United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
ST. LOUIS HEALTH CARE SYSTEMJEFFERSON BARRACKS DIVISION,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 20-0108
Issued: December 18, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 14, 2019 appellant, through counsel, filed a timely appeal from an August 5,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On May 13, 2013 appellant, then a 52-year-old health aide, filed a traumatic injury claim
(Form CA-1) alleging that on May 9, 2013 he injured his left groin pushing a patient in a high back
chair while in the performance of duty.4
By decision dated July 22, 2013, OWCP accepted the claim for left groin sprain and on
January 17, 2014 it expanded acceptance of the claim to include the additional conditions of sprain
of other specified sites on the left, and left hip and thigh sprain. Appellant returned to work on
March 4, 2014 as an information receptionist. OWCP issued a loss of wage-earning capacity
(LWEC) decision on September 9, 2014 terminating appellant’s wage-loss compensation benefits
as his actual earnings as an information specialist either met or exceeded “the current wages of the
job held when injured.”5
On September 23, 2015 Dr. Christopher D. Mudd, a Board-certified orthopedic surgeon,
reported that appellant had undergone a right total hip arthroplasty on October 2, 2009 and a left
hip arthroplasty on October 1, 2010. He noted that appellant had increasing hip pain since the
May 9, 2013 employment injury. Dr. Mudd diagnosed failed left hip arthroplasty, with loosening
of the acetabular component and medial migration through the quadrilateral plate with suspicion
of pelvic discontinuity, and significant acetabular bone loss. He also diagnosed failed right hip
arthroplasty, with loosening of the acetabular component and superior medial migration.
In a December 2, 2013 report, Dr. Michael Ralph, a Board-certified orthopedic surgeon
and treating physician, noted that he suspected that appellant sustained a nondisplaced pelvic
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the August 5, 2019 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.
4
The record reflects that appellant has nonwork-related medical conditions to include obesity, left hip replacement
on October 1, 2010, right hip replacement and hernia surgery on February 23, 2009, and right knee meniscus tear and
repair in December 1982. Appellant also had a prior claim for a slip and fall on December 12, 1997 under OWCP
File No. xxxxxx696. OWCP noted that this was a minor injury and appellant returned to his regular duties on
December 15, 1997.
5

On May 12, 2016 OWCP denied modification of appellant’s LWEC decision.

2

fracture. He completed a work capacity evaluation (Form OWCP-5c) and diagnosed fractured
acetabular, status post left hip replacement.
In a December 27, 2013 report, Dr. Ronald Zimmerman, Board-certified in physical
medicine and rehabilitation and serving as a district medical adviser (DMA), advised that the
diagnosis of a nondisplaced fracture could not be accepted as it was not supported by diagnostic
studies.
On February 18, 2014 OWCP referred appellant’s claim, along with a statement of
accepted facts (SOAF) and the medical record, to Dr. Robert Sciortino, a Board-certified
orthopedic surgeon, for a second opinion examination to assess the work-related conditions in the
claim.
In a March 7, 2014 report, Dr. Sciortino noted that he had reviewed appellant’s history of
injury, including the SOAF. He also noted that he obtained new x-rays of appellant’s hips, which
showed bilateral hip replacements, and he noted that the hip replacements were not work related,
but had instead been performed for osteoarthritic conditions. Dr. Sciortino examined appellant
and diagnosed painful total hip replacement. He explained that appellant sustained a left groin
strain which triggered his hip pain. Dr. Sciortino opined that appellant “may have some problem
with his acetabular component of his total hip replacement. The etiology of this is not clear, but
is most likely not work related.” Dr. Sciortino reiterated his opinion that appellant had a problem
with his “acetabular component which is not related.” He recommended additional testing to
determine if there was some component of metallosis that was causing appellant’s symptoms.
On September 28, 2015 OWCP found a conflict in the medical opinion evidence and
referred appellant for an impartial medical examination. It explained that Dr. Ralph, the attending
physician, diagnosed a nondisplaced pelvic fracture that was causally related to appellant’s work
injury; however, Dr. Sciortino, the second opinion physician, diagnosed an issue with the
acetabular component of appellant’s total hip replacement that was not work related.
In an October 22, 2015 report, Dr. Richard Lehman, a Board-certified orthopedic surgeon
serving as an impartial medical examiner, reviewed appellant’s history of injury and medical
records. He examined appellant and noted that he had difficulty ambulating, walked with two
crutches, and had significant left and right hip pain. Dr. Lehman determined that appellant had a
failed hip replacement on the left. He noted that the components had dislodged and were a postoperative complication. Dr. Lehman opined that appellant’s condition was not related to his
May 9, 2013 work injury and instead was directly related to loosening of the total hip metallosis
and dislocation of the total hip. He further opined that there was nothing in appellant’s medical
history to suggest a work-related impairment and that the work injury on May 9, 2013 did not alter
or affect the failed hip replacement and did not exacerbate appellant’s underlying symptoms and
hip condition. Dr. Lehman explained that the strain from the work injury would have resolved
within six to eight weeks and that appellant had returned to base line. He advised that appellant
required a revision of the total hip replacement.
On August 2, 2016 appellant filed a claim for a schedule award (Form CA-7).

3

In an August 5, 2016 development letter, OWCP advised appellant of the deficiencies of
his claim and requested medical evidence containing a detailed description of his permanent
impairment specific to the accepted work-related conditions, a date of maximum medical
improvement (MMI), a final rating of permanent impairment, and a discussion of the rationale for
the calculation of the impairment under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6 It afforded him 30 days
to submit the necessary evidence. No further evidence was submitted.
By decision dated December 8, 2016, OWCP denied appellant’s schedule award claim,
finding that he had not submitted medical evidence to establish permanent impairment causally
related to an accepted condition.
On December 19, 2016 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review, which was held on May 17, 2017.
Appellant provided testimony and OWCP’s hearing representative held the case record open for
30 days for the submission of additional evidence on the issue of permanent impairment. No
additional evidence was received.
By decision dated July 27, 2017, OWCP’s hearing representative affirmed the December 8,
2016 decision.
In an August 4, 2017 report, Dr. Neil Allen, a Board-certified internist and neurologist,
utilized the A.M.A., Guides, examined appellant, and provided findings. He noted that the
diagnosed-based impairment (DBI) method was used to calculate the left hip impairment.
Dr. Allen referred to the Hip Regional Grid, Table 16-3, page 515, and determined that appellant
had aseptic loosening resulting in arthroplasty revision and physical examination findings of a
mild motion deficit, a class of diagnosis (CDX) of 3 for impairment, and opined that appellant had
a default value of 67 percent for total hip replacement, poor result, which resulted in 67 percent
left lower extremity permanent impairment (grade C).
On December 1, 2017 appellant filed a claim for a schedule award (Form CA-7).7
In a December 1, 2017 development letter, OWCP advised appellant of the deficiencies of
his claim and afforded him 30 days to submit the necessary evidence.
In a letter dated January 22, 2018, counsel noted that a permanent impairment rating had
been provided and requested a decision on the rating already of record.
By decision dated February 19, 2019, OWCP denied appellant’s schedule award claim,
finding that he had not submitted medical evidence to establish permanent impairment causally
related to an accepted condition in his claim. It explained that his claim was accepted for two soft
6

A.M.A., Guides (6th ed. 2009).

7
In a November 1, 2017 letter, OWCP noted receipt of Dr. Allen’s August 4, 2017 report and requested that
appellant submit a Form CA-7 claim.

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tissue injuries, a left hip strain and a left groin strain, and those were the only conditions eligible
for a schedule award.8 OWCP also explained that expansion of the acceptance of appellant’s claim
to include bilateral hip replacement was considered and found to be unrelated to the accepted work
injury. It noted that special weight of the medical evidence had been accorded to the opinion of
Dr. Lehman, the impartial medical specialist.
On February 25, 2019 counsel for appellant requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on June 7, 2019.
By decision dated August 5, 2019, OWCP’s hearing representative affirmed the
February 19, 2019 decision, finding that Dr. Lehman’s referee opinion represented the special
weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of FECA,9 and its implementing federal regulations,10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.11 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.12 The claimant has the
burden of proof to establish that the condition for which a schedule award is sought is causally
related to his or her employment.13
Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.14 This is called an impartial medical examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
8

OWCP noted that appellant had a right hip replacement on February 23, 2009, a left hip replacement on October 1,
2010 and a revision of the failed left hip replacement on December 17, 2015, and that these surgeries were not
authorized by OWCP and were not accepted as work related.
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id. at § 10.404(a).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
13

See G.S., Docket No. 18-0827 (issued May 9, 2019); Veronica Williams, 56 ECAB 367 (2005).

14

5 U.S.C. § 8123(a); K.W., Docket No. 20-0047 (issued November 12, 2020); see B.M., Docket No. 19-1069
(issued November 21, 2019); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).

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case.15 When there exists opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.16
When determining entitlement to a schedule award, preexisting impairment to a scheduled
member should be included.17 Impairment ratings for schedule awards include those conditions
accepted by OWCP as job related, and any preexisting permanent impairment of the same member
or function.18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
OWCP found a conflict in the medical opinion evidence between Dr. Ralph, the attending
physician, who found that appellant had a nondisplaced pelvic fracture that was causally related to
the accepted May 9, 2013 employment injury, and Dr. Sciortino, the second opinion physician,
who found that appellant had an issue with the acetabular component of his total left hip
replacement that was not work related.
OWCP properly referred appellant’s case to Dr. Lehman for an impartial medical
examination to resolve the conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a). In his
October 22, 2015 report, Dr. Lehman reviewed appellant’s history of injury, the relevant medical
evidence, and provided physical examination findings. He found appellant’s accepted conditions
had resolved and there was no permanent impairment due to the accepted conditions. Dr. Lehman
advised that appellant’s hip condition was the result of a failed hip replacement and that a revision
was needed. He also found that appellant’s failed left hip replacement was not work related.
The Board finds that Dr. Lehman’s October 22, 2015 report is entitled to special weight
and establishes that appellant’s preexisting total left hip replacement, and it sequelae, were not
work related, and that appellant’s accepted employment conditions had resolved without
permanent impairment. Dr. Lehman’s opinion was based on a proper factual and medical history.
As noted, when a case is referred to an impartial medical specialist for the purpose of resolving a

15

20 C.F.R. § 10.321.

16

V.H., Docket No. 20-0012 (issued November 5, 2020); Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J.
Godfrey, 52 ECAB 486 (2001).
17
See K.C., Docket No. 19-0785 (issued October 1, 2019); C.T., Docket No. 18-0544 (issued May 22, 2019); J.H.,
Docket No. 17-1916 (issued January 19, 2019); Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB
446, 450 (2002).
18
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
3.700.3(a)(3) (January 2010).

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conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.19
Subsequent to the receipt of Dr. Lehman’s October 22, 2015 report, appellant submitted an
August 4, 2017 report from Dr. Allen who referred to the Hip Regional Grid, Table 16-3, page 515
and provided an impairment rating of 67 percent based upon a total hip replacement, poor result.
However, the Board notes that this report pertains to a condition that has not been accepted as
work related in this claim. As noted, a schedule award can be granted for those conditions accepted
by OWCP as work related, and any preexisting permanent impairment of the same member or
function.20 The Board has previously explained that a preexisting, underlying condition should be
considered for rating impairment only to the extent that the work-related injury has affected any
residual usefulness, in whole or in part, of the scheduled member.21 Since appellant has not
established permanent impairment of his work-related conditions, the Board finds that he is not
entitled to a schedule award for his nonwork-related condition.22
The claimant has the burden of proof to establish that the condition for which a schedule
award is sought is causally related to his or her employment.23 The Board finds that appellant has
not established permanent impairment due to his accepted work-related conditions.
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 employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

19

J.B., Docket No. 18-0116 (issued October 2, 2020); see B.M., supra note 14; Darlene R. Kennedy, supra note 16;
Gloria J. Godfrey, supra note 16.
20

Supra note 18.

21

Supra note 12 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5d; S.M.,
Docket No. 20-0469 (issued September 3, 2020): see also F.T., Docket No. 16-1326 (issued March 12, 2018).
22

See S.M., id.

23

See G.S., supra note 13; Veronica Williams, supra note 13.

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ORDER
IT IS HEREBY ORDERED THAT the August 5, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 18, 2020
Washington, DC

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

Janice B. Askin, 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.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Marysville, CA, Employer
__________________________________________

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

Docket No. 07-1033
Issued: September 18, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 6, 2007 appellant filed a timely appeal from a January 12, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs that denied his request for
reconsideration and a merit decision dated July 20, 2006, which denied his occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the claim as well as the nonmerit decision.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
developed an occupational disease in the performance of duty; and (2) whether the Office
properly denied appellant’s request for reconsideration without conducting a merit review.
FACTUAL HISTORY
On February 6, 2006 appellant, then a 35-year-old city carrier, filed an occupational
disease claim stating that he developed low back and neck, bilateral shoulder pain, radiating
down the right arm and right hip condition in the performance of duty. He first became aware of

his conditions on June 4, 2004 and first related them to his employment on February 3, 2005.
Appellant explained:
“The factors of employment that are exacerbating my conditions are the standing,
twisting, turning, reaching, squatting, pushing and pulling of the hamper to and
from the workroom floor, also the lifting of the trays and placing them in the
hamper. The lifting of parcels from the hamper and the lifting of the trays while
loading the vehicle. Any factor of employment that requires lifting or carrying
exacerbates my condition. Additionally, the mounting and dismounting from the
[employing establishment] vehicle aggravates my claimed conditions.”
He did not stop work. The employing establishment controverted appellant’s claim. It submitted
a job description detailing the requirements of his city carrier position.
By decision dated April 6, 2006, the Office denied appellant’s occupational disease claim
on the grounds that the evidence of record did not establish that an incident occurred as alleged
and that the medical evidence lacked a diagnosis which could be connected to the claimed work
duties.
Appellant requested reconsideration on May 8, 2006. He submitted an undated form
report entitled “Medical Documentation for Requesting Light Duty” that detailed his work
restrictions.1 Appellant also submitted two reports from Dr. Gurmail S. Brar, a Board-certified
family practitioner. In a January 17, 2006 report, Dr. Brar stated that appellant suffered from “a
condition which affects him physically as well as mentally.” He explained that appellant “gets
muscle spasms in his back, shoulder, neck and also has … chronic low back pain, hip and wrist
pain.” Dr. Brar noted that appellant also suffered from insomnia. He advised that appellant was
able to perform his duties as a mail carrier but that his conditions affected the manner in which
he completed his assigned duties. On August 24, 2005 Dr. Brar diagnosed “depression,
fibromyalgia, chronic back pain and various muscle joint pains.” He noted that appellant “has
had all these symptoms since he returned from the Gulf War.” Appellant also provided an
undated, unsigned duty status report diagnosing Gulf War Syndrome and fibromyalgia.
On April 21, 2006 appellant accepted the employing establishment’s offer of a light-duty
job assignment.
By decision dated July 20, 2006, the Office modified the basis of its denial of the claim.
The Office determined that appellant established that the employment conditions occurred as
alleged. However, it found that appellant had not submitted medical evidence establishing a
specific diagnosis that could be connected to the accepted work duties.
Appellant requested reconsideration on October 4, 2006.
By decision dated January 12, 2007, the Office denied appellant’s request for
reconsideration without conducting a merit review.

1

The signature on the report is illegible.

2

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disabilities and/or specific conditions for which
compensation is claimed are causally related to the employment injury.3 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.4
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.5 The test for determining whether
an employee sustained a compensable occupational disease or injury is three-pronged. To
establish the factual elements of the claim, appellant must submit: “(1) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; (2) a factual statement identifying the factors alleged to have caused or contributed to
the presence or occurrence of the disease or condition; and (3) medical evidence establishing that
the 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 factors identified by the claimant.”6
The medical evidence required to establish causal relationship generally is rationalized
medical opinion 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.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant8 and must be one of reasonable medical certainty9 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.10

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

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

5

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

6

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 4.
7

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

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

10

Judy C. Rogers, 54 ECAB 693 (2003).

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ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty. Appellant submitted the
August 24, 2005 and January 17, 2006 reports of Dr. Brar, who diagnosed various conditions
including depression, Gulf War Syndrome, fibromyalgia, and chronic low back, hip and wrist
pain. However, Dr. Brar did not provide any opinion on causal relationship. He did not explain
how appellant’s various conditions were caused or aggravated by his employment. Dr. Brar did
not discuss appellant’s work duties, but noted merely that appellant’s conditions affected his
ability to perform the functions of his position. The Board has previously held that a medical
report which does not address causal relationship is of diminished probative value on that issue.11
As noted, a medical report that is not fortified by rationale is of limited probative value.12 The
Board finds that Dr. Brar’s reports are of limited probative value as the doctor did not address
causal relationship or provide any explanation or rationale connecting appellant’s claimed
conditions to specific factors of his employment. Moreover, Dr. Brar’s August 24, 2005 report
suggested a different possible cause for appellant’s conditions: he noted that appellant had
exhibited all of his symptoms since returning from service in the Gulf War. The remaining
evidence of record diagnosing Gulf War Syndrome and fibromyalgia is of no probative value as
there is no indication that it was prepared by a physician.13 Accordingly, the Board finds that
appellant did not meet his burden of proof in establishing that he developed an occupational
disease in the performance of duty. The medical evidence does not support that appellant’s
claimed conditions were caused by specific factors of his employment.14
LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Act, the Office has discretion to grant a claimant’s request for
reconsideration and reopen a case for merit review. Section 10.606(b)(2) of the implementing
federal regulation provides guidance for the Office in using this discretion.15 The regulations
provide that the Office should grant a claimant merit review when the claimant’s request for
reconsideration and all documents in support thereof:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
11

See, e.g., Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (medical evidence which does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

See supra note 7; see also Caroline Thomas, 51 ECAB 451, 456 n. 10 (2000); Brenda L. Dubuque, 55 ECAB
212, 217 (2004).
13

See Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB 572 (1988) (unsigned notes of
medical treatment are of no probative value).
14

On appeal, appellant submitted additional evidence. However, the Board may not consider new evidence for
the first time on appeal as its review of a case is limited to the evidence that was in the record which was before the
Office at the time of its final decision. See 20 C.F.R. § 501.2(c).
15

20 C.F.R. § 10.606(b)(2) (1999).

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“(2) Advances a relevant legal argument not previously considered by [the
Office]; or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[the Office].”16
Section 10.608(b) provides that, when an application for review of the merits of a claim
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.17 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.18
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting further merit review.
On October 4, 2006 appellant requested
reconsideration of the Office’s April 6, 2006 decision. He did not submit any legal arguments or
assert that the Office misinterpreted a point of law or fact. The record reflects that no additional
evidence was submitted to the Office. Accordingly, the Office properly denied appellant’s
reconsideration request without reopening the claim as appellant’s request did not meet any of
the above-listed criteria warranting a merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty. The Office properly denied
appellant’s October 4, 2006 request for reconsideration without conducting a merit review.

16

Id.

17

Id. at 10.608(b) (1999).

18

Annette Louise, 54 ECAB 783 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the January 12, 2007 and July 20, 2006 decisions
of the Office of Workers’ Compensation Program are affirmed.
Issued: September 18, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BUREAU OF CUSTOMS & BORDER
PROTECTION, Houston, TX, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 13-86
Issued: June 3, 2013

Oral Argument April 2, 2013

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 16, 2012 appellant filed a timely appeal from April 23 and June 6, 2012 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant forfeited his right to compensation for the period
September 10, 2003 to December 19, 2009; (2) whether OWCP properly terminated
compensation effective February 7, 2012; (3) whether it properly found an overpayment of
$293,335.04 was created; and (4) whether OWCP properly determined that appellant was at fault
in creating the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 2002 appellant, then a 39-year-old K-9 officer, filed a traumatic injury
claim (Form CA-1) alleging that on October 26, 2002 he sustained a back injury when he slipped
and fell on stairs while in the performance of duty. On December 11, 2002 OWCP accepted the
claim for a lumbar strain. Appellant stopped work on October 26, 2002. He received
compensation for temporary total disability. The record indicates that appellant underwent L5S1 surgery on June 3, 2003 and March 17, 2004.
As an employee receiving compensation for wage loss on the periodic rolls, OWCP
periodically sent appellant an EN-1032 form requesting information with respect to any
employment activity, dependents and receipt of any other federal benefits.2 The form requests
information for the preceding 15 months. It states that all self-employment or involvement in
business enterprises must be reported. Appellant signed EN-1032 forms on December 10, 2004,
January 6 and December 12, 2006, December 12, 2007, January 14 and December 19, 2009. On
each form he indicated that he was not employed or engaged in employment activity.
By letter dated November 10, 2011, an employing establishment manager advised OWCP
that on May 27, 2010 appellant had been charged with making a false statement and four counts
of mail fraud. In an investigative report dated December 12, 2011, the Department of Labor’s
Office of the Inspector General (OIG) noted that appellant had submitted EN-1032 forms dated
December 10, 2004, January 6 and December 12, 2006, December 12, 2007, January 24 and
December 19, 2009, reporting no employment activity. The report stated that as of August 2003
appellant was the certified sole owner of a business known as RC Bods Custom Airbrushing. On
February 2, 2007 appellant’s spouse was named the governing authority of a limited liability
corporation known as Herzog Racing. On March 13, 2007 appellant filed an amendment to
make himself the governing authority. The report states that the website for RC Bods Custom
Airbrushing set forth that in early 2003 appellant began to design, layout and customize radio
controlled (RC) model boats and soon after began to make his creations available to other
enthusiasts. In addition, the report noted that the website for Herzog Racing listed new products
for 2009.
With respect to court documents concerning the criminal case, the record contains a
judgment stating that on April 25, 2011 appellant pleaded guilty to one count of false statement
or fraud to obtain FECA benefits under 18 U.S.C. § 1920, and to four counts of mail fraud under
18 U.S.C. § 1341 on January 2 and December 12, 2006, December 12, 2007 and
January 14, 2009. The judgment was signed on September 28, 2011, and noted that a special
assessment of $100.00 was ordered for each count, and “restitution ordered” in the amount of
$6,924.60 to the Department of Labor. A pleading prepared by the United States stated that, if
the case were tried, it would prove beyond a reasonable doubt that during the period covered by
six EN-1032 forms (December 10, 2004, January 6 and December 12, 2006, December 12, 2007,
January 14 and December 19, 2009) appellant was the owner of two businesses. Appellant was
the owner of RC Bods Custom Airbrushing since August 2003 and the owner of Herzog Racing
since 2007. He maintained three bank accounts as owner of Herzog Racing. Appellant also filed
business tax forms for 2007 and 2008 for Herzog Racing.

2

The cover letter is identified as a CA-1032 form, but the form requesting information is identified as EN-1032.

2

By decision dated April 23, 2012, OWCP determined that appellant had forfeited his
compensation from September 10, 2003 to December 19, 2009 as he knowingly omitted his
employment activities on EN-1032 forms.
In a separate decision dated April 23, 2012, OWCP terminated compensation effective
February 7, 2012 on the grounds that appellant pleaded guilty to violations of 18 U.S.C. § 1920
and 18 U.S.C. § 1341. OWCP found that under 5 U.S.C. § 8148 appellant was not entitled to
continuing compensation.
In a letter dated April 23, 2012, OWCP advised appellant of a preliminary determination
that an overpayment of $293,335.04 was created. As to fact of overpayment, it found the
overpayment occurred from September 10, 2003 to December 19, 2009 as all wage loss received
represented an overpayment because appellant forfeited his right to compensation based on the
incorrect EN-1032s.3 OWCP also made a preliminary determination that appellant was at fault
in creating the overpayment. By decision dated June 6, 2012, it finalized the overpayment
determinations.
LEGAL PRECEDENT -- ISSUE 1
Under FECA a claimant may forfeit his or her right to compensation under certain
circumstances. 5 U.S.C. § 8106(b) provides in pertinent part:
“(b) The Secretary of Labor may require a partially disabled employee to report
his earnings from employment or self-employment, by affidavit or otherwise, in
the manner and at times the Secretary specifies.… An employee who-(1) fails to make an affidavit or report when required; or
(2) knowingly omits or understates any part of his earnings;
“forfeits his right to compensation with respect to any period for which the
affidavit or report was required. Compensation forfeited under this subsection, if
already paid, shall be recovered … under section 8129 of this title, unless
recovery is waived under that section.”4
ANALYSIS -- ISSUE 1
OWCP found that appellant knowingly omitted earnings on six EN-1032 forms dated
December 10, 2004, January 6 and December 12, 2006, December 12, 2007, January 14 and
December 19, 2009. The form requires a claimant to provide information regarding any selfemployment or involvement in business activity, whether part time or intermittent and even if the
business lost money.

3

The cover letter described the overpayment period as commencing on August 10, 2003, but the accompanying
memorandum indicates that the overpayment period began on September 10, 2003.
4

5 U.S.C. § 8106(b).

3

The evidence of record establishes that appellant was engaged in business activity from
2003 to 2009. Appellant was the owner of one business, RC Bods Custom Airbrushing, from
August 2003 and the website for the business noted that he was engaged in business activity as
of 2003. According to the investigative reports, he continued to be involved in RC model boat
business activity and became owner of a second business, Herzog Racing, which offered
products and services related to RC model boats from 2007 through 2009.
The EN-1032 forms required appellant to disclose such business activity, even if it was a
part-time or intermittent activity and without regard to whether the business earned a profit. The
characterization of the enterprise as a hobby does not relieve him of the obligation to report the
employment activity as earnings on the EN-1032.5 The period of the form covers the 15 months
prior to completion and signing of the form. The evidence of record establishes that appellant
failed to properly report employment activity on the EN-1032 forms dated December 10, 2004,
January 6 and December 12, 2006, December 12, 2007, January 14 and December 19, 2009.
The next issue is whether the omission was “knowingly” under 5 U.S.C. § 8106(b). The
guilty plea in the criminal case involved four of the EN-1032 forms: January 6 and
December 12, 2006, December 12, 2007 and January 14, 2009. As the Board has noted, a guilty
plea to making false statements on an EN-1032 is persuasive evidence of a knowing omission
under 5 U.S.C. § 8106(b).6 As to the December 10, 2004 and December 19, 2009 EN-1032s, the
Board looks to the circumstances of the case to determine “knowingly” and EN-1032 forms not
covered by a guilty plea may also result in forfeiture.7 In this case there is uncontroverted
evidence that appellant was engaged in employment activities with respect to RC model boats
during the 15-month periods covered by the December 4, 2004 and December 19, 2009 forms.
Given the clear language requiring the disclosure of self-employment activity, the
uncontroverted evidence of continued employment activity, the guilty pleas noted above, the
Board finds that the forfeiture properly includes the December 4, 2004 and December 19, 2009
EN-1032 forms. The period of the forfeiture therefore begins 15 months prior to September 10,
2003 or December 10, 2004 and concludes on December 19, 2009.
LEGAL PRECEDENT -- ISSUE 2
Public Law No. 103-333, enacted on September 30, 1994, amended FECA by adding
section 8148, which provides for forfeiture of compensation benefits by an individual convicted
of fraud with respect to receipt of compensation and prohibits the payment of compensation
benefits to an individual while incarcerated pursuant to a felony conviction. Section 8148(a)
states:
“Any individual convicted of a violation of section 1920 of title 18, or any other
Federal or State criminal statute relating to fraud in the application for a receipt of
any benefit under this subchapter or subchapter III of the this chapter, shall forfeit
(as of the date of such conviction) any entitlement to any benefit such individual
would otherwise be entitled to under this subchapter of subchapter III for any
5

See 20 C.F.R. § 10.5(g).

6

Harold F. Franklin, 57 ECAB 387 (2006); James D. O’Neal, 48 ECAB 255 (1996).

7

See M.C., Docket No. 10-881 (issued February 7, 2011).

4

injury occurring on or before the date of such conviction. Such forfeiture shall be
in addition to any action the Secretary may take under section 8106 or 8129.”8
ANALYSIS -- ISSUE 2
The language of 5 U.S.C. § 8148(a) noted above is clear. Congress provided that an
employee who is convicted of a violation of 18 U.S.C. § 1920 or other statute relating to fraud
with respect to compensation benefits, is not entitled to compensation as of the date of
conviction. The record establishes that appellant pled guilty to violations of 18 U.S.C. § 1920
and 18 U.S.C. § 1341 with respect to receipt of compensation benefits. A copy of the court
judgment recording the guilty pleas signed on September 28, 2011 is included in the record.9
Pursuant to section 8148(a), OWCP properly terminated compensation as of February 7, 2012.
LEGAL PRECEDENT -- ISSUE 3
20 C.F.R. § 10.529 states:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [OWCP] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. [§]
8129 [recovery of overpayments] and other relevant statues.”
ANALYSIS -- ISSUE 3
The Board reviewed the forfeiture issue under the first issue and affirmed OWCP’s
finding that appellant forfeited his right to compensation for the period September 10, 2003 to
December 19, 2009. Since appellant forfeited his right to compensation, pursuant to 20 C.F.R.
§ 10.529 OWCP may declare an overpayment and recover the overpayment in accord with 5
U.S.C. § 8129.
OWCP determined that the gross compensation paid from September 10, 2003 to
December 19, 2009 was $293,335.04. The record contains documentation of OWCP’s
calculations and there is no contrary evidence. The Board finds that OWCP properly found that
the compensation paid of $293,335.04 represented an overpayment.10 It is also noted that the
judgment in the criminal case did order restitution to the Department of Labor. OWCP
8

5 U.S.C. § 8148(a). 20 C.F.R. § 10.17 provides that when a claimant pleads guilty to federal or state criminal
charges of fraud in connection with receipt of Federal Government benefits, the claimant’s entitlement to further
compensation benefits will terminate effective the date the guilty plea is accepted.
9

OWCP procedures indicate that the record should contain a copy of the document containing a guilty verdict or
plea. Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1440.12(d) (March 1997).
10

See Alan L. Trindle, Sr., 53 ECAB 487 (2002) (gross compensation represented amount of overpayment from
forfeiture of compensation).

5

procedures indicate that appellant should receive credit for any restitution amount received under
court order.11 On return of the case record, OWCP should ensure that appellant received credit
for any restitution paid.
LEGAL PRECEDENT -- ISSUE 4
Section 8129(b) of FECA provides: “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.”12 A claimant who is at fault in creating the overpayment is not entitled to
waiver.13 On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at
fault if he or she has done any of the following: “(1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known was incorrect.”
ANALYSIS -- ISSUE 4
As the analysis of the forfeiture issue indicated, OWCP properly found that appellant had
knowingly omitted earnings on the EN-1032 forms December 10, 2004, January 6 and
December 12, 2006, December 12, 2007, January 14 and December 19, 2009. The fault standard
noted above indicates that the failure to provide information which appellant “knew or should
have known” to be material supports a finding that appellant was at fault in creating the
overpayment. The evidence of record established that appellant knowingly failed to provide
material information as to employment activity. Pursuant to 20 C.F.R. § 10.433(2), appellant is
at fault in creating the overpayment and is not entitled to waiver.
On appeal, appellant asserts that the restitution ordered in the criminal case represents all
that he owes to the United States for his actions. OWCP procedures recognize that a court order
stating the restitution amount will be in full satisfaction of the debt owed to the United States (a
Global Settlement) will take precedence over its debt collection process,14 but it is well
established that to constitute a global settlement a court order must clearly state that the
restitution is meant to represent the full satisfaction of any debt owed to the United States.15 The
court order in this case provides no indication that it was meant to represent a global settlement.
The judgment merely ordered $6,924.60 in restitution based on “findings for the total amount of
losses” for the offenses committed and without further detail. The court order does not contain
the explicit, essential language stating that the restitution ordered represented a “global
settlement” with respect to the debt owed to the United States. As noted above, appellant should
11

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.18
(June 2009). See also Martin James Sullivan, 50 ECAB 158 (1998).
12

5 U.S.C. § 8129(b).

13

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.18
(June 2009).
15

See Robert Ringo, 53 ECAB 258 (2001); Joseph Popp, 48 ECAB 624 (1997).

6

receive credit for any restitution paid, but the Board finds that the court order does not represent
a global settlement.
CONCLUSION
The Board finds that appellant forfeited his right to compensation for the period
September 10, 2003 to December 19, 2009, and OWCP properly terminated compensation
effective February 7, 2012. The Board further finds that an overpayment was created from
September 10, 2003 to December 19, 2009. The amount of the overpayment was $293,335.04
minus any restitution paid pursuant to the court judgment. The Board also finds that OWCP
properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 6, 2012 is modified to reflect the amount of the
overpayment, should reflect a credit for restitution paid and be affirmed as modified. The
April 23, 2012 decision is affirmed.
Issued: June 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL
CORRECTIONAL INSTITUTION,
Danbury, CT, Employer
__________________________________________

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

Docket No. 20-1403
Issued: July 21, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 22, 2020 appellant, through counsel, filed a timely appeal from a January 29, 2020
merit decision and a February 27, 2020 nonmerit decision of the Office of Workers’ Compensation

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.

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.3
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted October 30, 2019 employment incident; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of his claim, pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 1, 2019 appellant, then a 44-year-old correctional systems officer, filed a
traumatic injury claim (Form CA-1) alleging that on October 30, 2019 he injured his back, neck,
and hand when his vehicle was struck on the rear passenger side by another vehicle while in the
performance of duty. He noted that he had a sore back and neck, as well as a tingling sensation in
his fingers. Appellant stopped work on October 30, 2019 and returned to work on
November 1, 2019.
In a development letter dated November 7, 2019, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed and
provided a factual questionnaire for his completion. In a separate development letter of even date,
OWCP also requested additional information from the employing establishment. It afforded both
parties 30 days to respond.
In a November 6, 2019 medical report, Dr. Aditya Patel, Board-certified in pain medicine,
indicated that appellant was involved in a motor vehicle collision (MVC) and diagnosed
cervical/thoracic herniated nucleus pulposus (HNP).
A November 9, 2019 magnetic resonance imaging (MRI) scan of the cervical spine
demonstrated multilevel interspace narrowing and dehydration, central disc bulge at C2-3, right
paracentral disc herniation at C3-4 effacing the anterolateral aspect of the subarachnoid space with
right-sided neural foraminal narrowing, central disc bulge at C4-5, central and left lateral disc
herniation at C4-5 effacing the anterolateral subarachnoid space with left-sided neural foraminal
narrowing, central disc bulge at C6-7, and subligamentous central disc herniation at C7-T1
abutting the ventral aspect of the spinal cord.
In a November 18, 2019 response to OWCP’s questionnaire, appellant alleged that he was
leaving the employing establishment’s parking lot when his vehicle was struck on the rear
passenger side by another vehicle. He noted that he had no immediate symptoms following his
2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the February 27, 2020 decision, appellant submitted 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.

2

MVC, but eventually began to experience a tingling sensation in three fingers in the left hand and
soreness in the upper back and the left side of his neck.
A November 26, 2019 MRI scan of the thoracic spine demonstrated multilevel spondylosis,
multilevel interspace narrowing and dehydration, central and left paracentral disc bulge at T1-2,
central disc bulge at T2-3, mild left lateral disc herniation at T3-4, central disc herniation with
right neuroforaminal narrowing at T4-5, broad-based disc herniation partly effacing the anterior
subarachnoid space at T6-7, broad-based and right paracentral disc herniation at T8-9, and central
and right paracentral disc herniation at T11-12.
In a December 8, 2019 medical report, Dr. Daniel Schlusselberg, a diagnostic radiologist,
noted that appellant was injured on October 30, 2019 and diagnosed thoracic spine pain and
cervical radiculopathy.
By decision dated December 16, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had not submitted sufficient evidence to establish causal relationship between his
diagnosed conditions and the accepted October 30, 2019 employment incident.
On January 28, 2020 appellant requested reconsideration.
In a January 15, 2020 narrative report, Dr. Sukdeb Datta, Board-certified in pain medicine,
noted that appellant presented with neck, back, and left upper extremity pain, as well as headache.
He indicated that appellant sustained multiple injuries from being involved in an MVC at work on
October 30, 2019 when he was leaving his work facility. Dr. Datta reviewed appellant’s MRI
scans of the cervical and thoracic spines and an electromyography and nerve conduction velocity
(EMG/NCV) study of the left upper extremity. He also conducted a physical examination and
diagnosed cervical and thoracic disc herniation, spondylosis, and radiculopathy. Based on
appellant’s history and physical examination findings, Dr. Datta opined to a reasonable degree of
medical certainty that the accepted October 30, 2019 employment incident caused his diagnosed
conditions.
By decision dated January 29, 2020, OWCP denied modification of the December 16, 2019
decision.
On February 13, 2020 appellant requested reconsideration. With his request, he
resubmitted copies of the November 9, 2019 cervical spine MRI scan and the November 26, 2019
thoracic spine MRI scan, as well as the January 15, 2020 report from Dr. Datta, previously of
record.
By decision dated February 27, 2020, OWCP denied appellant’s request for
reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

3

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted October 30, 2019 employment incident.

4

Supra note 2.

5

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

In a January 15, 2020 narrative report, Dr. Datta provided a history of the accepted
October 30, 2019 employment incident, discussed his examination findings, and diagnosed
cervical and thoracic disc herniation, spondylosis, and radiculopathy. Based on appellant’s history
and physical examination findings, he opined, to a reasonable degree of medical certainty, that
appellant’s accepted October 30, 2019 employment incident caused his diagnosed conditions.
While his opinion is generally supportive of causal relationship, Dr. Datta has not provided
adequate medical rationale explaining how and why he believes that being involved in a workrelated MVC could have resulted in or contributed to the diagnosed conditions. The Board has
held that a report is of limited probative value regarding causal relationship if it does not contain
medical rationale explaining how a given medical condition/disability was related to the
employment incident.11 Therefore, this report is insufficient to establish appellant’s claim.
In a November 6, 2019 medical report, Dr. Patel indicated that appellant was involved in
an MVC. He diagnosed cervical/thoracic HNP, but failed to specifically relate the diagnosed
condition to the accepted October 30, 2019 employment incident. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.12 Thus, the report is also insufficient to meet
appellant’s burden of proof.
Dr. Schlusselberg, in his December 8, 2019 report, indicated that appellant was injured on
October 30, 2019 and diagnosed thoracic spine pain and cervical radiculopathy. However, the
Board has held that pain is a symptom and not a compensable medical diagnosis.13 Lacking a firm
diagnosis and reasoned medical opinion regarding causal relationship, this report is also
insufficient to meet appellant’s burden of proof.14
Appellant additionally submitted a November 9, 2019 cervical spine MRI scan and a
November 26, 2019 thoracic spine MRI scan. The Board has held, however, that diagnostic
studies, standing alone, lack probative value on the issue of causal relationship as they do not
provide an opinion on causal relationship between an employment incident and a diagnosed
condition.15
As appellant has not submitted sufficient medical evidence to establish a medical condition
causally related to the accepted October 30, 2019 employment injury, the Board finds that he has
not met his burden of proof to establish his claim.

11

See S.Y., Docket No. 20-0470 (issued July 15, 2020); T.J., Docket No. 19-1339 (issued March 4, 2020).

12
N.D., Docket No. 20-0991 (issued January 12, 2021); J.R., Docket No. 20-0292 (issued June 26, 2020); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

14

J.R., supra note 12; T.G., Docket No. 19-0904 (issued November 25, 2019).

15

M.M., Docket No. 20-0019 (issued May 6, 2020).

5

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.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.16
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (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.17
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.18 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.19 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.20
ANALYSIS -- ISSUE 2
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).
Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, he has not advanced a relevant legal argument not previously

16

5 U.S.C. § 8128(a); see M.S., Docket No. 19-1001 (issued December 9, 2019); L.D., Docket No. 18-1468 (issued
February 11, 2019); see also V.P., Docket No. 17-1287 (issued October 10, 2017); W.C., 59 ECAB 372 (2008).
17

20 C.F.R. § 10.606(b)(3); see also E.W., Docket No. 19-1393 (issued January 29, 2020); L.D., id.; B.W., Docket
No. 18-1259 (issued January 25, 2019).
18

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
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.
19

Id. at § 10.608(a); see also Y.H., Docket No. 18-1618 (issued January 21, 2020); R.W., Docket No. 18-1324
(issued January 21, 2020); M.S., 59 ECAB 231 (2007).
20
Id. at § 10.608(b); D.C., Docket No. 19-0873 (issued January 27, 2020); M.S., Docket No. 19-0291 (issued
June 21, 2019).

6

considered. Consequently, appellant is not entitled to a review of the merits of his claim based on
the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).21
Further, appellant has not provided relevant and pertinent new evidence in support of his
request for reconsideration. On reconsideration he resubmitted copies of the November 9, 2019
cervical spine MRI scan and the November 26, 2019 thoracic spine MRI scan, as well as the
January 15, 2020 report from Dr. Datta. The Board has held that the submission of evidence or
argument which repeats or duplicates evidence or argument already in the case record does not
constitute a basis for reopening a case and thus, these reports also insufficient to warrant a merit
review.22 As appellant failed to provide relevant and pertinent new evidence related to the
underlying issue of causal relationship, he was not entitled to a merit review based on the third
requirement under 20 C.F.R. § 10.606(b)(3).
The Board accordingly finds that OWCP properly determined that appellant was not
entitled to further review of the merits of his claim pursuant to any of the three requirements under
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.23
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted October 30, 2019 employment incident. The Board
further finds that OWCP properly denied his request for reconsideration of the merits of his claim
pursuant to 5 U.S.C. § 8128(a).

21

See M.O., Docket No. 19-1677 (issued February 25, 2020); C.B., Docket No. 18-1108 (issued January 22, 2019).

22
D.M., Docket No. 18-1003 (issued July 16, 2020); L.C., Docket No. 19-0503 (issued February 7, 2020); A.A.,
Docket No. 18-0031 (issued April 5, 2018); Eugene F. Butler, 36 ECAB 393, 398 (1984).
23

D.M., id.; Susan A. Filkins, 57 ECAB 630 (2006) (when a request for reconsideration does not meet at least one
of the three requirements enumerated under section 10.606(b), OWCP will deny the request for reconsideration
without reopening the case for a review on the merits).

7

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2020 and January 29, 2020
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: July 21, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1177
Issued: December 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 31, 2009 appellant filed a timely appeal from an November 21, 2008 merit
decision of the Office of Workers’ Compensation Programs denying reconsideration of a July 13,
2007 merit decision. Pursuant to 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 established that he sustained an injury in the performance
of duty causally related to his employment.
FACTUAL HISTORY
On April 2, 2007 appellant, a 48-year-old postal employee, alleged that he sustained
recurrence of disability (Form CA-2a) on March 23, 2007 causally related to his December 18,
2005 accepted employment-related back injury.1 He alleged that his light-duty assignment
caused his back condition to worsen producing a sore back and an aggravated sciatic nerve.
1

OWCP File No. xxxxxx954.

Appellant alleged that walking back and forth on concrete floors for four hours a day aggravated
his sciatic nerve. The Office converted his claim to a new occupational disease claim.
The employing establishment controverted appellant’s claim noting that appellant had
returned to work for three four-hour days from March 21 to 23, 2007 following his
December 2005 accepted injury. Appellant was placed on limited duty repairing damaged mail,
which was a seated position and only required lifting one piece of damaged mail at a time,
repairing it with scotch tape and placing the piece of mail in a moving hamper.
In a report dated January 12, 2007, Dr. Michael Cronen, an osteopath, reviewed
appellant’s medical history noting that appellant had a previous work-related injury which had
resulted in a laminectomy at L2-3. He noted that appellant had undergone physical therapy
postsurgery, but had not received any medical care since March 2006. Dr. Cronen opined that
appellant was “probably having residual neuropathic pain due to L1-2 nerve root pathology.”
Appellant also submitted progress notes dated January 11, February 3 and March 5, 2007,
signed by Dr. Cronen, and an April 26, 2007 report, signed by Dr. Michael J. Doyle, a Boardcertified neurosurgeon, diagnosing low back pain and degenerative disc disease.
In a report dated May 23, 2007, Dr. Rodney Chou, a Board-certified physiatrist, reported
findings on examination, reviewed appellant’s history of injury and diagnosed lumbago and
lumbar postlaminectomy syndrome.
By decision dated July 13, 2007, the Office denied appellant’s claim because the
evidence of record did not establish that the alleged medical condition was caused by
employment factors as required by the Act.
On July 16, 2007 the Office received additional medical evidence. Appellant submitted a
January 23, 2007 note, signed by Dr. Doyle, which diagnosed low back pain and degenerative
disc disease and provided work restrictions. In a subsequent note dated April 26, 2007,
Dr. Doyle reported findings on examination and reviewed appellant’s history of injury. He noted
that appellant reported standing for four hours at a time worsened his symptoms. In other reports
(Form CA-20), Dr. Doyle diagnosed low back pain and degenerative disc disease which he
attributed to appellant’s employment activities involving lifting trays of mail. He indicated that
appellant was required to lift tubs of mail weighing 30 to 45 pounds from the floor to above his
head, and that appellant was not allowed to rest. Dr. Doyle noted that appellant could continue
to work with some pain or apply for disability.
On July 24, 2007 and September 2, 2008 appellant requested reconsideration.
On July 26, 2007 the Office received a January 18, 2007 report signed by Dr. David
Linkous, a radiologist, who reported that a magnetic resonance imaging (MRI) scan of
appellant’s lumbar spine revealed no evidence of recurrent disc abnormality at the L3-4 level.
Dr. Linkous diagnosed disc bulges at the L4-5 and L5-S1 levels.
Appellant submitted a note dated September 19, 2007, signed by a Dr. Sherrell W.
Nunnelly, who reviewed appellant’s history of injury, presented findings on examination and
diagnosed lumbar strain.
2

By decision dated November 21, 2008, the Office denied modification of its July 13,
2007 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of the claim, including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was filed within
the applicable time limitation, that an injury was sustained while in the performance of duty as
alleged and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.3 These are essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
ANALYSIS
Appellant initially filed this claim as a recurrence of disability. A recurrence of disability
is defined as the inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition which has resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the
condition.6
Appellant returned to work following a December 18, 2005 injury on March 21, 2007.
In filing his recurrence claim, appellant did not allege that he sustained a spontaneous change in
his medical condition following his return to work, but rather he alleged that walking for four
hours a day performing limited duty caused an aggravation of his back condition. Based upon
appellant’s allegations the Office properly converted appellant’s claim to an occupational disease
claim.
Appellant’s burden is to establish that his alleged condition was caused by factors of his
employment. Causation is a medical issue that can only be proven by competent, probative
2

5 U.S.C. §§ 8101-8193.

3

C.S., 60 ECAB __ (Docket No. 08-1585, issued March 3, 2009).

4

S.P., 59 ECAB __ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

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

6

Cecelia M. Corley, 56 ECAB 662 (2005).

3

medical opinion evidence. The evidence of record is insufficient and, accordingly, appellant has
not satisfied his burden of proof.7
The relevant medical evidence of record consists of reports and notes signed by
Drs. Chou, Cronen, Doyle, Linkous and Nunnelly. Taken as a group, these reports and notes are
of little probative value on the issue of causal relationship as they lack an opinion concerning
how the identified employment factors caused the conditions diagnosed.8 The only reports that
even attempted to address causal relationship were from Dr. Doyle. While Dr. Doyle repeated
appellant’s allegation that standing for four hours at a time caused his symptoms to worsen, he
was not provided a proper description of appellant’s limited-duty position, which only required
sitting for four hours a day. Furthermore, he provided no medical rationale explaining how the
employment activity alleged by appellant would have caused his current condition. Therefore,
Dr. Doyle’s opinion is of little probative value on the issue of causation. The Board notes that
Dr. Doyle also attributed appellant’s condition, without adequate supporting medical rationale, to
lifting trays of mail. Dr. Doyle indicated that appellant was lifting trays weighing 30 to 45
pounds from the floor to above his shoulders. He did not demonstrate awareness that appellant
had been placed on limited duty upon his return to work. The factors that comprise the
evaluation of medical evidence include the physician’s relative area of expertise, the opportunity
for and thoroughness of physical examination, the accuracy and completeness of the physician’s
knowledge of the facts and medical history and the care of analysis manifested in reaching his
conclusions.9 Such deficiencies reduce the probative value of this evidence on the issue of
causal relationship. Accordingly, this evidence is insufficient to satisfy appellant’s burden of
proof.
The fact that a condition manifests itself or worsens during a period of employment10 or
that work activities produce symptoms revelatory of an underlying condition11 does not raise an
inference of causal relationship between a claimed condition and employment factors. Appellant
has not submitted sufficient competent and probative medical evidence supporting his claim and,
therefore, he has not satisfied her burden of proof.

7

The Board notes that appellant submitted reports signed by a registered nurse, a nurse practitioner and a physical
therapist. Because healthcare providers such as nurses, acupuncturists, physician’s assistants and physical therapists
are not considered physicians under the Act, their reports and opinions do not constitute competent medical
evidence. 5 U.S.C. § 8101(2); see also G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007);
Jerré R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB
515 (1983).
8

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB
332 (2001).
9

Cecelia M. Corley, 56 ECAB 662 (2005).

10

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

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

4

CONCLUSION
The Board finds appellant has not established that he sustained recurrence of disability
causally related to his accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
C.B. Weiser, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1101
Issued: January 17, 2019

Case Submitted on the Record

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

JURISDICTION
On May 7, 2018 appellant, through counsel, filed a timely appeal from a November 13,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $120,114.57 for the period November 1, 2007
through March 4, 2017; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$950.00 every 28 days from appellant’s continuing compensation.
FACTUAL HISTORY
On May 2, 2000 appellant, then a 58-year-old clerk,3 filed a traumatic injury claim (Form
CA-1) alleging that, on April 24, 2000, she suffered a panic attack due to ongoing harassment by
employing establishment superiors. She stopped work on the date of the claimed injury.
Following OWCP’s initial denial of the claim on August 21, 2000, on October 24, 2001
OWCP accepted the claim for depression and anxiety disorder. It paid appellant retroactive wageloss compensation and placed her on the periodic compensation rolls. Appellant has not returned
to work.
Appellant signed EN1032 forms on an annual basis beginning February 21, 2008. In the
forms signed in 2008 to 2011, she reported receiving Social Security Administration (SSA)
benefits, and on the EN1032 forms signed on January 23, 2012, February 3, 2013, and January 24,
2014, she reported that she was receiving age-related SSA benefits. On the EN1032 form signed
February 10, 2015, appellant reported no SSA benefits, and on the EN1032 forms she signed on
January 14, 2016, January 26, 2017, and January 24, 2018, she reported that she received agerelated SSA benefits.
OWCP forwarded a Federal Employees Retirement System (FERS)/SSA dual benefits
calculation form to SSA on January 28, 2016. SSA returned the form on April 21, 2016. It
indicated that, beginning in November 2007, appellant’s SSA rate with FERS was $1,182.40 and
without FERS was $234.50; beginning in December 2007, appellant’s SSA rate with FERS was
$1,209.50 and without FERS was $239.80; beginning in January 2008, appellant’s SSA rate with
FERS was $1,218.30, and without FERS was $239.80; beginning in December 2008,
December 2009, and December 2010, appellant’s SSA rate with FERS was $1,288.90 and without
FERS was $253.70; beginning in December 2011, appellant’s SSA rate with FERS was $1,335.30
and without FERS was $262.80; beginning in December 2012, appellant’s SSA rate with FERS
was $1,358.00 and without FERS was $267.20; beginning in December 2013, appellant’s SSA
rate with FERS was $1,378.30 and without FERS was $271.20; beginning in December 2014 and
December 2015, appellant’s SSA rate with FERS was $1,401.70 and without FERS was $275.80.
By letter dated March 8, 2017, OWCP notified appellant that, based on information
provided by SSA regarding the amount of her SSA benefit attributable to her federal service, her
FECA wage-loss compensation had been adjusted. The record indicates this adjustment was
effective March 5, 2017.
3

Appellant’s date of birth is in January 1942.

2

On April 4, 2017 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $120,114.57 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefit that she received from November 2, 2007
through March 4, 2017 was based on credits earned while working in the Federal Government,
and that this portion of her SSA benefit was prohibited because it was a dual benefit. OWCP found
her without fault in the creation of the overpayment and provided an overpayment action request
form and an overpayment recovery questionnaire (OWCP-20) for her completion. It informed
appellant that, in order for it to consider the question of waiver or to determine a reasonable method
for collection, she must provide a completed OWCP-20 form, and attach supporting financial
documentation, including copies of income tax returns, bank statements, bills, canceled checks,
pay slips, and any other record to support claimed income and expenses. OWCP notified her that
failure to submit the requested information within 30 days would result in the denial of waiver.
Appellant requested a prerecoupment hearing with OWCP’s Branch of Hearings and
Review. She maintained that she was without fault and requested waiver. Appellant indicated
that her granddaughter was a dependent and noted monthly expenses related to her care. She also
reported that she had medical expenses for abdominal surgery in November 2006, a head cyst
removal in 2007 or 2009, removal of cancerous cysts from shoulder and back in 2009, and a right
knee replacement in 2013. On the overpayment recovery questionnaire, appellant wrote that she
had monthly income of $2,893.73, listed approximate monthly expenses of $1,500.00, and assets
included a checking account balance of $2,578.80 and $65,000.00 in other property. She attached
additional financial information that indicated that she had a bank account balance of $53,306.17.
During the hearing, held on September 27, 2017, appellant testified that she had not
adopted her granddaughter, but visited her twice monthly. Her psychologist, Gerald E. Boutin,
Ph.D, testified that appellant was cognitively impaired due to recent brain surgery, with short-term
memory difficulties. OWCP’s hearing representative advised appellant that she should itemize
her expenses and submit bills for verification, including any exceptional medical costs. Appellant
was given 30 days to submit additional evidence. No further evidence was submitted.
By decision dated November 13, 2017, an OWCP hearing representative finalized the
April 4, 2017 preliminary overpayment determination, finding that an overpayment of
compensation in the amount of $120,114.57 had been created. He explained that the overpayment
occurred because a portion of appellant’s SSA benefits that she received from November 1, 2007
to March 4, 2017 was based on credits earned while working in the Federal Government, and that
this portion of her SSA benefit was a prohibited dual benefit. The hearing representative found
appellant without fault in the creation of the overpayment, but denied waiver of recovery as there
was no evidence to support that recovery would be against good conscious or defeat the purpose
of FECA. He calculated appellant’s monthly income from SSA, FECA, and other disbursements
reported, for a total monthly income of $3,203.00 and allowed monthly expenses of $1,972.00.
The hearing representative further noted that appellant had reported total assets of $115,595.00
and set repayment at $950.00, to be deducted each period from appellant’s continuing FECA
compensation.

3

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.4 Section 8116 limits the right of an employee to receive compensation:
While an employee is receiving compensation, he or she may not receive salary, pay or
remuneration of any type from the United States.5
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA benefits that are attributable to federal service of the
employee.6 FECA Bulletin No. 97-09 states that FECA benefits must be adjusted for the FERS
portion of SSA benefits because the portion of the SSA benefit earned as a federal employee is
part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.7
Section 404.310 of SSA’s regulations provides that entitlement to SSA compensation
begins at 62 years.8 Section 404.409 of SSA’s regulations provides that for individuals born from
January 2, 1942 to January 2, 1943, retirement age is 65 years 10 months.9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$120,114.57 as identified by OWCP. A review of its calculation reveals that by adding the annual
overpayment amounts, a total overpayment of $120,114.57 is found.
OWCP found that an overpayment of compensation was created for the period
November 1, 2007 to March 4, 2017. The overpayment was based on the evidence received from
SSA with respect to benefits paid to appellant. The record indicates that while appellant was
receiving compensation for total disability under FECA, she also received SSA age-based
retirement benefits. A claimant cannot receive concurrent FECA wage-loss compensation and
SSA retirement benefits attributable to federal service for the same period.10 The information
provided by SSA indicated that appellant received age-based SSA benefits that were attributable
to federal service during the period November 1, 2007 to March 4, 2017.

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

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

7

FECA Bulletin No. 97-09 (issued February 3, 1997).

8

20 C.F.R. § 404.310.

9

Id. at § 404.409.

10

Supra notes 8 and 9.

4

To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received evidence from SSA with respect
to the specific amount of age-based SSA retirement benefits that were attributable to federal
service. SSA provided the SSA rate with FERS, and without FERS for specific periods
commencing in November 2007 through March 2017. OWCP provided its calculations for each
relevant period based on the SSA worksheet. No contrary evidence was provided. The Board has
reviewed OWCP’s calculation of benefits received by appellant for the period November 1, 2007
to March 4, 2017 and finds that an overpayment of compensation in the amount of $120,114.57
was created.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”12 Section 10.438 of OWCP regulations provides that 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
on an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.13
The guidelines for determining whether recovery of an overpayment would defeat the
purpose of FECA or would be against equity and good conscience are set forth in sections 10.434
to 10.437 of OWCP regulations.14
Section 10.436 provides that 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 current income (including compensation benefits) to meet current ordinary and necessary
living expenses and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.15 For waiver under
the defeat the purpose of FECA standard, appellant must show that he or she needs substantially
all of his or her current income to meet current ordinary and necessary living expenses, and that
assets do not exceed the resource base.16 An individual is deemed to need substantially all of his

11

See G.K., Docket No. 18-0243 (issued August 17, 2018).

12

5 U.S.C. § 8129.

13

20 C.F.R. § 10.438.

14

Id. at §§ 10.434-10.437.

15

Id. at. § 10.436.

16

Id.

5

or her current income to meet current ordinary and necessary living expenses if monthly income
does not exceed monthly expenses by more than $50.00.17
OWCP’s procedures in effect at the time of the November 13, 2017 decision18 provide that
the assets must not exceed a resource base of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or dependent plus $960.00 for each additional dependent.19 An
individual’s liquid assets include, but are not limited to cash, the value of stocks, bonds, saving
accounts, mutual funds, and certificate 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, and
furnishings/supplies.20
Recovery of an overpayment is also considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be made,
gives up a valuable right or changes his or her position for the worse.21 OWCP procedures provide
that to establish that a valuable right has been relinquished, it must be shown that the right was in
fact valuable, that it cannot be regained and that the action was based chiefly or solely in reliance
on the payments or on the notice of payment.22 Donations to charitable causes or gratuitous
transfers of funds to other individuals are not considered relinquishments of valuable rights.23 An
individual must show that he or she made a decision he or she otherwise would not have made in
reliance on the overpaid amount and that this decision resulted in a loss.24
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.25
Appellant has not established that recovery of the overpayment would defeat the purpose
of FECA because her assets exceed the resource base of $4,800.00, as provided in OWCP
17
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6.a(1)(b) (June 2009).
18

The procedures were revised in September 2018.

19

Supra note 17.

20

Id.

21

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

22

Federal (FECA) Procedure Manual, supra note 17 at Chapter 2.600.b(3) (June 2009).

23

20 C.F.R. § 10.437(b)(1) (2011); see J.A., Docket No. 09-1678 (issued June 9, 2010).

24

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

25

Id. at § 10.436.

6

procedures.26 The supporting financial information of record documents assets in the amount of
$115,595.00. Because appellant has not met the second prong of the two-prong test of whether
recovery of the overpayment would defeat the purpose of FECA, it is not necessary to consider
the first prong of the test, i.e., whether her monthly income exceeded her monthly ordinary and
necessary expenses by more than $50.00.27 Appellant did not establish that she was entitled to
waiver of recovery of the overpayment on the basis of defeating the purpose of FECA.28
Counsel contends on appeal that OWCP’s hearing representative did not properly consider
reported expenses. However, as noted above, OWCP need not address whether appellant’s
monthly expenses exceeded her monthly income as her assets exceed the resource base of
$4,800.00.29 Moreover, the guidelines for determining ordinary and necessary expenses are set
forth in OWCP’s procedures, and the Board finds that the hearing representative properly
calculated such expenses in this case.30
As appellant failed to establish that recovery of the overpayment of compensation would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that OWCP
did not abuse its discretion in denying waiver of recovery.31
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.32
Section 10.441 of OWCP’s regulations provides that when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or her attention is called to the
same. If no refund is made, OWCP shall decrease later payments of compensation, 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 hardship.33
ANALYSIS -- ISSUE 3
The Board finds that OWCP gave due regard to the relevant factors noted above in setting
a rate of recovery of $950.00 per compensation period, i.e., every 28 days, and finds that OWCP’s
26

Id.

27

Id.

28

See K.K., Docket No. 09-0207 (issued October 2, 2009).

29

Supra note 17.

30

20 C.F.R. § 10.437; see also D.C., Docket No. 17-0559 (issued June 21, 2018).

31

G.K., supra note 11.

32

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

33

Id.

7

hearing representative did not abuse his discretion in setting appellant’s monthly expenses at
$1,411.00 per month.
The record indicates that appellant’s monthly income exceeds her reported monthly
expenses. OWCP therefore did not abuse its discretion in finding that appellant should repay the
overpayment at the rate of $950.00 per 28 days from her continuing compensation.34
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $120,114.57, and that OWCP properly denied waiver of
recovery of the overpayment. OWCP also properly required recovery of the overpayment by
deducting $950.00 every 28 days from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 17, 2019
Washington, DC

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

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

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

34

N.S., Docket No. 14-2081 (issued February 12, 2015).

8