United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF THE AIR FORCE,
NORTON AIR FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 14-1367
Issued: October 14, 2014

Case Submitted on the Record

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

JURISDICTION
On May 29, 2014 appellant, through his representative, filed a timely appeal from the
December 5, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) which denied reconsideration. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this denial.
ISSUE
The issue is whether OWCP properly denied appellant’s July 30, 2013 reconsideration
request, as it was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On December 27, 1978 appellant, a 33-year-old jet engine mechanic, sustained a
traumatic injury in the performance of duty while helping to move an engine fan case. He
described the nature of his injury as “left side of back (possible pulled muscle).” OWCP
1

5 U.S.C. § 8101 et seq.

accepted appellant’s claim for low back strain and herniated nucleus pulposus at L4-5.
Concurrent conditions noted to be preexisting and not work related included obesity and
degenerative disc disease at C5-6.
In a decision dated December 29, 1998, OWCP terminated compensation for the accepted
medical conditions. It found that the opinion of Dr. D. William Zaayer, a Board-certified
orthopedic surgeon and impartial medical specialist selected to resolve a conflict, constituted the
weight of the medical evidence and established that the accepted medical conditions had
resolved.
Dr. Zaayer reported that appellant’s injury in 1978 was likely just a very mild back strain
without any neurological aspects. There was every indication this symptom passed very rapidly
and was not a problem. Asked if there was a herniated nucleus pulposus, Dr. Zaayer responded
that appellant’s current magnetic resonance imaging (MRI) scan did not support a herniated
nucleus pulposus. There was a bulging annulus but no extrusion, and nothing in the tests had
shown any evidence of nerve root impingement or radiculopathy in the usual sense.
Dr. Zaayer stated that, if an MRI scan had been taken in December 1978, it likely would
have shown some disc bulging at L4-5. X-rays showed slight disc space narrowing and minimal
osteophyte formation. As time goes on, Dr. Zaayer explained, this degenerative process
continues to grow and mature and advance, and this is exactly what happened in appellant’s low
back. He noted that appellant had disc problems in his neck and low back and had osteoarthritis
in virtually every area that was x-rayed. This represented the ongoing progression of the
degenerative process in appellant’s back, which existed prior to the 1978 work incident. This
was his current picture, together with flat feet and abundantly tight hamstring muscles, all of
which aggravated a mechanical low back situation without significant neurological aspects.
Dr. Zaayer explained that the very simple, mild back sprain did not aggravate anything in
appellant’s back, as no single event of this type would have any effect upon the ongoing
degenerative process, which, he added, would have become symptomatic absent the 1978 work
incident. “It is this ongoing degenerative process aggravated by tight hamstring muscles and flat
feet that is driving this whole case at this time. It has nothing to do with the December 27, 1978
incident in any way, whatsoever.” When one looks at all of the medical examinations that have
been performed, he observed, one does not find any evidence of the December 27, 1978 incident.
The only objective evidence, unrelated to that incident, was profound osteoarthritic changes,
bulging annulus and spinal stenosis at L4-5.
In February 17, 2000 an OWCP hearing representative affirmed.
reviews, denials of reconsideration and appeals to the Board followed.2

2

Numerous merit

The Board reversed the termination in Docket No. 96-1544 (issued June 15, 1998); and affirmed the denials of
reconsideration in Docket No. 06-746 (issued September 7, 2006), petition for recon. denied, Docket No. 06-746
(issued February 7, 2007); Docket No. 09-23 (issued June 16, 2009); and Docket No. 10-206 (issued February 26,
2010), petition for recon. denied, Docket No. 10-206 (issued June 30, 2010). The Board also dismissed the appeal
for lack of jurisdiction in Docket No. 10-2346 (issued June 27, 2011).

2

In a decision dated June 29, 2012, OWCP reviewed the merits of appellant’s case but
denied modification of its decision to terminate compensation for the accepted medical
conditions. It found that the April 19, 2012 report of Dr. James Bryan Cooper, a Board-certified
neurologist, provided an inaccurate history of injury and failed to provide medical reasoning to
support the opinion provided.
In a letter dated July 30, 2013 and received by OWCP on August 2, 2013, appellant,
through his representative, requested reconsideration. He submitted an additional report from
Dr. Cooper. Appellant’s representative added that the medical opinion upon which OWCP relied
did not address the impact of the work injury on his overall conditioning, and how that sustained
his condition and continued his disability. The termination, he argued, was based on a brief
interview by a second opinion examiner, and as such, OWCP’s decision was clearly erroneous.
In a July 24, 2013 report, Dr. Cooper offered his credentials and noted that he had
followed appellant for several years. He explained that the degree of appellant’s rupture and
degeneration were beyond what would have been expected without his injury. Appellant had
become deconditioned due to pain, limiting his activity, due to the 1978 injury. This caused him
to become quite obese and has caused further deconditioning, making it harder for him to
maintain normal function. “In my professional opinion, his current state of obesity is caused
wholly or significantly by chronic back pain which originated from the injury in 1978. This in
turn has caused his dis[c] herniation to continue to be painful and disabling, unable to tolerate
physical therapy, and may be in need of surgery. The facet disease and degenerative dis[c]
disease worsen each other.”
Dr. Cooper noted that appellant had disc degeneration and facet disease that was very
advanced for a 67 year old. In his experience, appellant’s degenerative disc disease was much
more severe than he would expect. Based on the history, the disc herniation did not happen just
because appellant grew older; it popped up during the accident and has never gone into a
healthier condition. Further, additional loading due to obesity and deconditioning had
accelerated appellant’s severe facet disease. Dr. Cooper continued:
“Although it cannot be said with 100 percent certainty that his current condition is
the result of the accident in 1978; however, given the absence of prior clinical
history, it is my opinion with greater than a reasonable degree of certainty that his
current condition is due to the work-related incident in 1978. He is still suffering
the effects of the injury and in my opinion he is totally disabled.
“To say that the effects of the injury ceased and then his current problems are
strictly results of aging are wrong in my opinion. It ignores the history of pain
since the accident and persistence of dis[c] herniation and worsening of the facet
arthropathy. It is my opinion that the injury resulting from the 1978 lifting
accident has caused wholly or significantly his current situation and I believe he is
totally and permanently disabled.”
In a decision dated December 5, 2013, OWCP denied appellant’s reconsideration request.
It found the request untimely and did not present clear evidence of error in the termination of the
accepted medical conditions. OWCP noted that the weight of the medical evidence rested with

3

an impartial medical specialist, not a second opinion physician. It added that new medical
evidence from Dr. Cooper did not support that the termination decision was incorrect at the time
it was issued.
Appellant’s representative argues that appellant’s disc herniation has never gone away,
that OWCP failed to consider appellant’s facet disease or his obesity. He contends that OWCP’s
decision denying reconsideration must be set aside and the case remanded for a de novo decision
on whether appellant still has residuals of his 1978 injury, whether he suffers from morbid
obesity as a direct and natural consequence of the original injury and whether he is totally
disabled.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be received by OWCP within one year of the date of the
OWCP decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5 If clear
evidence of error has not been presented, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.6
ANALYSIS
The most recent review of the merits of appellant’s case is OWCP’s June 29, 2012
decision. It found the April 19, 2012 report of Dr. Cooper was insufficient to warrant
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.607.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (October 2011).

6

Id. at Chapter 2.1602.5.b.

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modification of the decision terminating compensation for the accepted medical conditions.
Appellant had one calendar year, or until June 29, 2013, to submit to OWCP a timely
reconsideration request. His July 30, 2014 request, received by OWCP on August 2, 2013, was
untimely by about a month.
The question for determination is whether this untimely request demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. As the Board has
explained in previous appeals of this case, and above, “clear evidence of error” is intended to
represent a difficult standard. The reconsideration request or application must establish, on its
face, that the termination decision was erroneous.
When OWCP terminated compensation on December 29, 1998, it terminated the
compensation that was payable for the accepted medical conditions of low back strain and
herniated nucleus pulposus at the L4-5 level. It accepted that the December 27, 1978 work
incident caused those two medical conditions, and paid compensation to appellant on that basis.
The opinion of Dr. Zaayer, the orthopedic surgeon and impartial medical specialist, found that
the low back strain in 1978 had resolved, and the current MRI scan showed no herniated disc,
only a bulging annulus with no extrusion. Further testing showed no evidence of nerve root
impingement or radiculopathy in the usual sense. As there was no longer any medical
justification for continuing compensation for the accepted low back strain and herniated nucleus
pulposus at L4-5, OWCP terminated that compensation.
Whether appellant currently suffers from other medical conditions is not material to the
prior termination, as he never received compensation on the basis of other medical conditions.
Appellant’s representative argues that OWCP failed to consider facet disease and obesity, but it
was never accepted that these medical conditions were causally related to the December 27, 1978
work injury.
Moreover, OWCP based its termination of compensation on the well-reasoned opinion of
an impartial medical specialist, which is entitled to special weight.7 If, in an untimely request for
reconsideration, appellant were to submit a well-reasoned medical opinion to the contrary, one
that explicitly rebutted Dr. Zaayer’s findings and rationale, the result might be another conflict.
In other words, there might be a disagreement between physicians on whether appellant
continued to suffer from the low back strain that occurred on December 27, 1978, or whether he
continued to suffer from a herniated nucleus pulposus at L4-5 due to that same incident. Such an
unresolved conflict, however, does not establish clear evidence of error in the termination of
compensation. Appellant’s burden is not simply to raise an uncertainty. He must provide
positive proof that the termination of compensation was, in fact, erroneous. An unresolved
conflict in medical opinion only leaves the question open. It does not establish that Dr. Zaayer
was clearly wrong.

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

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The FECA procedure manual addresses this point directly. Citing Board precedent, the
procedure manual explains that the claimant must present evidence which on its face shows that
OWCP made an error:
“For example, a claimant provides proof that a schedule award was miscalculated,
such as a marriage certificate showing that the claimant had a dependent but the
award was not paid at the augmented rate. Evidence such as a detailed, wellrationalized medical report which, if submitted before the denial was issued
would have created a conflict in medical opinion requiring further development, is
not clear evidence of error.”8
To support his untimely reconsideration request, appellant submitted the July 24, 2013
report of Dr. Cooper, the neurologist, who did not directly argue that appellant continued to
suffer from the soft tissue injury he sustained 35 years earlier. Dr. Cooper did mention a rupture
and the persistence of disc herniation, which continued to be painful and disabling due to
appellant’s current state of obesity, which in turn was caused wholly or significantly by chronic
back pain originating from the injury in 1978. He added that the disc herniation popped up
during the accident and never went into a healthier state.
Without weighing the probative value of Dr. Cooper’s opinion, as this is a nonmerit
review, the Board notes that, if Dr. Cooper disagrees with Dr. Zaayer on whether appellant
continues to suffer from the accepted medical conditions of low back strain or herniated nucleus
pulposus at L4-5, the resulting unresolved conflict in medical opinion would not prove that
OWCP made an error in terminating the compensation for those medical conditions.
Dr. Cooper’s opinion on the issue of facet arthropathy, degenerative disc disease, obesity
and deconditioning is immaterial to the termination of compensation appellant was receiving for
the accepted conditions of low back strain and herniated disc at L4-5.
As for the argument that OWCP based the termination on a brief interview by a second
opinion examiner, the record shows otherwise. OWCP based the termination on the opinion
offered by an impartial medical specialist selected pursuant to 5 U.S.C. § 8123(a) to resolve a
conflict in the medical evidence.
The Board finds that appellant’s July 30, 2013 reconsideration request is untimely and
fails to show clear evidence of error in the termination of compensation for the accepted medical
conditions. As OWCP properly denied that request, the Board will affirm OWCP’s December 5,
2013 decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s July 30, 2013 reconsideration
request as untimely filed and failing to show clear evidence of error.

8

Supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the December 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 14, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bayonne, NJ, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-567
Issued: October 21, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

On January 15, 2013 appellant filed a timely appeal from a nonmerit January 3, 2013
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration.1 The appeal was docketed as No. 13-567.
The Board has duly considered the matter and finds that the case must be remanded for
further development. OWCP accepted that appellant sustained a left ankle sprain, left fifth
metatarsal fracture, herniated thoracic discs and cervical and lumbar myofasciitis in two separate
occupational incidents. By decision dated October 13, 2011, OWCP granted her schedule
awards for permanent impairments of both upper extremities and the left lower extremity,
injuries pertaining to one of her two claims.2 OWCP also doubled appellant’s claims, but did not
include right leg impairment in the schedule award. It advised her on January 9, 2012 that it
would issue a schedule award for a 21 percent impairment of the right lower extremity after the
October 13, 2011 schedule award expired on August 31, 2013.
1

This is appellant’s second appeal before the Board in this case. By decision and order issued April 9, 1999,
under File No. xxxxxx341, Docket No. 97-1876, the Board affirmed OWCP’s February 18, 1997 decision affirming
the prior termination of appellant’s compensation.
2

OWCP also combined File No. xxxxxx341 and File No. xxxxxx370, using File No. xxxxxx341 as the master
claim number.

Appellant requested reconsideration on October 4, 2012, contending that, although
OWCP doubled her claims, it improperly omitted right leg impairment from the schedule award
and did not prepare a unified statement of accepted facts. She submitted a September 19, 2012
impairment rating from Dr. Nicholas Diamond, an attending osteopathic physician, finding
impairments of all four extremities according to the American Medical Association, Guides to
the Evaluation of Permanent Impairment, sixth edition.3 By decision dated January 3, 2013,
OWCP denied reconsideration on the grounds that Dr. Diamond’s report was irrelevant and
appellant’s legal arguments invalid.
The Board finds that OWCP’s denial of reconsideration constituted an abuse of discretion
under 5 U.S.C. § 8128(a).4 Appellant’s legal argument on reconsideration regarding OWCP’s
failure to include the right leg impairment in the October 13, 2011 schedule award was both new
and relevant. OWCP did not formally adjudicate the percentage of impairment for the right
lower extremity with appropriate findings of fact or a statement of reasons.5 The case will be
remanded for OWCP to exercise its discretion pursuant to 5 U.S.C. § 8128 and reopen
appellant’s claim for a merit review. The decision of OWCP dated January 3, 2013 is therefore
set aside and the case is remanded to OWCP for review of the merits of her claim.

3

Appellant also submitted May 31, 2012 imaging studies.

4

Carol Cherry (Donald Cherry) 47 ECAB 658 (1996).

5

See Paul M. Colosi, 56 ECAB 294 (2005) (a final OWCP decision must include findings of fact and provide
clear reasoning which allows the claimant to understand the precise defect of the claim and the kind of evidence
which would tend to overcome it).

2

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 3, 2013 is set aside, and the case remanded for further
proceedings consistent with this order of the Board.
Issued: October 21, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALBANY STRATTON VETERANS
ADMINISTRATION MEDICAL CENTER,
Albany, NY, Employer
__________________________________________

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

Docket No. 13-138
Issued: March 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 25, 2012 appellant filed a timely appeal of an October 11, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury while in the performance of duty on August 15, 2012.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 30, 2012 appellant, then a 64-year-old housekeeping aide, filed a traumatic
injury claim alleging that he moved a bag of contaminated waste from a receptacle to a trash cart
on August 15, 2012. He experienced back pain. Appellant stopped work on August 22, 2012
and returned on September 17, 2012. George R. Thomas, a supervisor, controverted appellant’s
claim on the grounds that he was persuaded by a third party to attribute the back injury to his
federal employment.
An August 23, 2012 note from Dr. John M. Bashant, an osteopath and Board-certified
internist, diagnosed lumbar strain.
In an August 30, 2012 report, Dr. Luke V. Rigolosi, a Board-certified physiatrist, related
that appellant was “doing various activities” at work on August 15, 2012, “including lifting
objects.” The following day, appellant was unable to move. On examination, Dr. Rigolosi
observed limited lumbar range of motion as well as lumbar spasms and tenderness to palpation.
X-rays exhibited decreased L5-S1 disc height and widespread degenerative changes.
Dr. Rigolosi diagnosed lumbar sprain/strain due to appellant’s activities on August 15, 2012 and
underlying degenerative disc disease. He commented that “the incident that the patient
described” was “a competent medical cause of injury.” Dr. Rigolosi placed appellant off duty
for the period August 17 to September 17, 2012.
OWCP informed appellant in a September 10, 2012 letter that additional evidence was
needed to establish his claim. It gave him 30 days to submit a factual statement detailing the
work incident that occurred on August 15, 2012 and a report from a qualified physician
explaining how the incident caused or contributed to a diagnosed injury.
In a September 13, 2012 report, Dr. Rigolosi noted that appellant’s symptoms improved
significantly. He opined that appellant remained partially disabled and would be released to
regular duty on September 17, 2012.2
By decision dated October 11, 2012, OWCP denied appellant’s claim, finding the
evidence insufficient to establish that an employment incident occurred on August 15, 2012 as
alleged.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also

2

Dr. Rigolosi restated the findings and diagnoses contained in his earlier report.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

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establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.5
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, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.6
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.7
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS
The Board finds that appellant established that he moved a bag of contaminated waste
from a receptacle to a trash cart on August 15, 2012. Appellant’s account paralleled the history
of injury obtained by Dr. Rigolosi.10 Furthermore, he refrained from work for the period
August 22 to September 17, 2012, received medical treatment, notified the employing
establishment and timely filed a traumatic injury claim. An employee’s statement alleging that
an incident occurred at a given time and in a given manner is of great probative value and will
stand unless refuted by strong or persuasive evidence. While Mr. Thomas argued that a third
5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

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

8

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

9

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

10

See Caroline Thomas, 51 ECAB 451 (a consistent history of the injury as reported on medical reports, to the
claimant’s supervisor and on the notice of injury can be evidence of the occurrence of the incident).

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party had convinced appellant to file a workers’ compensation claim, this contention was not
substantiated by any strong or persuasive evidence. In view of the totality of the evidence, the
Board finds that an employment incident occurred on August 15, 2012.
The Board finds, however, that the medical evidence is not sufficient to establish that the
accepted August 15, 2012 employment incident caused or contributed to a lower back condition.
In an August 30, 2012 report, Dr. Rigolosi remarked that appellant lifted various objects at work
on August 15, 2012 and was unable to move the following day. Based on x-ray and physical
examination findings, he diagnosed work-related lumbar sprain/strain and underlying
degenerative disc disease. Dr. Rigolosi briefly noted that “the incident that [appellant]
described” was “a competent medical cause of injury.” He reiterated his findings in a
September 13, 2012 report. Dr. Rigolosi merely communicated appellant’s belief on the issue of
causal relationship.11 He did not provide a full medical history of appellant’s treatment for any
prior condition. Dr. Rigolosi did not pathophysiologically explain how moving a bag of
contaminated waste on August 15, 2012 caused or contributed to lumbar injury.12 The need for
rationalized medical opinion evidence is important because Dr. Rigolosi also diagnosed
preexisting degenerative disc disease.
The August 23, 2012 note from Dr. Bashant was of diminished probative value because
the osteopath did not discuss whether appellant’s diagnosed lumbar strain resulted from his
federal employment.13 In the absence of rationalized medical opinion evidence, appellant failed
to discharge his burden of proof.
Appellant submitted new evidence on appeal and after issuance of the October 11, 2012
decision. The Board, however, lacks jurisdiction to review evidence for the first time on
appeal.14
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury while
in the performance of duty on August 15, 2012.

11

See P.K., Docket No. 08-2551 (issued June 2, 2009) (an award of compensation may not be based on a
claimant’s belief of causal relationship).
12

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994). See also John W.
Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment incident
described by the claimant caused or contributed to a diagnosed medical condition).
13

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

14

20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the October 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 20, 2013
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1839
Issued: January 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 5, 2013 appellant, through her attorney, filed a timely appeal from a May 13,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) is whether OWCP met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits effective February 21, 2012; and (2) whether
appellant had continuing benefits after February 21, 2012.
FACTUAL HISTORY
On July 26, 2004 appellant, then a 43-year-old carrier, filed a traumatic injury claim
alleging that on July 21, 2004 the freight elevator door closed while she was entering and it
struck her head. She alleged injuries to her head, neck, back and shoulder. OWCP accepted
1

5 U.S.C. § 8101 et seq.

appellant’s claim for the conditions of headache, cervical radiculopathy and lumbar
radiculopathy. Appellant stopped work following the injury. She returned to limited duty for six
hours a day on February 7, 2005 and stopped work the next day, February 8, 2005. On April 4,
2005 OWCP accepted appellant’s recurrence of disability claim. Appellant has not returned to
work.
OWCP referred appellant for a second opinion evaluation on September 13, 2011. In a
September 23, 2011 report, Dr. Michael J. Carciente, a Board-certified neurologist, noted the
history of her injury, reviewed the medical records and reported findings on neurological
examination. He opined that appellant had a normal neurologic examination with no objective
neurological findings such as myotomal weakness, dermatormal sensory deficits, asymmetric
reflexes or atrophy supporting the presence of a radiculopathy. Therefore, Dr. Carciente found
no evidence of disabling neurological residuals from the work injury and opined that she was
capable, from a neurologic perspective, of performing her date-of-injury position without
restrictions. He concluded his report by stating that no additional neurological care or diagnostic
testing was needed to treat the accepted conditions as maximum medical improvement had been
reached from a neurologic perspective as of September 13, 2011.
Following the second opinion examination, OWCP received several medical reports from
Dr. Igor Stiler, a Board-certified neurologist, dated May 12, July 21, September 8, October 20
and December 15, 2011. In his May 12, 2011 report, Dr. Stiler stated that appellant still suffered
from pain in her lumbar spine, greater than neck pain. He noted that she had been performing
low impact type of physical activity at the gym. Dr. Stiler presented examination findings and
concluded that appellant had a moderate permanent partial disability and could return to work
with restrictions. His other reports indicated his findings on physical examination and that she
has a moderate partial disability.
On December 22, 2011 OWCP requested that Dr. Carciente provide an addendum report
after he reviewed the May 18, 2011 statement of accepted facts and the date-of-injury position
description. In a December 29, 2011 addendum report, Dr. Carciente noted his review of the
additional records and stated that his impression contained in his September 23, 2011 report was
unchanged as appellant had a normal neurological examination with no objective neurological
findings.
In a letter dated January 13, 2012, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Carciente’s reports.
In a February 8, 2012 letter, appellant’s attorney disagreed with OWCP’s proposed
termination.
By decision dated February 21, 2012, OWCP terminated appellant’s compensation and
medical benefits effective February 21, 2012 based on Dr. Carciente’s reports.
On February 12, 2013 appellant’s attorney requested reconsideration. He argued that the
case should be expanded to include additional medical conditions and that a conflict in medical
opinion exists between the new reports from Dr. Stiler and the second opinion physician.
In a September 11, 2012 report, Dr. Stiler noted that he first examined appellant on
August 5, 2004 for her work-related injuries resulting from the July 21, 2004 incident and
2

summarized his examination findings throughout the years. Based on the history of injury, his
examination findings of her and his review of records, including magnetic resonance imaging
(MRI) scans from August 5 through 30, 2012, Dr. Stiler diagnosed traumatic cervical
radiculopathy with C3-4 herniated disc, C4-5 herniated disc and C5-6 bulging disc; and
traumatic lumbar radiculopathy with right L3-4 herniated disc and L4-5 bulging disc. He stated
that, while appellant’s symptoms had waxed and waned in severity over the years, they never
completely improved. As of the last examination of August 30, 2012, Dr. Stiler indicated that
there appeared to be deterioration in her status with further spasm and pain. He opined that
appellant had permanent injuries to the cervical and lumbar spine as proven by the disc
herniation and was totally disabled from employment.
In a January 15, 2013 addendum, Dr. Stiler indicated that, since his September 11, 2012
report, appellant had additional diagnostic studies performed.
He indicated that the
September 13, 2012 cervical spine MRI scan revealed disc herniations and that the disc
herniation on the left at C5-6 was due to worsening progression of the cervical spinal pathology
that was produced as a result of the July 21, 2004 traumatic injury. Dr. Stiler also indicated that
the December 24, 2012 lumbar MRI scan revealed disc herniation and that the enlargement of
the L3-4 disc herniation was due to worsening progression of the lumbar spinal pathology that
was produced as a result of the July 21, 2004 traumatic injury.
OWCP determined that a conflict in medical opinion existed between Dr. Stiler and
Dr. Carciente regarding continuing disability and need for treatment due to the July 21, 2004
employment injury and referred appellant, the medical record, a February 20, 2013 statement of
accepted facts and a list of questions to Dr. Vladimir Zlatnik, a Board-certified neurologist, for
an impartial medical evaluation.
In an April 3, 2013 report, Dr. Zlatnik noted the history of injury, his review of the
medical records and provided examination findings. He provided an impression of status postaccident on the job. Dr. Zlatnik found no clinical signs of traumatic central nervous symptom or
peripheral nervous system dysfunction. He indicated that the neurological examination was
within normal limits with no focal traumatic motor, sensory or coordination deficits. Dr. Zlatnik
stated that there was cervical and lumbar sacral sprain and herniated nucleus pulposus, possibly
due to degenerative joint disease. Head trauma was without neurological deficit and left
shoulder injury, contusion, with possible derangement. Dr. Zlatnik opined that appellant was not
disabled from a neurological standpoint. He indicated that he could not comment on appellant’s
shoulder pain and her neck and back as they may represent degenerative joint disease and
mechanical problems, such as mechanical low back pain, mechanical cervicalgia and left
shoulder derangement. Dr. Zlatnik recommended that questions related to problems with this
pain should be addressed to an orthopedic specialist. He opined that appellant reached maximum
medical improvement and there was no need for treatment related to neurological problems.
In an April 10, 2013 letter, OWCP requested an addendum from Dr. Zlatnik as he failed
to respond to its questions. In an April 16, 2013 addendum, Dr. Zlatnik indicated that there was
a causal relationship with appellant’s condition and the work injury with an exception: the
abnormalities on MRI scan of cervical and lumbar spine may be preexisting condition and which
might contribute to her complaints and problems. He found that there were no signs of
neurological disability because there was no specific neurological deficit on his neurological
examination. Appellant was nonfocal with no signs of traumatic PNS or CNS dysfunction found
3

on examination. Dr. Zlatnik noted the abnormalities found on MRI scan, which may be a
reflection of her age and hereditary predilection and related to her life and work, which is not
transferred to neurological abnormalities and findings, but may be reflected in her pain and
disability due to mechanical reasons.
Dr. Zlatnik opined that appellant was able to perform her regular work duties of her
regular employment from a neurological standpoint. He could not comment on her shoulders
and degenerative disc disease in the cervical and lumbosacral spine, as an orthopedic surgeon
would be more appropriate. Dr. Zlatnik advised that appellant was under treatment for almost 10
years without significant improvement. If there was no significant improvement or benefit from
treatment, then it was logical to conclude that conservative treatment should be discontinued.
Dr. Zlatnik indicated that appellant may suffer from degenerative joint disease due to
multiple factors and this degenerative joint disease may interfere in her well-being and quality of
life as well as performance. He again indicated that this question should be addressed to an
orthopedic specialist as no neurologic deficit was found. Dr. Zlatnik opined that appellant
reached maximum medical improvement from treatment and that she would be able to perform
full duties from a neurological standpoint. He reiterated that she may suffer from other
conditions which may interfere with her abilities, but those questions should be explored by an
appropriate specialist.
By decision dated May 13, 2013, OWCP denied modification of its February 21, 2012
decision. It advised that the weight of the medical evidence, as represented by Dr. Zlatnik’s
impartial opinion, established that her accepted conditions had ceased and that she had no workrelated residuals stemming from the conditions.2
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s benefits.3 It may not terminate compensation
without establishing that the disability had ceased or that it was no longer related to the
employment.4 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5 The right to
medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.6 To terminate authorization for medical treatment, OWCP must

2

The February 21, 2012 effective date of the termination of appellant’s compensation benefits remained the
same.
3

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

4

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

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

6

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

4

establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.7
Section 8123(a) provides that, if there is a disagreement between the physician making
the examination for the United States and the physician of the employee the Secretary shall
appoint a third physician who shall make an examination.8 It is well established that, when a
case is referred to an impartial medical specialist for the purpose of resolving a conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual and
medical background, must be given special weight.9
ANALYSIS
OWCP accepted that appellant sustained the conditions of headache, cervical
radiculopathy and lumbar radiculopathy as arising out of the July 21, 2004 employment incident.
It also accepted a recurrence of disability of February 8, 2005 and she has remained out of work
ever since. OWCP paid medical benefits and subsequently referred appellant to Dr. Carciente
for a second opinion. Relying on Dr. Carciente’s report as the weight of medical evidence,
OWCP terminated her wage-loss and medical benefits effective February 21, 2012.
OWCP subsequently determined that a conflict in medical opinion evidence existed
between appellant’s treating physician, Dr. Stiler and its second opinion physician,
Dr. Carciente, as to whether she had residuals of her July 21, 2004 work injury. It properly
referred appellant to Dr. Zlatnik for an impartial medical evaluation as to whether her accepted
neurolgic conditions had ceased.10 Based on the opinion of Dr. Zlatnik, OWCP denied
modification of its February 21, 2012 termination decision.
In an April 3, 2013 report, Dr. Zlatnik provided an accurate history of the July 21, 2004
employment injury and reviewed appellant’s medical records. He found no clinical signs of
traumatic central nervous symptom or peripheral nervous system dysfunction. Dr. Zlatnik also
found that the neurological examination was within normal limits with no focal traumatic motor,
sensory or coordination deficits. Head trauma was without neurological deficit and left shoulder
injury, contusion, with possible derangement. Dr. Zlatnik opined that appellant reached
maximum medical improvement, that she was not disabled from a neurological standpoint and
did not need any treatment related to neurological problems. He noted that while there was
cervical and lumbar sacral sprain and herniated nucleus pulposus and shoulder, back and neck
pain, such conditions may be the result of other problems which an orthopedic specialist could
address. In an April 16, 2013 addendum, Dr. Zlatnik responded to OWCP’s specific questions.
He reiterated that there were no signs of neurological disability on his neurological examination
as there was no specific neurological deficit. Thus, Dr. Zlatnik opined that appellant reached
maximum medical improvement and was able to perform her regular duties from a neurological
deficit. He opined that an orthopedic specialist should be able to address her other conditions
7

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

8

Regina T. Pellecchia, 53 ECAB 155 (2001).

9

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

10

See 5 U.S.C. § 8123(a).

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pertaining to her shoulders and degenerative disc disease in her cervical and lumbosacral spine.
Dr. Zlatnik further opined that conservative treatment should be discontinued as appellant was
under treatment for approximately 10 years without significant improvement.
The Board finds that Dr. Zlatnik’s opinion represents the special weight of medical
opinion evidence that appellant no longer had residuals or disability of the accepted conditions
related to the July 21, 2004 employment injury. Dr. Zlatnik reviewed her history and accurately
described the July 21, 2004 employment injury. He conducted an examination and found that
the objective evidence did not establish that appellant continued to suffer residuals or disability
from her work-related injury. Dr. Zlatnik explained that she had no signs of neurological
disability as there was no neurological deficit on examination and that she had reached maximum
medical improvement. He also concluded that no further medical treatment would be necessary
or appropriate. While Dr. Zlatnik identified conditions pertaining to appellant’s shoulders and
degenerative disc disease in her cervical and lumbosacral spine, he indicated that an orthopedic
specialist should be able to address any questions pertaining to those conditions. His opinion is
sufficiently probative, rationalized and based on a proper factual background. Therefore, OWCP
properly accorded Dr. Zlatnik opinion the special weight of an impartial medical examiner.11
The Board therefore finds that his opinion constituted the weight of medical opinion.
On appeal, counsel argues that OWCP should have referred appellant to an orthopedic
specialist prior to issuing its decision. Contrary to appellant’s argument on appeal, OWCP does
not have an obligation to refer appellant to an orthopedic specialist as the claim has not been
accepted for any orthopedic conditions, such as degenerative joint disease and herniated disc.
Counsel additionally contends that Dr. Zlatnik’s report dated April 3, 2013 contained an
inaccurate history of injury and submitted a May 28, 2013 statement by appellant. However,
Dr. Zlatnik had a copy of her complete medical record and an accurate statement of accepted
facts upon which he based his opinion. Appellant also argued that the class of accepted
conditions should be expanded to include all conditions referenced by appellant’s treating
physician. However, for conditions not accepted by OWCP as being employment related, it is
the claimant’s burden to provide rationalized medical evidence sufficient to establish causal
relation, not OWCP’s burden to disprove such relationship.12
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits. Appellant may submit new evidence or argument with a written request
for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation and wage-loss benefits.

11

Gary R. Seiber, 46 ECAB 215 (1994).

12

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the May 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Diego, CA, Employer
__________________________________________

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

Docket No. 19-0943
Issued: September 23, 2019

Case Submitted on the Record

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

JURISDICTION
On March 28, 2019 appellant filed a timely appeal from a December 11, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its December 11, 2018 decision.
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.

ISSUE
The issue is whether appellant has met his burden of proof to establish right shoulder and
neck injuries in the performance of duty on October 17, 2018, as alleged.
FACTUAL HISTORY
On October 25, 2018 appellant, then a 50-year-old Air Marine Agent, filed a traumatic
injury claim (Form CA-1) alleging that on October 17, 2018 he sustained injuries to his right
shoulder and neck when participating in a mat room workout during “ground robin and ground
proficiency training” while in the performance of duty. On the reverse side of the claim form, the
employing establishment checked a box marked “yes” indicating that appellant was in the
performance of duty when the claimed injury occurred.
In a development letter dated November 9, 2018, OWCP informed appellant that the
available evidence of record was insufficient to establish that the claimed October 17, 2018
employment incident occurred as alleged. It advised him of the type of factual and medical
evidence necessary to establish his claim. OWCP attached a questionnaire for appellant’s
completion. It afforded him 30 days to provide the necessary information.
OWCP received a November 5, 2018 urgent care note from Dr. Gerard Francis Blake, a
Board-certified family physician. Dr. Blake noted that appellant presented with upper extremity
weakness and reported that he injured his neck on October 17, 2018 while completing physical
training at work. He indicated that he initially had significant bruising following the employment
incident and continued to have increasing neck pain with range of motion. Dr. Blake diagnosed a
neck injury, neck pain, and weakness of the right upper extremity. He transferred appellant to the
hospital emergency department for an advanced examination and the completion of a work status
report.
In an emergency room report of even date, Dr. Douglas Ballesteros, Board-certified in
emergency medicine, noted that appellant presented with shoulder and neck pain. He reported that
he was injured on October 17, 2018 while grappling hand-to-hand during combat training at work.
Dr. Ballesteros suspected a right rotator cuff injury as a result of hyperextension of the right upper
extremity.
A magnetic resonance imaging (MRI) scan study of appellant’s cervical spine revealed a
small disc herniation at T2-3 and no significant acute injuries.
In a November 26, 2018 statement, appellant explained that he was temporarily on duty to
a national training center in Harper’s Ferry, West Virginia, during the alleged incident and that his
injury occurred while participating in advanced less lethal instructor training. He contended that
his two instructors were aware of his injury. Since the incident, appellant stated that he suffered
from a sore neck and shoulder and it had become more difficult to perform his work duties. He
indicated that he had not sustained any other injury between the date of the employment incident
and date of reporting it. Appellant further noted that he did not have any similar disabilities or
symptoms prior to the alleged employment incident.

2

In an excuse from work note dated November 27, 2018, Dr. Fatma Deif, Board-certified in
internal medicine, noted that she saw appellant on that date. She asked that he be excused from
work and restricted him to light-duty work with no lifting over 10 pounds beginning November 26,
2018 through at least December 7, 2018.
By decision dated December 11, 2018, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish that the October 17, 2018 employment incident
occurred as alleged. As appellant had not established the factual element of his claim, it found
that he had not met the requirements for establishing an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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,3 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.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 an employee sustained a traumatic injury in the performance of duty, OWCP
begins with an analysis of whether “fact of injury” has been established.6 Fact of injury consists
of two components that must be considered conjunctively. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident that is alleged
to have occurred.7 An employee has not met his or her burden of proof of establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious doubt
upon the validity of the claim.8 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.9

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

C.B., Docket No. 18-0071 (issued May 13, 2019); D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine
Pendleton, 40 ECAB 1143 (1989).
8

D.R., Docket No. 19-0072 (issued June 24, 2019); T.M., Docket No. 17-1194 (issued February 4, 2019).

9

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

3

An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.10
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his burden of proof to establish the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the validity
of the claim. Circumstances such as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement in
determining whether a prima facie case has been established.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right shoulder
and neck injuries in the performance of duty on October 17, 2018, as alleged.
Appellant has not established the factual component of his claim as he has not sufficiently
explained how and when the claimed injury occurred. In his CA-1 form, he alleged that he
sustained an injury to his right shoulder and neck in the performance of duty when he participated
in a mat room workout during “ground robin and ground proficiency” training. Appellant provided
no detailed account of the alleged injury or corroborating evidence, such as witness statements.
He presented no evidence regarding the specific mechanism of injury, as required in a claim for
traumatic injury, nor did he allege that he experienced a specific event, incident, or exposure at a
definite time, place, and manner.12 Appellant did not advise whether his injury was caused by a
fall, lifting, pulling, or otherwise. He did not describe the exact and immediate consequences of
the injury (e.g., whether his shoulder was twisted or pulled, whether his neck was overextended).
Appellant’s vague recitation of the facts does not support his allegation that a specific incident
occurred which caused a work-related injury.13
In a development letter dated November 9, 2018, OWCP requested that appellant describe
the factual circumstances of his injury and provided him with a factual development questionnaire
for completion. However, in his November 26, 2018 statement, appellant did not provide a
detailed account of the alleged injury or explain how the injury occurred. He also indicated that
he did not have statements from any witnesses or supervisors to corroborate the underlying facts
of the alleged employment incident. As noted, an employee has not met his or her burden of proof

10

M.S., Docket No. 18-0059 (issued June 12, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11

D.R., Docket No. 19-0072 (issued June 24, 2019); T.M., supra note 8.

12

See M.C., Docket No. 18-1278 (issued March 7, 2019); see also Tracey P. Spillane, 54 ECAB 608 (2003);
Betty J. Smith, 54 ECAB 174 (2002).
13

See M.C., id.; M.B., Docket No. 11-1785 (issued February 15, 2012).

4

where circumstances such as lack of confirmation of injury cast doubt on an employee’s statement
in determining whether a prima facie case has been established.14
In support of his claim, appellant submitted multiple medical records, including the
November 5, 2018 medical reports from Drs. Blake and Ballesteros noting that appellant claimed
his injury occurred on October 17, 2018 during grappling hand-to-hand combat training. The
Board finds that these medical records are insufficiently detailed to meet his burden of proof to
establish the factual basis of his claim.15
As appellant has not adequately responded to the request for factual information, the Board
finds that the record lacks sufficient factual evidence to establish specific details of how the
claimed injury occurred.16
The Board notes that, because appellant has not established the first component of fact of
injury, it is unnecessary to discuss whether he submitted medical evidence sufficient to establish
that a medical condition existed and whether the condition was causally related to an alleged
employment incident.17
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 met his burden of proof to establish right shoulder
and neck injuries in the performance of duty on October 17, 2018, as alleged.

14

Supra note 11.

15

K.M., Docket No. 19-0367 (issued June 26, 2019).

16
Supra note 10; John R. Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26
ECAB 200 (1974).
17

M.S., supra note 10; see R.L., Docket No. 17-1670 (issued December 14, 2018); Dennis M. Mascarenas, 49
ECAB 215, 218 (1997) (as appellant failed to establish that the claimed incident occurred as alleged, it is unnecessary
to discuss the probative value of medical evidence).

5

ORDER
IT IS HEREBY ORDERED THAT the December 11, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 12-819
Issued: August 17, 2012

Case Submitted on the Record

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

JURISDICTION
On March 5, 2012 appellant filed a timely appeal from an October 24, 2011 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant met his burden of proof to establish more than 14 percent
impairment of the left leg for which he received a schedule award.
On appeal, appellant contends that he is entitled to separate awards for his foot and leg
conditions is entitled to a greater award.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 21, 2009 appellant, then a 45-year-old clerk, filed a traumatic injury claim,
alleging that he injured his back that day when sweeping mail. On June 3, 2009 OWCP accepted
a lumbar sprain. The claim was also accepted for displacement of intervertebral lumbar disc
without myelopathy.
On June 15, 2009 Dr. David L. Weinsweig, a Board-certified
neurosurgeon, performed a lumbar microdiscectomy at L4-5. Appellant returned to modified
duty on April 19, 2010.
On November 10, 2010 appellant filed a schedule award claim. By letter dated
November 15, 2010, OWCP informed him of the evidence needed to submit a report from a
physician in accordance with the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).2 Appellant was afforded
30 days to submit the requested information.
In an October 26, 2010 report, Dr. Natavoot Chongswatdi, Board-certified in family
medicine, noted that appellant had multiple, complex medical problems. He provided physical
examination findings and diagnosed a herniated disc at L4-5. Dr. Chongswatdi advised that
appellant had reached maximum medical improvement following back surgery and needed an
impairment evaluation. In a December 9, 2010 letter, he reiterated that appellant had reached
maximum medical improvement and had residuals of back pain, left lower extremity weakness,
radiculopathy and numbness and that he still needed medication to function at work.
By decision dated January 28, 2011, OWCP denied appellant’s schedule award claim as
the medical evidence submitted did not provide any impairment rating.
On February 24, 2011 appellant requested reconsideration and submitted a February 24,
2011 report from Dr. Robert W. Lowe, a Board-certified orthopedic surgeon, who noted the
history of injury and medical treatment and appellant’s complaints of low back pain with
weakness and numbness in the left lower extremity. Dr. Lowe reviewed medical records,
including magnetic resonance imaging (MRI) scan studies. He provided physical examination
findings that included diminished strength and sensation on the left. Dr. Scott diagnosed status
post herniated nucleus pulposus, operated, with reasonable result. He advised that in accordance
with the sixth edition of the A.M.A., Guides, under Table 17-7, appellant had a physical
examination grade modifier of 1, based on his sensory deficit and motor strength, and a modifier
of 2 for clinical studies, based on MRI scan findings, which placed him in class 2 of Table 17-7,
Lumbar Regional Grid, with a default value of 12 percent whole person impairment. A pain
disability questionnaire was scored at 88.3
On April 29, 2011 Dr. Arnold T. Berman, an OWCP medical adviser who is Boardcertified in orthopedic surgery, reviewed the medical record, including Dr. Lowe’s February 24,
2011 report. He utilized Table 2, Spinal Nerve Impairment, Lower Extremity found in The
2

A.M.A., Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

3

Appellant also submitted a January 4, 2011 report in which Dr. Chongswatdi reiterated his previous findings and
conclusions. Dr. Chongswatdi did not provide an impairment rating.

2

Guides Newsletter of July/August 2009. In rating the L5 injury, appellant had a class 1
impairment due to a 13 percent motor impairment and a one percent sensory impairment, for a
total left leg impairment of 14 percent, with February 24, 2011 the date of maximum medical
improvement.
In a July 22, 2011 decision, OWCP granted a schedule award for a 14 percent left leg
impairment, based on the opinion of Dr. Berman. It ran for a total of 40.32 weeks from April 19,
2010 to January 26, 2011.
On September 2, 2011 appellant requested reconsideration. He asserted that he was
entitled to separate awards for his foot and his leg since both were affected members. In reports
dated August 9 and 11, 2011, Dr. Chongswatdi described appellant’s condition and diagnosed
hip joint pain, lower back sprain, herniated disc at L4-5 and lumbar radiculopathy. He advised
that appellant should receive an award that included his foot.
On September 26, 2011 OWCP asked its medical adviser to review the medical record
and explain whether he considered left foot findings when calculating appellant’s left lower
extremity impairment. In an October 17, 2011 report, Dr. Berman advised that Dr. Lowe’s
impairment rating could not be accepted because he did not correctly rate impairment, as he
incorrectly utilized the lumbar grid rather than evaluating the lower extremity. The medical
adviser further advised that he took appellant’s left foot findings into account when rating the
spinal nerve involvement to the lower extremity on April 29, 2011, in accordance with the
July/August 2009 The Guides Newsletter.
In a merit decision dated October 24, 2011, OWCP found that appellant did not establish
greater than 14 percent permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations5 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.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition is to be used.8
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
8

FECA Bulletin No. 09-03 (issued March 15, 2009).

3

Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.11 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures which memorializes proposed tables outlined in the
July/August 2009 The Guides Newsletter.12
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).13 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).14
ANALYSIS
The Board finds that appellant has 14 percent impairment of the left leg. OWCP
accepted that he sustained a lumbar sprain and displacement of intervertebral lumbar disc
without myelopathy for which he underwent surgery. The Board finds that the weight of the
medical evidence rests with the opinion of OWCP’s medical adviser, the only impairment
evaluation of record that comports with the sixth edition of the A.M.A., Guides.
Dr. Lowe rated appellant’s lower extremity impairment using the sixth edition of the
A.M.A., Guides, but he used Chapter 17, “The Spine and Pelvis.” As noted, lower extremity
impairments are to be rated as provided in Exhibit 4 of section 3.700 of OWCP’s procedures.
This identifies proposed Table 2 to be used in rating lower extremity impairments caused by

9

Pamela J. Darling, 49 ECAB 286 (1998).

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

Rozella L. Skinner, 37 ECAB 398 (1986).

12

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 7.

13

A.M.A., Guides, supra note 2 at 533.

14

Id. at 521.

4

spinal nerve injury.15 Dr. Lowe provided a whole person spinal impairment while FECA does
not authorize schedule awards for permanent impairment of the whole person or the spine.16
Dr. Chongswatdi did not provide an impairment rating in his reports but stated that
appellant should receive a separate award for his foot.
In an April 29, 2011 report, Dr. Berman reviewed the medical record and identified the
L5 nerve root.
He found that maximum medical improvement was reached on
February 24, 2011. The medical adviser utilized Table 2 and found a class 1 impairment, with a
13 percent motor impairment and a 1 percent sensory impairment, or a total left lower extremity
impairment of 14 percent. On October 17, 2011 Dr. Berman advised that, upon review of
additional medical evidence, he found no change in the recommended impairment rating.
The Board finds that OWCP’s medical adviser properly reviewed the medical record and
evaluated appellant’s left lower extremity impairment in accordance with OWCP procedures
found at Exhibit 4 of section 3.700. There is no medical evidence in conformance with the
A.M.A., Guides showing a greater impairment.
Appellant argued on appeal that he is entitled to separate schedule awards for the leg and
the foot. Where the residuals of an injury to a member of the body specified in the schedule
extend into an adjoining area of a member also enumerated in the schedule, such as an injury of a
finger into the hand, of a hand into the arm or of a foot into the leg, the schedule award should be
made on the basis of the percentage loss of use of the larger member.17 In this case, the largest
member is the leg. Dr. Berman properly provided an impairment rating.
Appellant may request a schedule award or increased schedule award 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 did not establish that he has more than a 14 percent
impairment of the left lower extremity.

15

Supra note 7.

16

N.D., 59 ECAB 344 (2008).

17

George A. Boyd, 56 ECAB 707 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 17, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Beaumont, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1374
Issued: September 16, 2016

Case Submitted on the Record

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

JURISDICTION
On June 5, 2015 appellant filed a timely appeal from a May 6, 2015 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to 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 received an overpayment of compensation in the
amount of $4,708.79 during the period August 24 through December 13, 2014; and (2) whether
OWCP properly found appellant was at fault in creating the overpayment thereby precluding
waiver of recovery of the overpayment.
FACTUAL HISTORY
On April 25, 2014 appellant, then a 55-year-old maintenance worker supervisor/general
foreman, filed a claim for a March 15, 2014 traumatic injury (Form CA-1) when he slipped and
fell on his right side while in the performance of his duties. He claimed injury to his right hand,
right elbow, right shoulder, right knee, and lower back. OWCP administratively handled the
claim to allow for payment of a limited amount of medical expenses. On July 7, 2014 it formally
adjudicated the claim as the medical bills exceeded $1,500.00. The claim was accepted for right

closed fracture of base of other metacarpal bones and benign neoplasm of connective and other
soft issue of right upper limb, including right shoulder. The record reflects that appellant used
sick leave from May 8 to June 29, 2014 and leave without pay for the period June 30 to
August 23, 2014.
By e-mail dated August 26, 2014, the employing establishment informed OWCP that
appellant had filed two claims for the same date of injury, March 15, 2014. Appellant had
received continuation of pay from March 24 through May 7, 2014 pursuant to the first claim,
OWCP File No. xxxxxx243. OWCP further noted that appellant had received wage-loss
compensation from June 30 until August 10, 2014. Appellant remained off work as of
August 11, 2014.
In a September 3, 2014 letter, OWCP notified appellant that he would be receiving
compensation payments through the periodic compensation rolls. To minimize the possibility of
an overpayment of compensation, appellant was instructed to notify OWCP immediately when
he returns to work. OWCP noted that the first payment was for the period June 30 to July 12,
2014 for a net amount of $2,048.99. Regular payments on the periodic compensation rolls would
be paid every 28 days, with the first payment commencing for the period August 24 to
September 20, 2014 for a net amount of $4,708.79. For payments sent by electronic funds
transfer (EFT), a notification of the date and amount of payment will appear on the statement
from his financial institution. Appellant was expected to monitor his EFT deposits carefully, at
least every two weeks.
On September 20, 2014 appellant received his first periodic rolls payment for the period
August 24 to September 20, 2014.
On November 17, 2014 OWCP received notification from appellant that he would be
using his available sick leave while undergoing medical treatment, therefore he should be
removed from the periodic rolls. It also received a Form CA-3, Report of Termination of
Disability/and or Payment, from the employing establishment on November 20, 2014. The
employing establishment noted that appellant had been using sick leave since August 24, 2014.
It advised that since appellant had been paid sick leave by the employing establishment and
wage-loss compensation from OWCP, appellant wanted to repay the compensation benefits that
it had issued. Appellant continued to receive compensation on the periodic compensation rolls
through December 13, 2014.1
Appellant received compensation via direct deposit for the period August 24 through
December 13, 2014, in the amount of $18,467.48. In a compensation calculation worksheet,
OWCP noted that appellant started using his own leave as of August 24, 2014. It found that for
the period August 24 through December 13, 2014, appellant had an overpayment in the amount
of $18,467.48. For the period August 24 through September 20, 2014, he received a net amount
of $4,708.79; for the period September 21 through October 18, 2014, appellant received a net
amount of $4,616.87; for the period October 19 through November 15, 2014, he received a net
amount of $4,541.65; for the period November 16 through December 13, 2014, appellant
received a net amount of $4,600.17.
1

On November 18, 2014 OWCP expanded appellant’s claim to include additional conditions of sprain of
shoulder and upper arm, supraspinatus right; other affections of shoulder region not elsewhere classified, right.

2

By letter dated February 6, 2015, OWCP advised appellant of a preliminary
determination of an overpayment of compensation in the amount of $18,467.48 for the period
August 24 through December 13, 2014 as he had been drawing pay through sick leave while
receiving compensation for total disability on the periodic rolls. It also determined that he was at
fault in the creation of the overpayment as he had accepted payments that he knew or should
have known were incorrect as he should have reasonably been aware that he was not entitled to
total disability compensation for eight hours a day while being on paid sick leave. OWCP
advised appellant to complete an OWCP-20 overpayment recovery questionnaire and submit
supporting financial documents, as this was necessary information concerning the issues of
waiver and recovery of the overpayment.
On February 17, 2015 appellant indicated that the initial payment of $4,708.79 for the
period August 24 through September 20, 2014 was “just” compensation. He contended that the
correct overpayment amount was $13,758.69 and attached a check in that amount. Appellant
argued that he had not received compensation for the period July 27 through August 23, 2014
and thus he was entitled to the first payment of compensation that he received on
September 20, 2014. He submitted copies of OWCP’s benefit statements, copies of earning and
leave details for periods June 29 to July 12; July 13 to July 26; and July 27 to August 23, 2014.
Appellant also submitted Web TA certified time and attendance summaries which validated that
he used 160 hours of leave without pay from July 27 through August 23, 2014. He noted that he
notified his employing establishment and asked OWCP to remove him from the periodic rolls for
workers’ compensation. Appellant stated that he would retire on December 31, 2014. He did
not submit a completed Form OWCP-20.
On March 26, 2015 OWCP received a check from appellant in the amount $13,758.69.
By decision dated May 6, 2015, OWCP finalized its preliminary determination that an
overpayment for the period August 24 through December 13, 2014 in the amount of $4,708.79
had occurred for which appellant was with fault because he knew or reasonably should have
known that the payment was incorrect. The original overpayment of $18,467.48 was adjusted to
$4,708.79 as appellant had repaid $13,758.69.
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.2 FECA, however, also places limitations on an employee’s right to receive
compensation benefits. Section 8116 provides that, while an employee is receiving benefits, he
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.3 The Board determined that if an employee receives sick leave from the
employing establishment at the same time he is being paid compensation, this will cause an
overpayment.4
2

5 U.S.C. § 8102(a).

3

Id. at § 8116(a).

4

E.V., Docket No. 10-1284 (issued February 3, 2011).

3

ANALYSIS -- ISSUE 1
Appellant is not entitled to receive wage-loss compensation under FECA if he is
receiving sick leave from the employing establishment. The record establishes that appellant
began using and receiving sick leave from the employing establishment on August 24, 2014.
OWCP determined that appellant received an overpayment of compensation for the period
August 24 through December 13, 2014 as he received sick leave from the employing
establishment at the same time he received wage-loss compensation under FECA. In its
preliminary overpayment determination OWCP found the entire amount of compensation he
received for this time period, $18,467.48, to be an overpayment. Before issuance of the final
overpayment decision, appellant repaid OWCP $13,758.69. OWCP therefore concluded in its
final overpayment decision that appellant had been overpaid in the amount of $4,708.79.
The record substantiates that for the period August 24 through December 13, 2014,
appellant received $18,467.48 in compensation while on the periodic compensation rolls. For
the period August 24 through September 20, 2014, appellant received a net amount of $4,708.79;
for the period September 21 through October 18, 2014, he received a net amount of $4,616.87;
for the period October 19 through November 15, 2014, appellant received a net amount of
$4,541.65; for the period November 16 through December 13, 2014, he received a net amount of
$4,600.17, for a total amount of $18,467.48. Appellant has not disputed the fact of overpayment.
He conceded the overpayment and repaid OWCP $13,758.69. The final amount of overpayment
was therefore $4,708.79. The Board finds that OWCP properly determined that an overpayment
of $4,708.79 was created in this case.
Appellant alleges that the amount of $4,708.79 was not an overpayment because he did
not receive compensation during the period July 27 through August 23, 2014. The record
indicates that appellant used leave without pay during the period July 27 through
August 23, 2014. The record, however, remains unclear as to whether appellant received
compensation during this time period. The record in this regard is complicated by the fact that
appellant was also in receipt of compensation for the same date of injury under another OWCP
claim number. Appellant can pursue the issue of entitlement to compensation for the period
July 27 through August 23, 2014 with OWCP. The record is clear that this appeal pertains to
compensation appellant received during the period August 24 to December 13, 2014, and OWCP
properly determined that amount of overpayment for this period, in question.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) 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.5 A claimant who is at fault in creating the overpayment is not entitled to waiver.6
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
5

5 U.S.C. § 8129(b).

6

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

4

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.
Whether or not OWCP determines that individual was at fault with respect to the creation
of the overpayment depends on the circumstances surrounding the overpayment. The degree of
care expected may vary with the complexity of the circumstances and the individual’s capacity to
realize that he is being overpaid.7
ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
he accepted payments he knew or should have known to be incorrect.
The Board finds that appellant was at fault in creating the overpayment in the amount of
$4,708.79. Appellant acknowledged, and the record establishes, that he received compensation
for the period August 24 to December 13, 2014 while he also requested and was paid sick leave
from the employing establishment. OWCP informed appellant by letter dated September 3, 2014
that he would receive periodic rolls payments, with the regular first payment to be paid for the
period August 24 to September 20, 2014. Appellant wrote to OWCP on November 17, 2014
noting that he should be taken off the periodic compensation rolls because he was using his sick
leave. He was thus aware or reasonably should have been aware that he was not entitled to
receive both wage-loss compensation and leave pay for the same period of time, i.e., that he was
not entitled to be paid twice for the same period of time.8 The Board finds that appellant is at
fault in the creation of the overpayment from August 24 through December 13, 2014 because he
accepted payments that he knew or should have known to be incorrect. That OWCP may have
been negligent in issuing the compensation check to appellant does not mitigate this finding.9 Its
finding that appellant was at fault in the creation of the overpayment is proper under the facts
and the circumstances of this case. As appellant is at fault in the creation of the overpayment
from January 13 to February 28, 2005, he is not eligible for waiver.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation during the period August 24 through December 13, 2014 in the amount of
$4,708.79. The Board further finds that OWCP properly determined that he was at fault in
creating the overpayment of compensation, thereby precluding waiver of recovery of the
overpayment.

7

C.D., Docket No. 12-193 (issued August 2, 2013).

8

R.D., Docket No. 08-1340 (issued January 6, 2009).

9

See 20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the May 6, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6