United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Concord, CA, Employer
__________________________________________

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Appearances:
Sylvia R. Johnson, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0317
Issued: July 1, 2019

Case Submitted on the Record

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

JURISDICTION
On November 2, 2018 appellant, through her representative, filed a timely appeal from an
October 26, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

U.S.C. § 8101 et seq.

3
The Board notes that, following the October 26, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $5,423.55 for the period March 24, 2012 to March 31, 2018 due to incorrect deduction
of life insurance premiums; (2) whether OWCP abused its discretion by refusing to waive recovery
of the overpayment; and (3) whether OWCP properly required recovery of the overpayment by
deducting $300.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On May 22, 2009 appellant, then a 54-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that on May 7, 2008 she first realized that cervical, lumbar, and
thoracic conditions had been caused by casing mail while in the performance of duty. She did not
initially stop work. By decision dated September 9, 2010, OWCP accepted the claim for cervical,
lumbar, and thoracic sprains. It subsequently expanded acceptance of appellant’s claim to include
depression.
In a letter dated May 17, 2011, OWCP placed appellant on the periodic rolls for temporary
total disability with the first payment covering the period April 9 to May 7, 2011. It indicated that
it was deducting $17.40 for basic life insurance (BLI) and $39.66 for optional life insurance (OLI).
OWCP requested that appellant notify it immediately if she had benefits such as OLI that it was
not deducting from her wage-loss compensation.
By decision dated June 28, 2013, OWCP reduced appellant’s wage-loss compensation
based on her capacity to earn wages as surveillance system monitor, effective June 30, 2013. It
utilized the Shadrick formula4 and found that appellant had 40 percent loss of wage-earning
capacity (LWEC). OWCP indicated it was deducting premiums of $17.40 for BLI and $34.20 for
OLI and was not deducting premiums for postretirement basic life insurance (PRBLI).
In a July 1, 2013 letter, the Office of Personnel Management (OPM) informed OWCP that
as a compensationer appellant was eligible to continue Federal Employees’ Group Life Insurance
(FEGLI) coverage in the form of basic and optional life insurance coverage. It requested OWCP
to deduct for Code 90 as appellant had elected BLI option Bx3 and full reduction, effective
March 24, 2012. OPM further advised that appellant had elected PRBLI coverage with 75 percent
reduction. It noted that her adjusted annual salary on which life insurance deductions was based
increased to $56,508.00.
Following appellant’s request for an oral hearing, by decision dated January 24, 2014,
OWCP’s hearing representative reversed the June 28, 2013 LWEC determination.
In a February 11, 2014 letter, OWCP informed appellant that her compensation for
temporary total disability was being reinstated retroactive June 30, 2013. It further advised that it
was deducting premiums of $17.70 for BLI and $34.66 for OLI.
By notice dated April 10, 2018, OWCP advised appellant of its preliminary determination
that she had received an overpayment of compensation because OLI premiums had not been
correctly deducted from her compensation payments for the period March 24, 2012 to
4

Albert C. Shadrick, 5 ECAB 376 (1953).

2

March 31, 2018. It advised that for the period March 24, 2012 to March 31, 2018, it should have
deducted premiums of $1,390.71 for BLI and $9,718.06 for OLI code 90. OWCP advised that
instead of this amount, it had deducted $1,390.71 for BLI premiums and $4,294.51 for OLI (J1),
which created an overpayment of $5,423.55. It requested that appellant complete an overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documentation.
Additionally, it notified her that within 30 days of the date of the letter she could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
On April 30, 2018 OWCP received an overpayment action request form, dated April 26,
2018, on which appellant had checked a box requesting a prerecoupment hearing. Appellant also
indicated that she disagreed with the fact and amount of the overpayment, believed the
overpayment occurred through no fault of her own, and requested waiver of recovery of the
overpayment.
On September 26, 2018 OWCP received an overpayment recovery questionnaire and
financial evidence including a monthly income, list of expenses, and funds on hand. It also
received a notification of personnel action, Standard Form (SF-50), dated August 25, 2012, and a
continuation of life insurance form dated August 17, 2017. The Form SF-50 noted that appellant
had been terminated from the employing establishment effective March 24, 2012 and that
appellant had been provided a certification of insurance status. This form also noted that life
insurance coverage would be extended for 31 days, as appellant was entitled to convert to an
individual plan. On the August 17, 2017 life insurance form, appellant checked “yes” to BLI,
option A -- standard option, and option B -- additional optional insurance. She requested a
summary of her insurance and inserted a question mark on the line for number of reduction
multiples and number of full reduction multiples.
Following the hearing, OWCP received a completed overpayment recovery questionnaire
dated October 3, 2018. Appellant noted monthly income of $3,022.005 and $19,300.28 in funds,
which included $100.00 of cash on hand, $1,014.00 in a checking account, and $18,186.28 in a
savings account. Monthly expenses totaling $3,800.00 including $1,703.50 in rent or mortgage,
$744.00 for food, $110.00 for clothing, $493.00 for utilities, $727.00 for other expenses, $100.00
monthly payment to Bank of America,6 $200.00 for Capital One,7 and $200.00 for Citibank.8
By decision dated October 26, 2018, an OWCP hearing representative finalized, as
modified, the preliminary determination that appellant received an overpayment of compensation
in the amount of $5,423.55 for the period March 24, 2012 through March 30, 2018.9 She found
that appellant was without fault in the creation of the overpayment of compensation and cited to

5

OWCP records show that appellant receives a net amount of $3,022.64 every 28 days on the periodic rolls.

6

Appellant listed an outstanding balance of $1,213.00.

7

An outstanding balance of $371.18 was noted on the form.

8

Appellant listed an outstanding balance of $1,579.58.

9

OWCP’s hearing representative mistakenly noted the date as March 23, 2012.
determination of overpayment correctly noted March 24, 2012 as the beginning date.

3

The preliminary notice

OWCP’s procedures regarding finding underdeduction of life or health insurance premiums.10
Next, she found that the financial information appellant provided showed that requiring repayment
would not create a hardship for appellant. The hearing representative directed recovery of the
overpayment by deducting $300.00 every 28 days from appellant’s continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129(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.11 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 the Secretary of Labor by
decreasing later payments to which the individual is entitled.12
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance and one or more of the options.13 The coverage for basic life
insurance is effective unless waived,14 and premiums for basic and optional life coverage are
withheld from the employee’s pay.15 Upon retirement or upon separation from the employing
establishment or being placed on the periodic FECA compensation rolls, an employee may choose
to continue basic and optional life insurance coverage in which case the schedule of deductions
made will be used to withhold premiums from his or her annuity or compensation payments.16
Basic insurance coverage shall be continued without cost to an employee who retired or began
receiving compensation on or before December 31, 1989.17 However, the employee is responsible
for payment of premiums for optional life insurance coverage which is accomplished by
authorizing withholdings from his or her compensation.18
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
10

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment,
Chapter 6.300.4(g)(8) (September 2018).
11

5 U.S.C. § 8129.

12

20 C.F.R. §§ 10.434-10.437; J.L., Docket No. 18-0212 (issued June 8, 2018).

13

5 U.S.C. § 8702(a).

14

Id. at § 8702(b).

15

Id. at § 8707.

16

Id. at § 8706.

17

Id. at § 8707(b)(2).

18
Id. at § 8706(b)(3)(B). See S.P., Docket No. 17-1888 (issued July 18, 2018); Edward J. Shea, 43 ECAB 1022
(1992) (the Board found that the claimant received an overpayment of compensation where he elected PRBLI with no
reduction and no premiums had been deducted from his compensation from January 3, 1988 to May 6, 1989). See
also Glen B. Cox, 42 ECAB 703 (1991) (the Board found that an overpayment of compensation was created due to no
deduction of premiums for optional life insurance for the period July 1983 through November 1989).

4

insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).19
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.20 An employee who does
not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and does
not have that type of optional insurance.21 When an underwithholding of life insurance premiums
occurs, the entire amount is deemed an overpayment of compensation because OWCP must pay
the full premium to OPM upon discovery of the error.22
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
Appellant received wage-loss compensation from OWCP on the periodic rolls effective
April 9, 2011. OPM advised OWCP on July 1, 2013 of appellant’s salary for FEGLI purposes and
noted that she had elected BLI with multiples and full reduction and PRBLI with 75 percent
reduction.
OWCP’s procedures provide that BLI premiums are deducted from compensation until the
age of 65.23 A claimant must be enrolled in BLI to be eligible for OLI and premiums for OLI are
withheld until the age of 65, unless he or she opts to freeze Option B and C.24 Before the age of
65, a claimant must pay premiums for both BLI and, if elected, PRBLI when separated or retired
from federal employment.25 The employing establishment terminated appellant’s employment
effective March 24, 2012.
The Board finds that OWCP failed to adequately support its determination that appellant
received an overpayment of compensation for the period March 24, 2012 to March 31, 2018
because it failed to deduct the correct premiums for BLI and OLI code 90. The record does not
19

See S.P., id.; James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

20

5 C.F.R. § 870.504(a)(1).

21

Id. at § 870.504(b).

22

5 U.S.C. § 8707(d); see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

23
Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.15(c)(1)
(February 2013).
24

Id. at Chapter 2.0901.15(c)(4); see also V.R., Docket No. 18-0626 (issued October 19, 2018).

25

Id. at Chapter 2.0901.15(c)(3).

5

contain evidence that she signed a document electing PRBLI coverage with 75 percent reduction
and optional BLI option B x3 and full reduction. OPM informed OWCP on July 1, 2013 that the
employee had elected PRBLI with 75 reduction and BLI with options and full reduction, but
provided no supporting documentation establishing such enrollment. The record does not contain
a signed election form showing which coverage she actually selected or if she actually selected
coverage. The Board has previously found that OWCP must document whether and when a
claimant elected life insurance coverage after separation from federal service or retirement.26 As
OWCP has not factually established appellant’s life insurance election, effective March 24, 2012,
it has not met its burden of proof to establish that she received an overpayment of compensation
from March 24, 2012 to March 31, 2018.
As the fact and amount of overpayment are not clearly established by the record, the case
will be remanded to OWCP. On remand, OWCP should obtain an executed election form from
OPM completed by appellant prior to determining whether she received an overpayment of
compensation due to its failure to deduct life insurance premiums. After such further development
as OWCP deems necessary, it should issue a de novo decision.27
CONCLUSION
The Board finds that the case is not in posture for decision.

26

R.F., Docket No. 18-0739 (issued January 2, 2019); D.T., Docket No. 17-0901 (issued January 29, 2018); Glen B.
Cox, 42 ECAB 703 (1991)
27

In view of the Board’s disposition of the overpayment, the issue of whether OWCP properly denied waiver of
recovery of the overpayment and the recovery amount are moot.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 26, 2018 is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE ARMY, ARMY
)
NATIONAL GUARD -- TEXAS, Austin, TX,
)
Employer
)
___________________________________________ )
AG., Appellant

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

Docket No. 07-1925
Issued: January 22, 2008

Case Submitted on the Record

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

JURISDICTION
On July 13, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated May 18, 2007, which denied his claim for a
traumatic injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue on appeal is whether appellant has met his burden of proof in establishing that
he sustained a herniated disc on March 29, 2007.
FACTUAL HISTORY
On April 5, 2007 appellant, then a 58-year-old surface maintenance repairer, filed a
traumatic injury claim alleging that, on March 29, 2007, he was climbing a stake bed truck to
load repair parts and sustained a herniated disc in his low back. He did not stop work.

By letter dated April 19, 2007, the Office asked appellant to submit additional
information, including a comprehensive medical report from his treating physician. It requested
a reasoned explanation as to how the March 29, 2007 incident identified by appellant had
contributed to his claimed injury.
Appellant submitted an April 13, 2007 report of magnetic resonance imaging (MRI) scan
from Drs. David Rose and John Ponzo. It revealed a broad-based disc bulge eccentric to the
right with superimposed acute disc herniation within the right neural foramen at L4-5 and
probable impingement of the exiting L4 nerve root on the right.
In a decision dated May 18, 2007, the Office denied appellant’s claim on the grounds that
the medical evidence was not sufficient to establish that his back condition was work related.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

2

the relationship between the diagnosed condition and the specific employment factors identified
by the claimant.5 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.6
ANALYSIS
The Board notes that on March 29, 2007 appellant was climbing a stake bed truck to load
repair parts as alleged. The Board finds, however, that the medical evidence is insufficient to
establish that appellant sustained a herniated disc of the lower back causally related to the
March 29, 2007 incident.
On April 19, 2007 the Office advised appellant of the medical evidence needed to
establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how specific employment factors may have caused or aggravated his
claimed condition.
The only medical evidence submitted by appellant was a diagnostic of the lumbar spine
date April 13, 2007, which revealed a broad-based disc bulge eccentric to the right with
superimposed acute disc herniation within the right neural foramen at L4-5 and probable
impingement of the exiting L4 nerve root on the right. However, the report did not address the
issue of causal relationship. There is no explanation as to how the March 29, 2007 incident
caused or contributed to the L4-5 disc. As noted, appellant’s burden of proof includes the
submission of rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship. The diagnostic scan is insufficient to
establish his claim.
The record contains no other medical evidence. Appellant has not submitted rationalized
medical opinion evidence explaining how and why his herniated disc is employment related. He
has not met his burden of proof. An award of compensation may not be based on surmise,
conjecture or speculation. Neither the fact that appellant’s condition became apparent during a
period of employment nor the belief that his condition was caused, precipitated or aggravated by
his employment is sufficient to establish causal relationship. Causal relationships must be
established by rationalized medical opinion evidence.7 Appellant failed to submit such evidence.
The Office properly denied his claim for compensation.8

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

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

8

With his request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c). This does not preclude appellant from requesting reconsideration
from the Office and submitting additional evidence for consideration.

3

CONCLUSION
The Board finds that appellant failed to establish an injury related to the March 29, 2007
incident.
ORDER
IT IS HEREBY ORDERED THAT the May 18, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, FORT HAMILTON
STATION, Brooklyn, NY, Employer
__________________________________________

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)
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)
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)

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

Docket No. 14-284
Issued: May 27, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant filed a timely appeal from a May 21, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration.1 As more than 180 days elapsed from the last merit decision dated April 4, 2012
to the filing of this appeal, the Board lacks jurisdiction to review the merits of his claim pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, but
has jurisdiction over the nonmerit decision.

1

Under the Board’s Rules of Procedures, an appeal must be filed in 180 days from the most recent OWCP
decision. One hundred and eight days from May 21, 2013 was November 18, 2013. Since using November 20,
2013, the date the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date
of the postmark is considered the date of filing. The appeal was postmarked on November 15, 2013, which renders
the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his claim for
further merit review under 5 U.S.C. § 8128.
FACTUAL HISTORY
On April 3, 2003 appellant, then a 61-year-old custodian, filed a traumatic injury claim
alleging that on March 31, 2003 he injured his lower back in the performance of duty. OWCP
accepted his claim for a lumbar strain.
By decision dated April 4, 2012, OWCP granted appellant schedule awards for a two
percent permanent impairment of each lower extremity.3 The period of the awards ran for 11.52
weeks from April 29 to July 18, 2008.
In an appeal request form dated September 7, 2012, received by OWCP on March 11,
2013, appellant requested reconsideration. In an accompanying statement, he related that his
herniated disc had worsened and that he experienced radiating pain into both legs. Appellant had
to use a can to walk two blocks without stopping.
By decision dated May 21, 2013, OWCP denied appellant’s request for reconsideration.
It found that he did not submit evidence or raised an argument sufficient to warrant reopening his
case for further review of the merits under section 8128 of FECA.
On appeal, appellant contends that he has experienced back problems since 1993. He
relates that he has constant pain when walking and has undergone three magnetic resonance
imaging scan studies. Appellant submitted copies of medical reports already of record.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) submit relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
3

OWCP indicated that it was granting appellant a schedule award for the upper rather than the lower extremities;
however, this appears to be a typographical error. The maximum number of weeks of compensation for the loss of a
leg is 288 weeks. Two percent of 288 weeks equals 5.76, which when multiplied by 2 equals 11.52 weeks of
compensation. OWCP thus properly based the period of the award on a finding of a two percent impairment of each
lower extremity.
4

See supra note 2. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application.”
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

2

will deny the application for reconsideration without reopening the case for review on the
merits.7
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.8 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.9 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.10
ANALYSIS
OWCP, in its most recent merit decision dated April 4, 2012, granted appellant schedule
awards for a two percent impairment of each lower extremity. In a correspondence received
March 11, 2013, appellant requested reconsideration.
As noted above, the Board does not have jurisdiction over the April 4, 2012 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his request for reconsideration received March 11, 2013, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. He argued that he experienced pain radiating into his legs bilaterally as
a result of a herniated disc. The underlying issue in this case is whether appellant submitted
sufficient medical evidence to establish that he had more than a two percent permanent
impairment to each lower extremity. As this is a medical issue it must be addressed by relevant
medical evidence.11 A claimant may be entitled to a merit review by submitting pertinent new
and relevant evidence, but appellant did not submit any pertinent new and relevant medical
evidence supporting reconsideration.
On appeal, appellant indicates that his back problems began in 1993. He notes that he
has undergone multiple diagnostic studies and experiences pain when walking. A claimant may
request an increased schedule award based on evidence of new exposure or medical evidence
showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.12 As discussed, however, appellant did not submit any new evidence
supporting an increased impairment or raise any argument relevant to the issue of whether he has
more than a two percent permanent impairment of each lower extremity. His lay opinion is not
7

Id. at § 10.608(b).

8

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

9

P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

10

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

11

See Bobbie F. Cowart, 55 ECAB 746 (2004).

12

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994).

3

relevant to the medical issue in this case, which can only be resolved through the submission of
probative medical evidence from a physician.13
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his claim for
further merit review under 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 27, 2014
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

13

L.G., Docket No. 09-1517 (issued March 3, 2010); Gloria J. McPherson, 51 ECAB 441 (2000).

4


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

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

Docket No. 21-0760
Issued: January 6, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On April 7, 2021 appellant filed a timely appeal from a January 13, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted November 10, 2020 employment incident.
FACTUAL HISTORY
On December 1, 2020 appellant, then a 39-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 10, 2020 impact from a motor vehicle accident
caused whiplash to his neck and back. On the reverse side of the claim form, appellant’s supervisor

1

5 U.S.C. § 8101 et seq.

noted that appellant had stopped work on November 10, 2020 and acknowledged that appellant
was injured in the performance of duty.
In a development letter dated December 3, 2020, OWCP informed appellant that additional
factual and medical evidence was necessary to establish his claim. It advised him of the type of
factual and medical evidence needed and provided a questionnaire for his completion. OWCP
afforded appellant 30 days to submit the necessary evidence.
OWCP received a report dated November 24, 2020 from Brian Gadoury, a chiropractor
who noted appellant’s history of injury and physical examination findings of subluxations at C1,
C3, T8, L3, and S1.
Appellant responded to OWCP’s development questionnaire on December 18, 2020. He
recounted that the side of his vehicle was hit by another driver who ran a red light. Appellant also
stated that he did not initially seek medical treatment, but when his neck did not stop hurting, he
sought treatment with his chiropractor.
By decision dated January 13, 2021, OWCP accepted that the incident occurred as alleged,
but denied appellant’s claim as no medical evidence had been received containing a medical
diagnosis causally related to the accepted incident. It noted that a report had been received from
a chiropractor, however, the report did not diagnose subluxation based on x-ray evidence, and
therefore it did not constitute probative medical evidence. OWCP concluded that the requirements
had not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning 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 a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first component to be
established is that, the employee must submit sufficient evidence to establish that he or she actually
2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

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

2

experienced the employment incident at the time and place, and in the manner alleged. The second
component is whether the employment incident caused a personal injury and can be established
only by medical evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, be of
reasonable medical certainty, and be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and specific employment factors identified by the
employee.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to the accepted November 10, 2020 employment incident.
OWCP received a report from Dr. Gadoury, a chiropractor, which related subluxations
findings based on his objective examination. A chiropractor, however, is only considered a
physician for purposes of FECA if he or she diagnoses subluxation based upon x -ray evidence.9
As Dr. Gadoury did not diagnose subluxation based upon x-ray evidence, he is not considered a
physician as defined under FECA and his medical report does not constitute competent medical
evidence.10
As there is no medical evidence of record establishing a medical condition causally related
to the accepted November 10, 2020 employment incident, the Board finds that appellant has not
met his burden of proof.
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.

6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
9

Section 8101(2) of FECA provides that the term physician include chiropractors only if the treatment consists of
manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist. 5 U.S.C. § 8101(2). See
T.T., Docket No. 18-0838 (issued September 19, 2019); Thomas W. Stevens, 50 ECAB 288 (1999); George E.
Williams, 44 ECAB 530 (1993).
10

J.D., Docket No. 19-1953 (issued January 11, 2021); C.S., Docket No. 19-1279 (issued December 30, 2019).

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a medical
condition causally related to November 10, 2020 employment incident
ORDER
IT IS HEREBY ORDERED THAT the January 13, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Tulsa, OK, Employer
__________________________________________

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

Docket No. 20-1528
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a July 15, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
an injury in the performance of duty on March 10, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2017 appellant, then a 60-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, at approximately 12:00 p.m. on that date, her
knees and wrists were scratched, bloodied and swollen when she tripped on uneven pavement
when she was walking to work while in the performance of duty. A coworker, S.G., provided a
statement on the Form CA-1 noting that while walking to work on March 10, 2017 she saw
appellant lying on the ground under the covered sidewalk on B side parking. Appellant informed
S.G. that she tripped on the sidewalk. On the reverse side of the claim form, the employing
establishment controverted the claim contending that appellant was not in the performance of duty
when she was injured, as the incident occurred before the start of her work shift, she was off
premises and was not engaging in official duties. It noted that her work schedule was 12:00 p.m.
to 8:30 p.m., Tuesday through Saturday. Appellant did not stop work.
In a March 20, 2017 development letter, OWCP advised appellant of the deficiencies of
her claim. It informed her of the type of factual and medical evidence needed to establish her
claim and provided her with a factual questionnaire for her completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide information
regarding the location and time of appellant’s injury. It afforded both parties 30 days to submit
the requested information.4
OWCP received medical evidence, including treatment notes dated March 13, 2017 from
Dr. Homer Hardy, an osteopath, diagnosing contusions of both knees.
On March 23, 2017 the employing establishment controverted appellant’s claim, asserting
that appellant’s injury occurred at 11:56 a.m. on March 10, 2017, but that her work shift did not
3

Docket No. 18-0617 (issued February 13, 2019).

4
Appellant submitted numerous reports to the record dating from March 10, 2017. On April 7 and 25, and June 26,
2017 Dr. Robert Coye, a Board-certified internist, diagnosed right medial knee pain. On May 9 and 30, June 1 and 6,
and July 18, 2017 Dr. James D. Cash, a Board-certified orthopedic surgeon, diagnosed bilateral knee contusions. On
June 2, 2017 Dr. Kelly Lindauer, a Board-certified diagnostic radiologist, reviewed appellant’s magnetic resonance
imaging (MRI) scan and found tear of the medial meniscus, chondromalacia, and effusion. Dr. Thomas Kern, a Boardcertified internist, examined appellant on July 31, 2017 and diagnosed derangement of medial meniscus of both knees.
Dr. Seth Migdalski, a psychiatrist, examined appellant on October 30, 2017 for emotional conditions. Appellant also
submitted numerous reports from Timothy Marlow, Chad Perkins, Dianne Briscoe, and Eve Fitzpatrick, physician
assistants, as well as notes from Whitney Ellsworth, a physical therapist. See M.M., Docket No. 17-1641 (issued
February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018).

2

begin until 12:00 p.m. It noted that she had not clocked in for duty and was not in any work
location when the injury occurred. The employing establishment reported that it did not own,
lease, or maintain the area where appellant’s injury occurred. It further noted that it did not direct
her to park her car in any of the various public parking lots that surrounded her duty station. J.M.,
an AirServ supervisor, witnessed appellant’s fall and described the location as occurring on the
sidewalk coming up from B side parking.
By decision dated April 25, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence submitted was insufficient to establish that she was injured in the performance
of duty. It found that she was not reasonably fulfilling the duties of her employment or doing
something incidental thereto at the time of her injury, that she had not begun her tour of duty, and
was walking on a public sidewalk toward the employing establishment. OWCP noted that under
FECA, an employee who is injured off premises while commuting to work is not in the course of
employment.
On May 4, 2017 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an e-mail to counsel dated July 16, 2017, appellant reported that she fell on the sidewalk
between the employee parking lot and the employing establishment office. She noted that she paid
for parking with the Green Option Commuter Card (For Federal Government Transit Subsidy Use
Only). Appellant’s card allotted $240.00 and she paid parking costs of $135.00 every six months.
She indicated that she would fax counsel a copy of the employer-paid parking receipt from
July 14, 2017.
In a letter dated July 31, 2017, counsel indicated that he was providing OWCP with medical
records, physical therapy notes, and a “copy of the receipt and the subsidized public transportation
pass paid for by the employing agency.”
Appellant testified during an oral hearing on October 6, 2017 before an OWCP hearing
representative. She alleged that she was required to wear a uniform for her position, but that the
employing establishment regulated the activities she could perform in uniform. Appellant testified
that the employing establishment rented a portion of the airport parking lot for its employees and
assigned them a place to park. The employing establishment required employees to go straight
from the parking lot to the employing establishment without diversion. Appellant asserted that her
parking was fully paid for by the employing establishment, and that she had to park in an assigned
area otherwise her car would be booted. She noted that the employing establishment provided her
with a commuter payment card and a placard for her car. Appellant testified that there was only
one sidewalk from the parking lot to her duty station and that no other route was available. She
noted that the parking area in question was encircled by a six-foot fence and that she had a badge
for that parking area. Appellant again alleged that she could not enter the employing establishment
from another parking location. She noted that other airport employees parked in the fenced lot
including pilots and stewardesses. Counsel contended that it was not plausible that the employing
establishment was not in control of the area as they paid for parking and that there was only one
entrance that appellant could utilize to get to her duty station.

3

On December 5, 2017 the employing establishment terminated appellant’s employment. It
noted that her appointment was subject to completion of a two-year trial period. The termination
was noted to promote the efficiency of the service and was primarily based on her extensive use
of leave.
By decision dated December 18, 2017, OWCP’s hearing representative found that
appellant was injured on the sidewalk between the off-premises parking lot and the worksite. She
noted that there was no evidence that the employing establishment controlled or maintained the
area where the fall occurred. OWCP’s hearing representative determined that the facts did not
establish an exception to the premises rule and that appellant’s injury did not arise out of and in
the course of her federal employment.
Appellant, through counsel, appealed to the Board. In its February 13, 2019 decision, 5 the
Board set aside the December 18, 2017 decision and found that the case was not in posture for
decision as OWCP had not properly developed the factual evidence to establish whether the
secured parking facility and the covered sidewalk were in control of the employing establishment
such that appellant was on the premises when injured. The Board remanded the case for further
development and a de novo decision.
In an April 2, 2019 development letter, OWCP requested that the employing establishment
provide a diagram demonstrating the boundaries of its premises and the location of appellant’s
injury site in relation to those premises.
On April 16, 2019 the employing establishment submitted several photographs with
notations identifying parking lot B, the sidewalk maintained by the Tulsa Airport Authority,
identified as the general area where appellant fell, and the employees’ entrance.
In an April 24, 2019 e-mail, OWCP requested that the employing establishment respond to
the remainder of the questions posed by the Board. In response, the employing establishment
reported that appellant was not required to park in parking lot B. It further noted that there were
various locations where she could have chosen to park, as parking lot A and B were open to all
employees that worked at the airport and maintained by American Parking. The employing
establishment further noted that there was an additional American Parking lot, and a lot maintained
by Fine Parking. It reported that parking lot B was opened to all employees of the airport, not just
its employees; however, it was not open to the general traveling public. The employing
establishment noted that it provided a parking subsidy to appellant, not a specific parking space,
and that she could have chosen not to accept it. It reported that she was not assigned to parking
lot B, that it did not assign or provide parking, but that it provided an optional subsidy to help to
pay for parking. The employing establishment denied responsibility for monitoring or inspecting
the parking lots for security purposes and added that it did not pay a third party for those services.
It reported that the covered sidewalk where appellant fell was the normal route that she would have
traveled after parking in lot B.
By decision dated May 16, 2019, OWCP denied appellant’s traumatic injury claim finding
that her injury did not occur in the performance of duty as she was not on the employing
5

Supra note 2.

4

establishment premises at the time her injury occurred. On May 21, 2019 appellant, through
counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review, which was held on August 27, 2019.
Appellant testified before an OWCP hearing representative and asserted that the general
public did not park in lot B. She further asserted that the general public did not use the sidewalk
where she fell, that it was the only way to get from parking lot B to the building, and that she paid
more to park in lot B as it was closer to her duty station than lot A. Appellant reported that there
was no mass public transit to the airport, only taxis or other automobile-based modes of transport.
By decision dated October 3, 2019, OWCP’s hearing representative vacated the May 16,
2019 decision. She remanded the case and directed OWCP to ascertain whether the employing
establishment was accessible to employees via public transportation and whether any employees,
in fact, traveled to work using public transportation.
On October 17, 2019 appellant provided a link to the Tulsa Transit System and noted that
it did not list the airport as a destination.
In a letter dated November 15, 2019, the employing establishment reported that the Tulsa
Transit System provided public transportation to and from the airport. It was located curbside
outside of baggage claim. The employing establishment noted that only one employee had utilized
this form of transportation. It also noted that taxi, other private vehicle transport, and airport
shuttle services were provided by the parking companies.
By decision dated December 31, 2019, OWCP denied appellant’s claim finding that she
was not injured in the performance of duty. On January 6, 2020 appellant, through counsel,
requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review, which
was held on May 14, 2020.
Appellant testified before an OWCP hearing representative and asserted that at the time of
her injury on March 10, 2017 there was no public transportation available to the employing
establishment due to construction on the airport premises. Ap pellant alleged that she had no choice
but to park in a lot at the airport. She noted that Tulsa had instituted a new bus service in 2019,
the Aero bus. Appellant testified that she was not currently working due to her knee conditions
and had undergone surgery on one knee.
By decision dated July 15, 2020, OWCP’s hearing representative found that there were
public parking lots available to appellant, that she chose to park in lot B, even though it was more
expensive, and that the employing establishment did not contract for parking lot B, maintain it,
police it, or otherwise demonstrate any control over parking lot B or the walkway where appellant
fell. He noted that were other means of ingress to the work facility, particularly those routes from
lot A, such that the walkway were appellant fell was not the only access to work. OWCP’s hearing
representative found that appellant was not on the premises when her March 10, 2017 injury
occurred and was, therefore, not in the performance of duty.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 8
The phrase “sustained while in the performance of duty”9 Has been interpreted by the
Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”10 To arise in the course of employment,11 in
general, an injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in the master’s business; (2) at a place where he or she may reasonably be expected to be
in connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
her employment or engaged in doing something incidental thereto.12
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable13 but if the injury occurs off the premises, it is not compensable,
subject to certain exceptions. The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have

6

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Kathryn Haggerty, 45 ECAB
383, 388 (1994); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

See S.B., supra note 6; Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

5 U.S.C. § 8102(a); S.S., Docket No. 20-1349 (issued February 16, 2021); J.K., Docket No. 17-0756 (issued
July 11, 2018).
10

This construction makes the statute actively effective in those situations generally recognized as properly
within the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
11

See L.P., Docket No. 17-1031 (issued January 5, 2018).

12

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

L.P., supra note 11; Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general
rule of workers’ compensation law in circumstances where the employee was on an authorized break. See Eileen R.
Gibbons, 52 ECAB 209 (2001).

6

ownership and control of the place of injury, the place may nevertheless still be considered part of
the premises. 14
The Board has also held that the factors, which determine whether a parking area used by
employees may be considered part of the employing establishment’s premises include whether the
employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the area were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no authorized cars were parked in the area,
whether parking was provided without cost to the employees, whether the public wa s permitted to
use the area, and whether other parking was available to the employees. Mere use of a parking
facility alone is insufficient to bring the parking area within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees. 15
As noted above, there are exceptions to the premises rule, and one is the proximity
exception, which allows constructive extension of the premises to those hazardous conditions,
which are proximate to the premises and may, therefore, be considered as hazards of the
employment.16 Underlying the proximity exception is the principle that course of employment
should extend to an injury that occurred at a point where the employee was within the range of
dangers associated with the employment. 17 The most common ground of extension is that the offpremises point at which the injury occurred lies on the only route, or at least on the normal route,
which employees must traverse to reach the premises, and that, therefore, the special hazards of
that route become the hazards of the employment. 18 This exception contains two components.
The first is the presence of a special hazard at the particular off-premises point. The second is the
close association of the access route with the premises, so far as going and coming are concerned.19

14

S.S., supra note 9; C.L., Docket No. 19-1985 (issued May 12, 2020); Wilmar Lewis Prescott, 22 ECAB 318,
321 (1971).
15

Federal (FECA) Procedure Manual, Part 2 - Claims, Performance of Duty, Chapter 2.804.(4)(f) (August 1992);
C.L., id.; R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997); Rosa M.
Thomas-Hunter, 2 ECAB 500 (1991); see also Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB
487 (1982); R.M., Docket No. 07-1066 (issued February 6, 2009).
16

D.K., Docket No. 11-1029 (issued February 1, 2012).

17

See J.K., supra note 9; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

18

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3). See also J.K, supra note 9; R.O., Docket
No. 08-2088 (issued May 18, 2009).
19

Id. at § 13.01(3)(b); L.P., supra note 11; Wilmar Lewis Prescott, supra note 14. Another exception to the rule is
the proximity rule, which the Board has defined by as where, under special circumstances, the industrial premises are
constructively extended to hazardous conditions, which are proximately located to the premises and may, therefore,
be considered as hazards of the employing establishment. The main consideration in applying the rule is whether the
conditions giving rise to the injury are causally connected to the employment. See William L. McKenney, 31 ECAB
861 (1980).

7

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 18, 2017 merit decision because
the Board considered that evidence in its February 13, 2019 decision. Findings made in prior
Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.20
The Board has held that the premises of the employer are generally extended when an
employee must travel a public thoroughfare to traverse between two premises of the employer. 21
In order to determine whether the covered sidewalk between the employing establishment and
parking lot B, where appellant’s March 10, 2017 fall occurred, should be considered part of the
employing establishment’s premises, the Board must first consider the factors necessary to
determine whether parking lot B was under sufficient control of the employing establishment to
constitute its premises.22 As noted above, in determining whether a parking lot or garage should
be considered part of the employing establishment’s premises, the Board must consider such
factors as whether the employing establishment contracted for its exclusive use by its employees,
whether the employing establishment assigned parking spaces, whether the parking area was
checked to see that no unauthorized cars were parked in the parking area, whether the public was
permitted to use the parking area, whether parking was provided without cost to the employees,
and whether other parking was available to the employees. 23
The Board finds that appellant has not established that parking lot B, was exclusively or
principally used by employees of the employing establishment. Appellant and the employing
establishment have agreed that parking lot B was open to airport employees as well as those of the
employing establishment. The parties agree that the employing establishment did not assign the
space or the lot in which appellant parked. Both parties also agree that appellant could have parked
in lot A or B or in other public parking locations at the airport. Appellant chose to park in lot B as
it was closest to the employing establishment entrance and paid a premium above the parking
subsidy allotment provided to her to park in that lot.24 While she noted that parking lot B was the

20

See B.R., Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998); see
also 20 C.F.R. § 501.6(d).
21

R.B., Docket No. 11-1320 (issued September 5, 2012).

22

R.E., Docket No. 18-0515 (issued February 18, 2020).

23

C.L., supra note 14.

24

C.B., Docket No. 12-1849 (issued January 13, 2014).

8

nearest option for all employees, she has not provided any relevant evidence to establish that she
was required to park in that parking lot or assigned specific parking space. 25
As parking lot B was not a part of the employing establishment premises, and as app ellant
was not required to park there, the off-premises point at which the injury occurred, the covered
sidewalk, does not lie on the only route or on the normal route, which employees must traverse to
reach the premises, such that the special hazards of that route become the hazards of the
employment. 26 The record reveals that there were multiple places that appellant could park on the
airport premises and, therefore, multiple ways that she could have accessed her workplace. She
did not establish within the meaning of FECA, that there were hazardous conditions proximately
located to the premises, which would establish a constructive extension.27 Rather appellant’s act
of tripping on uneven pavement was a hazard common to all travelers on the sidewalk and was not
causally related to her employment. 28 Thus, her injury constitutes an ordinary nonemployment
hazard of the journey itself, shared by all travelers. 29
As the record fails to support the application of an exception to the off -premises rule, the
Board finds that appellant did not meet her burden of proof to establish that she sustained an injury
in the performance of duty on March 10, 2017.30
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 her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.

25

J.B., Docket No. 17-0378 (issued December 22, 2017).

26

See F.S., Docket No. 09-1573(issued April 6, 2010) (finding that although the crosswalk where the claimant was
injured may have been the normal route to reach the employing establishment from the short-term lot, the claimant
was not required to park in the short-term lot and, by extension, was not required to use the crosswalk).
27

D.B., Docket No. 13-0510 (issued June 10, 2013).

28

F.S., supra note 26.

29

Id.

30

See Jon Louis Van Alstine, 56 ECAB 136 (2004). See also Linda S. Jackson, 49 ECAB 486 (1998).

9

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, WESTVILLE POST
OFFICE, Westville, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0173
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On November 24, 2020 appellant, through counsel, filed a timely appeal from a June 1,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 22, 2019, as he no longer had
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.

disability or residuals causally related to his accepted December 1, 2006 employment injury; and
(2) whether appellant met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
FACTUAL HISTORY
On December 8, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 1, 2006 he sustained a back injury when two dogs
attacked him from behind and he twisted his back while in the performance of duty. He stopped
work on the date of the claimed injury and returned to limited-duty work several months later.3
OWCP assigned OWCP File No. xxxxxx368 to the claim and accepted it for lumbar sprain and
lumbago.4
Appellant received treatment for his December 1, 2006 employment-related back injury
from several attending physicians, including Dr. David A. Bundens, a Board-certified orthopedic
surgeon, and Dr. Laura E. Ross, an osteopath and Board-certified orthopedic surgeon. X-rays of
appellant’s lumbar spine from December 21, 2006 contained an impression of degenerative
changes of the lumbar discs, predominately at L5-S1. On January 4 and 12, 2010 Dr. Bundens
indicated that appellant was performing his regular duties on a full-time basis with some
complaints of back discomfort. Appellant stopped work on June 19, 2010. In an October 14, 2013
report, Dr. Ross diagnosed lumbar herniation and radiculitis of the right leg.
OWCP engaged in extensive development of the medical evidence between 2013 and 2018,
including referral to three OWCP referral physicians and two impartial medical specialists.5 In a
June 29, 2018 report, Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon who served as
the second of the two impartial medical specialists, reported the findings of his May 17, 2018
physical examination and determined that appellant did not have any work-related residuals or
disability.6

3

OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability
from work commencing December 11, 2009.
4

Under a separate claim, assigned OWCP File No. xxxxxx201, OWCP previously accepted that appellant sustained
a right wrist strain and right knee tenosynovitis when he pushed a plastic tub on September 29, 2000. Under another
separate claim, assigned OWCP File No. xxxxxx165, it accepted that he sustained a lumbar sprain related to carrying
telephone books on November 28, 2001. Appellant commenced working in a light-duty position on November 29,
2001 and returned to his regular duties on December 19, 2001. After a period of disability related to OWCPauthorized right wrist surgery performed on April 4, 2004 in connection with his claim under OWCP File No.
xxxxxx201, he returned to his regular duties in June 2005.
5

Commencing March 8, 2015, OWCP placed appellant on the periodic rolls and paid him wage-loss compensation
for total disability.
6

OWCP had determined that there was a conflict in the medical opinion evidence between Dr. Ross and
Dr. Andrew Newman, a Board-certified orthopedic surgeon who served as an OWCP referral physician. In a June 1,
2017 report, Dr. Newman determined that appellant’s December 1, 2006 employment injury had resolved. In a July 7,
2017 report, Dr. Ross opined that appellant continued to have residuals of the December 1, 2006 lumbar sprain and
that he was totally disabled.

2

In a July 30, 2018 report, Dr. Ross indicated that appellant’s current diagnosed conditions
that were causally related to the December 1, 2006 employment injury included multilevel lumbar
disc protrusions with herniations at L1-2 and L3-4 and disc bulges at multiple levels with annular
tears at L1-2, L3-4, and L4-5. She indicated that objective findings of the injury still existed,
including spasm in the lumbar spine. Dr. Ross advised that appellant was medically able to return
to work with restrictions of lifting no more than 10 pounds, and working no more than eight hours
at a time. She advised that appellant could sit for five hours in total, and stand for three hours
altogether with breaks.
In a March 6, 2019 notice, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he no longer had residuals or disability causally related
to his accepted December 1, 2006 employment injury. It informed appellant that the special weight
of the medical opinion evidence rested with the report of Dr. Friedenthal, the impartial medical
specialist. OWCP afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross repeated her prior findings and noted, “[h]is
speciﬁc work-related condition has not resolved.” He indicated that appellant was medically able
to return to work with restrictions of lifting no more than 10 pounds and working no more than 8
hours at a time. Appellant was able to sit for 45 to 60 minutes continuously, stand for
approximately 30 minutes continuously, sit for five hours altogether, and stand for three hours
altogether with breaks. Dr. Ross differed with Dr. Friedenthal’s assessment that appellant merely
sustained a lumbar strain, as this is not what was noted on his magnetic resonance imaging (MRI)
scan of the lumbar spine. She disagreed with Dr. Friedenthal’s assessment that the aggravation of
appellant’s condition ceased when he returned to full-duty work three or four months after
December 1, 2006.
Appellant, through counsel, argued that Dr. Friedenthal’s June 29, 2018 report did not
contain adequate medical rationale in support of its conclusions and that all of the relevant medical
documents were not provided to Dr. Friedenthal for review.
In early-September 2019, OWCP determined that it would not pursue action based on the
Dr. Friedenthal’s opinion, which had been based on a physical examination conducted on
May 17, 2018.
OWCP then referred appellant, along with a statement of accepted facts (SOAF) and series
of questions, for a second opinion examination and evaluation with Dr. Stanley Askin, a Boardcertified orthopedic surgeon. It requested that he provide an opinion regarding whether appellant
continued to have residuals of his accepted December 1, 2006 employment injury.

3

In a September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He noted that appellant showed full
range of motion of his elbows, forearms, wrists, fingers, and thumbs, and that muscle function of
the trapezii, latissimus dorsi, pectoralis major, deltoids, triceps, wrist flexors, and wrist extensors
was intact bilaterally. Appellant reported that, when he moved his right wrist, there was pain in
the radial aspect of his forearm, but not over the wrist joint proper. Dr. Askin reported that the
Finkelstein’s test for de Quervain’s tendinitis and testing for the intersection syndrome were
negative for the respective conditions. He indicated that appellant reported pain in the radial aspect
of his right forearm, but that this was “a subjective report without objective manifestation.”
Straight-leg raising was negative to 90 degrees while seated and appellant’s low back muscles
relaxed appropriately on alternate leg stance from which it is concluded that there was no present
muscle spasm. Dr. Askin noted that appellant offered 80 degrees of forward flexion and 10 degrees
of side-bending to each side, which was quite reasonable for a 62-year-old person. Examination
of appellant’s knees revealed full range of motion and normal ligamentous function. Dr. Askin
opined that appellant ceased to have residuals of the accepted lumbar sprain and lumbago
conditions sustained on December 1, 2006, noting that he had no objective findings other than the
fact that he examined as a rather typical 62-year-old man. He indicated, “[appellant] does not have
any concurrent nonwork-related disability, apart from the fact that when a person is 62 years of
age he is not as physically capable as when he was 20 years of age, but that is a biologically
imposed consequence of senescence.” Dr. Askin advised that there was nothing identifiably
objective that would preclude appellant’s resumption of his employment activities.
By decision dated November 22, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, as he no longer had residuals or disability
causally related to his accepted December 1, 2006 employment injury. It found that the weight of
the medical evidence rested with the opinion of Dr. Askin.
On December 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a December 9, 2019 duty status report (Form CA-17) from Dr. Scott
Fried, a Board-certified orthopedic surgeon, who diagnosed right wrist sprain/tenosynovitis and
recommended work restrictions. In a December 9, 2019 work capacity evaluation report (Form
OWCP-5c), he also recommended work restrictions. Appellant also submitted a functional
capacity evaluation (FCE) report, signed by Dr. Fried on December 6, 2019, which showed that
appellant could lift or carry up to 10 pounds.
During the hearing held on April 6, 2020, counsel argued that the weight of the medical
opinion evidence rested with the opinion of Dr. Ross who found continuing employment-related
residuals and disability.
By decision dated June 1, 2020, OWCP’s hearing representative affirmed the
November 22, 2019 decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.7 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 8 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 10 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019.
The weight of the medical evidence is represented by the thorough, well-rationalized
opinion of Dr. Askin, the OWCP referral physician. The September 27, 2019 report of Dr. Askin
establishes that appellant had no residuals or disability due to his accepted December 1, 2006
employment injury after November 23, 2019.
In his September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He opined that appellant ceased to
have residuals of the accepted lumbar sprain and lumbago conditions sustained on December 1,
2006, noting that he had no objective findings other than the fact that he examined as a rather
typical 62-year-old man. Dr. Askin indicated, “[appellant] does not have any concurrent nonworkrelated disability, apart from the fact that when a person is 62 years of age he is not as physically
capable as when he was 20 years of age, but that is a biologically imposed consequence of
senescence.” He advised that there was nothing identifiably objective that would preclude
appellant’s resumption of his employment activities.
The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the relevant issue of
7

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
8

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
9

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
11

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

5

continuing residuals/disability related to the December 1, 2006 employment injury. Dr. Askin
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that appellant had no
objective findings of the accepted lumbar sprain and lumbago.12
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross indicated that appellant sustained these
injuries due to the December 1, 2006 work-related incident and found that he still had ﬁndings
including spasm in the lumbar spine. She recommended work restrictions and noted, “[h]is
speciﬁc work-related condition has not resolved.”
The Board finds, however, that Dr. Ross’ reports are of limited probative value with respect
to OWCP’s termination action because it has not been accepted that appellant sustained her abovedetailed diagnosed conditions in connection with the December 1, 2006 employment injury.
Dr. Ross has not otherwise explained, with medical rationale, how such injuries were sustained by
appellant on December 1, 2006. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/level of disability has an employment-related cause.13 Therefore, these reports
are insufficient to support appellant’s claim that OWCP improperly terminated compensation.
As the evidence of record is insufficient to overcome the weight accorded to Dr. Askin, the
Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 14 To establish causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized

12

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).
13

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018);
Manuel Gill, 52 ECAB 282 (2001).

6

medical evidence based on a complete medical and factual background, supporting such causal
relationship.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
disability or residuals causally related to his accepted December 1, 2006 employment injury after
November 22, 2019.
After OWCP’s November 22, 2019 decision terminating appellant’s compensation
effective the same date, appellant submitted additional medical evidence , which he felt showed
that he was entitled to compensation after November 22, 2019 due to residuals of his December 1,
2006 employment injury. Given that the Board has found that OWCP properly relied on the
opinion of the OWCP referral physician, Dr. Askin, in terminating appellant’s compensation
effective November 22, 2019, the burden shifts to appellant to establish that he is entitled to
compensation after that date.
Appellant submitted a December 9, 2019 duty status report from Dr. Fried who diagnosed
right wrist sprain/tenosynovitis and recommended work restrictions. In a December 9, 2019 work
capacity evaluation report, Dr. Fried also recommended work restrictions. Appellant also
submitted an FCE report, signed by Dr. Fried on December 6, 2019, which showed that appellant
could lift or carry up to 10 pounds. The Board has reviewed the additional evidence submitted by
appellant and finds that it is not of sufficient probative value to establish that he had
residuals/disability related to his December 1, 2006 employment injury after November 22, 2019.
As noted above, it has not been accepted that appellant sustained a wrist injury on December 1,
2006 and none of these reports contains an opinion that appellant had residuals/disability due to
the accepted lumbar sprain or lumbago conditions. The Board has held that medical evidence that
does not offer an opinion regarding work-related residuals or disability is of no probative value on
the issue of causal relationship.16
As appellant has not submitted any rationalized medical evidence establishing tha t he had
employment-related disability or residuals after November 22, 2019, causally related to the
accepted December 1, 2006 employment injury, he has not met his burden of proof.
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 has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019. The Board further

15

Id.

16

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

7

finds that appellant has not met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8