), which administers the FEHB program, by regulation provides guidelines for
the registration, enrollment, and continuation of enrollment for federal employees. In this
connection, 5 C.F.R. § 890.502(a)(1) provides:
“Employees and annuitants are responsible for paying the enrollee share of the cost
of enrollment for every pay period during which they are enrolled. An employee
or annuitant incurs a debt to the United States in the amount of the proper employee
or annuitant withholding required for each pay period during which they are

5

The hearing representative noted that the wages were based on appellant’s spouse’s year-to-date income of
$12,881.01 divided by 6.16 months or $2,091.07 plus his secondary income for partial year employment during 2018,
or $889.58 monthly. This equates to a total of $2,980.65. As appellant also included $4.00 for “other income,” this
equates to a total of $2,984.66. The hearing representative noted that appellant’s 2018 taxes listed the spouse’s annual
income of $43,146 or $2,793.73 monthly income after taxes. She found that while appellant’s 2019 monthly income
was consistent with the 2018 annual income, using appellant’s 2018 income was beneficial to the claimant in the
consideration of a waiver or repayment calculation. The hearing representative also noted that documentation of
record supported appellant’s monthly averages for utilities, as well as monthly debts for car payments and minimum
monthly payments for credit cards and a loan. She further found that while appellant did not provide specific
documentation for food or clothing expenses, the expenses were taken at face value as they were based on national
standards and were in line with ordinary living expenses for appellant’s area.
6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

4

enrolled if the appropriate health benefits withholdings or direct premium payments
are not made.”8
In addition, 5 C.F.R. § 890.502(c)(1) provides:
“An agency that withholds less than the amount due for health benefits
contributions from an individual’s pay, annuity or compensation must submit an
amount equal to the uncollected employee contributions and any applicable agency
contributions required to OPM for deposit in the Employees He alth Benefits
Fund.”9
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment. 10 An establishment that withholds less than the
proper health benefits contribution must submit an amount equal to the sum of the uncollected
deductions. 11 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.12
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$46,507.36 for the period April 17, 2012 through January 5, 2019, for which she was without fault,
because health insurance premiums had not been properly deducted from her FECA compensation.
The record reveals that appellant changed her Federal Health Benefits plan enrollment from
HBI code 2G2 to HBI code 113, effective January 6, 2019. Health insurance premiums from
April 17, 2012 through January 5, 2019 were supposed to have been deducted under HBI code
2G2 in the amount of $46,507.36, but were not deducted. The difference in the underdeduction of
appellant’s premium created an overpayment of $46,507.36. When an underwithholding of
premiums is discovered, the amount is deemed an overpayment of compensation to the recipient.
OWCP must pay the full amount of the premium to OPM when the error is discovered. 13 Because
of the under deduction of health insurance premiums to reflect appellant’s coverage under HBI
code 2G2, an overpayment of compensation was created in the amount of $46,507.36. The Board

8

5 C.F.R. § 890.502(a)(1).

9

Id. at § 890.502(c).

10

Id. at § 890.502(b)(1).

11

Id. at § 890.502(d).

12

D.B., Docket No. 19-1742 (issued March 22, 2021); R.M., Docket No. 19-0183 (issued November 18, 2019);
J.W., Docket No. 14-1531(issued November 3, 2014); James Lloyd Otte, 48 ECAB 334 (1997).
13

Id., see also Keith H. Mapes, 56 ECAB 130 (2004).

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thus finds that an overpayment of compensation in the amount of $46,507.36 was created f or the
period April 17, 2012 through January 5, 2019 for which appellant was without fault.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA 14 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 15
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 16 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. Nonliquid assets include, but are not limited to, the fair market
value of an owner’s equity in property such as a camper, boat, second home, furnishings/supplies,
vehicle(s) above the two allowed per immediate family, retirement account balances (such as
Thrift Savings Plan or 401(k)), jewelry, and artwork.
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes
her position for the worse.
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision regarding waiver of recovery
of the overpayment.
In its January 30, 2020 decision, the hearing representative denied waiver of recovery,
finding that appellant’s assets exceeded the allowable resource base of $10,300.00 for an
individual with a spouse. The hearing representative, however, failed to explain what facts were
14

Supra note 1.

15

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

16

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide that assets must not exceed a resource base of $6,200.00
for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) and (3) (September 2018).

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used in determining that appellant’s assets exceeded the resource base. OWCP is required to make
findings of fact and a statement of reasons regarding the material facts of the case. Due to the lack
of clarity in OWCP’s findings on waiver of recovery of the overpayment, it is necessary to remand
the case for OWCP to make appropriate findings on the issue. 17 On remand, OWCP shall review
all of the evidence of record and, following any further development deemed necessary, issue a
de novo decision regarding waiver of the recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $46,507.36 for the period April 17, 2012 through January 5,
2019, for which she was not at fault, because HBI premiums had not been properly deducted from
her FECA compensation. The Board further finds that the case is not in posture for decision with
regard to waiver of recovery of the overpayment.

17

See Paula J. Lewis, Docket No. 04-0506 (issued June 21, 2004).

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ORDER
IT IS HEREBY ORDERED THAT the January 30, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: January 6, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 09-1801
Issued: April 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 6, 2009 appellant filed a timely appeal from the June 12, 2009 merit decision of
the Office of Workers’ Compensation Programs, which denied waiver of an overpayment.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUES
The issues are: (1) whether appellant received an $18,288.94 overpayment of
compensation from July 31, 2002 to May 12, 2007; (2) whether the Office properly denied
waiver of the recovery of the overpayment; and (3) whether the Office properly set the rate of
recovery from continuing compensation payments.
FACTUAL HISTORY
On March 4, 1971 appellant, then a 26-year-old letter carrier, sustained an injury in the
performance of duty when he fell down a flight of stairs. The Office accepted his claim for posttraumatic arthritis in both knees, among other conditions. Appellant eventually had both knees

replaced. He received compensation for disability on the periodic rolls at the augmented rate for
dependents.
On September 19, 2006 appellant indicated that he was no longer married, that his wife
did not live with him, but that he made regular direct payments for her support. The Office
requested proof of ongoing financial support for his spouse. Appellant responded that he paid
the mortgage and property taxes on their home and premiums for family health insurance. The
Office informed him that such impairments did not suffice to keep his compensation at the
augmented rate. After May 12, 2007, the Office reduced appellant’s compensation to reflect the
statutory rate of 66 2/3 percent. Appellant informed the Office that he was divorced on July 30,
2003 and had not remarried. On September 5, 2002 he indicated on a Form CA-1032 that his
wife stopped being a dependent on July 31, 2002 due to “separation divorce.”
On May 8, 2009 the Office made a preliminary determination that an overpayment of
$18,288.94 arose from July 31, 2002 to May 12, 2007 because appellant received compensation
at the augmented rate for dependents when he had no eligible dependents. It found him without
fault in the matter. The Office asked appellant to submit an attached overpayment recovery
questionnaire, which would allow it to consider waiving the overpayment and determine, if
necessary, a reasonable method for collection. It notified appellant that failure to submit the
requested information within 30 days would result in a denial of waiver.
In a decision dated June 12, 2009, the Office finalized its preliminary determination. As
it received no response from appellant, it denied waiver and determined that the overpayment
should be collected by deducting $305.00 from his ongoing compensation payments. The Office
explained that, when an individual fails to provide the requested information on income,
expenses and assets, it should follow minimum collection guidelines, which state in general that
government claims should be collected in full and that, if an installment plan is accepted, the
installments should be large enough to collect the debt promptly.
On appeal, appellant requested waiver on the grounds that the Office and the employer
failed to follow the law in the handling of his case beginning on September 3, 1983. As a result,
his quality of life was reduced. Appellant added that the Office waived an overpayment due to
financial hardship in 2000.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act pays compensation for the disability of an
employee resulting from personal injury sustained while in the performance of his duty.1 A
disabled employee with one or more dependents is entitled to have his basic compensation
augmented from two-thirds to three-fourths of his monthly pay.2 A “dependent” means -- a wife
if (a) she is a member of the same household as the employee; (b) she is receiving regular

1

5 U.S.C. § 8102(a).

2

Id. at § 8110(b).

2

contributions from the employee for her support; or (c) the employee has been ordered by a court
to contribute to her support.3
ANALYSIS -- ISSUE 1
Appellant does not contest the fact or amount of the overpayment, which are well
established. He received compensation at the 75 percent augmented rate for dependents from
July 31, 2002 to May 12, 2007, while he was divorced and had no eligible dependents.
Appellant’s ex-wife was not a member of the same household, he did not pay alimony or similar
regular payments for her support, and he produced no court order to contribute to her support.
He received more compensation than he was entitled to receive during that period.
The Office compared how much compensation appellant actually received during the
period with the compensation he should have received at the basic statutory compensation rate.
The difference, $18,288.94, is the amount of the overpayment. The Office explained the
calculation in its May 8, 2009 preliminary determination, and the record contains the worksheets
and compensation payment history the Office used to arrive at this amount. The Board will
affirm the Office’s June 12, 2009 decision on the issues of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether recovery of an overpayment would defeat the purpose of the Act or be against
equity and good conscience. This information will also be used to determine the repayment
schedule, if necessary. Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be considered until the
requested information is furnished.4
ANALYSIS -- ISSUE 2
The Office properly notified appellant of its preliminary determination and explained that
failure to submit the requested financial information within 30 days would result in a denial of
waiver. When it did not receive a completed overpayment recovery questionnaire from
appellant, it denied waiver under the implementing federal regulations.
Appellant’s financial circumstances in the year 2000, if disclosed, might have warranted
waiver of an overpayment at that time. Those circumstances have no bearing on whether Office
regulations require a denial of waiver in 2009 after appellant failed to submit necessary
information on his income, expenses and assets. The Board will affirm the Office’s June 12,
2009 decision on the issue of waiver.

3

Id. at § 8110(a)(1).

4

20 C.F.R. § 10.438.

3

LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of the Act provides that, when an overpayment of compensation has been
made 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.5
Whenever an overpayment has been made to an individual who is entitled to further payments,
proper adjustment shall be made by decreasing subsequent payments of compensation having
due regard to 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 resulting
hardship upon such individual.6
ANALYSIS -- ISSUE 3
In the absence of the financial information provided by the overpayment recovery
questionnaire, the Office was left to consider the probable extent of appellant’s future
compensation payments, the rate of his compensation and minimum collection guidelines. As
the Office gave due regard to relevant factors, the Board finds that the Office properly set the
rate of recovery from continuing compensation payments at $305.00.7
The Board will affirm the Office’s June 12, 2009 decision on the issue of recovery.
Appellant contends that both the Office and his employer failed to follow the law in the
handling of his case beginning on September 3, 1983 and that his quality of life thereby suffered.
The Board has no authority to rule on these matters. On this appeal the Board’s jurisdiction is
limited to reviewing the Office’s June 12, 2009 overpayment decision. As noted, the regulations
required the Office to deny waiver of the recovery of the overpayment that arose from July 31,
2002 to May 12, 2007. Because the Office did not abuse its discretion in recovering the
overpayment from future compensation payments, the Board will affirm the Office’s decision.
CONCLUSION
The Board finds that appellant received an $18,288.94 overpayment of compensation
from July 31, 2002 to May 12, 2007, that the Office properly denied waiver of the recovery of
the overpayment, and that the Office properly set the rate of recovery from continuing
compensation payments.

5

5 U.S.C. § 8129(a).

6

20 C.F.R. § 10.321(a).

7

See Gail M. Roe, 47 ECAB 268 (1995) (when an individual failed to provide the requested information on
income, expenses and assets, the Board found that the Office did not abuse its discretion in following minimum
collection guidelines, which state in general that government claims should be collected in full and that, if an
installment plan is accepted, the installments should be large enough to collect the debt promptly).

4

ORDER
IT IS HEREBY ORDERED THAT the June 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 26, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Federal Way, WA, Employer
__________________________________________

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

Docket No. 17-0150
Issued: June 21, 2017

Case Submitted on the Record

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

JURISDICTION
On October 31, 2016 appellant filed a timely appeal from a June 23, 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.
ISSUE
The issue is whether appellant has established that she has more than five percent
permanent impairment of the left upper extremity, for which she previously received a schedule
award, and whether she is entitled to a schedule award for permanent impairment of her right
upper extremity due to her accepted bilateral carpal tunnel syndrome.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 26, 2012 appellant, then a 63-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel
syndrome as a result of repetitively sweeping mail and pulling trays in the performance of duty.
The claim form did not indicate whether she stopped work. Appellant noted that she was last
exposed to the conditions alleged to have caused her condition on January 27, 2012.2
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome.
A December 13, 2011 electromyogram (EMG) and nerve conduction velocity (NCV)
study by Dr. Larry Lamb, Board-certified in physical medicine and rehabilitation, revealed mild
bilateral carpal tunnel syndrome with the left more affected than the right.
Appellant underwent left carpal tunnel release surgery on April 10, 2012 and right carpal
tunnel release surgery on May 8, 2012. She stopped work and filed claims for wage-loss
compensation (Form CA-7) beginning April 9, 2012. OWCP paid disability benefits.
On October 19, 2012 appellant returned to part-time limited duty.
Appellant retired from federal service on February 20, 2013.
On October 8, 2013 appellant filed a schedule award claim (Form CA-7). No evidence
was received by OWCP in support of her schedule award claim.
By letter dated October 11, 2013, OWCP requested that appellant provide a medical
report from her treating physician with an opinion as to whether she had reached maximum
medical improvement (MMI) and whether she had a permanent impairment pursuant to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). No additional evidence was received by OWCP.
OWCP denied appellant’s schedule award claim in a decision dated January 22, 2014. It
found that the medical evidence of record failed to establish a permanent impairment of the
bilateral upper extremities as a result of her accepted bilateral carpal tunnel syndrome.
In a November 26, 2014 impairment rating report, Dr. Stephanie Walker Stoke, Boardcertified in preventive and occupational medicine, related that she examined appellant for an
impairment rating as required by OWCP. She noted that she reviewed minimal records in
advance of appellant’s examination. Upon physical examination of appellant’s hands,
Dr. Walker Stoke observed multiple deformities at the metacarpophalangeal joints (MCP),
proximal interphalangeal (PIP) joints, and distal interphalangeal (DIP) joints of both hands.
Range of motion of both wrists was full and Tinel’s and Phalen’s tests were positive bilaterally.
Dr. Walker Stoke also reported some weakness with grip strength and pinch strength in both
2

Appellant has a previously accepted traumatic injury claim (File No. xxxxxx228) for right radial styloid
tenosynovitis and right shoulder disorder of bursae and tendons and was awarded a schedule award for 12 percent
permanent impairment of the right upper extremity due to these conditions.

2

hands symmetrically. Examination of appellant’s left elbow revealed tenderness to palpation
over the left lateral epicondyle and full flexion and extension.
Dr. Walker Stoke diagnosed bilateral carpal tunnel syndrome and left lateral
epicondylitis. She reported that according to the sixth edition of the A.M.A., Guides, Table 1523 on page 449, appellant had a grade modifier of 1 for test findings of conduction delay, 2 for
history of significant intermittent paresthesias of the bilateral hands, and 2 for physical findings
of positive Tinel’s and Phalen’s tests bilaterally, which resulted in an average overall grade of 2.
Dr. Walker Stoke noted a QuickDASH score of 66, which modified appellant’s rating
impairment to three percent upper extremity impairment in each hand. Utilizing Table 15-11 on
page 420, she calculated that appellant had two percent whole person impairment, which equaled
four percent whole person impairment using the Combined Values Chart on page 604.
Dr. Walker Stoke further explained that using Table 15-4 on page 399 appellant fell into a class 1
for left lateral epicondylitis. She related a functional history grade modifier of 3 for her
QuickDASH score of 70, grade modifier of 2 for moderate palpatory findings on examination,
and no clinical studies grade modifiers. Dr. Walker Stoke calculated that using the net
adjustment formula, appellant had an overall grade of E, which equaled seven percent upper
extremity impairment. She indicated that this resulted in four percent whole person impairment,
which resulted in eight percent whole person impairment using the Combined Values Chart on
page 604.
Appellant received treatment from Dr. Eric Hofmeister, a Board-certified orthopedic
hand surgeon. In a January 9, 2015 report, Dr. Hofmeister noted that appellant had worked for
the employing establishment for years and was now retired. He related appellant’s current
complaints of residual numbness, pins and needles, and aching pain in her left elbow and
bilateral hands.
Dr. Hofmeister indicated that appellant completed a Pain Disability
Questionnaire with a score of 165 and a QuickDASH score of 61. Upon physical examination,
he observed no varus, valgus, or instability of appellant’s right elbow. Dr. Hofmeister provided
range of motion findings of appellant’s right elbow and wrist. Carpal compression test and
Phalen’s test were nonprovocative and Tinel’s test was mildly positive. Dr. Hofmeister also
reported full extension and flexion of appellant’s digits with no intrinsic or extrinsic tightness.
He diagnosed bilateral carpal tunnel syndrome, administratively accepted as related to her
occupational illness, and history of right lateral epicondylitis.
Dr. Hofmeister noted that appellant had reached maximum medical improvement (MMI)
by her attending surgeon on February 7, 2013. He indicated that objective examination findings
included no thenar atrophy or intrinsic wasting, normal two-point discrimination, and full range
of motion of the wrists and digits. Dr. Hofmeister also reported a mild Tinel’s at the bilateral
carpal tunnels. He opined that using the sixth edition of the A.M.A., Guides appellant had no
permanent impairment.
In an April 2, 2015 report, Dr. L. Jean Weaver, an OWCP medical adviser, indicated that
appellant’s claim was accepted for bilateral carpal tunnel syndrome. He noted that although
appellant had also received treatment for left lateral epicondylitis, this condition was not
accepted by OWCP. Dr. Weaver also pointed out that there were many considerable and
unexplainable differences in the findings, examinations, and conclusions of Dr. Hofmeister and
Dr. Walker Stoke. He indicated that even if it were possible to resolve the unexplainable

3

differences in the examinations, a permanent impairment assessment was not possible because
appellant had previously received a schedule award for the right upper extremity rotator cuff
tear. Dr. Weaver recommended that appellant be referred for an examination to clarify the
inconsistences in the above reports, to address appellant’s lateral epicondylitis, and to provide an
impairment assessment of the right upper extremity that included all right upper extremity
conditions.
OWCP referred appellant, along with a statement of accepted facts (SOAF) and the
record, to Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon, for a second opinion
examination in order to determine whether appellant sustained left lateral epicondylitis as a result
of her employment and to calculate whether appellant sustained any ratable impairment of her
accepted conditions of bilateral carpal tunnel syndrome, right radial styloid tenosynovitis, and
disorder of bursae and tendons in the right shoulder region.
In a November 10, 2015 report, Dr. Curcin indicated that appellant’s current claim was
accepted for bilateral carpal tunnel syndrome and her previous claim was accepted for right
radial styloid tenosynovitis and disorder of bursae and tendons in the right shoulder region. He
related appellant’s current complaints of numbness and paresthesias in her fingers, pain in her
shoulder with any amount of lifting or overhead work, and pain in the left elbow region.
Dr. Curcin discussed the reviewed medical records. He noted that a December 13, 2011
electrodiagnostic testing report showed bilateral carpal tunnel syndrome, left somewhat more
affected than right. Upon physical examination, Dr. Curcin observed some discomfort upon
palpation over the acromioclavicular (AC) joint of appellant’s right shoulder. He reported that
impingement maneuvers immediately produced painful clunking of the shoulder, so no further
impingement testing was performed. Examination of appellant’s elbows revealed no erythema,
swelling or deformity about the left elbow, and some minimal discomfort with palpation over the
lateral epicondyle and extensor mass. Dr. Curcin indicated that examination of appellant’s hands
showed stigmata of osteoarthritis of her interphalangeal joints diffusely. Tinel’s test was positive
at both carpal tunnels. Two-point discrimination was normal.
In response to OWCP’s questions, Dr. Curcin explained that based upon current
examination appellant had no residuals of left lateral epicondylitis. He pointed out that
examination showed symmetrical range of motion and no pain with resistance testing.
Regarding permanent impairment, Dr. Curcin reported that appellant had reached MMI for all
her accepted conditions as of the date of this second opinion examination. Utilizing the sixth
edition of the A.M.A., Guides he opined that appellant had no permanent impairment from any
of appellant’s injuries. He pointed out that examination showed symmetrical range of motion of
shoulders, elbows, wrists, and normal two-point discrimination.
In a February 10, 2016 report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and OWCP medical adviser, noted the medical records he reviewed and related that
appellant’s claim was accepted for bilateral carpal tunnel syndrome. He indicated that he
reviewed Dr. Curcin’s November 10, 2015 report and disagreed with Dr. Curcin’s impairment
rating. Dr. Berman explained that Dr. Curcin did not take into account appellant’s positive
Tinel’s sign bilaterally and positive EMG studies preoperatively. He pointed out that Dr. Curcin
applied the incorrect criteria as he did not use Table 15-23. Dr. Berman related that according to
Table 15-23, page 449, Entrapment Compression Neuropathy Impairment appellant had grade

4

modifier of 1 due to test findings of right and left conduction delay sensory and motor, grade
modifier of 2 for a history of significant intermittent symptoms, and grade modifier of 2 for
decreased sensation upon physical examination. He pointed out that appellant’s two-point
discrimination should be four and determined that with weakness present, appellant had a default
rating of three. After applying the net adjustment formula, Dr. Berman calculated an adjustment
of two, which resulted in five percent impairment. He concluded that appellant had five percent
permanent impairment of each upper extremity due to her accepted bilateral carpal tunnel
syndrome and had reached MMI on November 10, 2015, the date of Dr. Curcin’s second opinion
report.
By decision issued June 23, 2016, OWCP granted a schedule award for five percent
permanent impairment of the left upper extremity, based on Dr. Berman’s report. The award ran
from November 10, 2015 to February 27, 2016. OWCP explained that although OWCP’s
medical adviser advised in his February 10, 2016 report that appellant had also 5 percent right
upper extremity impairment, appellant did not receive this additional impairment because she
had previously received a schedule award for 12 percent right upper extremity impairment under
File No. xxxxxx228.
LEGAL PRECEDENT
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.3 With respect to a schedule award, it is the claimant’s
burden of proof to establish a permanent impairment of the scheduled member as a result of his
or her employment injury.4 A claimant may seek an increased schedule award if the evidence
establishes that he or she sustained an increased impairment causally related to an employment
injury.5 The medical evidence must include a detailed description of the permanent impairment.6
The schedule award provision of FECA7 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and

3

John W. Montoya, 54 ECAB 306 (2003).

4

Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).

5

See Rose V. Ford, 55 ECAB 449 (2004).

6

See Vanessa Young, 55 ECAB 575 (2004).

7

5 U.S.C. § 8107.

5

the Board has concurred in such adoption.8 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 In addressing impairment for the upper extremities, the sixth edition of the
A.M.A., Guides requires identifying the impairment Class of Diagnosis (CDX) for the diagnosed
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).11 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in
Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant
text.13 In Table 15-23, grade modifiers levels (ranging from zero to four) are described for the
categories of test findings, history, and physical findings. The grade modifier levels are
averaged to arrive at the appropriate overall grade modifier level and to identify a default rating
value. The default rating value may be modified up or down based on functional scale, an
assessment of impact on daily living activities (QuickDASH).14
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome in the
performance of duty. Appellant also had previously accepted conditions of right radial styloid
tenosynovitis and disorder of bursae and tendons of the right shoulder region under a separate
claim, for which she had received a schedule award for 12 percent permanent impairment of the
right upper extremity. She underwent left and right carpal tunnel release surgeries and stopped
work. On October 8, 2013 appellant filed a claim for a schedule award due to her accepted
bilateral carpal tunnel syndrome.
In support of her schedule award claim, appellant submitted a November 26, 2014 report
by Dr. Walker Stoke. She provided physical examination findings and noted diagnoses of
bilateral carpal tunnel syndrome and left lateral epicondylitis. Referring to Table 15-23 of the
A.M.A., Guides, Dr. Walker Stoke determined that appellant had three percent impairment of
8

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (January 2010);.
10

A.M.A., Guides 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement (6th ed. 2009).
11

A.M.A., Guides 385-419; see M.P., Docket No. 13-2087 (issued April 8, 2014).

12

Id. at 411.

13

Id. at 449.

14

Id. at 448-49.

6

each upper extremity due to her accepted bilateral carpal tunnel syndrome. She further
calculated that according to Table 15-11, appellant had two percent whole person impairment,
which equaled four percent whole person impairment using the Combined Values Chart on page
604. FECA, however, does not authorize schedule awards for permanent impairment of the
whole person.15 Dr. Walker Stoke also referenced Table 15-4 of the A.M.A., Guides and
calculated that appellant had seven percent left upper extremity impairment due to left lateral
epicondylitis. However, OWCP has not accepted a left elbow condition as being work related,
and accordingly, it cannot grant a schedule award for an unaccepted condition.16 The Board
finds, therefore, that Dr. Walker Stoke’s November 26, 2014 report does not support a finding
that appellant has more than five percent bilateral permanent impairment of the upper extremities
due to her accepted bilateral carpal tunnel syndrome.
OWCP referred appellant’s claim to Dr. Curcin for a second opinion examination to
determine whether appellant had permanent impairment for her accepted conditions. In a
November 10, 2015 report, Dr. Curcin opined that physical examination findings, specifically
appellant’s symmetrical range of motion of both shoulders, wrists, elbows, and normal two-point
discrimination, demonstrated that appellant had no ratable permanent impairment due to her
accepted conditions.
In a February 10, 2016 report, Dr. Berman, an OWCP medical adviser, reviewed
appellant’s medical record, including Dr. Curcin’s November 10, 2015 report, and disagreed
with his findings. The Board has carefully reviewed the opinion of Dr. Berman and finds that his
February 10, 2016 report was sufficiently well rationalized to establish that appellant had five
percent impairment of each upper extremity. Dr. Berman’s opinion was based on a proper
factual and medical history, which he reviewed, and on the proper tables and procedures in the
A.M.A., Guides. He properly referenced Table 15-23, page 449, for Entrapment/Compression
Neuropathy Impairment based on the accepted condition of bilateral carpal tunnel syndrome and
determined that appellant had a default rating of three due to weakness and four-point
discrimination testing. Dr. Berman assigned grade modifiers of one due to test findings of right
and left conduction delay sensory and motor; two for a history of significant intermittent
symptoms; and two for decreased sensation upon physical examination. He applied the net
adjustment formula for a net adjustment of two, which resulted in five percent permanent
impairment of each upper extremity.
The Board finds that OWCP properly relied on the report of Dr. Berman to find that
appellant did not establish more than five percent permanent impairment of the upper extremities
due to her accepted bilateral carpal tunnel syndrome. Dr. Berman based his report on the
medical evidence in the record, was based on an accurate application of the A.M.A., Guides, and
provided medical rationale for his impairment rating. As appellant has not provided a
rationalized medical opinion to dispute Dr. Berman’s impairment rating or create a conflict in
medical opinion, the Board finds that she has not established more than five percent permanent
impairment of the bilateral upper extremities due to her accepted condition of bilateral carpal
tunnel syndrome.
15

D.J., 59 ECAB 620 (2008); N.D., 59 ECAB 344 (2008).

16

M.B., Docket No. 15-0230 (issued October 6, 2016).

7

On appeal appellant alleges that she is also entitled to a schedule award for her right
wrist/arm carpal tunnel syndrome. The Board finds that the previous schedule award for
permanent impairment of appellant’s right upper extremity was granted for her accepted right
shoulder condition, not her accepted carpal tunnel syndrome of the right wrist. OWCP
regulations provide that an employee’s schedule award benefits will be reduced by compensation
paid under the schedule award for an earlier injury if the impairment is of the same body part or
function or different parts of the same part or function; and compensation payable for the later
impairment in whole or in part would duplicate the earlier payment.17 It did not explain how
appellant’s previous award for permanent impairment of her right shoulder would be duplicated
by an award for carpal tunnel syndrome.18 As OWCP’s district medical adviser found that
appellant was entitled to a schedule award of five percent for each upper extremity due to the
accepted condition of bilateral carpal tunnel syndrome, the Board finds that the previous award
for permanent impairment of appellant’s right shoulder would not duplicate the carpal tunnel
award. Therefore the Board finds that appellant is entitled to an additional schedule award for
five percent permanent impairment of the right upper extremity due to the accepted carpal tunnel
condition.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that the evidence of record establishes that appellant has five percent
permanent impairment of her bilateral upper extremities due to the accepted condition of
bilateral carpal tunnel syndrome.

17

See 20 C.F.R. § 10.404(d)(1)(2).

18

See V.T., Docket No. 14-0296 (issued May 5, 2014).

8

ORDER
IT IS HEREBY ORDERED THAT the June 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed in part and remanded in part for payment of an
additional schedule award.
Issued: June 21, 2017
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Miami, FL, Employer
__________________________________________

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

Docket No. 14-1767
Issued: August 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 14, 2014 appellant filed a timely appeal from a May 2, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on March 12, 2014.

1
2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence subsequent to OWCP’s May 2, 2014 decision and with his
appeal to the Board. The Board cannot consider this evidence as its review of the case is limited to the evidence of
record which was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262
(issued December 5, 2012). Appellant may submit this evidence to OWCP with a valid reconsideration request.

FACTUAL HISTORY
On March 16, 2014 appellant, then a 54-year-old transportation security officer, filed a
traumatic injury claim alleging that on March 12, 2014 he injured the left side of his left knee
when he turned to step off a mat at work. The employing establishment controverted the claim.
By letter dated March 20, 2014, OWCP informed appellant of the type of evidence
needed to support his claim. This was to include an explanation of the circumstances of the
claimed cause of injury and a medical report from a physician supported by a medical
explanation as to how the reported work incident caused or aggravated a medical condition.
In a March 17, 2014 medical report, Dr. Seth A. Feldman, a Board-certified osteopath
specializing in family medicine, noted that appellant reported a history that he felt a sharp pain in
his left knee when he twisted his knee stepping off a mat at work on March 12, 2014.
Tenderness and effusion were present on examination, and an x-ray demonstrated degenerative
changes. Dr. Feldman diagnosed a knee sprain/strain, recommended medication and physical
therapy, and advised that appellant could perform regular work. He reiterated this assessment on
March 20 and 27 and April 3 and 10, 2014. On April 15, 2014 Dr. Hugh Conor McLoughlin, a
family practitioner and an associate of Dr. Feldman, advised that appellant had reached
maximum medical improvement and that his left knee strain had resolved.
By decision dated May 2, 2014, OWCP denied the claim, finding that the evidence
submitted was insufficient to establish that the claimed event occurred as described, because it
did not receive a reply from appellant clarifying what he was claiming as a work injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. Regardless of whether the asserted claim involves a traumatic
injury or an occupational disease, an employee must satisfy this burden of proof.3
OWCP regulations at 20 C.F.R. § 10.5(ee) define a traumatic injury as a condition of the
body caused by a specific event or incident or series of events or incidents within a single
workday or shift.4 To determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP must determine whether “fact of injury” is established. First, an
employee has the burden of demonstrating the occurrence of an injury at the time, place, and in
the manner alleged, by a preponderance of the reliable, probative, and substantial evidence.
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish a causal relationship between the employment incident and the alleged
3

Gary J. Watling, 52 ECAB 278 (2001).

4

20 C.F.R. § 10.5(ee) (1999, 2011); Ellen L. Noble, 55 ECAB 530 (2004).

2

disability and/or condition for which compensation is claimed. An employee may establish that
the employment incident occurred as alleged, but fail to show that his or her disability and/or
condition relates to the employment incident.5
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.6
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.7
Neither the mere fact that a disease or condition manifests itself during a period of
employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.8
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish an
employment-related left knee injury on March 12, 2014 because the record does not support his
allegation that a specific employment event occurred which caused an injury. The employing
establishment controverted the claim. By letter dated March 20, 2014, OWCP informed
appellant of the type of evidence needed to support his claim that he injured his left knee at work
on March 12, 2014. This was to include an explanation of the circumstances of the claimed
cause of injury and a medical report from a physician supported by a medical explanation as to
how the reported work incident caused or aggravated a medical condition. Appellant did not
submit any description of the employment injury and in response merely submitted medical
evidence. He did not describe the specific circumstances of the injury as requested by OWCP
and consequently did not provide any requested confirmation as to how the claimed injury
occurred.
The Board therefore concludes that appellant did not establish a traumatic injury in the
performance of duty on March 12, 2014 because he did not submit sufficient evidence to
establish that he actually experienced an employment incident that caused his left knee condition.

5

Supra note 3.

6

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

7

Betty J. Smith, 54 ECAB 174 (2002).

8

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

3

Where a claimant does not establish an employment incident alleged to have caused his or her
injury, it is not necessary to consider the medical evidence.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained an employment-related
injury on March 12, 2014.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2014 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 25, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

S.P., 59 ECAB 184 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Streetsboro, OH, Employer
__________________________________________

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

Docket No. 08-499
Issued: June 4, 2008

Case Submitted on the Record

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

JURISDICTION
On December 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated April 16 and November 8, 2007. Under 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a carpal tunnel condition
in the performance of duty.
FACTUAL HISTORY
Appellant, a 53-year-old data collection technician, filed a claim for benefits on
January 6, 2007, alleging that she developed a bilateral carpal tunnel condition causally related to
factors of her employment.
By letter dated February 5, 2007, the Office advised appellant that it required additional
factual and medical evidence to determine whether she was eligible for compensation benefits.
The Office asked her to submit a comprehensive medical report from her treating physician

describing her symptoms and the medical reasons for her condition, and an opinion as to whether
her claimed condition was causally related to her federal employment. The Office requested that
appellant submit the additional evidence within 30 days.
In support of her claim, appellant submitted a January 2, 2007 form report, an undated
Form CA-20 and a February 23, 2007 Form CA-20 from Dr. Marcy Dickey, an osteopath, who
diagnosed carpal tunnel syndrome, stated findings on examination and indicated that she had
performed carpal tunnel release surgery on November 20, 2006 and January 3, 2007.
By decision dated April 16, 2007, the Office denied appellant’s claim, finding that she
failed to submit medical evidence sufficient to establish that she sustained the claimed bilateral
carpal tunnel condition in the performance of duty.
By letter dated May 10, 2007, appellant’s attorney requested an oral hearing, which was
held on September 19, 2007.
In an undated report, Dr. Anne S. Grantham, Board-certified in family practice, stated:
“[Appellant was] seen on May 24, 2005 for shoulder, neck and arm pain. She was
given Flexeril and a referral to a chiropractor. These treatments did not help
[appellant’s] repetitive motion injuries, so she was subsequently referred to the
surgeon of her choice to further evaluate and treat these problems.”
Appellant submitted an October 17, 2006 electromyogram (EMG) report from Dr. Roger
Weiss, an osteopath, who indicated that appellant had a history of right shoulder pain and
numbness of the arm and hand. The results of the EMG were normal.
Appellant also submitted the employing establishment’s job description for a mail
processor. This description indicated that she was required to perform multiple tasks and meet
various physical functions and stated that “speed is a necessity.” The employee was required to
lift a minimum of one to two trays of letter mail, each of which weighed approximately 20 to 25
pounds, from near the floor to above the shoulders and turn them upside down on the ledge of
the machinery so that the mail could be fed through a sorter. Appellant was expected to keep the
ledge full in order to prevent a delay in sorting. The job required frequent turning, twisting,
bending and lifting, before the employee was required to place the mail in another tray that might
be at knee or shoulder level and then place the tray in a container, to be sent to its next location.
By decision dated November 8, 2007, an Office hearing representative affirmed the
April 16, 2007 Office decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
1

5 U.S.C. §§ 8101-8193.

2

timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her claimed bilateral carpal tunnel condition
and her federal employment. This burden includes providing medical evidence from a physician
who concludes that the disabling condition is causally related to employment factors and
supports that conclusion with sound medical reasoning.5
ANALYSIS
The Board finds that appellant has failed to submit any medical evidence containing a
rationalized, probative report which relates her claimed bilateral carpal tunnel condition to
factors of her employment. For this reason, she has not discharged her burden of proof to
establish her claim that this condition was sustained in the performance of duty.
Appellant submitted reports from Drs. Dickey and Grantham, but neither of these
physicians addressed how her diagnosed bilateral carpal tunnel condition was causally related to
employment factors. Dr. Dickey diagnosed carpal tunnel syndrome, stated findings on
examination and indicated that she had performed carpal tunnel release surgery on November 20,
2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

Id.

5

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

2006 and January 3, 2007. Dr. Grantham stated in her May 24, 2005 report that appellant had
repetitive motion injuries and was referred to a surgeon to further evaluate and treat these
problems. Neither of these physicians, however, explained how appellant’s duties as a mail
processor would cause or contribute to her bilateral carpal tunnel condition. The mere fact that
appellant was asymptomatic of prior problems or that the condition manifested itself during a
period of employment does not raise an inference of causal relation.6 The opinions of
Drs. Dickey and Grantham are of limited probative value as they do not contain medical
rationale explaining how or why appellant’s bilateral carpal tunnel syndrome was currently
affected by or related to factors of her employment.7
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.8 Neither of the physicians of record submitted an opinion
which sufficiently described how appellant’s employment would have caused the diagnosed
condition. The Office therefore properly found that appellant did not sustain a bilateral carpal
tunnel condition in the performance of duty.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.9 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence. The Office
advised appellant of the evidence required to establish her claim. However, she failed to submit
such evidence. Accordingly, the Office properly denied appellants’ claim for compensation
based on a bilateral carpal tunnel condition.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that her
bilateral carpal tunnel condition was sustained in the performance of duty.

6

See Ernest St. Pierre, 51 ECAB 623 (2000).

7

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

8

See Anna C. Leanza, 48 ECAB 115 (1996).

9

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the November 8 and April 16, 2007 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: June 4, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Long Beach, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1124
Issued: June 14, 2018

Case Submitted on the Record

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

JURISDICTION
On May 1, 2017 appellant filed a timely appeal from a January 17, 2017 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated August 4, 2016, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its January 17, 2017 decision.
However, the Board is precluded from reviewing evidence that was not part of the record at the time OWCP issued
its final decision. Therefore, this additional evidence cannot be considered by the Board for the first time on appeal.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On March 21, 2014 appellant, then a 49-year-old bilingual contact representative, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral wrist conditions due
to prolonged typing, gripping, and grasping during the performance of her federal employment
duties. She stopped work January 6, 2014. OWCP accepted the claim for bilateral carpal tunnel
syndrome and paid compensation benefits on the supplemental rolls commencing August 7, 2014.
Appellant filed a claim for wage-loss compensation (Form CA-7) for the period February 4
to August 3, 2014.
By decision dated October 1, 2014, OWCP denied the claim for disability as the medical
evidence of record indicated that appellant was released to work limited duty from January 8 to
29, 2014 and that the employing establishment was able to accommodate the work restrictions. It
noted that appellant’s scheduled carpal tunnel surgery of January 30, 2014 was postponed due to
a nonindustrial cancer condition, for which she was off work from January 6 to July 23, 2014.
On August 4, 2014 Dr. Andrew Hsiao, a Board-certified orthopedic surgeon, performed
appellant’s authorized left carpal tunnel surgery. On February 2, 2015 appellant underwent
authorized right carpal tunnel release, which Dr. Hsiao also performed.
On February 11, 2015 appellant requested reconsideration of OWCP’s October 1, 2014
decision and submitted additional evidence. By decision dated February 27, 2015, OWCP denied
appellant’s request for reconsideration of the merits. It found that the evidence submitted was
either repetitious and cumulative or irrelevant to the issue presented.
On April 1, 2015 Dr. Hsiao released appellant to full-time work with restrictions of no
lifting over five pounds, no gripping more than five pounds, and no repetitive wrist motion
20 minutes a day.
In a May 13, 2015 report, Dr. Hsiao related that appellant would be unable to work for six
weeks. He restricted her from tasks which required more than 20 minutes of repetitive motion.
On May 28, 2015 the employing establishment offered appellant a modified position
consistent with Dr. Hsiao’s work restrictions. Appellant returned to work shortly thereafter.
On June 3, 2015 Dr. Hsiao changed appellant’s restrictions effective June 6, 2015 to
indicate no lifting over one pound and fine manipulation including keyboarding limited to two
hours a day. Appellant worked until July 22, 2015, when she stopped work.
On July 28, 2015 OWCP received appellant’s claim for wage-loss compensation (Form
CA-7) for the period July 22 through 24, 2015.
In a July 22, 2015 work slip, which was completed on behalf of Dr. Hsiao, a Cinthia Ayala
reported that appellant was unable to return to work July 22 through 26, 2015. However, appellant

2

could return to modified work on July 27 through August 26, 2015 with restrictions of no lifting
over one pound and fine manipulation, including keyboarding, limited to two hours per day.3
In a July 29, 2015 letter, OWCP requested that appellant provide a comprehensive narrative
medical report, which included a history of the injury and a thorough explanation, with objective
findings, as to how her work-related condition worsened such that she was no longer able to
perform any duties of her position when she stopped work on July 22, 2015. Appellant was
afforded 30 days to submit the requested evidence.
Medical reports from Dr. Hsiao describing appellant’s progress dated July 15, August 26,
and September 15, 2015 were received. In the August 26, 2015 report, he released her to full-duty
work with no restrictions effective August 27, 2015. In an October 7, 2015 report, Dr. Hsiao
related that appellant should not perform overtime work and no typing more than four hours per
day. Appellant worked until October 29, 2015, when she stopped work.
On November 30, 2015 appellant filed an additional claim for compensation (Form CA-7)
for the period October 29, 2015 and continuing. In a November 4, 2015 work slip, which was
completed on behalf of Dr. Hsiao, Ms. Ayala indicated that appellant was unable to work from
October 29 through December 16, 2015.
In a December 15, 2015 development letter, OWCP requested that appellant provide a
comprehensive narrative medical report, within 30 days, which included a history of the injury and
a thorough explanation with objective findings, as to how her work-related condition worsened
such that she was no longer able to perform any duties of her position when she stopped work on
October 29, 2015.
In a December 16, 2015 work slip, which was completed on behalf of Dr. Hsiao, Ms. Ayala
indicated that appellant was unable to work from December 16, 2015 through January 27, 2016.
Progress reports from Dr. Hsiao were received. In November 4, December 16 and 30,
2015, and January 27, 2016 reports, he instructed appellant to remain off work for six weeks.
Dr. Hsiao also recommended that she not work overtime and not type more than four hours per
day. In the December 16, 2015 report, he indicated that appellant would like an additional six
weeks off from work.
By decision dated March 2, 2016, OWCP denied appellant’s claim for compensation for
the period from July 22 to 24, 2015 as there was no medical evidence supporting that she was
temporarily totally disabled during the period claimed.
In another March 2, 2016 decision, OWCP denied appellant’s claim for compensation for
the period October 29, 2015 to the present as the medical evidence failed to contain a wellrationalized medical opinion supported by objective findings as to why she was unable to perform
her employment duties during the period claimed.

3

No credentials are listed for Ms. Ayala.

3

Appellant continued to file claims for compensation (Form CA-7).
On April 5 and May 12, 2016 appellant requested reconsideration of the two March 2, 2016
decisions. Following issuance of the March 2, 2016 decisions, OWCP received her February 22,
2016 statement, the employing establishment’s challenge dated March 18, 2016, and Family and
Medical Leave Act forms dated March 15, 2016
Medical reports dated December 16, 2015, and January 27, March 9, April 27, and June 8,
2016, CA-20 forms dated April 27, 2016, work status forms dated August 3, 2015 and January 27,
2016, and a CA-17 form dated June 8, 2016 from Dr. Hsaio were received. In these reports,
Dr. Hsaio indicated that appellant had pain and no longer wished to type. He also noted that she
had a pattern of working and not working. During the periods, appellant was not working,
Dr. Hsaio indicated that she was at maximum medical improvement (MMI). He reported that
appellant was back at work in March and June 2016 with restrictions of no typing.
A July 28, 2016 electromyogram (EMG) study was positive for mild bilateral median
mononeuropathics at the wrists consistent with clinical diagnosis of bilateral carpal tunnel
syndrome with no evidence of cervical radiculopathy or generalized polyneuropathy.
By decision dated August 4, 2016, OWCP denied modification of its March 2, 2016
decisions. It noted that July 22, 2015 work status form was the only evidence submitted which
discussed the claimed period of disability from July 22 to 24, 2015. With regard to the claim for
compensation for the dates October 29, 2015 and continuing, OWCP found that the new evidence
contained no detailed medical explanation that indicated how appellant’s condition had objectively
worsened such that she could not perform any of her work duties during the period claimed.
On September 20, 2016 appellant requested reconsideration of OWCP’s March 2, 2016
decisions denying her wage-loss compensation claims. A duplicative copy of the July 28, 2016
EMG/nerve conduction velocity (NCV) study, previously of record, was received.
OWCP also received an August 3, 2016 report that indicated that appellant was back to
work with the restriction of no typing, which would continue. Dr. Hsiao indicated that the
EMG/NCV study showed evidence of mild carpal condyle syndrome bilaterally, which he thought
was baseline for her. He indicated that appellant reached MMI.
In a September 14, 2016 report, Dr. Hsiao indicated that appellant had the same findings
on each evaluation. No improvement was expected since no treatment was being done. Dr. Hsiao
indicated that MMI had been reached and appellant’s restrictions of no typing would continue.
In an October 19, 2016 letter, the employing establishment indicated that they could no
longer accommodate appellant’s work restrictions. Appellant filed a claim for wage-loss
compensation (Form CA-7) commencing October 20, 2016.
OWCP began paying compensation for a recurrence of temporary total disability on
October 20, 2016, based on the employing establishment’s October 19, 2016 letter that they could
no longer accommodate appellant’s work restrictions.

4

In November 2016, OWCP referred appellant, along with a statement of accepted facts, the
medical record, and questions, to Dr. Jacob Rabinovich, a Board-certified orthopedic surgeon, for
a second opinion examination for a determination on the nature and extent of her work-related
condition and her work capacity. In a November 28, 2016 report, Dr. Rabinovich indicated that
she had residuals of her work-related conditions and that she was considered at MMI. He indicated
that appellant had physical limitations from repetitive movements and/or typing to four hours a
day, intermittently with no more than 30 minutes per hour and lifting, pushing and pulling
limitation of no more than 10 pounds for no more than 4 hours per day. Dr. Rabinovich also opined
that appellant had three percent permanent impairment of the right upper extremity and three
percent left upper extremity permanent impairment.
By decision dated January 17, 2017, OWCP denied appellant’s request for reconsideration
of the merits. The issue for consideration was whether appellant had established disability for the
period July 22 to 24, 2015 and from October 29, 2015 to October 19, 2016. OWCP found that the
evidence did not require reconsideration of the merits of the claim as some reports were duplicative
or substantially similar to evidence previously of record and reviewed, and the newly submitted
evidence was “irrelevant or immaterial and thus has no bearing on the issue.”
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date-of-the decision for which review is sought.6
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.8

4
This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(a), (b).

5

ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim. The underlying issue before OWCP was whether she has established total
disability for the period July 22 to 24, 2015 and from October 29, 2015 to October 19, 2016, when
she claimed wage-loss compensation benefits for total disability as work within her restrictions
was no longer available.
Appellant neither showed that OWCP erroneously applied or interpreted a specific point
of law nor advanced a relevant legal argument not previously considered by OWCP.
Consequently, she is not entitled to further review of the merits of her claim based on the first and
second above-noted requirements under section 10.606(b)(3).
Appellant also failed to submit any relevant and pertinent new evidence in support of her
reconsideration request. Establishing her claim for total disability during the alleged periods is a
medical issue.9
The July 28, 2016 EMG/NCV study was previously of record and was considered in the
last merit decision. The submission of evidence or argument that repeats or duplicates evidence
or argument already in the case record10 and the submission of evidence or argument that does not
address the particular issue involved does not constitute a basis for reopening a case.11
In his August 3, 2016 medical report, Dr. Hsiao indicated that appellant was back to work
with restrictions of no typing, which would continue. In his a September 14, 2016 report, he
indicated that no improvement was expected in her condition, that MMI had been reached, and
that her restrictions of no typing would continue. Dr. Rabinovich indicated that appellant had
continued residuals of her work-related condition, that MMI had been reached, that she had
restrictions and permanent impairment to her bilateral upper extremities. This evidence while new,
it is not relevant and pertinent new evidence as it does not address why appellant was temporarily
totally disabled during the alleged period of disability. The submission of evidence or argument
which does not address the particular issue involved does not constitute a basis for reopening a
case.12
The employing establishment’s October 19, 2016 letter, which indicated that it could not
accommodate appellant’s work restrictions, is irrelevant to the issue at hand as OWCP commenced
payment of wage-loss benefits based upon this letter on October 20, 2016.

9

See M.N., Docket No. 16-1410 (issued June 28, 2017).

10

T.H., Docket Nos. 17-1578 & 17-1651 (issued April 26, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).

11

T.H., id.; Edward Matthew Diekemper, 31 ECAB 224-25 (1979).

12

See supra note 9; M.D., Docket No. 16-0745 (issued February 8, 2017); Edward Matthew Diekemper, id.

6

Because appellant failed to meet any of the standards enumerated under section 8128(a) of
FECA, she was not entitled to further merit review of her claim.13
On appeal appellant argues that the denial of her wage-loss claims was based on the fact
the employing establishment stated that she was out of work due to stress. She asserts that her
physician’s reports showed that she was out of work due to her work-related injury. As noted, the
Board does not have jurisdiction over the merits of this claim. Appellant failed to provide any
evidence to meet any of the criteria to warrant a merit review of her claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2018
Washington, DC

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

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

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

13

See A.M., Docket No. 16-0499 (issued June 28, 2016); A.K., Docket No. 09-2032 (issued August 3, 2010) (when
an application for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), OWCP will deny the application for reconsideration without reopening the case for a review on the
merits); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

7