United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.W., Appellant

and

U.S. POSTAL SERVICE, PHILADELPHIA 

PROCESSING & DISTRIBUTION CENTER, 

Philadelphia, PA, Employer

__________________________________________

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Docket No. 17-0360

Issued: December 18, 2017

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On January 2, 2017 appellant, through counsel, filed a timely appeal from two 

November 4, 2016 merit decisions 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. 
2

ISSUES

The issues are: (1) whether appellant met her burden of proof to establish a 

consequential emotional condition causally related to a February 13, 2013 employment injury; 

(2) whether OWCP properly terminated appellant’s wage-loss compensation and medical 

benefits effective December 13, 2015; (3) whether appellant met her burden of proof to establish 

that she continued to be disabled after that date; (4) whether an overpayment of compensation in 

the amount of $2,661.52 was created; and, (5) whether OWCP properly found that appellant was 

at fault in the creation of the overpayment and, therefore, the overpayment was not subject to 

waiver of recovery of the overpayment.

On appeal counsel asserts that the opinions of Dr. Andrew J. Collier, a Board-certified 

orthopedic surgeon, and Dr. Eric Fine, a Board-certified psychiatrist, both OWCP referral 

physicians, were insufficient to carry the weight of the medical evidence. He also asserts that 

appellant was not at fault in creating the overpayment as it was sent to her by direct deposit. 

FACTUAL HISTORY

On February 13, 2013 appellant, then a 59-year-old clerk-mail processor, filed a 

traumatic injury claim (Form CA-1) alleging that she was injured that day when the gate of an 

all-purpose container fell and hit her on the head. She stopped work on February 14, 2013 and 

did not return. 

On February 13, 2013 Dr. Derek Isenberg, Board-certified in emergency medicine, saw 

appellant in an emergency room. Appellant noted being struck on her left temple at work. She 

also reported receiving outpatient treatment for depression. Appellant denied headache, pain, 

vomiting, or neurological complaints. Examination showed no abrasion, laceration, swelling, 

and no tenderness to palpation. Dr. Isenberg diagnosed head contusion. Appellant was 

discharged home, ambulating without assistance, to follow-up with her primary physician.

Dr. Mark Nepp, an osteopath, also saw her on February 14, 2013. He noted the history of injury 

and appellant’s current complaint of feeling lightheaded, dizzy, confused, and scared, and that 

she had headaches. Physical examination demonstrated abnormal finger-to-nose and heel-to-toe 

tests, and abnormal coordination. Dr. Nepp diagnosed head contusion and recommended a 

computerized tomography scan of the head. 

Dr. Stephen F. Ficchi, an osteopath who practices pain medicine, began treating appellant 

on March 8, 2013. Appellant reported that, after the employment injury, she had left-sided 

headaches and had selective memory loss with difficulty in retrieving words. Dr. Ficchi 

diagnosed cervical strain and sprain, bilateral trapezius strain and sprain, postconcussion 

syndrome, post-traumatic cephalgia, and closed head injury. He recommended medication, 

physical therapy, and pain management, and advised that appellant was unable to work. 

Appellant began pain management with Dr. Ficchi. An April 4, 2013 cervical spine magnetic 

resonance imaging (MRI) scan demonstrated mild disc bulges versus mild disc herniations at 

C3-4, C4-5, and C5-6. 

In March 13, 2013 correspondence, J. William Knox, Ph.D., a clinical psychologist,

noted seeing appellant for a biofeedback evaluation that day. He reported that she injured her 
3

neck and head at work on February 13, 2013 and since the injury had been experiencing pain in 

the bilateral trapezius and cervical regions and had daily headaches. Dr. Knox completed a 

physiological assessment and diagnosed cervical strain and sprain and post-traumatic cephalgia. 

He recommended biofeedback therapy for pain management. Appellant had her initial 

biofeedback session on March 14, 2013. She continued this treatment with Dr. Knox two or 

three times weekly thereafter. 

On April 18, 2013 OWCP accepted the conditions of head contusion, postconcussion 

syndrome, bilateral trapezius sprain/strain, and cervical sprain/strain. She received continuation 

of pay from February 14 to March 30, 2013, and began receiving wage-loss compensation on 

March 31, 2013. 

April 25, 2013 electrodiagnostic electromyograph (EMG) and nerve conduction velocity 

(NCV) studies of the upper extremities were compatible with acute irritation of the C6 nerve root 

on the left side and bilateral carpal tunnel syndrome. There was no evidence of ulnar entrapment 

neuropathy, thoracic outlet syndrome, or peripheral neuropathy present. 

On May 16, 2013 Dr. Ficchi diagnosed cervical spine strain and sprain with dysfunction, 

protrusion/herniations at C3-4 and C5-6, acute left C6 radiculopathy, myofascial pain syndrome, 

post-traumatic headache syndrome, post-traumatic concussion syndrome, and post-traumatic 

stress disorder. Appellant continued pain management with Dr. Ficchi several times weekly. 

This consisted of percutaneous electrical neuromuscular stimulation, and injections to the 

occipital nerves, suprascapular region, trigger points, and joints. 

Appellant was placed on the periodic compensation rolls in June 2013. On June 20, 2013 

OWCP additionally accepted acute C6 radiculopathy, left, and cervical disc protrusion/herniation 

without myelopathy at C3-4 and C5-6. 

Appellant also continued biofeedback with Dr. Knox. On November 7, 2013 Dr. Knox 

reported seeing her three times weekly, noting some slow progress in symptom reduction. He 

continued to submit biofeedback treatment reports. 

In October 2013 OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified 

orthopedic surgeon, for a second opinion regarding whether appellant had residuals of the 

accepted conditions. However, the statement of accepted facts (SOAF) sent to Dr. Smith did not 

include all accepted conditions.3 In a November 8, 2013 report, Dr. Smith noted the history of 

injury and his review of the SOAF and medical record. Appellant complained of continuing 

headaches, dizziness, upper extremity numbness, trapezial pain, and problems with memory. 

Neck and trapezial muscle examination revealed no spasm, atrophy, trigger points, or deformity. 

Active spinal range of motion was satisfactory and functional with no spasm or rigidity. No 

abnormality was found on the scalp and head, and distal neurologic examination was normal, 

with no radicular arm problems. Dr. Smith indicated that the accepted conditions of head 

 

3 The SOAF furnished Dr. Smith included an April 23, 2013 statement that listed as accepted head contusion, 

postconcussion syndrome, bilateral trapezius sprain/strain, and cervical sprain/strain. An October 10, 2013 

addendum was included. It did not list the additional conditions of acute C6 radiculopathy, left, and cervical disc 

protrusion/herniation without myelopathy at C3-4 and C5-6 accepted by OWCP on June 20, 2013.
4

contusion and trapezial and cervical sprain/strain had resolved without residuals. He found no 

evidence of C6 radiculopathy, noting that the cervical MRI scan showed degenerative changes, 

and that the EMG/NCV study findings were more likely due to degenerative disease rather than a 

post-traumatic residual, especially in light of appellant’s initial emergency room evaluation. 

Dr. Smith commented that she did not need the electrical nerve stimulation and injections done 

by Dr. Ficchi. He indicated that appellant see a neurologist to determine if she had 

postconcussive syndrome. Dr. Smith concluded that, based on her benign examination, there 

was no identifiable organic pathology that would prevent her from returning to full-time regular 

duty, at least with regard to her musculoskeletal complaints. 

OWCP asked Dr. Ficchi to comment on Dr. Smith’s report. On December 11, 2013

Dr. Ficchi disagreed with Dr. Smith’s conclusions. He opined that appellant had serious and 

permanent injuries from the February 13, 2013 work injury. Dr. Ficchi concluded that, within a 

reasonable medical certainty, her left C6 radiculopathy, and disc herniations at C3-4 and C5-6 

were permanent and, since symptoms were not present before the work injury, he believed that

appropriate palliative care was given to treat her symptoms. He continued to submit reports 

noting treatment, including injections, and advising that appellant remained totally disabled.

Dr. Knox also continued seeing appellant at least two times weekly. In reports dated 

January 6, March 31, and June 23, 2014, he reported that her condition had plateaued, opining 

that her condition was chronic. 

In July 2014 OWCP referred appellant to Dr. Raoul Biniaurishvili, a Board-certified 

neurologist, for a second opinion evaluation.4 In an August 14, 2014 report, Dr. Biniaurishvili

described the employment injury and noted his review of medical evidence and diagnostic 

studies. He reported appellant’s complaints of tension-type headaches and intermittent cervical 

pain, noting that she admitted having anxiety, difficulty falling asleep, and maintaining sleep. 

Neurological examination demonstrated 5/5 strength throughout, sensory intact to all primary 

modalities, deep tendon reflexes 2+ and symmetrical, and normal coordination tests. There was 

no pain on percussion of the cervical spine or tenderness on palpation of the trapezius muscle 

bilaterally. Spurling test was negative bilaterally, and examination of the thoracic and lumbar 

spines was normal. Dr. Biniaurishvili diagnosed status post head concussion, resolving; 

degenerative cervical spine disease with myofascitis of the cervical paraspinal musculature; no 

clinical evidence of cervical radiculopathy; and anxiety disorder. He commented that appellant 

had a head concussion at work and had preexisting anxiety disorder and depression, and that her

tension-type headaches, which could be related to her emotional condition, were aggravated by 

postconcussion syndrome. Dr. Biniaurishvili advised that the cervical MRI scan showed

degenerative changes, and an EMG/NCV study was necessary to assess evidence of cervical 

radiculopathy and, if negative, she could return to her regular job duties. He provided a work 

capacity evaluation (OWCP Form 5c) advising that appellant was not capable of performing her 

usual job, but could begin a six-hour workday, working up to eight hours over four to six weeks. 

A September 11, 2014 upper extremity EMG/NCV study conducted by Dr. Biniaurishvili 

showed mild abnormalities on NCV study and a normal examination of all tested muscles on 

 

4 OWCP provided Dr. Biniaurishvili with a SOAF that included all accepted conditions. 
5

needle EMG. He concluded that there was no significant electrophysiological evidence of a 

neuromuscular disease. 

In a November 12, 2014 supplemental report, Dr. Biniaurishvili reiterated that, on his 

examination, there was no clinical evidence suggestive of cervical radiculopathy. He reiterated

that the EMG/NCV study did not reveal evidence of cervical radiculopathy, and that the cervical 

MRI scan demonstrated age-related degenerative changes, but did not reveal any direct posttraumatic changes related to the employment injury. Dr. Biniaurishvili concluded that, within a 

reasonable degree of medical certainty, based on his review of the medical evidence, his 

neurological examination, and diagnostic tests, appellant had reached maximal medical 

improvement (MMI) and could return to full-time regular duty as a mail clerk processor. In an 

attached work capacity evaluation (OWCP-5c) he advised that she could work with no 

restrictions. 

Dr. Ficchi continued to submit reports describing appellant’s pain management with 

electrical stimulation and injections. He advised that she continued to be totally disabled. 

Dr. Knox also submitted monthly reports indicating that appellant’s cervical condition was 

chronic due to bulging discs and left arm radiculopathy. He maintained that she realized 

consistent relief from their sessions. Dr. Knox’s last biofeedback session with her was on 

September 18, 2014. In an undated report, received on October 6, 2014, he maintained that 

biofeedback treatment for appellant was palliative as she had consistent relief from the sessions. 

On December 10, 2014 OWCP proposed to terminate appellant’s wage-loss 

compensation and medical benefits based on the opinions of Dr. Smith, who advised that she had 

recovered from the accepted orthopedic conditions, and Dr. Biniaurishvili, who advised that she

recovered from the accepted postconcussion syndrome and acute cervical radiculopathy. 

In response, counsel maintained that Dr. Ficchi’s opinion created a conflict in medical 

evidence, and that the opinion of appellant’s psychologist supported that her preexisting 

condition had been aggravated by the work injury. He asked for a referee examination. 

In a December 23, 2014 report, Dr. Ficchi indicated that on examination he found 

objective paraspinal muscle spasms, tenderness, and range of motion deficits associated with 

subjective complaints of pain. He described his treatment and noted that, on numerous 

occasions, appellant complained of daily chronic neck, upper back, and left suprascapular pain, 

bilateral upper extremity weakness and numbness, and additional complaints of headaches, 

cognitive delay, short-term memory loss, and left arm radicular symptoms. Dr. Ficchi noted the 

April 2013 MRI scan and her EMG/NCV study results. He disagreed with Dr. Smith and

Dr. Biniaurishvili, maintaining that appellant had serious and permanent injuries from the 

February 13, 2013 work injury, should remain off work, and continue the medically necessary 

treatment. On a February 20, 2015 work capacity evaluation, Dr. Ficchi advised that she was 

totally disabled. He continued to submit reports describing appellant’s pain management.

In a January 6, 2015 report, David A. Goodwin, Ph.D., an attending licensed clinical

psychologist, noted that appellant was seen for outpatient psychotherapy every other week since 

February 2009 for treatment to cope with serious family-related issues. Dr. Goodwin reported 

that the February 2013 employment injury further exacerbated her difficulties and contributed to 
6

increased fatigue, depression, and irritability, with reported concentration difficulties and issues 

managing multiple demands up to the present. He advised that, prior to the work injury, 

appellant was very fragile, due to the severity of her underlying condition, and that the 

contribution of the work injury was too much for her to handle. Dr. Goodwin concluded that it 

appeared reasonable to conclude that her work injury partially contributed to her inability to 

return to work. 

In April 2015 OWCP found that a conflict in medical evidence was created between the 

opinions of OWCP referral physicians Drs. Smith and Biniaurishvili, and Dr. Ficchi, appellant’s 

attending physician, regarding her degree of disability, work capacity, and the need for further 

treatment due to the February 2013 injury. It referred her to Dr. Andrew J. Collier, a Boardcertified orthopedic surgeon, for a referee examination. 

In a May 20, 2015 report, Dr. Collier noted the history of injury and appellant’s 

complaints of occasional neck/cervical spine and bilateral trapezius pain with finger tingling. He 

described her medical treatment and his review of the SOAF and medical record.

5

 Dr. Collier’s 

physical examination revealed decreased neck and bilateral shoulder range of motion. Spurling’s 

compression test for axial and radicular symptoms in all three positions, Tinel’s at both elbows 

and wrists, and bilateral Phalen’s tests were negative. Neurological examination was intact to 

sensory, motor, and deep tendon reflexes in both arms with no fasciculation’s or atrophy present. 

Appellant complained of minor tenderness on examination at the base of the neck on the left. 

Carpal compression test showed minor tingling in the radial three digits on the right, negative on 

the left. Dr. Collier advised that, while the employment injury caused an acute cervical spine 

strain and aggravation of underlying degenerative disc disease, appellant had reached MMI and 

only had minimal occasional symptomatology. He found no evidence of an acute cervical 

herniated disc or C6 radiculopathy, noting a clean neurological examination and a clean recent 

EMG/NCV test. Dr. Collier diagnosed bilateral carpal tunnel syndrome and tendinitis or 

impingement syndrome of both shoulders, but opined that these conditions were not related to 

the February 2013 employment injury. He concluded that appellant did not need further 

treatment or care for her accepted cervical spine conditions. In an attached work capacity 

evaluation, Dr. Collier indicated that she was capable of returning to work up to a heavy physical 

capacity with a restriction of no static head and neck positions. 

In June 2015 OWCP referred appellant to Dr. Eric W. Fine, a Board-certified 

psychiatrist, for a second opinion evaluation. In a September 10, 2015 report, Dr. Fine noted his 

review of the SOAF and the medical record. He recorded appellant’s complaints of difficulty 

sleeping, frequent headaches, neck pain, lightheadedness, depression, and anxiety. Dr. Fine

noted a past psychiatric history that appellant had been seen at the employing establishment 

employee assistance program for approximately 17 years related to anxiety and depression 

caused by a son’s severe drug abuse disorder and associated dysfunctional behavior with 

physical trauma to family members and incarceration that continued to present and began many 

years prior to the February 13, 2013 work injury. He advised that this many years of stress was

in no way related to the employment injury. Dr. Fine performed mental status examination and 

opined, within a reasonable degree of medical and psychiatric certainty, that appellant’s 

 

5 OWCP provided Dr. Collier with a SOAF that included all accepted conditions. 
7

psychiatric diagnosis was adjustment disorder with depression and anxiety, chronic, mild to 

moderate in severity, and was in no way associated with the February 2013 employment injury. 

He concluded that, from a psychiatric perspective only, she could return to full-time regular duty 

as a clerk-mail processor. 

In November 2015 appellant submitted reports dated March 25, 2014, in which Dr. Brook 

Crichlow, a clinical psychologist, noted a history that she had been receiving counseling for the 

past seven years and had experienced depression for years with current anxiety while in public 

and some paranoia. Dr. Crichlow reported current medical complaints of headaches, 

lightheadedness, neck pain, and difficulties in sleeping, bending, reaching, and lifting. He 

performed mental status examination, noting paranoid thought patterns and anxious affect and 

mood. Attention, concentration, and recent and remote memory skills were mildly impaired due 

to cognitive limits. Cognitive functioning was below average, insight was poor, and judgment 

was fair. Dr. Crichlow diagnosed unspecified depressive disorder, unspecified anxiety disorder, 

and chronic pain. He recommended continued psychological and psychiatric treatment. 

Appellant retired on disability, effective October 26, 2015. Social Security 

Administration (SSA) records indicate that she began receiving SSA retirement benefits in

May 2014. 

In a November 23, 2015 decision, OWCP terminated appellant’s wage-loss compensation 

and medical benefits, effective December 13, 2015. It found that the weight of the medical 

evidence rested with Dr. Biniaurishvili, an OWCP referral physician, with regard to the accepted 

neurological conditions of postconcussion syndrome and acute cervical C6 radiculopathy, with

Dr. Collier, who performed an impartial medical evaluation, with regard to the accepted 

orthopedic conditions, and with Dr. Fine, an OWCP referral physician, with regard to whether 

the February 13, 2013 employment injury caused a psychiatric condition. 

Appellant, through counsel, timely requested a review of the written record by an OWCP 

hearing representative of the November 23, 2015 termination decision. Following the 

termination, Dr. Ficchi submitted form treatment notes and injection procedure notes dated from 

October 9 to December 8, 2015. 

On January 26, 2016 OWCP made a preliminary determination that appellant received a 

$2,661.52 overpayment because she continued to receive wage-loss compensation through 

January 9, 2016 after such compensation had been terminated effective December 13, 2015. It 

found her at fault because she accepted a payment that she knew or reasonably should have 

known that she was not entitled to receive. Appellant was provided an overpayment action 

request and overpayment recovery questionnaire (OWCP-20). The record includes computer 

payment records and worksheets indicating that OWCP made one $2,661.52 net electronic 

deposit payment of wage-loss compensation for the period December 13, 2015 to

January 9, 2016. 

On January 27, 2016 counsel requested a hearing regarding the January 26, 2016 

preliminary overpayment determination. Appellant submitted an overpayment questionnaire 

indicating that she had zero cash on hand, a zero checking account balance, a zero savings 

account balance, no stocks and bonds, and zero personal property. She listed monthly income of 
8

$950.00, indicated that she was receiving zero SSA benefits,

6

and listed monthly expenses of 

$1,350.00. Appellant did not submit supplementary documentation.

On August 30, 2016 OWCP informed counsel that a scheduled September 7, 2016 

hearing would cover both the termination and the overpayment issues. On September 2, 2016 

counsel informed OWCP that he would like a review of the written record on both issues. In a 

September 6, 2016 letter, OWCP informed him that the record would be held open for 30 days 

for the submission of additional evidence. Nothing further was received.

On November 4, 2016 an OWCP hearing representative affirmed the November 23, 2015 

decision. She found that Dr. Fine’s opinion established that appellant’s emotional condition was 

not caused or aggravated by the February 13, 2013 work injury. The hearing representative 

determined that a conflict in medical evidence was not created because Dr. Ficchi, a general 

practitioner, was not a specialist in an appropriate field and sufficient to create a conflict. She 

also found deficiencies in Dr. Smith’s second opinion evaluation because he did not reference 

the SOAF. The hearing representative found that Dr. Collier served as an OWCP referral 

physician and not a referee physician. She credited his opinion and that of Dr. Biniaurishvili, 

finding them rationalized and sufficient to terminate appellant’s wage-loss and medical benefits.

In a second November 4, 2016 decision, OWCP’s hearing representative finalized the 

January 26, 2016 preliminary overpayment determination. She found that appellant continued to 

receive wage-loss compensation, after her monetary benefits had been terminated effective 

December 13, 2015, through January 9, 2016. This created a $2,661.62 overpayment of 

compensation. The hearing representative further found appellant at fault in creating the 

overpayment and thus not entitled to waiver of recovery of the overpayment. As the 

overpayment questionnaire she submitted had not been properly completed, the overpayment 

was to be recovered in full. 

LEGAL PRECEDENT -- ISSUE 1

In discussing the range of compensable consequences, once the primary injury is causally 

connected with the employment, Larson notes that, when the question is whether compensability 

should be extended to a subsequent injury or aggravation related in some way to the primary 

injury, the rules that come into play are essentially based upon the concepts of direct and natural 

results and of the claimant’s own conduct as an independent intervening cause. The basic rule is 

that a subsequent injury, whether an aggravation of the original injury or a new and distinct 

injury, is compensable if it is the direct and natural result of a compensable primary injury.7

An employee has the burden of proof to establish that any specific condition for which 

compensation is claimed is causally related to the employment injury.8 Causal relationship is a 

 

6 On December 1, 2015 OWCP wrote SSA for information regarding appellant’s SSA rate with and without 

contribution of Federal retirement contribution. On February 22, 2016 SSA informed OWCP that from August 2013 

to present she was entitled to disability benefits. 

7 Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see Charles W. Downey, 54 ECAB 

421 (2003).

8 Kenneth R. Love, 50 ECAB 276 (1999).
9

medical issue, and the medical evidence required to establish a causal relationship is rationalized 

medical evidence.9 The opinion of the physician must be based on a complete factual and 

medical background of the claimant, must be one of reasonable medical certainty, and must be 

supported by medical rationale explaining the nature of the relationship between the diagnosed 

condition and the specific employment factors identified by the employee.10 Neither the mere 

fact that a disease or condition manifests itself during a period of employment nor the belief that 

the disease or condition was caused or aggravated by employment factors or incidents is 

sufficient to establish causal relationship.11

A claimant bears the burden of proof to establish a claim for a consequential injury. As 

part of this burden, he or she must present rationalized medical opinion evidence, based on a 

complete factual and medical background, showing causal relationship. The opinion must be 

one of reasonable medical certainty and must be supported by medical rationale explaining the 

nature of the relationship of the diagnosed condition and the specific employment factors or 

employment injury.12

ANALYSIS -- ISSUE 1

The Board finds that appellant did not meet her burden of proof to establish that her

diagnosed emotional condition was caused or aggravated by, or was a consequence of the 

accepted February 13, 2013 employment injury. OWCP accepted head contusion, 

postconcussion syndrome, bilateral trapezius sprain/strain, cervical sprain/strain, acute cervical 

(C6) radiculopathy, and cervical disc protrusion/herniation without myelopathy, C3-4 and C5-6. 

The opinion of a physician supporting causal relationship must be based on a complete 

factual and medical background, supported by affirmative evidence, must address the specific 

factual and medical evidence of record, and must provide medical rationale explaining the nature 

of the relationship between the diagnosed condition and the established incident or factor of 

employment.13 No physician did so in this case.

The medical evidence relevant to the claimed emotional condition includes reports from

Dr. Knox, a clinical psychologist, who performed biofeedback to relieve cervical and trapezial 

pain and headaches, two to three times weekly, beginning in March 2013, continuing until 

September 18, 2014. Dr. Knox, however, did not diagnose an emotional condition per se. His 

opinion is, therefore, insufficient to meet appellant’s burden of proof.14

 

9

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10 Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

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

12 Charles W. Downey, supra note 7.

13 Robert Broome, 55 ECAB 339 (2004).

14 Willie M. Miller, 53 ECAB 697 (2002).
10

Likewise, the opinion Dr. Crichlow, a clinical psychologist, is insufficient. He reported 

on March 25, 2014 that appellant had experienced depression for years and current anxiety while 

in public and some paranoia, and diagnosed unspecified depressive disorder, unspecified anxiety 

disorder, and chronic pain and recommended continued psychological and psychiatric treatment. 

Dr. Crichlow, however, did not reference the February 13, 2013 work injury or discuss any cause 

of her diagnosed anxiety and depression. The Board has long held that 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.15 

Dr. Goodwin, a clinical psychologist, provided a January 6, 2015 report. He noted that 

appellant was seen for outpatient psychotherapy since February 2009 to cope with serious 

family-related issues. Dr. Goodwin opined that the February 2013 injury exacerbated her

“difficulties” and contributed to increased fatigue, depression, and irritability, with reported 

concentration problems and managing multiple demands. He noted that, before the work injury, 

appellant was very fragile due to the severity of her underlying condition, and that the 

contribution of the work injury was too much for her to handle. Dr. Goodwin found that it 

appeared reasonable to conclude that her work injury partially contributed to her inability to 

return to work. While the opinion of a physician supporting causal relationship does not have to 

reduce the cause or etiology of a disease or condition to an absolute certainty, the opinion must 

be one of reasonable medical certainty and not speculative or equivocal in character. A medical 

opinion not fortified by medical rationale is of diminished probative value.16 Dr. Goodwin

couched his opinion in equivocal terms and his report contains insufficient rationale explaining 

how the February 13, 2013 work injury caused or aggravated the diagnosed emotional 

conditions. His report is, therefore, of insufficient rationale to meet appellant’s burden of 

proof.17 

In a well-rationalized report dated September 10, 2015, Dr. Fine, OWCP’s referral 

psychiatrist who reviewed the SOAF and medical record, noted that appellant had a 17-year 

history of anxiety and depression caused by severe dysfunctional behavior of a son with physical 

trauma to family members that continued to present and began many years before the 

February 13, 2013 work injury. He examined her and diagnosed adjustment disorder with 

depression and anxiety, chronic, mild to moderate in severity. Dr. Fine opined that appellant’s 

psychiatric diagnoses were in no way associated with the February 2013 employment injury. He

concluded that, from a psychiatric perspective only, she could return to full-time regular duty as 

a clerk-mail processor. 

Contrary to counsel’s assertion on appeal, Dr. Fine’s report is of sufficient rationale to 

support that appellant’s diagnosed emotional condition was not caused or aggravated by, or a 

consequence of the accepted February 13, 2013 employment injury. Moreover, appellant 

submitted insufficient evidence to support a work-related emotional condition diagnosis. The 

opinion supporting causal relationship must be one of reasonable medical certainty and must be 

 

15 Id. 

16 W.W., Docket No. 09-1619 (issued June 2, 2010).

17 Supra note 13.
11

supported by medical rationale explaining the nature of the relationship of the diagnosed 

condition and the specific employment factors or employment injury.18 A well-rationalized 

opinion is particularly warranted in this case due to appellant’s history of preexisting emotional 

conditions.19 The Board finds that appellant has not met her burden of proof to establish a causal 

relationship between the claimed emotional conditions and the February 13, 2013 work injury. 

LEGAL PRECEDENT -- ISSUE 2

Once OWCP accepts a claim and pays compensation, it has the burden of proof to 

justifying modification or termination of an employee’s benefits. It may not terminate 

compensation without establishing that the disability ceased or that it was no longer related to the 

employment.20 OWCP’s burden of proof in terminating compensation includes the necessity of 

furnishing rationalized medical opinion evidence based on a proper factual and medical 

background.21 

ANALYSIS -- ISSUE 2

OWCP accepted the conditions of displacement of head contusion, postconcussion 

syndrome, bilateral trapezius sprain/strain, cervical sprain/strain, acute cervical (C6) 

radiculopathy, and cervical disc protrusion/herniation without myelopathy, C3-4 and C5-6, 

caused by a February 13, 2013 employment injury. Appellant stopped work on February 14, 

2013 and did not return. She received continuation of pay and wage-loss compensation, and was 

placed on the periodic compensation rolls in June 2013. 

By decision dated November 23, 2015, OWCP terminated appellant’s wage-loss 

compensation and medical benefits, effective December 13, 2015. It found the weight of the 

medical evidence rested with Dr. Biniaurishvili, an OWCP referral Board-certified neurologist, 

with regard to the accepted neurological conditions of postconcussion syndrome and acute 

cervical C6 radiculopathy, and with Dr. Collier, a Board-certified orthopedic surgeon who 

performed an impartial medical evaluation, with regard to the accepted orthopedic conditions. 

With regard to the accepted orthopedic conditions, OWCP determined that a conflict in 

medical evidence had been created between Dr. Ficchi, an attending osteopath, and Dr. Smith, 

who provided a second opinion evaluation for OWCP and referred appellant to Dr. Collier for an 

impartial evaluation. The Board, however, finds that, because the SOAF sent to Dr. Smith failed 

to include the additional conditions that were accepted by OWCP on June 20, 2013,

22 his opinion 

is insufficient to establish a conflict in medical evidence. It is OWCP’s responsibility to provide 

 

18 C.O., Docket No. 10-0189 (issued July 15, 2010).

19 K.P., Docket No. 14-1330 (issued October 17, 2014).

20 Jaja K. Asaramo, 55 ECAB 200 (2004).

21 Id.

22 Supra note 3.
12

a complete and proper frame of reference for a physician by preparing a SOAF.

23

 Because the 

SOAF sent to Dr. Smith was inaccurate, his report is of diminished probative value on the issue 

of whether appellant’s accepted orthopedic conditions had resolved.24 Thus, Dr. Collier, who 

was forwarded a proper SOAF, would not be entitled to special weight as an impartial 

specialist.25

Nonetheless, the Board finds that Dr. Collier’s opinion as an OWCP referral physician is 

of sufficient rationale to establish that appellant’s orthopedic conditions had resolved. In his 

May 20, 2015 report, Dr. Collier noted the history of injury and her current complaints. He 

described appellant’s medical treatment and his review of the SOAF and medical record and 

provided comprehensive examination findings. As noted, the only positive finding was her

complaint of minor tenderness on examination at the base of the neck on the left, and that a 

carpal compression test demonstrated minor tingling in the radial three digits on the right. 

Dr. Collier advised that, while the employment injury caused an acute cervical spine strain and 

aggravation of underlying degenerative disc disease, appellant had reached MMI and only had 

minimal occasional symptomatology. He found no evidence of an acute cervical herniated disc 

or C6 radiculopathy, noting a clean neurological examination and a clean recent EMG/NCV test. 

Dr. Collier diagnosed bilateral carpal tunnel syndrome and tendinitis or impingement syndrome 

of both shoulders, but opined that these were not related to the February 2013 work injury. He 

concluded that appellant did not need further treatment or care for her accepted cervical spine 

conditions. Dr. Collier provided an attached work capacity evaluation indicating that she could

return to work up to a heavy physical capacity with a restriction of no static head and neck 

positions. 

With regard to the accepted head contusion and postconcussion syndrome,

Dr. Biniaurishvili was the only neurologist who examined appellant. He was provided a 

complete SOAF. In August 14 and November 12, 2014 reports, Dr. Biniaurishvili described the 

work injury, noted his review of medical evidence, and reported appellant’s complaints. 

Neurological examination was negative. The only positive physical finding was tenderness on 

palpation of the trapezius muscle bilaterally. Dr. Biniaurishvili diagnosed status post head 

concussion, resolving; degenerative cervical spine disease with myofascitis of the cervical 

paraspinal musculature; no clinical evidence of cervical radiculopathy; and anxiety disorder. He

advised that, on his examination, there was no clinical evidence suggestive of cervical 

radiculopathy. Dr. Biniaurishvili indicated that a September 11, 2014 EMG/NCV study did not 

reveal any electrophysiological evidence of cervical radiculopathy, and that the cervical MRI 

scan demonstrated age-related degenerative changes and did not reveal any direct post-traumatic 

changes due to the work injury. He concluded that, based on his review of the medical evidence, 

his neurological examination, and diagnostic tests, appellant had reached MMI and could return 

 

23 Donald E. Ewals, 51 ECAB 428 (2000).

24 See S.H., Docket No. 14-1280 (issued June 24, 2015).

25 See Manuel Gill, 52 ECAB 282 (2001) (in situations where there are opposing medical reports of virtually 

equal weight and rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper factual background, 

must be given special weight).
13

to full-time regular duty as a mail clerk processor. In an attached work capacity evaluation

Dr. Biniaurishvili advised that she could work with no restrictions. 

Appellant’s attending osteopath, Dr. Ficchi, indicated on December 23, 2014 that on 

examination he found paraspinal muscle spasms, tenderness, and range of motion deficits 

associated with her subjective complaints of pain. He described his treatment and noted that on 

numerous occasions appellant complained of daily chronic neck, upper back, and left 

suprascapular pain, bilateral arm weakness and numbness in addition to headaches, cognitive 

delay, short-term memory loss, and left arm radicular symptoms. Dr. Ficchi noted the 

April 2013 MRI scan and EMG/NCV study results. He disagreed with the conclusions of

Dr. Smith, maintaining that appellant suffered serious and permanent injuries due to the 

February 13, 2013 employment injury, and should remain off work and continue the medically 

necessary treatment she had been receiving. On a February 20, 2015 work capacity evaluation,

Dr. Ficchi advised that she was totally disabled. He also submitted numerous weekly form 

reports and procedure notes chronicling appellant’s treatment up to November 3, 2015. On 

November 3, 2015 Dr. Ficchi indicated that she reported daily chronic neck, trapezial, shoulder, 

suboccipital, and suprascapular pain, and headaches. He circled “disabled,” on the form report, 

and performed a suprascapular nerve block, occipital nerve, and trigger point injections. 

The Board finds Dr. Ficchi’s opinion is insufficient to establish a conflict in medical 

evidence with the well-rationalized opinions of Dr. Collier and Dr. Biniaurishvili whose opinions 

represented the weight of the medical evidence regarding the accepted orthopedic and neurologic 

conditions at the time OWCP terminated benefits on December 13, 2015. Each physician had 

full knowledge of the relevant facts and evaluated the course of appellant’s accepted orthopedic 

conditions. Their opinions were based on proper factual and medical history and their reports 

contained a detailed summary of this history. Each addressed the medical records to make his 

own examination findings to reach a reasoned conclusion regarding appellant’s accepted 

conditions.26 At the time benefits were terminated, neither Dr. Biniaurishvili nor Dr. Collier 

found a basis on which to attribute any residuals or continued disability to these conditions. 

Their opinions are found to be probative evidence and reliable, and sufficient to justify OWCP’s 

termination of benefits for the accepted orthopedic and neurologic conditions.27

OWCP, therefore, met its burden of proof to terminate appellant’s wage-loss 

compensation and medical benefits on December 13, 2015.28

LEGAL PRECEDENT -- ISSUE 3

As OWCP met its burden of proof to terminate appellant’s wage-loss compensation on 

December 13, 2015, the burden shifted to her to establish that she had any disability causally 

 

26 See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy 

and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested, and 

the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be 

given to each individual report).

27 M.A., Docket No. 16-1687 (issued January 26, 2017).

28 Supra note 20.
14

related to the accepted right shoulder strain.29 Causal relationship is a medical issue. The 

opinion of the physician must be based on a complete factual and medical background of the 

claimant, must be one of reasonable medical certainty and must be supported by medical 

rationale explaining the nature of the relationship between the diagnosed condition and the 

specific employment factors identified by the claimant.30

ANALYSIS -- ISSUE 3

The Board finds that appellant failed to establish that she had continuing residuals or 

disability relating to the accepted conditions after December 13, 2015.

Subsequent to the December 13, 2015 termination appellant submitted a number of form 

reports and procedure notes from Dr. Ficchi dated October 9 to December 8, 2015. As these 

predated the termination of wage-loss compensation and medical benefits on December 13, 

2015, they are of limited probative value regarding a period of disability thereafter.31 Thus, there 

is no medical evidence of record of sufficient rationale to establish that appellant had continuing 

disability or residuals after December 13, 2015 due to the accepted conditions caused by a 

February 13, 2013 employment injury. She, therefore, did not meet her burden of proof.32

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, with regard to the issues of whether she met her burden 

of proof to establish a consequential emotional condition caused by a February 13, 2013 

employment injury and whether she met her burden of proof to establish that she continued to be 

disabled after December 13, 2015, the date OWCP terminated her wage-loss compensation and 

medical benefits. 

LEGAL PRECEDENT -- ISSUE 4

Section 8102 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.33 Section 8129(a) provides that, when an overpayment has been made to 

an individual because of an error of fact or law, adjustment shall be made under regulations 

prescribed by OWCP, by decreasing later payments to which the individual is entitled.34

 

29 See Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

30 Supra note 10.

31 D.M., Docket No. 16-1893 (issued March 21, 2017).

32 Supra note 29.

33 5 U.S.C. § 8102.

34 Id. at § 8129(a).
15

ANALYSIS -- ISSUE 4

The Board finds that OWCP properly found that appellant received an overpayment of 

compensation in the amount of $2,661.52. In a November 23, 2015 decision, OWCP terminated 

her medical and compensation benefits as she had no injury-related residuals or continuing 

disability as a result of the accepted February 13, 2013 employment injury. The record reveals, 

however, that OWCP electronically deposited one additional periodic payment on January 6, 

2016, for the period December 13, 2015 through January 9, 2016. Appellant was not entitled to 

receive disability compensation between November 23, 2015 and January 9, 2016, and the entire 

amount of net compensation she received during that period, $2,661.52, represented an 

overpayment of compensation. For these reasons, OWCP properly determined that she received 

an overpayment of compensation totaling $2,661.52.35

LEGAL PRECEDENT -- ISSUE 5

Section 8129 of FECA provides that an overpayment in compensation shall be recovered 

by OWCP unless “incorrect payment has been made to an individual who is without fault and 

when adjustment or recovery would defeat the purpose of FECA or would be against equity and 

good conscience.”

36

Section 10.433(a) of OWCP regulations provides that OWCP:

“[M]ay consider waiving an overpayment only if the individual to whom it was 

made was not at fault in accepting or creating the overpayment. Each recipient of 

compensation benefits is responsible for taking all reasonable measures to ensure 

that payments he or she receives from OWCP are proper. The recipient must 

show good faith and exercise a high degree of care in reporting events which may 

affect entitlement to or the amount of benefits.... A recipient who has done any 

of the following will be found to be at fault in creating an overpayment --

(1) Made an incorrect statement as to a material fact which he or she knew 

or should have known to be incorrect; or 

(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 to be 

incorrect. (This provision applies only to the overpaid individual).”

37

To determine if an individual was at fault with respect to the creation of an overpayment, 

OWCP examines the circumstances surrounding the overpayment. The degree of care expected 

 

35 T.M., Docket No. 15-0147 (issued November 13, 2015).

36 5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

37 20 C.F.R. § 10.433(a); see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.
16

may vary with the complexity of those circumstances and the individual’s capacity to realize that 

he or she is being overpaid.38

ANALYSIS -- ISSUE 5

OWCP determined that appellant was at fault in creating the overpayment under the third 

standard because she accepted a payment she knew or should have known was incorrect. 

Although it erroneously issued wage-loss compensation for total disability for the period at issue,

she was not entitled to this disability compensation because her benefits had been terminated 

effective December 13, 2015.

With respect to whether an individual is with fault, section 10.433(b) of OWCP 

regulations provides that whether or not OWCP determines that individual was without 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 or she is being overpaid. The Board has also 

noted that, in applying the tests to determine fault, OWCP should apply a reasonable person 

test.39

A complete analysis of the fault issue when a claimant’s wage-loss compensation has 

been terminated and continues to receive compensation must properly consider the first payment 

after a return to work. In this case, after the termination of monetary compensation on 

December 13, 2015, appellant received an electronic deposit of $2,661.52 on January 6, 2016. 

The question is, whether she had, at the time of this deposit, accepted a payment she knew or 

should have known was incorrect. While the hearing representative indicated that appellant’s 

direct deposit was accompanied by a benefit statement, such statement is not found in the case 

record. It is, therefore, unclear if and when this statement was sent and received. Thus, there is 

no evidence to establish that, at the time appellant received the January 6, 2016 deposit, she 

knew or should have known this payment was incorrect. 

For these reasons, the Board finds that appellant was not at fault in the creation of the 

overpayment of compensation of $2,661.52 because it was based on one direct deposit made on 

January 6, 2016.40 The case must therefore be remanded for OWCP to consider whether she is 

entitled to waiver of recovery of the overpayment.

CONCLUSION

The Board finds that appellant did not establish a consequential emotional condition 

caused by a February 13, 2013 employment injury, that OWCP properly terminated her wageloss compensation and medical benefits effective December 13, 2015, and that she did not 

 

38 Id. at § 10.433(b); Neill D. Dewald, 57 ECAB 451 (2006).

39 C.D., Docket No. 12-1913 (issued august 2, 2013).

40 See T.B., Docket No. 16-1807 (issued February 22, 2017); see also Tammy Craven, 57 ECAB 689 (2006) (an 

employee who receives payments from OWCP via direct deposit may not be at fault the first time incorrect funds are 

deposited into her account, as the acceptance of the resulting overpayment lacks the requisite knowledge).
17

establish that she continued to be disabled after that date. The Board further finds that an 

overpayment of compensation in the amount of $2,661.52 was created, and that she was not at 

fault in the creation of the overpayment which was based on one direct deposit payment. 

ORDER

IT IS HEREBY ORDERED THAT the November 4, 2016 decision of the Office of 

Workers’ Compensation Programs on the issues of termination, continuing disability, and causal 

relationship of a consequential emotional condition is affirmed. The November 4, 2016 decision 

regarding an overpayment of compensation is affirmed in part and set aside in part, and the case 

is remanded to OWCP for proceedings consistent with this opinion of the Board. 

Issued: December 18, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board