United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
U.S. POSTAL SERVICE, NORTH KENNER
POST OFFICE, Kenner, LA, Employer
__________________________________________

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

Docket No. 09-1015
Issued: March 8, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 9, 2009 appellant filed a timely appeal from a February 17, 2009 decision of
the Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of compensation in the amount of $253.07 for the period January 13 to 17, 2009;
and (2) whether the Office properly determined that appellant was at fault in the creation of the
overpayment and therefore not entitled to waiver.
On appeal, appellant does not contest the fact or amount of the overpayment but contends
that she is not at fault in creating the overpayment. She had no authority to stop the Office’s
direct deposit of the compensation payment covering January 13 to 17, 2009.

FACTUAL HISTORY
The Office accepted that, on or before February 4, 1997, appellant, then a 38-year-old
clerk, sustained bilateral carpal tunnel syndrome requiring left median nerve release.1 It
previously accepted that appellant dislocated her left patella on May 3, 1991, requiring surgery.2
The Office also accepted that on August 23, 1999 appellant sustained cervical and lumbar
strains, a right hip contusion and right knee contusion in the performance of duty.3
Appellant received wage-loss compensation for periods of intermittent disability. On
October 1, 2006 the Office placed her case on the periodic rolls. It issued appellant’s
compensation payments by direct deposit (electronic funds transfer).
Appellant underwent a right median nerve release on October 16, 2008.
October 16, 2008, appellant received $1,417.28 every 28 days on the periodic rolls.

As of

In a December 9, 2008 letter, the Office advised appellant that she would receive
compensation for temporary total disability from October 16 to December 20, 2008. It noted that
compensation benefits for total disability were payable only while she could not perform her
regular job duties due to the accepted injury. A December 23, 2008 worksheet showed that the
next scheduled compensation payment would be issued on January 17, 2009, covering the period
December 21, 2008 to January 17, 2009.
On January 13, 2009 appellant returned to work for four hours a day and so advised the
Office. In a January 13, 2009 letter, the Office acknowledged her return to work and her prompt
notification. It noted that appellant would receive a final compensation check partially covering
the period after her return to work. The Office advised her that to avoid an overpayment, she
should return this payment and the Office would then issue “another check covering the
appropriate period.”
4

By notice dated January 15, 2009, the Office advised appellant of its preliminary
determination that an overpayment was created in her case as she received temporary total
disability compensation while working from January 13 to 17, 2009. The overpayment existed
administratively as the Office was unable to stop or modify the electronic compensation payment
to be issued on January 17, 2009. The Office divided appellant’s net compensation of $1,417.21
by 28, resulting in $50.61. It then multiplied $50.61 by 5, the number of days appellant received
compensation after returning to work, resulting in an overpayment of $253.07. The Office found
appellant at fault as she knew or should have known she was not entitled to wage-loss
1

The Office assigned the carpal tunnel syndrome claim File No. xxxxxx530.

2

The Office assigned the left knee injury claim File No. xxxxxx814.

3

The Office assigned the August 23, 1999 injury claim File No. xxxxx853. In 2004, the Office designated File
No. xxxxxx814 as the master file number in the case. The Office then doubled files xxxxx853 and xxxxxx530 under
File No. xxxxxx814.
4

As of 1996, appellant’s physicians restricted her to working four hours a day. As there was a wage-earning
capacity determination in place under File No. xxxxxx814 based on appellant’s actual earnings working four hours a
day, the Office considered appellant’s January 13, 2009 return to work as a resumption of full duty.

2

compensation benefits while working full time. It afforded her 30 days to submit additional
evidence and argument.
On January 17, 2009 the Office issued an electronic compensation payment in the amount
of $1,417.21, covering the period December 21, 2008 to January 17, 2009.
In a January 20, 2009 overpayment recovery questionnaire (Form OWCP-20), appellant
did not contest the fact or amount of the overpayment. She asserted that she was not at fault in
the creation of the overpayment as she could not stop the Office from making the direct deposit
after she returned to work.
By decision dated February 17, 2009, the Office finalized the January 15, 2009 notice,
finding a $253.07 overpayment of compensation for the period January 13 to 17, 2009. It found
appellant at fault in creating the overpayment because she knew or should have known she was
not entitled to receive total disability compensation while working. The Office further found
that, as appellant was at fault, recovery of the overpayment could not be waived. It directed
recovery of the overpayment by lump-sum check.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act5 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 his duty.6 Section 8129(a) of the Act provides, in
pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”7 The
Office’s procedure manual identifies various situations when overpayments of compensation
may occur, including when a claimant receives compensation for total disability after returning
to work.8
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral carpal tunnel syndrome, disabling
her for work for intermittent periods through January 12, 2009. Appellant returned to work on
January 13, 2009 with no loss of wages.
The evidence reflects and appellant does not dispute that she received wage-loss
compensation from the Office in the amount of $253.07 for the period January 13 to 17, 2009.
As she was not entitled to receive any disability compensation as of January 13, 2007, the Board
5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8102(a).

7

Id. at § 8129(a).

8

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2.a
(May 2004).

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finds that the Office correctly determined that appellant received an overpayment of
compensation in the amount $253.07 for the period in question.9
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.10 Section 10.433 of the implementing regulations specifically provide that the
Office may consider waiving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.11 The regulations further provide that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.12 Under the regulations, a recipient
will be found to be at fault with respect to creating an overpayment if the recipient on the issue
of fault, section 10.433 of the Office’s regulations, provide 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.13
Section 10.433(b) of the Office’s regulations provide, in relevant part, that the
determination of fault “depends on the circumstances surrounding the overpayment. The degree
of care expected may vary with the complexity of those circumstances and the individual’s
capacity to realize that he or she is being overpaid.”14
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment because
she accepted a payment that she knew or should have known to be incorrect.
Appellant returned to work on January 13, 2009 and notified the Office the same day.
The Office acknowledged appellant’s return to work but noted that there was no means to stop
the periodic rolls deposit scheduled for January 17, 2009 although it would include an
overpayment. The record establishes that, on January 17, 2009, the Office made a direct deposit
of $1,417.21 into appellant’s bank account. As noted, this disbursement included an
overpayment of $253.07.
9

Alberto Pineiro, 51 ECAB 310 (2000).

10

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

11

20 C.F.R. § 10.433(a).

12

Id.

13

Id. at § 10.433(a)(3).

14

Id. at § 10.433(b).

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On January 15, 2009 the Office issued a preliminary determination of the overpayment.
It found that appellant was aware or should have been aware that she was not entitled to the
entire payment to be issued on January 17, 2009. The Board has held that an employee who
receives payments from the Office in the form of direct deposit may not be at fault the first time
incorrect funds are deposited into his or her account, as the acceptance of the resulting
overpayment lacks the requisite knowledge.15
In this case, appellant knew that the January 17, 2009 deposit would contain an
overpayment. However, the Office advised her that there was no way to stop or correct the
scheduled deposit. On appeal, appellant contends that she should not be at fault for “accepting”
a deposit which she knew would be in error but that the Office could not stop. Under the
circumstances of this case, the Board concurs. Both appellant and the Office were aware of the
administrative existence of the overpayment on January 13, 2009, four days before the actual
deposit occurred. The creation of the overpayment was not appellant’s fault. It resulted from the
automatic nature of the Office’s compensation payment system. The Office’s finding of fault
was improper.
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $253.07. The Board further finds that appellant
was not at fault in creation of the overpayment.16

15

W.P., 59 ECAB ___ (Docket No. 08-202, issued May 8, 2008).

16

The Board’s jurisdiction is limited to reviewing those cases where the Office seeks recovery from continuing
compensation payments under the Act. Desiderio Martinez, 55 ECAB 245 (2004). As appellant is not in receipt of
continuing compensation payments, the Board has no jurisdiction to review the recovery issue in this case.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 17, 2009 is affirmed with respect to fact and amount of
the overpayment and reversed with respect to the finding of fault.
Issued: March 8, 2010
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 12-1860
Issued: May 14, 2013

Case Submitted on the Record

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

JURISDICTION
On September 6, 2012 appellant filed a timely appeal of a July 27, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her claimed recurrence of
disability. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability causally related to her September 26, 2000 employment injury.
FACTUAL HISTORY
On September 26, 2000 appellant, then a 22-year-old rural carrier associate, filed a
traumatic injury claim alleging that she sprained her right ankle while delivering mail in the

1

5 U.S.C. § 8101 et seq.

performance of duty. OWCP accepted her claim for right ankle sprain on November 16, 2000.
Appellant received compensation benefits through December 20, 2000.
In a letter dated February 1, 2012, appellant requested additional medical treatment for
her right ankle condition. She noted that she was disabled due to bipolar disorder and no longer
worked for the employing establishment. Appellant filed a recurrence of disability claim on
April 22, 2012 alleging loss of bone mass and pain due to arthritis and a right ankle sprain.
In a letter dated May 2, 2012, OWCP requested additional medical evidence from
appellant including a narrative medical report addressing her history of injury, current clinical
findings, test results and diagnostic studies.
By decision dated July 27, 2012, OWCP denied appellant’s claim on the grounds that she
failed to submit any evidence in support of her claimed recurrence of disability.2
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.3
Appellant has the burden of establishing by the weight of the substantial, reliable and
probative evidence a causal relationship between her recurrence of disability and her
September 26, 2000 employment injury.4 This burden includes the necessity of furnishing
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.5
ANALYSIS
Appellant filed a recurrence of disability claim on April 22, 2012 alleging that she had
loss of bone mass due to arthritis resulting from her September 26, 2000 employment-related
right ankle sprain. She did not submit any medical evidence in support of her claim.

2

On appeal to the Board, appellant submitted new evidence. As OWCP did not consider this evidence in
reaching a final decision, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
3

20 C.F.R. § 10.5(x).

4

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-09 (1982).

5

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

2

As appellant did not submit any medical evidence in support of her allegation that she
had sustained a recurrence of disability due to her September 26, 2000 employment injury, she
has failed to meet her burden of proof. In order to establish a recurrence of disability, she must
submit medical evidence from a physician addressing how her current condition is causally
related to her accepted employment injury. Without any current medical evidence, appellant has
not established a recurrence of disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not submitted any medical evidence necessary to
support her claim for a recurrence of disability and therefore has failed to meet her burden of
proof.
ORDER
IT IS HEREBY ORDERED THAT July 27, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 14, 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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.O., JR., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hickory, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1149
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On July 22, 2021 appellant, through counsel, filed a timely appeal from a February 26,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider 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

The Board notes that, following the February 26, 2021 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.
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018; and (2) whether appellant has
met his burden of proof to establish continuing disability or residuals on or after January 24, 2018.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On May 20, 1997 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that he injured his shoulders and left finger due to factors of
his federal employment. OWCP accepted the claim for right shoulder adhesive capsulitis, bilateral
rotator cuff sprain/strain, left brachial neuritis or radiculitis, and left trigger finger. It paid appellant
wage-loss compensation on the supplemental rolls, commencing November 5, 2003, and on the
periodic rolls, commencing July 3, 2011.
Appellant underwent authorized surgeries for left trigger thumb release on February 27,
1997; left ulnar nerve transposition on October 8, 1997; left shoulder arthroscopy and rotator cuff
repair on January 25, 1998; right shoulder arthroscopy on November 5, 2003; right shoulder
examination under anesthesia on May 30, 2004; and repair of a right rotator cuff tear on
September 22, 2010.5
In reports dated August 15, 2016 and June 12, 2017, appellant’s attending physician,
Dr. Stephen Sladicka, a Board-certified orthopedic surgeon, noted his history of injury beginning
on May 19, 1997 and listed the accepted conditions including right shoulder adhesive capsulitis,
right brachial neuritis, radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and
bilateral rotator cuff injuries. He noted that appellant had difficulty lifting with pain in his right
shoulder. Dr. Sladicka also described his date-of-injury position and found that he was
permanently totally disabled due to his accepted conditions.
On July 6, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions to Dr. Joseph Estwanik, a Board-certified orthopedic surgeon,
for a second opinion examination and evaluation.
In a July 28, 2017 report, Dr. Estwanik discussed appellant’s factual and medical history
and reported the findings of his physical examination. He found that his trigger finger symptoms
had resolved, but that he continued to have residual loss of motion of his shoulders. Dr. Estwanik
determined that appellant required no further medical treatment for the accepted conditions. He
opined that he exhibited multiple concurrent non-work-related disabilities. Dr. Estwanik found
that appellant was totally disabled from work.

4

Order Remanding Case, Docket No. 20-0142 (issued September 29, 2020).

5

On August 10, 2000 OWCP granted appellant a schedule award for 25 percent permanent impairment of his left
arm. On January 11, 2005 it granted an additional schedule award for 13 percent permanent impairment of his right
upper extremity.

2

On August 10, 2017 OWCP requested a supplemental report from Dr. Estwanik to clarify
his opinion on the issue of appellant’s employment-related residuals and disability.
In an August 23, 2017 supplemental report, Dr. Estwanik opined that appellant’s right
shoulder adhesive capsulitis had resolved, and referred to his prior report. He further opined that
he had excellent internal and external rotation, but his restricted efforts at forward flexion and
abduction supported a finding of full range of motion (ROM) of the right shoulder without
adhesions. Dr. Estwanik determined that appellant had attempted to demonstrate loss of ROM.
He further found that, while appellant was totally disabled from work due to non-employmentrelated conditions, he was capable of full-duty work based only on his accepted employment
injuries.
In a notice dated December 15, 2017, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits because he no longer had residuals or
disability causally related to his accepted employment-related conditions. It found that the weight
of the medical evidence rested with Dr. Estwanik, who found that he had no objective findings to
support further ongoing disability or residuals caused by his employment-related conditions.
OWCP afforded appellant 30 days to submit evidence challenging the proposed terminatio n action.
No response was received.
By decision dated January 24, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date.
On February 7, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
July 10, 2018.
Following the oral hearing, appellant provided additional evidence, including an April 17,
2018 report from Ian Welliver, a physician assistant.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on May 16,
2018, which demonstrated severe hypertrophic AC joint changes, possible tears of the anterior
supraspinatus, and infraspinatus tendons and labrum tears.
In a July 27, 2018 note, Dr. Carey McKain, a Board-certified orthopedic surgeon, found
marked loss of ROM of the shoulders with a positive Speed test bilaterally. He reviewed
diagnostic studies and found deteriorated rotator cuffs on both sides with multiple partial tearings,
significant arthrosis, and severe arthritis with spurs in both acromioclavicular (AC) joints.
By decision dated September 17, 2018, the hearing representative affirmed OWCP’s
January 24, 2018 termination decision.
On August 11, 2015 Dr. Michael P. Bunch, a Board-certified orthopedic surgeon, noted
that appellant’s shoulder pain did not improve with epidural spinal injections.
On April 18, 2019 appellant, through counsel, requested reconsideration. Counsel
provided a series of notes dated September 13, 2017 through May 16, 2018 from nurse
practitioners.

3

In treatment notes dated November 21, 2016 through February 26, 2018, Dr. David L.
Cabral, an internist, noted appellant’s history of repetitive motion injuries to the shoulders and left
elbow at work and resultant surgeries. He reviewed his bilateral shoulder x-rays and found AC
joint osteophytosis. Dr. Cabral also reported left elbow calcific tendinopathy.
In an undated narrative report, Dr. Karyn Weston Rahn, Board-certified in occupational
medicine, noted reviewing appellant’s history of work-related injuries of his bilateral shoulders
and his medical history. She described his job duties and current bilateral shoulder symptoms. On
physical examination Dr. Rahn found that appellant gave full and reasonable effort. She found no
atrophy in appellant’s right shoulder, but tenderness over the AC joint, subacromial region,
supraspinatus and infraspinatus capsule with limited ROM and decreased strength. Dr. Rahn
reported positive Speed’s and active compression test, positive Hawkins, Neer, and infraspinatus
tests. She found that appellant continued to have significant impairments of the left and right
shoulders, which were directly related to his work duties. Dr. Rahn explained using his shoulders
repetitively hundreds of times a day to throw, sort, and carry mail resulted in significant damage
to the bilateral shoulder joints and surrounding tissues including rotator cuff and labral tears. She
found that appellant was totally disabled from work due to his accepted bilateral shoulder
conditions and required bilateral shoulder replacements. Dr. Rahn further explained her
disagreement with Dr. Estwanik’s findings and conclusions regarding appellant’s adhesive
capsulitis.
By decision dated July 2, 2019, OWCP denied modification of its prior decisions.
Appellant appealed to the Board. By order dated September 29, 2020, the Board directed
OWCP to review the additional medical evidence in support of the April 18, 2019 reconsideration
request, including new medical reports dated November 2016 to February 2018 by Dr. Cabral and
issue a de novo decision.6
By decision dated February 26, 2021, OWCP again denied modification of its prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it has the burden of proof to
justify termination or modification of an employee’s benefits.7 The right to medical benefits for
an accepted condition is not limited to the period of entitlement for disability compensation. 8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.9 OWCP’s

6

Id.

7

L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59
ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
9

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

4

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 10
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. 11 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 12 In situations where the case is properly 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.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018.
Dr. Estwanik noted in his July 28 and August 23, 2017 reports that appellant had no
objective signs of right shoulder adhesive capsulitis, left trigger finger, bilateral rotator cuff
sprain/strain, and left brachial neuritis or radiculitis. He concluded that appellant had no disability
or need for further medical treatment due to the accepted employment-related conditions.
Dr. Estwanik further concluded that appellant was totally disabled from work due to
nonemployment-related conditions.
On June 12, 2017 Dr. Sladicka noted appellant’s history of injury on May 19, 1997 and
listed the accepted conditions including right shoulder adhesive capsulitis, right brachial neuritis,
radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and bilateral rotator cuff
injuries and found that he was totally disabled.
As Dr. Estwanik concluded that appellant was able to resume his date-of-injury position
without restrictions and Dr. Sladicka concluded that he remained totally disabled for work, there
is an unresolved conflict in the medical evidence. OWCP should have resolved the conflict of
medical opinion evidence before terminating compensation. 14 As it failed to resolve the conflict
of medical opinion evidence, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 24, 2018.

10

See M.C., Docket No. 20-1396 (issued November 22, 2021); R.P., Docket No. 17-1133 (issued January 18, 2018).

11

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
12

M.C., supra note 10; P.R., Docket No. 18-0022 (issued April 9, 2018).

13

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).
14

M.C., supra note 10; K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued
June 4, 2018).

5

CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 24, 2018.15
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.U., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, LaGUARDIA AIRPORT,
Flushing, NY, Employer
__________________________________________

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

Docket No. 17-0798
Issued: October 10, 2017

Case Submitted on the Record

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

JURISDICTION
On February 28, 2017 appellant filed a timely appeal from a January 24, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury
causally related to the accepted January 2, 2016 employment incident.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board pursuant to section 501.5(b) of the Board’s Rules
of Procedure, 20 C.F.R. § 501.5(b). After exercising its discretion, by order dated August 25, 2017 the Board
denied the request for oral argument as the issue on appeal could be fully addressed on the record. Order Denying
Request for Oral Argument, Docket No. 17-0798 (issued August 25, 2017).

FACTUAL HISTORY
On January 19, 2016 appellant, then a 34-year-old lead transportation screener, filed a
traumatic injury claim (Form CA-1) alleging that on January 2, 2016 she finished screening
oversized checked luggage and she sat down to write up an alarm when her chest began to
tighten, which restricted her breathing. She listed the nature of her injury as pulled muscle in
chest. Appellant stopped work on January 2, 2016, and returned to work on January 5, 2016.
By letter dated January 22, 2016, the employing establishment controverted appellant’s
claim. A human resources specialist for the employing establishment contended that there was
no clear mechanism for injury and that appellant failed to submit any medical documentation.
In a January 25, 2016 letter, OWCP informed appellant that further factual and medical
evidence was necessary to support her claim, and afforded her 30 days to submit the required
evidence.
In response, appellant submitted notes from her visit on January 2, 2016 to New York
Presbyterian Hospital for chest pain. During her visit, appellant was seen by Dr. Julie Zhao, an
emergency room physician; Dr. Michael S. Chuang, an orthopedic surgeon; and Dr. Michael
Stavros Radeos, a Board-certified emergency physician. The patient history related that
appellant complained of chronic back pain with sudden onset of spams over the midsternal chest
wall, onset five minutes after lifting luggage from the ground onto an x-ray machine while on
duty at the employing establishment. The discharge diagnosis was “other chest pain.”
By decision dated March 2, 2016, OWCP denied appellant’s claim. It determined that
appellant had not established that the January 2, 2016 incident occurred as alleged. OWCP
further noted that appellant had not submitted medical evidence containing a medical diagnosis
in connection with the alleged injury or events. Therefore, fact of injury has not been
established.
On August 1, 2016 appellant requested reconsideration and provided more detail
regarding the alleged employment incident. She noted that, at that time, she had just finished
clearing large pieces of luggage that contained musical and sports equipment. Appellant noted
that after putting the pieces of oversized luggage back on the floor, she began to write that the
next bag alarm that needed to be checked, when her chest began to tighten which restricted her
breathing. She noted that a fellow coworker stayed with her and notified a supervisor, who
notified the manager, who called the Port Authority Police Department. Appellant noted that the
police arrived and stayed until emergency medical services arrived. She was taken to New York
Presbyterian Hospital, where she was treated and released. Appellant also submitted a bill for
the ambulance transport from her place of employment to New York Presbyterian Hospital on
January 2, 2016.
By decision dated January 24, 2017, OWCP found that the evidence submitted with
reconsideration was sufficient to modify the decision of March 2, 2016 from a denial based on
the factual component of fact of injury to a denial based on failure to establish the medical
component of fact of injury. It found that appellant had not established that a diagnosed medical
condition was causally related to the accepted incident.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was caused in the performance of duty as alleged,
and that any disability or specific condition for which compensation is claimed is causally related
to the employment injury.4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
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.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.8 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
The Board finds that appellant failed to establish an injury causally related to the
accepted employment-related incident of January 2, 2016.
Appellant has established that the employment incident occurred on January 2, 2016 as
alleged. However, she has failed to provide medical evidence sufficient to establish her claim.
The only medical report in the record is the hospital report from appellant’s January 2, 2016 visit
to New York Presbyterian Hospital. However, no physician provided a medical diagnosis in
3

Supra note 1.

4

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

John J. Carlone, 41 ECAB 354 (1989).

7

Id.

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 5.

9

James Mack, 43 ECAB 321 (1991).

3

these reports. The medical discharge report, signed by Drs. Chuang and Zhao, lists a diagnosis
of “other chest pain.” However, pain is a description of a symptom, it is not a diagnosis of a
medical condition.10 Furthermore, although appellant’s employment history is mentioned in the
hospital notes, no physician provided an opinion, complete with sufficient medical rationale,
explaining how appellant’s condition was caused or aggravated by the accepted employment
incident of January 2, 2016.11 For these reasons, the Board finds that the evidence submitted by
appellant is insufficient to meet her burden of proof.12
An award of compensation may not be based on surmise, conjecture, speculation, or
appellant’s belief of causal relationship.13 Appellant has failed to submit rationalized medical
evidence to meet her burden of proof on causal relationship.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a traumatic
injury causally related to the accepted January 2, 2016 employment incident.

10

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
11

See L.A., Docket No. 16-1352 (issued August 28, 2017).

12

Appellant submitted a bill to OWCP for ambulance transport to the hospital. OWCP may approve payment for
medical expenses incurred even if a Form CA-16 authorizing medical treatment and expenses has not been issued
and the claim is subsequently denied; payment in such situations must be determined on a case-by-case basis.
Federal (FECA) Procedure Manual, Part 3 -- Medical, Authorizing Examination and Treatment, Chapter 3.300.3(a)
(February 2012).
13

John D. Jackson, 55 ECAB 465 (2004); William Nimitz¸ 30 ECAB 57 (1979).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 24, 2017 is affirmed.
Issued: October 10, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF JUSTICE, U.S. MARSHALS )
SERVICE, San Diego, CA, Employer
)
__________________________________________ )
P.F., Appellant

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

Docket No. 15-1227
Issued: August 24, 2015

Case Submitted on the Record

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

JURISDICTION
On May 11, 2015 appellant, through counsel, filed a timely appeal from a March 30,
2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision of September 16, 2014 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this claim.
ISSUE
The issue is whether OWCP properly denied appellant’s December 30, 2014 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 On January 13, 2014 appellant, then a 49year-old administrative support assistant, filed an occupational disease claim alleging that she
experienced neck and bilateral shoulder and arm pain and tingling in her fingers, legs, and knees
as a result of daily computer key entry and processing documents.
In support of her claim, appellant submitted a June 17, 2013 report from Dr. Richard
Mantell, a Board-certified internist, who examined her for complaints of neck, low back,
shoulder, and hand pain. Dr. Mantell stated that she worked as an administrative support
assistant and discussed her various job duties. He provided examination findings. Dr. Mantell
reported that appellant’s work involved repetitive movement of her arms, shoulders, neck, and
low back. He opined that because of appellant’s job duties and pain related to her work it
seemed reasonable that the repetitive motions of her job contributed to her pain.
In a decision dated April 3, 2014, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that appellant’s conditions were causally related to her
employment duties. By decision dated September 16, 2014, the Board affirmed OWCP’s
April 3, 2014 decision, finding that appellant did not meet her burden of proof to establish that
her medical conditions were causally related to factors of her federal employment. The facts of
the case, as set forth in the prior decision, are herein incorporated by reference.
On December 30, 2014 OWCP received appellant’s request, through counsel, for
reconsideration of the Board’s September 16, 2014 decision.3
In a November 17, 2014 report, Dr. Mantell discussed appellant’s complaints of pain in
her neck, low back, and right hand along with numbness and tingling of the right upper
extremity. He stated that she worked as an administrative support assistant whose duties
involved repetitive movement of the arms, shoulders, neck, and low back, as well as sitting for
long periods of time. Dr. Mantell reported that diagnostic studies revealed hypofunction of the
right and left C7 and left C5 nerve roots. Upon examination of appellant’s back, he observed
mild-to-moderate tenderness at the bilateral trapezius and lumbar paraspinal musculature and
intact sensation. Appellant’s range of motion of the cervical and lumbar spines were decreased
due to pain. Strength measures were 3/5 throughout the cervical and lumbar musculature.
Dr. Mantell opined that based on appellant’s account of her job duties and the pain related to her
work it was his opinion that the repetitive motions of her job contributed to the pain of the
cervical, lumbar, and carpal tunnel on the right hand. He recommended that appellant continue
with injection therapy, physical therapy, and pain management treatments.
By decision dated March 30, 2015, OWCP denied appellant’s request for reconsideration
finding that her request did not meet any of the requirements for further merit review pursuant to
2

Docket No. 14-1295 (issued September 16, 2014).

3

OWCP is not authorized to review Board decisions. Although the September 16, 2014 decision was the last
merit decision, OWCP’s April 3, 2014 decision is the appropriate subject of possible modification by OWCP. See
20 C.F.R. § 501.6(d).

2

5 U.S.C. § 8128(a). It determined that Dr. Mantell’s November 17, 2014 was repetitive and
cumulative of his June 17, 2013 medical report that OWCP had previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.4 OWCP regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise her right through a request to the district office.5
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.6
A request for reconsideration must also be submitted within one year of the date of
OWCP’s decision for which review is sought.7 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.8 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.9
ANALYSIS
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law, has not advanced a relevant legal argument not previously
considered by OWCP, and has not submitted relevant and pertinent new evidence not previously
considered by OWCP.
By decision dated September 16, 2014, the Board affirmed the denial of appellant’s claim
and that she had failed to provide evidence that her medical conditions were causally related to
her employment duties. On December 30, 2014 OWCP received her request for reconsideration.
She submitted a November 17, 2014 report from Dr. Mantell who found that appellant’s job
4

5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

5

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
6

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
7

Id. at § 10.607(a).

8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

3

duties contributed to her cervical and lumbar pain and her right hand carpal tunnel syndrome.
This evidence is insufficient to justify a merit review because it is repetitive of Dr. Mantell’s
June 17, 2013 report, which was previously considered. The Board has found that the
submission of evidence which repeats or duplicates evidence already in the case record does not
constitute a basis for reopening a case.10
On appeal counsel contends that the Board’s September 16, 2014 decision was contrary
to law and fact. The Board notes, however, that the evidence submitted failed to establish that
OWCP erroneously applied or interpreted a specific point of law, advances a relevant legal
argument not previously considered by OWCP, and did not constitute new and relevant
evidence. Because appellant did not meet any of the necessary requirements for reconsideration
under 5 U.S.C. § 8128, she is not entitled to further merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s December 30, 2014 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2015
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
10

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 18-1383
Issued: March 8, 2019

Case Submitted on the Record

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

JURISDICTION
On July 2, 2018 appellant, through counsel, filed a timely appeal from an April 6, 2018
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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of the
need for medical treatment causally related to her accepted February 12, 2009 employment injury.
FACTUAL HISTORY
On February 12, 2009 appellant, then a 62-year-old primary ambulatory care specialist,
filed a traumatic injury claim (Form CA-1) alleging that on that day she injured both knees and
hands when she tripped over two concrete blocks in the parking lot on the way to work and fell.
She stopped work on February 12, 2009 and returned to work on March 1, 2009.
By decision dated October 24, 2011, OWCP found the evidence of record sufficient to
establish that appellant sustained a right wrist sprain and bilateral knee contusion as a result of the
accepted February 12, 2009 work incident. However, it found the record failed to establish a
causal relationship between a left wrist sprain, bilateral knee sprains and the accepted February 12,
2009 injury.3
On April 25, 2016 appellant filed a notice of recurrence (Form CA-2a) in which she
checked the box denoting that she was only claiming a recurrence due to the need for medical
treatment related to her accepted February 12, 2009 employment injury.4 Regarding the date of
the recurrence, appellant noted the dates of March 9, 2015 and January 1, 2016. She asserted that
she frequently required pain medication because she had constant pain. Appellant also noted that
her knees and hands were swollen.
By development letter dated June 7, 2016, OWCP informed appellant that the evidence of
record was insufficient to support her recurrence claim. It advised her of the medical and factual
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence. No response was received.
By decision dated July 20, 2016, OWCP denied appellant’s claim for a recurrence of a
medical condition causally related to her February 12, 2009 employment injury. It determined that
she had not submitted a medical report with sufficient rationale to establish causal relationship
between the requested medical treatment and the accepted February 12, 2009 employment injury.
By letter dated August 1, 2016, counsel requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review, which was subsequently changed to a
request for review of the written record.
By decision dated March 20, 2017, OWCP’s hearing representative affirmed OWCP’s
July 20, 2016 decision. He found that appellant had not presented medical evidence sufficient to

3

On February 22, 2013 appellant filed an appeal with the Board of the October 24, 2011 OWCP decision. By order
dated March 7, 2013, the Board dismissed appellant’s appeal, finding that her appeal to the Board was untimely filed.
Order Dismissing Appeal, Docket No. 13-0814 (issued March 7, 2013).
4

Appellant had retired from the employing establishment on March 31, 2015.

2

establish the need for medical treatment causally related to her accepted February 12, 2009
employment injury.
On November 8, 2017 counsel requested reconsideration and submitted an October 12,
2017 report from Dr. Martha Wafer, a treating physician specializing in family medicine.
Dr. Wafer, in her October 12, 2017 report, noted appellant’s February 12, 2009
employment injury and that appellant was seen for complaints of bilateral hand and knee pain.
Since relocating to Shreveport, LA, appellant related that she had not received medical treatment
for her bilateral knee and hand conditions. She described her symptoms, which included pain,
popping and locking of her left knee, numbness in both legs, and numbness and tingling in her left
hand. Dr. Wafer diagnosed bilateral hand and knee strains and sprains due to the accepted 2009
work injury. She also opined that the 2009 work injury aggravated a prior right knee condition.
Dr. Wafer recommended medication, knee braces, imaging tests, and physical medicine treatment.
She advised that appellant was currently unemployed and recommended that she not perform
strenuous activity or heavy lifting. Appellant was directed to return in four weeks for a
reevaluation.
By decision dated April 6, 2018, OWCP denied modification of the March 20, 2017
decision, finding that the medical evidence of record was insufficient to establish that appellant’s
need for additional medical treatment was causally related to the accepted February 12, 2009
employment injury.
LEGAL PRECEDENT
The United States shall furnish to an employee who is injured while in the performance of
duty the services, appliances, and supplies prescribed or recommended by a qualified physician
that the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
any disability, or aid in lessening the amount of any monthly compensation.5
A recurrence of a medical condition means a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage.6 An employee has the burden of proof to establish that he or she
sustained a recurrence of a medical condition that is causally related to his or her accepted
employment injury without intervening cause.7
If a claim for recurrence of medical condition is made more than 90 days after release from
medical care, a claimant is responsible for submitting a medical report supporting a causal
relationship between the employee’s current condition and the original injury in order to meet his

5

5 U.S.C. § 8103(a).

6

20 C.F.R. § 10.5(y).

7

T.B., Docket No. 18-0762 (issued November 2, 2018); E.R., Docket No. 18-0202 (issued June 5, 2018).

3

or her burden.8 To meet this burden the employee must submit medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, supports that the
condition is causally related and supports his or her conclusion with sound medical rationale.9
Where no such rationale is present, medical evidence is of diminished probative value.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
the need for medical treatment causally related to her accepted February 12, 2009 employment
injury.
In her October 12, 2017 report, Dr. Wafer noted appellant’s complaints of bilateral knee
and hand pain and diagnosed bilateral knee and hand strains and sprains, which she attributed to
the February 12, 2009 work injury. However, OWCP has not accepted a left wrist sprain/strain or
bilateral knee sprain/strains as causally related to the February 12, 2009 employment injury. The
Board finds that Dr. Wafer’s report is insufficient to establish that appellant required further
medical care causally related to her accepted 2009 employment injury. As appellant filed the
recurrence of medical treatment more than 90 days following her last medical treatment for her
accepted employment conditions, she was required to submit a rationalized medical opinion
establishing causal relationship between her current condition and the original injury.11 A
physician must provide an opinion that the employment injury caused or contributed to the
claimant’s diagnosed medical condition, supported by medical reasoning sufficient to demonstrate
that the conclusion reached is sound, logical, and rational.12 The Board finds that Dr. Wafer
provided a conclusory opinion which did not include a rationalized medical opinion establishing
that appellant required further medical care after March 9, 2015 causally related to her accepted
February 12, 2009 employment injury.13
Appellant did not submit a medical report from a physician who, on the basis of a complete
and accurate factual and medical history, concluded that she required further medical treatment for
her accepted conditions on or after March 9, 2015 a result of her accepted February 12, 2009
employment injury.14 She has not established by the weight of the reliable, probative, and
substantial evidence, a change in the nature and extent of the injury-related condition resulting in
required continued medical treatment. As appellant has not submitted medical evidence showing

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013); see also
J.M., Docket No. 09-2041 (issued May 6, 2010).
9

A.C., Docket No. 17-0521 (issued April 24, 2018); O.H., Docket No. 15-0778 (issued June 25, 2015).

10

O.H., id.; Michael Stockert, 39 ECAB 1186 (1988); see Ronald C. Hand, 49 ECAB 113 (1997).

11

Supra note 8.

12

See A.C., supra note 9; John W. Montoya, 54 ECAB 306 (2003).

13

Supra note 9.

14

K.P., Docket No. 15-1711 (issued January 14, 2016).

4

a recurrence of medical condition due to her accepted employment injury, the Board finds that she
has not met her burden of proof.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of the need for medical
treatment causally related to her accepted February 12, 2009 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 8, 2019
Washington, DC

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

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

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

15

See E.R., Docket No. 18-0202 (issued June 5, 2018).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Montgomery, AL,
Employer
__________________________________________

)
)
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)
)

Appearances:
Linda Benson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0958
Issued: July 13, 2015

Case Submitted on the Record

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

JURISDICTION
On March 25, 2015 appellant, through counsel, filed a timely appeal from an October 7,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

While oral argument had initially been requested before the Board, the request was withdrawn by letter dated
May 21, 2015.

ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $24,599.22; and
(2) whether it properly denied waiver of the overpayment.3
FACTUAL HISTORY
On August 11, 2000 appellant, then a 57-year-old electronics mechanic, filed an
occupational disease claim (Form CA-2) alleging that he sustained hearing loss and slurred
speech as a result of noise exposure in federal employment. He indicated that he had worked as
an electronics mechanic since February 1983. The record indicates that appellant had previously
filed a claim for hearing loss on December 28, 1994. Pursuant to that claim, OWCP had issued a
schedule award dated October 12, 1995 for a 23 percent binaural hearing loss. The period of the
award was 46.00 weeks from August 15, 1995.
In a second claim, OWCP had previously referred appellant for a second opinion
examination by Dr. Robert Sciacca, a Board-certified otolaryngologist. In a form report (CA1332) dated January 16, 2001, Dr. Sciacca diagnosed bilateral sensorineural hearing loss and
indicated that it was due to noise exposure in federal employment. The report contained results
on audiological examination at 500, 1,000, 2,000, and 3,000 cycles per second. For the right ear,
the results were 25, 35, 75, and 70 respectively. For the left ear, the results were 20, 65, 70, and
75.
OWCP accepted mild-to-severe bilateral sensorineural hearing loss. In a report dated
April 20, 2001, its medical adviser found that appellant had a 41 percent binaural hearing loss
based on the report from the second opinion physician.
By decision dated December 11, 2001, OWCP issued a schedule award for a 41 percent
binaural hearing loss. The period of the award was 82.00 weeks from January 16, 2011 to
August 12, 2012.
Appellant requested reconsideration on December 11, 2002, arguing that 41 percent did
not adequately represent his hearing loss. He submitted a September 20, 2002 audiogram from
an audiologist. In a report dated January 10, 2003, the medical adviser opined that the
audiogram was unreliable. By decision dated April 23, 2003, OWCP denied modification of the
schedule award decision.
Appellant filed an additional claim for an employment-related hearing loss on
July 11, 2012. By decision dated August 20, 2013, OWCP issued a schedule award for an
additional seven percent bilateral hearing loss. It indicated that the award represented a 48
percent binaural hearing loss, after deducting the previous schedule award for a 41 percent
hearing loss. The period of the award was 14 weeks from February 28, 2013.

3

On appeal, appellant has submitted additional evidence. The Board cannot consider new evidence on appeal.
The Board’s review of a case is limited to the evidence that was before OWCP at the time of the decision on appeal.
Appellant may submit such evidence to OWCP to request waiver of the overpayment.

2

In a letter dated April 4, 2013, the employing establishment noted that appellant had
initially received a hearing loss schedule award in 1995, but the 2001 schedule award did not
deduct the 23 percent hearing loss previously paid to appellant. OWCP determined that an
overpayment of compensation had been created and advised appellant by letter dated August 27,
2013 that it had made a preliminary determination of an overpayment of $24,599.22. It
explained that he had been incorrectly paid a schedule award on December 11, 2001 for a 41
percent binaural hearing loss, when he should have only been paid for an additional 18 percent,
since he had previously received a schedule award for 23 percent binaural hearing loss. As to the
amount, OWCP submitted worksheets indicating that appellant had been paid $43,844.54 in
compensation from January 16, 2011 to August 12, 2012, pursuant to the December 11, 2001
schedule award. According to OWCP calculations, appellant should have been paid $19,245.32
from January 16 to September 24, 2001 based on an 18 percent binaural hearing loss. In
addition, OWCP found he was not at fault in creating the overpayment.
Appellant requested a prerecoupment hearing before an OWCP hearing representative.
The request was dated September 24, 2013 and received by OWCP on October 21, 2013.
Appellant submitted an OWCP-20 overpayment questionnaire form indicating that he had
$3,069.96 in household monthly income. As to expenses, he claimed a total of $5,710.00 in
monthly expenses.4 Appellant listed $45.00 for assets, including bank accounts, stocks, cash, or
personal property. He also submitted two bank statements and a 2009 tax return.
By decision dated September 30, 2013, OWCP finalized its overpayment determination
that an overpayment of $24,599.22 was created. It denied waiver of the overpayment. In a
decision dated November 5, 2013, OWCP vacated the September 30, 2013 decision. It indicated
that appellant had requested a prerecoupment hearing, and although not received until
October 21, 2013, it was considered as timely. The case was remanded for a prerecoupment
hearing, which was held on July 18, 2014.
At the hearing, appellant indicated that his income was still the same as reported. The
hearing representative indicated that appellant needed to document his expenses with current
information.
By decision dated October 7, 2014, the hearing representative found an overpayment of
$24,599.22 was created. He denied waiver of the overpayment, noting that appellant failed to
provide current documentation regarding expenses.
LEGAL PRECEDENT -- ISSUE 1
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.5 Neither FECA nor the regulations
4

Appellant listed $4,045.00 in monthly expenses that included housing, food, clothing, utilities, and
miscellaneous expenses. He also listed $1,665.00 with respect to monthly payments for debt.
5

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

3

specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
as the uniform standard applicable to all claimants.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.7 Using the frequencies of 500, 1,000, 2,000, and 3,000 cycles per second, the
losses at each frequency are added up and averaged.8 Then, the “fence” of 25 decibels is
deducted because, as the A.M.A., Guides points out, losses below 25 decibels result in no
impairment in the ability to hear everyday speech under everyday conditions.9 The remaining
amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.10
The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss and the total is
divided by six to arrive at the amount of the binaural hearing loss.11 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.12
According to 5 U.S.C. § 8108, the period of compensation payable for a schedule award
is reduced by the period of compensation paid for an earlier injury if it is for the same member or
function, and the current impairment in whole or in part duplicates the preexisting impairment.
If a claimant receives a schedule award and the medical evidence does not support the degree of
permanent impairment awarded, an overpayment of compensation may be created.13
ANALYSIS -- ISSUE 1
In the present case, OWCP has found that an overpayment occurred due to a duplicate
payment for permanent impairment. The medical evidence of record showed that appellant had a
41 percent binaural hearing loss, based on the report and accompanying audiogram provided by
the second opinion physician Dr. Sciacca. The medical adviser applied the above formula to the
January 16, 2001 audiometric results and properly determined that appellant had a 41 percent
binaural hearing loss. In his April 20, 2001 report, he added the decibel losses at the appropriate
frequencies, deducted the fence of 25, and multiplied by 1.5 to determine the monaural hearing

6

A. George Lampo, 45 ECAB 441 (1994).

7

A.M.A., Guides 250 (5th ed. 2001). At the time of the December 11, 2001 decision, OWCP used the fifth
edition of the A.M.A., Guides.
8

Id.

9

Id.

10

Id.

11

Id.

12

Donald E. Stockstad, 53 ECAB 301 (2002); petition for recon. granted, Docket No. 01-1570 (issued
August 13, 2002).
13

R.R., Docket No. 14-2031 (issued March 9, 2015).

4

loss. The medical adviser then applied the above formula and found appellant had a 41 percent
binaural hearing loss.
The record indicated, however, that appellant had previously received a schedule award
based on a 23 percent binaural hearing loss. Pursuant to 5 U.S.C. § 8108, OWCP should have
deducted the previously paid 23 percent from the current 41 percent hearing loss. The
December 11, 2001 schedule award should have been for an additional 18 percent binaural
hearing loss. When OWCP issued a schedule award for a 41 percent binaural hearing loss, an
overpayment was created.
As to the amount of the overpayment, OWCP calculated that appellant was paid
$43,844.54 in compensation from January 16, 2011 to August 12, 2012 pursuant to the
December 11, 2001 schedule award. If it had properly issued a schedule award for an 18 percent
binaural hearing loss, appellant would have received $19,245.32 from January 16 to
September 24, 2001. Therefore the difference between the two amounts, $24,599.22 represented
an overpayment of compensation. No contrary evidence or argument was provided. The Board
accordingly finds the evidence of record establishes a $24,599.22 overpayment in this case.14
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA15 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.”16 Since OWCP found appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. 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 Title 20 of the Code of
Federal Regulations.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary “needs substantially all of his
or her 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.17 For waiver under
14

Even though appellant received an additional hearing loss schedule award on August 13, 2013, that does not
offset the overpayment amount in this case. It is well established that OWCP should not attempt to offset an
overpayment amount with amounts owed to appellant, as they are separate issues. Robert L. Curry, 54 ECAB
675 (2003). If a claimant pursues waiver and the adjusted overpayment is waived, the claimant will have lost due
process rights with respect to recovery of the offset amount.
15

Supra note 1.

16

Id. at § 8129(b).

17

OWCP procedures 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. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).

5

the “defeat the purpose” of FECA standard, appellant must show that he needs substantially all
of his current income to meet current ordinary and necessary living expenses, and that his assets
do not exceed the resource base.18
20 C.F.R. § 10.437 provides that recovery of an overpayment would be against equity
and good conscience if: (a) the overpaid individual would experience severe financial hardship
in attempting to repay the debt; (b) the 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.
With respect to the submission of financial evidence, OWCP’s regulations at 20 C.F.R.
§ 10.438 provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses, and assets as specified by OWCP. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA, or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”
ANALYSIS -- ISSUE 2
In the present case, OWCP found that appellant was not at fault in creating the
overpayment. Appellant may seek waiver of the overpayment, but he must submit the relevant
financial evidence in order for OWCP to properly make a determination on the issue. He
submitted an OWCP-20 form asserting significantly more monthly expenses than monthly
income, but he provided no documentation supporting the monthly expenses. At the July 18,
2014 hearing, the hearing representative clearly asked appellant to submit additional
documentation regarding his monthly expenses.
Appellant failed to provide any additional financial documentation prior to the October 7,
2014 decision. The hearing representative was unable to make a proper determination as to
whether appellant needed substantially all of his current income to meet current ordinary and
necessary living expenses. This is a necessary determination under 20 C.F.R. § 10.436 to
establish whether recovery of the overpayment would defeat the purpose of FECA, and under 20
C.F.R. § 10.437 to determine whether recovery would be against equity and good conscience.
As noted above, appellant has the responsibility to submit the necessary information
regarding income, expenses, and assets. The failure to submit the requested information shall
result in denial of waiver, and no further request is considered until the requested information is
furnished. The Board accordingly finds that OWCP properly denied waiver in this case.

18

See Robert E. Wenholz, 38 ECAB 311 (1986).

6

CONCLUSION
The Board finds that OWCP properly found an overpayment of $24,599.22 was created,
and properly denied waiver of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 7, 2014 is affirmed.
Issued: July 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, AIR
)
NATIONAL GUARD, Fort Worth, TX, Employer )
__________________________________________ )
J.F., Appellant

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

Docket No. 09-1061
Issued: November 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 13, 2009 appellant filed a timely appeal of a February 13, 2009 decision of the
Office of Workers’ Compensation Programs denying modification of a May 23, 2008 decision
denying his claim for compensation. 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 met his burden of proof to establish that he sustained a
traumatic injury on February 8, 2008 in the performance of duty.
FACTUAL HISTORY
On February 8, 2008 appellant, then a 35-year-old aircraft cargo specialist, filed a
traumatic injury claim alleging that on that day his open-hand wound was exposed to latrine
water while servicing an aircraft.1 He was removing waste water from the aircraft and, when he
1

Appellant did not specify which hand had the open wound. The medical evidence indicates it may have been his
left hand.

opened the door to a valve, waste water unexpectedly came out and went down his sleeve and
into his glove. Appellant did not stop work.
On April 9, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish his claim and allowed him 30 days to submit additional evidence. It
requested a physician’s report with an opinion as to how the reported work incident caused or
aggravated an injury. Appellant did not respond.
In a May 23, 2008 decision, the Office denied appellant’s claim finding that, although the
claimed incident occurred, there was no medical evidence with a diagnosis related to the event.
Appellant requested reconsideration on November 4, 2008 and indicated that he was
providing records supporting his case. He noted that his supervisor had him go to an emergency
room for blood work following the February 8, 2008 work incident. Appellant advised that he
had no medical problems. He requested payment for the medical bills related to his emergency
room visit. In a February 8, 2008 treatment note, Dr. Scott Hughes, an osteopath specializing in
emergency medicine, noted that sewage from an aircraft was dumped on appellant. He
determined that appellant had a biohazard exposure and performed blood work for hepatitis,
rapid plasma reagin and human immunodeficiency virus (HIV).
In a February 13, 2009 decision, the Office denied modification of its May 23, 2008
decision finding insufficient medical evidence providing a diagnosis related to the work incident.
LEGAL PRECEDENT
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 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. These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
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, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.4

2

5 U.S.C. §§ 8101-8193.

3

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

4

Id.

2

Section 10.303(a) of Office regulations provides that simple exposure to a workplace
hazard, such as an infectious agent, does not constitute an injury entitling an employee to
medical treatment under the Act unless the employee has sustained an identifiable injury or
medical condition as a result of that exposure.5 Section 10.313(b) provides that the Office can
authorize treatment where there is “actual or probable exposure to a known contaminant due to
an injury, requiring disease specific measures against the infection.”6 The Office procedure
manual addresses high-risk employment, notes that certain kinds of employment routinely
present situations which may lead to infection by contact with animals, human blood, bodily
secretions and other substances. Conditions such as HIV infection and hepatitis B more
commonly represent a work hazard in health care facilities, correctional institutions and drug
treatment centers, among others, than in federal workplaces as a whole. For claims based on
transmission of a communicable disease where the means of transmission and the incubation
period are medically feasible, the Office should, if the source of infection is a known or probable
carrier of the disease, accept the case for the physical injury involved and authorize prophylactic
treatment.7
The Office procedure manual provides that the Act does not authorize preventive
measures such as vaccines and inoculations and, in general, preventive treatment is the
responsibility of the employing establishment except that preventive care can be authorized by
the Office for complications of preventive measures which are provided or sponsored by the
agency, such as adverse reaction to prophylactic immunization and or an injury involving actual
or probable exposure to a known contaminant.8
ANALYSIS
The record reflects that on February 8, 2008 appellant was exposed to latrine water while
servicing an aircraft as alleged. At that time, there was an open wound on one of his hands.
However, the medical evidence does not establish that exposure to latrine water caused or
aggravated an injury or illness.
On February 8, 2008 Dr. Hughes noted that appellant’s history of injury consisted of
sewage from an aircraft being dumped on appellant. He assessed biohazard exposure and
5

20 C.F.R. § 10.303(a). This regulation at section (b) provides:
Employers may be required under other statutes or regulations to provide their employees with
medical testing and/or services in situations described in paragraph (a) of this section. For
example, regulations issued by the Occupational Safety and Health Administration at 29 C.F.R.
chapter XVII require employers to provide their employees with medical consultations and/or
examinations when they either exhibit symptoms consistent with exposure to a workplace hazard,
or when an identifiable even such as a spill, leak or explosion occurs and results in the likelihood
of exposure to a workplace hazard.

6

Id. at § 10.313(b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.8 (October 1995).

8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.7
(April 1992).

3

performed blood work. Although Dr. Hughes described the February 8, 2008 work incident and
indicated biohazard exposure, he did not address whether appellant’s open-hand wound exposure
to latrine water caused or aggravated a diagnosed medical condition.9 Appellant also does not
assert that the exposure to latrine water caused any injury or illness. Consequently, the medical
evidence does not support that the February 8, 2008 exposure to latrine water caused an injury.
The Board notes that appellant has requested payment of his medical bill from his
February 8, 2008 emergency room visit. However, the Office’s regulations provide that simple
exposure to a workplace hazard, such as an infectious agent, does not constitute a work-related
injury entitling an employee to medical treatment under the Act unless the employee has
sustained an identifiable injury or medical condition as a result of that exposure.10 In this case,
there is no identifiable injury or medical condition that appellant sustained. This is also not a
case where appellant worked in the type of employment, such as a health care facility,
correctional institution, or drug treatment facility, which could routinely present a situation that
could lead to infection by contact with animals, human blood, bodily secretions or other
substances.11 Furthermore, this is not a case where there was a known contaminant.12 The
medical evidence is insufficient to establish that he sustained an identifiable and compensable
injury or that he was otherwise entitled to reimbursement for his medical expenses under Office
regulations or procedures.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on February 8, 2008 in the performance of duty.

9

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

See supra note 3. See also B.A., Docket No. 08-1542 (issued February 11, 2009). Compare Joseph Kripp, 55
ECAB 121 (2003).
11

See supra notes 6, 7. See also N.S., Docket No. 09-1652 (March 18, 2008).

12

See supra notes 6, 7.

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated February 13, 2009 and May 23, 2008 are affirmed.
Issued: November 17, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5