United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Montclair, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1080
Issued: September 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 29, 2013 appellant, through her attorney, filed a timely appeal from a
January 23, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her traumatic injury claim. 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 met her burden of proof to establish that she sustained
injuries on December 14, 2011 while in the performance of duty.
On appeal, counsel contends that the medical evidence of record from appellant’s
attending physician is sufficient to establish causal relationship between the accepted
December 14, 2011 employment incident and her claimed injuries. He further contends that
OWCP abused its discretion in failing to develop the medical evidence.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 17, 2011 appellant, then a 52-year-old sales service associate, filed a
traumatic injury claim under OWCP File No. xxxxxx587. While she was passing around mail to
carriers’ cases on December 14, 2011, she felt a radiating sensation in her neck, shoulder, arm,
hand and back that painfully worsened. Appellant stopped work on December 15, 2011.
In prescription notes dated December 2011 and January 17, 2012, Dr. Bharathi Nayak, an
attending Board-certified neurologist, advised that appellant was totally disabled until further
notice.
By letter dated January 23, 2012, the employing establishment controverted the claim. It
noted a history that appellant filed a claim under OWCP File No. xxxxxx122 for an injury she
sustained on July 14, 1999. Appellant received total disability compensation which was
terminated by OWCP effective October 2, 2005 as the medical evidence established that she was
fit for full-duty work. She did not return to work due to continuing total disability. Appellant’s
claim for a disability retirement was denied. The employing establishment issued a notice of
removal on November 12, 2009 for her failure to meet the physical requirements of her position.
As a result of additional diagnostic testing and a prearbitration settlement agreement, appellant
returned to work at the employing establishment as of December 3, 2011. The employing
establishment stated that on December 14, 2011 she performed her work duties and completed
the day with no complaints of any pain or claim of injury. It further contended that the medical
evidence did not present a history of injury or objective findings that prevented appellant from
performing her work duties.
By letter dated January 31, 2012, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim and that she respond to the employing establishment’s
contentions. It also requested that she submit additional factual and medical evidence.
Appellant was asked to provide dates of examination and treatment, a history of injury given by
her to a physician, a detailed description of any findings, the results of any x-rays or laboratory
tests, a diagnosis and course of treatment followed and a physician’s opinion supported by a
medical explanation as to how the reported work incident caused the claimed injury.
In a December 20, 2011 medical report, Dr. Nayak noted an 11-year history of treating
appellant. On the date of examination, appellant complained about increased neck pain with
spasms radiating predominantly to her left upper extremity with tingling and numbness in her left
hand. She also complained about dull pain and spasms in her lower back and left-sided
headaches. Appellant sustained a work-related injury over 10 years prior with chronic recurrent
left cervical radiculitis and muscle tension headaches of cervical origin. Following this injury,
she returned to work at the employing establishment. After two days of work, appellant
experienced the above-noted symptoms which she attributed to repetitive work activity. She also
felt extremely anxious and had difficulty sleeping due to pain. Dr. Nayak listed a history of
appellant’s medical treatment, family and social history. She reported essentially normal
physical examination findings with the exception of an anxious and slightly depressed
appearance, moderately restricted neck movements that were painful bilaterally left more than
the right with diffuse bilateral trapezius tenderness, mild spasms over the left trapezius muscle
with left scapular tenderness and mild diffuse lumbosacral tenderness without significant spasms.

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Dr. Nayak listed essentially normal findings on motor examination with the exception of mild
weakness of the left hand grip. On sensory examination, she found diminished pain and
vibration perception over the left C7-8 dermatome. Dr. Nayak diagnosed chronic recurrent
cervical radiculopathy at left C7-8 with acute exacerbation that was most likely related to
physical activity. She also diagnosed left occipital nerve meralgia secondary to acute cervical
strain and/or radiculopathy and muscle tension headaches of cervical origin, lumbosacral
radiculitis and anxiety secondary to appellant’s current medical situation. Dr. Nayak concluded
that appellant was totally disabled.
In a February 27, 2012 letter, appellant described the December 14, 2011 incident. From
9:00 a.m. to 6:00 p.m. she passed around bundles of circulars which varied in weight to each
mail carrier’s case. Appellant lifted each bundle of circulars off the floor and placed them inside
a carriage. She then pushed the carriage over to a mail carrier’s case from which she lifted a
bundle out of the carriage and stacked it on the floor next to a carrier’s case. During the
workday, appellant felt a sensation in her neck, shoulder and arm on the left side. On
December 15, 2011 she felt pain in her neck, shoulder, arm and back which prevented her from
going to work. Appellant reported her injury and absence to management. On December 16 and
20, 2011 she sought medical treatment from Dr. Nayak.
In a March 8, 2012 decision, OWCP accepted that the December 14, 2011 incident
occurred as alleged. It denied appellant’s claim, however, finding insufficient medical evidence
to establish that she sustained a firm medical condition causally related to the accepted
employment incident.
By letter dated March 26, 2012, appellant, through her attorney, requested an oral hearing
before an OWCP hearing representative which was held on July 12, 2012. She testified
regarding her work duties as a carrier and later as a distribution clerk. Appellant testified about
her employment injury under File No. xxxxxx122. She described her work duties as a sales
service associate and the development of her claimed injuries for which she sought medical
treatment and disability for work. OWCP’s hearing representative requested that appellant
submit all medical records related to her claimed injury. He agreed with counsel that an
affirmative statement on causal relationship between appellant’s claimed injury and her
employment duties was necessary to establish her claim.
Following the July 12, 2012 oral hearing, appellant submitted a report dated April 10,
2012 from Dr. Nayak, who advised that appellant had been totally disabled since
December 14, 2011. Dr. Nayak stated that appellant’s condition had improved. She released
appellant to return to her regular job on April 16, 2012 with restrictions. In an August 6, 2012
report, Dr. Nayak provided a history of the December 14, 2011 employment incident and
appellant’s medical treatment. She reviewed electrodiagnostic test results and diagnosed chronic
recurrent radiculopathy and a herniated nucleus pulposus at C5-6 and chronic recurrent
lumbosacral radiculitis. Dr. Nayak also diagnosed post-traumatic stress disorder and improving
anxiety that were precipitated by situational stress. She reiterated her opinion that appellant was
capable of performing her regular job with restrictions.

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In September 21, 2012 decision, OWCP’s hearing representative affirmed the March 8,
2012 decision, finding that appellant failed to submit rationalized medical evidence to establish
an injury causally related to the accepted employment incident.
By letter dated November 12, 2012, counsel requested reconsideration. In an undated
addendum to her August 6, 2012 report, Dr. Nayak reviewed appellant’s clinical evaluation and
neurological follow up since December 2011 and diagnostic test results she stated that
appellant’s medical signs, symptoms and disability were caused by her December 2011 jobrelated activities.
In a January 23, 2013 decision, OWCP denied modification of the September 21, 2012
decision, finding that the medical evidence was not sufficient to establish an injury causally
related to the accepted December 14, 2011 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the

2

Id.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).

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identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
OWCP accepted that on December 14, 2011 appellant passed mail out to carriers’ cases
while in the performance of duty. It found that the medical evidence failed to establish that she
sustained an injury as a result of the accepted incident. The Board finds that appellant failed to
provide sufficient medical evidence to establish that she sustained a cervical or back condition
causally related to the December 14, 2011 employment incident.
Appellant submitted an August 6, 2012 medical report from Dr. Nayak who listed a
history of the December 14, 2011 employment incident and reviewed electrodiagnostic test
results. Dr. Nayak stated that appellant had chronic recurrent radiculopathy and a herniated
nucleus pulposus at C5-6 with chronic recurrent lumbosacral radiculitis. She also found that
appellant had post-traumatic stress disorder and improving anxiety that were precipitated by
situational stress. Dr. Nayak opined that appellant could perform her regular work duties with
restrictions. She did not fully address the causal relationship between the diagnosed cervical,
lumbar and emotional conditions to the accepted December 14, 2011 employment incident.10
While Dr. Nayak reiterated her conclusion, in an undated addendum to her August 6, 2012
report, that appellant’s medical signs, symptoms and disability were causally related to her
December 2011 work-related activities, she failed to provide a sufficient medical opinion
explaining how passing out mail caused or contributed to the diagnosed conditions. She found
that appellant’s conditions were caused by the accepted work factor based on her clinical
evaluation and neurological follow up since December 2011, and diagnostic test results. As
noted, appellant’s burden of proof includes the submission of medical evidence explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by her.11 Dr. Nayak’s report did not explain how the established employment factor
caused or aggravated appellant’s diagnosed conditions. The other reports and prescriptions from
Dr. Nayak do not provide any opinion addressing the causal relationship between the diagnosed
cervical, lumbar, headache and emotional conditions and resultant disability and the accepted
December 14, 2011 employment incident.12 In Dr. Nayak’s December 20, 2011 report, appellant
expressed her belief that her neck, left upper extremity, lower back and left-sided headaches
were caused by her repetitive work duties. As noted, the Board has held that a claimant’s belief
that her condition was caused by her employment is insufficient to establish causal relationship.13
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

10

Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship. A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB
200 (2004); Michael E. Smith, 50 ECAB 313 (1999).
11

See cases cited, supra note 8.

12

See cases cited, supra note 10.

13

Supra note 9.

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For the stated reasons, the Board finds that Dr. Nayak’s reports are insufficient to establish
appellant’s claim.
On appeal, counsel contended that the medical evidence of record from appellant’s
attending physician was sufficient to establish that appellant sustained injuries caused by the
December 14, 2011 employment incident. As noted, the reports and prescriptions from
Dr. Nayak were not sufficiently rationalized on the issue of causal relationship.
Counsel further contended that OWCP abused its discretion in failing to develop the
medical evidence. Appellant was advised by a January 31, 2012 letter and during the July 12,
2012 oral hearing of the medical evidence needed to establish her traumatic injury claim.
However, she did not submit such evidence. The Board finds that she did not meet her burden of
proof in establishing that she sustained an injury due to the December 14, 2011 employment
incident.
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 injuries on December 14, 2011 while in the performance of duty.

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ORDER
IT IS HEREBY ORDERED THAT the January 23, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, FEDERAL EMERGENCY
MANAGEMENT AGENCY, New Orleans, LA,
Employer
__________________________________________

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Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1381
Issued: April 16, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 20, 2011 appellant, through his attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) decision dated April 7, 2011. 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 was entitled to wage-loss compensation benefits from
October 14, 2006 causally related to his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 41-year-old physician’s assistant, filed a Form CA-2 claim for benefits on
December 18, 2006, alleging that he developed post-traumatic stress disorder (PTSD) causally
related to his two-week deployment to New Orleans as a temporary federal employee in
August 2005 in the aftermath of Hurricane Katrina. In a statement dated December 18, 2006, he
indicated that, shortly after arriving with the disaster team at New Orleans, he began to
experience anxiety, stress, disrupted sleep, disturbing dreams and poor coping mechanisms.
These symptoms caused problems with appellant’s job, with patient care and with all of his
personal relationships. He asserted that the inadequate security, extraordinary number of
patients, excessive work hours, lack of sleep and disruption caused by helicopters resulted in his
being diagnosed with PTSD. Appellant noted that he had not previously been diagnosed with
anxiety or PTSD. He believed, however, that his military career of medical work, and hospital
and emergency medicine work may have contributed to his condition.
By decision dated March 7, 2007, OWCP found that appellant did not sustain a stressrelated condition in the performance of duty.
In an April 16, 2007 report, Steven Franks, a licensed family and marital therapist, stated
that he began to treat appellant for symptoms consistent with PTSD in October 2006. He
advised that the onset of these symptoms were attendant with his work as an emergency care
provider in New Orleans during Hurricane Katrina. Mr. Franks stated that appellant requested
medical leave from work due to concerns that his PTSD symptoms could affect the safety of his
patients. Appellant expressed anxiety as to how the nature of his work could trigger memories
and feelings related to traumatic events, place his patients at risk and interfere with his current
progress.
In statement dated April 18, 2007, Dr. G.R. Brammer, a professional colleague of
appellant’s since November 1999, stated that he began to notice significant changes in his
behavior in the late summer and fall of 2006. He asserted that appellant became less
communicative, more withdrawn and had a much flatter affect than normal. Dr. Brammer
advised that there was a significant deviation in appellant’s baseline mood.
By decision dated April 18, 2008, OWCP denied modification of the March 7, 2007
decision.
In a report dated February 12, 2009, Edwin L. Hill, Ph.D., diagnosed appellant with
PTSD. He advised that when appellant reported to New Orleans Airport on August 28, 2005 to
assist with medical support services in the wake of Hurricane Katrina, he became overwhelmed
by the conditions he encountered, which included understaffing, a lack of supplies and
equipment, and overwhelming work hours. Dr. Hill stated that as a result of this assignment he
began to experience constant anxiety and tension, hypervigilance to his surroundings, intolerance
for being in large groups or in heavy traffic, withdrawal from social interactions, avoidance of
public places, insomnia and fatigue. Appellant also developed a sensation of awakening to
sounds of helicopters each morning, even after returning home, despite the fact that he lived
nowhere near an airport or helicopter landing facility. He was easily startled by loud noises and
had chronic problems with cognitive inefficiency, including poor memory and concentration.

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Dr. Hill asserted that appellant has had these problems since being deployed to New Orleans.
Appellant was unable to work with sufficient productivity and efficiency due to poor attention
and concentration, feelings of anxiety, tension, fear and edginess.
Dr. Hill related that, in approximately mid-October 2006, management began to receive
numerous complaints about appellant’s behavior. Appellant was accused of being intolerant
toward patients and too demanding of nurses; allegedly behaved in an overbearing manner when
asking for additional nurse support; and in handling conflict situations or agitated/threatening
patients. He stated that he felt tense, anxious, sweaty, “bottled up,” and unable to cope with
these situations. Appellant advised that he and management came to an understanding in early
November 2006 that it would be best to terminate his employment without cause. The
employing establishment did not renew appellant’s contract, which he considered unfair in light
of the many positive performance reviews and positive letters of recommendation he had
previously received.
Dr. Hill advised that appellant was currently demonstrating significant problems with
respect to PTSD, which, as noted, he apparently developed following his traumatic experiences
in New Orleans following Hurricane Katrina. While appellant believed that his condition had
improved since his release from Katrina duty in September 2005 and his significant relapse
following his job loss in November 2006, he still had significant residual symptoms which
affected him on a daily basis. Dr. Hill opined that, based on a review of his history, appellant
was disabled due to PTSD from November 2006 through May 2008.
By letter dated March 4, 2009, appellant requested reconsideration.
By decision dated June 4, 2009, OWCP accepted the claim for PTSD. It accepted two
compensable factors of employment: (1) that he was required to work long hours with little or
no sleep; and (2) that he was required to treat patients with severe conditions, which, due to the
volume of patients and lack of appropriate staff and supplies, at times became life-threatening
conditions. OWCP found that Dr. Hill’s report established that the condition of PTSD was
causally related to these factors.
On April 16, 2010 appellant filed a Form CA-7 claim for wage-loss compensation from
October 14, 2006 to April 7, 2008 and continuing.
By letter dated July 22, 2010, OWCP advised appellant that it required additional medical
evidence in support of his claim for total disability compensation during the period claimed. It
asked him to submit a detailed, narrative medical report indicating why the claimed disability
caused or aggravated by his accepted condition.
In a September 7, 2010 report, Dr. Hill essentially reiterated his previously stated
findings and conclusions and reviewed the period in which appellant allegedly became disabled
due to PTSD. He related that appellant was surprised when he was told by an employing
establishment physician in October 2006 that it had received numerous complaints from the
nursing staff about his behavior. Appellant was accused of threatening patients and being too
demanding of the nurses when requesting their assistance in handling conflict situations with
agitated patients. Dr. Hill noted that appellant chose to seek treatment from Mr. Franks, whom

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he had seen for treatment of depression in 2002. Appellant related that he received a letter from
the employing establishment on October 13, 2006 informing him that his contract would not be
renewed. Dr. Hill stated that appellant’s last day of work with Tacoma Emergency Care
Physicians was November 6, 2006 and that his contractual agreement was considered completed.
Apparently, appellant’s problems with PTSD were interfering with his ability to perform his job
in a satisfactory manner. Dr. Hill, however, did not examine or treat appellant during the
claimed period of disability.
In a March 8, 2011 report, Dr. Steve C. Stringfellow, Board-certified in internal medicine
and appellant’s treating physician, stated that he initially treated appellant for his stress-related
condition on February 9, 2007, at which time he determined that he was severely disabled due to
his PTSD, anxiety and depression stemming from his experiences during Hurricane Katrina in
September 2005. He opined that appellant was not fit for full or light duty as a physician’s
assistant as of October 13, 2006 due to the severity of his symptoms. Dr. Stringfellow saw
appellant again on May 3, 2007, at which time he reiterated his opinion and prescribed
medication which eventually ameliorated his symptoms and allowed him to return to gainful
employment on April 8, 2008.
By decision dated September 27, 2010, OWCP denied the claim for compensation on the
basis that there was no contemporaneous medical evidence of disability for the period claimed.
On September 29, 2010 appellant requested an oral hearing, which was held on
January 28, 2011. At the hearing he testified that he had a contractual agreement with Tacoma
Emergency Care Physicians which stated that, if either party chose not to renew the contract,
they were both were obligated to provide 90 days of service prior to termination. Appellant
stated that when he became aware of the ongoing symptoms he experienced after returning from
New Orleans; e.g., nightmares, anxiety, lack of sleep, irritability, inability to concentrate, he
began to doubt his ability to perform his usual job duties as an emergency care physician’s
assistant. He also asserted that he actually stopped working on October 12, 2006, not
November 6, 2006, as Dr. Hill had indicated. Appellant indicated that he quit voluntarily
because he was overwhelmed by his emotional problems and Mr. Franks and subsequently
Dr. Stringfellow recommended that he leave his job.
By decision dated April 7, 2011, OWCP’s hearing representative affirmed the
September 27, 2010 decision. OWCP found that the medical evidence of record failed to
establish that appellant was disabled for work due to the accepted condition of PTSD from
October 14, 2006.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing that the
essential elements of his or her claim by the weight of the evidence.3 Under FECA, the term
disability is defined as an inability, due to an employment injury, to earn the wages the employee
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989).

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was receiving at the time of injury, i.e., an impairment resulting in loss of wage-earning
capacity.4 For each period of disability claimed, the employee has the burden of establishing that
he or she was disabled for work as a result of the accepted employment injury.5 Whether a
particular injury causes an employee to become disabled for work and the duration of that
disability are medical issues that must be proved by a preponderance of probative and reliable
medical opinion evidence.6 The fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7 The
Board will not require OWCP to pay compensation for disability in the absence of medical
evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his disability and entitlement to
compensation.8
ANALYSIS
In the instant case, there is no contemporaneous medical evidence bearing on the issue of
whether appellant is entitled to wage loss commencing October 14, 2006. OWCP accepted
appellant’s claim for PTSD based on the February 12, 2009 report from Dr. Hill, who stated that
appellant developed his PTSD condition during his temporary duty as a federal employee in New
Orleans in August to September 2005 while providing medical support services after Hurricane
Katrina. Dr. Hill advised that appellant was overburdened by the conditions he dealt with on a
daily basis and developed symptoms such as anxiety, oversensitivity to his surroundings,
intolerance for being in large groups, withdrawal from social interactions, insomnia and fatigue.
He concluded that based on his examination and on the symptoms appellant described that he
had PTSD. Based on Dr. Hill’s report, OWCP accepted a claim for PTSD on June 4, 2009.
Appellant subsequently filed a Form CA-7 claim for wage-loss compensation from October 14,
2006 to April 7, 2008 and continuing; however, OWCP denied compensation in its
September 27, 2010 decision because there was no medical evidence establishing that his alleged
period of disability was causally related to his accepted PTSD condition. The evidence of record
establishes that he had difficulties performing his private employment duties during the fall of
2006, a year following his Katrina deployment. Appellant was accused of being intolerant
toward patients and too demanding of nurses; he allegedly behaved in an overbearing manner.
Dr. Hill noted that management told appellant in October 2006 that his behavior was adversely
affecting his coworkers and that they came to a mutual understanding in November 2006 that it
would be best to terminate his employment without cause. While he opined that appellant had
significant residual problems with PTSD which were affecting his behavior at the time of his
termination, Dr. Hill did not provide any medical rationale explaining how his accepted PTSD
condition would have caused his current condition. His opinion is of further diminished
probative value because he did not examine or treat appellant during this period.
4

See Prince E. Wallace, 52 ECAB 357 (2001).

5

Dennis J. Balogh, 52 ECAB 232 (2001).

6

Gary L. Watling, 52 ECAB 278 (2001).

7

Manual Garcia, 37 ECAB 767 (1986).

8

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

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The April 18, 2007 report from Dr. Brammer is merely a summary statement that
appellant experienced mood changes and became withdrawn in the late summer and fall of 2006.
He did not describe appellant’s emotional condition in any detail or how it would have been
competent to result in disability at that time. Furthermore, Dr. Brammer never discussed with
medical rationale, whether appellant’s current private employment duties or his accepted federal
employment event a year earlier caused his disability.
Mr. Franks provided psychological therapy to appellant during this period and opined
that he became disabled as of October 2006 due to PTSD stemming from his federal
employment. He, however, is a behavioral therapist and therefore his reports do not constitute
medical evidence pursuant to section 8101(2).9 Based on this lack of sufficient medical
evidence, OWCP properly denied compensation for wage-loss compensation benefits from
October 14, 2006 to April 7, 2008 causally related to his federal employment in its
September 27, 2010 decision.
Following OWCP’s September 27, 2010 decision, appellant requested a hearing and
submitted Dr. Stringfellow’s March 8, 2011 report. Dr. Stringfellow opined that when he saw
appellant on February 9, 2007 he was severely disabled due to his PTSD, anxiety and depression
stemming from his experiences as a temporary federal worker during Hurricane Katrina in
September 2005. He further stated that appellant was not fit for duty as a physician’s assistant as
of October 13, 2006 due to the severity of his symptoms. The record indicates, however, that
appellant was not working at the time Dr. Stringfellow began treating him because he and
management mutually agreed that he should step down from his job as an emergency physician’s
assistant with Tacoma Emergency Care Physicians in October 2006.10 Appellant stated at the
hearing that he quit the position voluntarily because he was overwhelmed by his emotional
problems.
As stated above, appellant is entitled to compensation for wage loss for whatever periods
are attributable to his work-related condition, in accordance with a “current narrative medical
report indicating disability for the period in question or projecting disability through the period
of claimed compensation.” However, Dr. Stringfellow’s report did not provide a probative,
rationalized medical opinion establishing that he was disabled for work due to the accepted
PTSD condition for the period commencing October 14, 2006.11 Appellant was not working at
the time Dr. Stringfellow initially examined him in May 2007 and, while he alleged that he had
to stop working in October 2006 due to residual effects from his accepted PTSD condition, there
is no contemporaneous medical evidence in the record which supports this assertion.
Furthermore, Dr. Stringfellow did not directly address, with medical rationale, whether appellant
9

20 C.F.R. § 8101(2). Section 8101(2) provides that the term physician includes clinical psychologists within the
scope of their practice as denied by state law. See Jacqueline E. Brown, 54 ECAB 583 (2003). A family therapist
or marriage counselor is not a physician under FECA. See Joe L. Wilkerson, 47 ECAB 604 (1996). See also
Nancy A. Johnson-Charpentier, Docket No. 04-1599 (issued July 25, 2005).
10

Mr. Franks stated that appellant left work after applying for medical leave due to PTSD. Dr. Hill had indicated
that management at Tacoma Emergency Care Physicians had approached appellant with complaints about his
behavior from coworkers and had advised him to leave his position.
11

William C. Thomas, 45 ECAB 591 (1994).

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had any disability for work causally related to the accepted condition at the time appellant
stopped working. As previously noted, the record remains without medical evidence explaining
why appellant’s behavior in his private employment, which led to his unemployment, was
medically caused by his Katrina deployment one year prior.
As noted above, to establish entitlement to compensation, an employee must establish
through competent medical evidence that disability from work resulted from the employment
injury.12 The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify their disability and
entitlement to compensation.13 Appellant has the burden to demonstrate his disability for work
based on rationalized medical opinion evidence. The issue of whether a claimant’s disability is
related to an accepted condition is a medical question which must be established by a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disability is causally related to employment factors and supports that conclusion with sound
medical reasoning.14 There is no such evidence in this case. Dr. Stringfellow did not offer any
opinion or supporting medical rationale regarding the date that appellant’s disability began or his
disability for work for any additional periods. His opinion does not contain any medical
rationale explaining how or why appellant’s PTSD condition was affected by or related to factors
of employment during the period from October 14, 2006.15 The report from Dr. Stringfellow
failed to establish that appellant was disabled for work during this period.
Appellant has thus failed to submit such evidence which would indicate that his PTSD
condition caused any wage loss for the claimed period. He has not provided a rationalized
opinion supporting his disability for work for the period in question. The evidence establishes
that appellant did not return to work as he awaited a medical examination; thus, this
circumstance is not sufficient to establish disability for work.
OWCP properly denied appellant’s claim for wage-loss compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he was
entitled to compensation for wage loss from October 14, 2006 causally related to his accepted
federal employment injury.

12

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

13

Paul E. Thams, 56 ECAB 503 (2005).

14

Howard A. Williams, 45 ECAB 853 (1994).

15

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the April 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 16, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
EDUCATION AND TRAINING COMMAND,
RANDOLPH AIR FORCE BASE, JOINT BASE
SAN ANTONIO, TX, Employer
__________________________________________

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

Docket No. 21-1253
Issued: February 23, 2022

Case Submitted on the Record

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

JURISDICTION
On August 18, 2021 appellant filed a timely appeal from an August 2, 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. 2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 2, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $25,976.56 for the period August 1, 2013 through
February 27, 2021 for which he was without fault, because he concurrently received FECA wageloss compensation and Social Security Administration (SSA) age-related retirement benefits
without an appropriate offset; (2) whether it properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
either $450.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
OWCP accepted that on February 29, 1992 appellant, then a 44-year-old carpenter,
sustained lumbar spondylosis with radiculopathy, lumbar sprain, thoracic or lumbosacral neuritis
or radiculitis, adjustment disorder with depressed mood, and unspecified migraine with intractable
migraine while in the performance of duty.3 It paid him wage-loss compensation for total disability
beginning April 24, 1992.
On January 27, 2021 OWCP sent a Federal Employees Retirement System (FERS)/SSA
dual benefits form to SSA for completion.
On February 5, 2021 SSA completed the FERS/SSA dual benefits form and provided
appellant’s SSA age-related retirement benefit rates with FERS and without FERS from
August 2013 until December 2020. It indicated that, beginning August 2013, appellant’s SSA rate
with FERS was $1,127.30 and without FERS was $1,000.50, beginning December 2013, his rate
with FERS was $1,290.30 and without FERS was $1,015.50, beginning December 2014 and 2015,
his rate with FERS was $1,312.20 and without FERS was $1,032.70, beginning December 2016,
his rate with FERS was $1,316.10 and without FERS was $1,035.70, beginning December 2017,
his rate with FERS was $1,342.40 and without FERS was $1,056.40, beginning December 2018,
his rate with FERS was $1,379.90 and without FERS was $1,085.90, beginning December 2019,
his rate with FERS was $1,401.90 and without FERS was $1 ,103.20, and beginning
December 2020, his rate with FERS was $1,420.10 and without FERS was $1,117.50.
OWCP completed a FERS offset overpayment calculation form on March 8, 2021. It
calculated the amount that it should have offset from appellant’s wage-loss compensation for each
period from August 1, 2013 until February 27, 2021. OWCP found that, from August 1 through
November 30, 2013, appellant received an overpayment of $1,089.15, from December 1, 2013
through November 30, 2014, he received an overpayment of $3,306.66, from December 1, 2014
through November 30, 2015, he received an overpayment of $3,363.21, from December 1, 2015
through November 30, 2016, he received an overpayment of $3,372.43, from December 1, 2016
through November 30, 2017, he received an overpayment of $3,374.04, from December 1, 2017
through November 30, 2018, he received an overpayment of $3,441.43, from December 1, 2018
through November 30, 2019, he received an overpayment of $3,537.69, from December 1, 2019
through November 30, 2020, he received an overpayment of $3,604.09, and from December 1,
3

The claim for a traumatic injury (Form CA-1) is not contained in the case record.

2

2020 through February 27, 2021, he received an overpayment of $887.85. Based on these figures,
OWCP calculated a total overpayment in the amount of $25,976.56.
In a May 12, 2021 letter, OWCP informed appellant that it would begin deducting the
portion of SSA age-related retirement benefits attributable to his federal service from his
compensation benefits. It found that, with the SSA offset, he was entitled to net compensation
every 28 days of $2,114.68.
In a preliminary overpayment determination dated June 28, 2021, OWCP notified
appellant of its preliminary, finding that he had received an overpayment of compensation in the
amount of $25,976.56 because his wage-loss compensation benefits had not been reduced for the
period August 1, 2013 through February 27, 2021 by the portion of his SSA age-related retirement
benefits attributable to his federal service. It further advised him of its preliminary determination
that he was without fault in the creation of the overpayment. OWCP requested that appellant
submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine a
reasonable payment method, and advised him that he could request waiver of recovery of the
overpayment. It further requested that he provide supporting financial documentation, including
copies of income tax returns, bank account statements, bills and canceled checks, pay slips, and
any other records supporting income and expenses. Additionally, OWCP provided an
overpayment action request form and notified appellant that, within 30 days of the date of the
letter, he could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing.
In a July 17, 2021 overpayment action request from, received by OWCP on July 30, 2021,
appellant requested a decision based on the written evidence. He submitted a completed OWCP20 form and a bank statement for the period June 1 through 30, 2021.
By decision dated August 2, 2021, OWCP finalized its finding that appellant had received
an overpayment of compensation in the amount of $25,976.56 for the period August 1, 2013
through February 27, 2021 because it had failed to offset his compensation payments by the
portion of his SSA age-related retirement benefits that were attributable to his federal service. It
denied waiver of recovery of the overpayment. OWCP found that appellant had not responded to
its preliminary overpayment determination. It required recovery of the overpayment by deducting
$450.00 from his continuing compensation payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA 4 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 5 Section 8116 limits the right of an employee to receive

4

Supra note 1.

5

5 U.S.C. § 8102.

3

compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service. 7 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
benefit earned as a federal employee is part of the FERS retirement package, and the receipt of
FECA benefits and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of wage-loss compensation in the amount of $25,976.56 for the period August 1, 2013 through
February 27, 2021 for which he was without fault, because he concurrently received FECA wageloss compensation benefits and SSA age-related retirement benefits without an appropriate offset.
OWCP paid appellant wage-loss compensation for total disability beginning
April 24, 1992.
Appellant received SSA age-related retirement benefits beginning
August 1, 2013. As noted, a claimant cannot receive concurrent FECA compensation for wageloss and SSA age-related retirement benefits attributable to federal service. 9 The information
provided by SSA indicated that a portion of appellant’s SSA age-related retirement benefits were
attributable to his federal service. Accordingly, the Board finds that fact of overpayment has been
established. 10
To determine the amount of the overpayment, the portion of SSA age -related retirement
benefits attributable to federal service must be calculated. OWCP received documentation from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. SSA provided the SSA rates with FERS and without FERS from
August 2013 through December 2020. OWCP provided its calculations for each relevant period
based on SSA’s worksheet and determined that appellant received an overpayment of
compensation in the amount of $25,976.56. The Board has reviewed OWCP’s calculation of dual
benefits received by appellant for the period August 1, 2013 through February 27, 2021 and finds
that an overpayment of compensation in the amount of $25,976.56 was created. 11

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

8

FECA Bulletin No. 97-09 (issued February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

9

Supra note 8. See F.K., Docket No. 20-1609 (issued June 24, 2021); A.C., Docket No. 18-1550 (issued
February 21, 2019).
10

See L.K., Docket No. 20-1574 (issued June 23, 2021); S.H., Docket No. 20-1157 (issued December 23, 2020).

11

See N.B., Docket No. 20-0727 (issued January 26, 2021); L.L., Docket No. 18-1103 (issued March 5, 2019).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. 12
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 13 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 14 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 15 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 16
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience seve re financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.17
ANALYSIS -- ISSUE 2
The Board finds that the case is not in posture for decision with regard to whether OWCP
properly denied waiver of recovery of the overpayment.

12

5 U.S.C. § 8129.

13

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Pa rt 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a.(2) (September 2020).
14

Id. at Chapter 6.400.4a.(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
15

See supra note 14 at Chapter 6.400.4a.(2).

16

Id. at Chapter 6.400.4b.(3).

17

20 C.F.R. § 10.437(a)-(b).

5

In the case of William A. Couch,18 the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.
In its August 2, 2021 decision, OWCP found that appellant had not responded to its
preliminary overpayment determination. However, the record reflects that on July 30, 2021 it
received his overpayment action request form and a completed Form OWCP-20. Appellant
documented his income, expenses, and assets and submitted financial information. OWCP failed
to review the information that he submitted and, thus, failed to discuss all of the relevant evidence
of record received prior to issuing the final overpayment decision on August 2, 2021.19
On remand, OWCP shall review all evidence of record and, following any further
development as it deems necessary, it shall issue a de novo decision.20
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of wage-loss compensation in the amount of $25,976.56 for the period August 1, 2013 through
February 27, 2021 for which he was without fault, because he concurrently received FECA wageloss compensation benefits and SSA age-related retirement benefits without an appropriate offset.
The Board further finds that the case is not in posture for decision with regard to whether OWCP
properly denied waiver of recovery of the overpayment.

18

41 ECAB 548 (1990); see also R.D., Docket No. 17-1818 (issued April 3, 2018).

19
See W.M., Docket No. 21-0316 (issued July 23, 2021); E.T., Docket No. 19-1977 (issued February 22, 2021);
Order Remanding Case, S.H., Docket No. 19-1582 (issued May 26, 2020). OWCP’s procedures provide, “All
evidence submitted should be reviewed and discussed in the decision. Whenever possible, the evidence should be
referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Denials, Chapter
2.1401.5(b)(2) (November 2012).
20

In light of the Board’s disposition of Issue 2, Issue 3 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings in accordance with this decision of the Board.
Issued: February 23, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate 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
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lakewood, CA, Employer
__________________________________________

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

Docket No. 17-0800
Issued: May 2, 2018

Case Submitted on the Record

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

JURISDICTION
On February 28, 2017 appellant filed a timely appeal from an October 12, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated January 26, 2016, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On August 28, 2007 appellant, then a 38-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed a bilateral foot condition causally related
to factors of her federal employment. OWCP initially accepted her claim for left-sided plantar
1

5 U.S.C. § 8101 et seq.

fibromatosis and osteoarthritis of the right ankle and right foot. It subsequently expanded the
acceptance of appellant’s claim for additional foot conditions, including bilateral plantar
fibromatosis, bilateral exostosis, other bilateral peripheral enthesopathies, other bilateral synovitis
and tenosynovitis, bilateral bone cyst, right villonodular synovitis of the right ankle and right foot,
right tarsal tunnel syndrome, and acute osteomyelitis of the right ankle and right foot.
On March 28, 2008 appellant stopped work and, on that same date, underwent OWCPapproved surgery, including left-sided plantar fascial release to ameliorate the condition of plantar
fascia of the left foot. OWCP paid her disability compensation on the daily rolls beginning
March 28, 2008.
On May 3, 2008 appellant underwent surgery for partial exostectomy of the first metatarsal
bone with arthrotomy and synovectomy of the first metatarsophalangeal joint to ameliorate the
condition of metatarsophalangeal degenerative joint disease. On March 25, 2011 she underwent a
second procedure for partial exostectomy of the first metatarsal bone with arthrotomy and
synovectomy of the first metatarsophalangeal joint, in addition to partial exostectomy of the
proximal phalanx (to ameliorate degenerative joint disease of the first metatarsophalangeal joint),
and exostosis of the proximal phalanx. These procedures were authorized by OWCP.
In a January 9, 2012 report, Dr. Charles Xeller, a Board-certified orthopedic surgeon,
found that appellant had left lower extremity permanent impairment of 1 percent and right lower
extremity permanent impairment of 13 percent pursuant to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 He
calculated the impairment rating for the left lower extremity by using Table 16-2 (Foot and Ankle
Regional Grid) on page 502. Dr. Xeller found that appellant’s left plantar fascial release surgery
yielded one percent permanent impairment of the left lower extremity, finding that she had a class
C default permanent impairment under class 1. With regard to the right foot and ankle, he rated a
class 1 impairment for metatarsal fracture (nondisplaced with minimal findings, ongoing pain, and
decreased range of motion for metatarsal angulation) and metatarsalgia, which produced 10
percent default value for right lower extremity permanent impairment according to Table 16-2,
page 504. Dr. Xeller found a grade modifier two for functional history under Table 16-3, page
515, for a moderate problem; a grade modifier one for physical examination, for a mild problem,
pursuant to Table 16-3; and a grade modifier one for clinical studies, for a mild problem, under
Table 16-3. He found that, after application of the net adjustment formula, appellant had 13
percent permanent impairment of the right lower extremity.
On March 15, 2012 appellant filed a claim for compensation (Form CA-7) seeking a
schedule award due to her accepted employment conditions.
In an April 7, 2012 report, Dr. Leonard A. Simpson, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, reviewed Dr. Xeller’s findings and determined that appellant
had 1 percent permanent impairment of the left lower extremity for plantar fasciitis and 12 percent

2

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

2

permanent impairment of the right lower extremity for metatarsal angulation and metatarsalgia
under the A.M.A., Guides.3
By decision dated May 29, 2012, OWCP granted appellant a schedule award for 1 percent
permanent impairment of the left lower extremity and 12 percent permanent impairment of the
right lower extremity. The award ran for 37.44 weeks from January 9 to September 27, 2012 and
was based on the impairment rating of Dr. Simpson.
On August 2, 2013 appellant underwent surgery for left-sided decompression of the
intermediate dorsal cutaneous nerve, partial exostectomy of the middle cuneiform, and removal of
a ganglionic cyst. On June 6, 2014 she underwent surgery for right-sided plantar fascial release to
ameliorate the condition of plantar fascia of the right foot. The procedures were authorized by
OWCP.
On July 24, 2015 appellant filed a Form CA-7 seeking schedule award compensation for
additional permanent impairment.
In a May 23, 2015 report, Dr. Xeller found that appellant had sustained an additional 1
percent permanent impairment of the right lower extremity, which totaled 14 percent permanent
impairment of the right lower extremity under the sixth edition of the A.M.A., Guides. He based
this additional one percent rating on appellant’s June 6, 2014 right-sided plantar fascia release
surgery. Dr. Xeller advised that appellant had palpatory findings and pain at the area of the
incision, which yielded a class 1 impairment and an additional one percent impairment rating
pursuant to Table 16-2, page 504, and Table 16-3, page 515. He noted that she also underwent an
excision of a ganglion of her left foot, but found that this procedure did not warrant an impairment
rating because it did not result in any additional permanent impairment for the left lower extremity.
In an August 3, 2015 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, reviewed Dr. Xeller’s May 23, 2015 report and found that
his report did not provide a basis for an additional impairment rating under the sixth edition of the
A.M.A., Guides. He noted that appellant had six percent residual impairment of the right great toe
from an accepted July 24, 2007 injury pursuant to Table 16-2, page 504, which was less than the
12 percent right lower extremity impairment she was already awarded and which was subsumed
into the original award. Dr. Harris further found that, while Dr. Xeller rated an additional one
percent right lower extremity permanent impairment for the June 6, 2014 plantar release surgery,
Dr. Simpson’s 12 percent right lower extremity impairment rating encompassed any impairment
for right plantar fasciitis. He, therefore, found that appellant was not entitled to additional
impairment for the right lower extremity.
By decision dated August 12, 2015, OWCP found that appellant was not entitled to
schedule award compensation for more than 1 percent permanent impairment of the left lower
extremity and 12 percent permanent impairment of the right lower extremity, for which she

3
Dr. Simpson indicated that he agreed with Dr. Xeller’s right lower extremity rating, but he actually calculated 12
percent permanent impairment of the right lower extremity whereas Dr. Xeller calculated 13 percent permanent
impairment for that extremity.

3

received a schedule award. It found that Dr. Harris’ August 3, 2015 report represented the weight
of the medical opinion evidence with respect to this matter.
On October 30, 2015 appellant requested reconsideration of the August 12, 2015 decision.
In an August 22, 2015 report received by OWCP on November 2, 2015, Dr. Xeller
reiterated his previous findings and conclusions regarding the permanent impairment of appellant’s
right lower extremity. With regard to the left lower extremity, he advised that, given the fact that
she underwent a procedure for excision of a ganglion, her calcaneal cuboid joint showed arthritic
degeneration with a one millimeter cartilage interval. Dr. Xeller found that this yielded a class 1,
six percent permanent impairment of the left lower extremity impairment pursuant to Table 16-2,
page 507, and Table 16-3, page 515, of the sixth edition of the A.M.A., Guides.
In a January 20, 2016 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, reviewed Dr. Xeller’s August 22, 2015 report and found
that appellant was not entitled to schedule award compensation for more than 1 percent permanent
impairment of the left lower extremity and 12 percent permanent impairment of the right lower
extremity. He indicated that Dr. Xeller found that she had sustained an additional 1 percent
permanent impairment of the right lower extremity, which totaled 14 percent permanent
impairment of the right lower extremity under the sixth edition of the A.M.A., Guides. Dr. Katz
noted that Dr. Xeller based this additional one percent rating on appellant’s June 6, 2014 rightsided plantar fascia release surgery. He advised that she had palpatory findings and pain at the
area of the incision, which yielded a class 1 impairment and an additional one percent impairment
rating pursuant to Table 16-2, page 504, and Table 16-3, page 515. Dr. Katz further noted that the
sixth edition of the A.M.A., Guides indicates at page 497 (section 16.1a) that if a patient has two
significant diagnoses, the examiner should use the diagnosis with the highest causally related
impairment rating for the impairment calculation. Based on this principle, he found that appellant
was not entitled to an additional schedule award because Dr. Simpson’s April 7, 2012 report
utilized Dr. Xeller’s previous findings, which had already provided a basis for impairment ratings
for the bilateral lower extremities. Dr. Katz found that Dr. Xeller’s August 22, 2015 impairment
rating was duplicative and inconsistent with the methodology used for the regional grids. He
therefore opined that Dr. Xeller’s report could not be accepted as probative for the purpose of
recommending an additional schedule award.
By decision dated January 26, 2016, OWCP found that appellant was not entitled to
schedule award compensation for more than 1 percent permanent impairment of the left lower
extremity and 12 percent permanent impairment of the right lower extremity, for which she
previously received a schedule award. It found that Dr. Katz’ January 20, 2016 report represented
the weight of the medical opinion evidence with respect to this matter.
On July 18, 2016 appellant requested reconsideration of the January 26, 2016 decision.
In a report dated March 25, 2016, Dr. Xeller noted that he had previously provided an
impairment rating for appellant of 1 percent permanent impairment of the left lower extremity and
13 percent permanent impairment of the right lower extremity. He indicated that, since the time
of that impairment rating, she underwent a plantar fascia release on her right foot on June 6, 2004
and excision of ganglion and nerve decompression of her left foot on August 2, 2013. Dr. Xeller
posited that appellant was now entitled to schedule award compensation for additional permanent
4

impairment of the left lower extremity due to permanent effects of the August 2, 2013 surgery. He
indicated that she was entitled to schedule award compensation for an additional five percent
permanent impairment of the left lower extremity based on ongoing pain and treatment for a left
foot ganglion, neuroma, and calcaneal cuboid joint arthritis.4 Dr. Xeller acknowledged that the
A.M.A., Guides indicates that one needs to pick one impairment category for each injury, but he
posited that appellant “has had different diagnoses on different dates and different surgical dates.”
Appellant submitted a March 15, 2016 report which presented results from magnetic
resonance imaging (MRI) scans of her left and right feet, which were essentially normal. She also
submitted reports dated February 9 and July 12, 2016 from Dr. Chul Kim, an attending podiatrist,
and the results of a March 25, 2016 functional capacity evaluation.
By decision dated October 12, 2016, OWCP denied appellant’s application for review
because that it neither raised substantive legal questions, nor included new and relevant evidence
sufficient to require OWCP to review its prior decision. It found that Dr. Xeller’s March 25, 2016
report was cumulative and substantially similar to his previous reports. OWCP asserted that while
he “might have moved a few sentences around and put a new date on the report” the report was
substantially similar to and merely restated the findings of his August 22, 2015 report.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. OWCP may review an award for or against
payment of compensation at any time based on its own motion or on application.5
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.6 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.7 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.8
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.9 For OWCP decisions issued on or after
4

Dr. Xeller also suggested that appellant had additional permanent impairment of his right lower extremity due to
permanent effects of the June 6, 2004 surgery, but he did not discuss the specific degree of this additional permanent
impairment.
5

5 U.S.C. § 8128(a).

6

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

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

8

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

9

20 C.F.R. § 10.607(a).

5

August 29, 2011, the date of the application for reconsideration is the “received date” as recorded
in the Integrated Federal Employees’ Compensation System (iFECS).10 If the last day of the oneyear time period is a Saturday, Sunday, or a legal holiday, OWCP will still consider a request to
be timely filed if it is received on the next business day.11
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a claimant
is asserting that the original award was erroneous based on his or her medical condition at that
time, this is a request for reconsideration. A claim for an additional schedule award may be based
on new exposure to employment factors or on the progression of an employment-related condition,
without new exposure, resulting in greater permanent impairment. OWCP should issue a merit
decision on the schedule award claim, rather than adjudicate an application for reconsideration.12
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a) as she submitted evidence of increased
permanent impairment in support of her claim.
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a claimant
is asserting that the original award was erroneous based on his or her medical condition at that
time, this is a request for reconsideration. A claim for an additional schedule award may be based
on new exposure to employment factors or on the progression of an employment-related condition,
without new exposure, resulting in greater permanent impairment.13 As the Board explained in
Linda T. Brown,14 a claimant may seek an additional schedule award if the evidence establishes
that she sustained an impairment causally related to the employment injury. Even if the term
reconsideration is used, when a claimant is not attempting to show error in the prior schedule award
decision and submits medical evidence regarding a permanent impairment at a date subsequent to

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). See
also C.B., Docket No. 13-1732 (issued January 28, 2014). For decisions issued before June 1, 1987 there is no
regulatory time limit for when reconsideration requests must be received. For decisions issued from June 1, 1987
through August 28, 2011, the one-year time period begins on the next day after the date of the original decision and
must be mailed within one year of OWCP’s decision for which review is sought.
11

Id. at Chapter 2.1602.4. See also M.A., Docket No. 13-1783 (issued January 2, 2014).

12

See H.B., Docket No. 17-0414 (issued March 17, 2018).

13

See Linda T. Brown, 51 ECAB 115 (1999); Paul R. Reedy, 45 ECAB 488 (1994); C.M., Docket No. 17-0310
(issued February 15, 2017); see also B.K., 59 ECAB 228 (2007) (where it was evident that the claimant was seeking
a schedule award based on new and current medical evidence, OWCP should have issued a merit decision on the
schedule award claim rather than adjudicate an application for reconsideration); see also J.F., Docket No. 13-0112
(issued November 6, 2013); R.B., Docket No. 16-1863 (issued April 3, 2017).
14
Id. In Brown, OWCP issued a 1995 decision denying entitlement to a schedule award as no ratable impairment
was established. Appellant requested that it reconsider in 1997, submitting a current report with an opinion that she
had 25 percent permanent impairment to the arms and legs. OWCP found that she submitted an untimely request for
reconsideration that did not demonstrate clear evidence of error. The Board remanded the case for a merit decision.

6

the prior schedule award decision, it should be considered a claim for an increased schedule award.
A request for an increased schedule award is not subject to time limitations.
The Board finds that with her request for reconsideration appellant submitted additional
evidence in support of an increased permanent impairment in the form of a March 25, 2016 report
from Dr. Xeller, an attending physician. In a report dated March 25, 2016, Dr. Xeller noted that
he had previously provided an impairment rating for appellant of 1 percent permanent impairment
of the left lower extremity and 13 percent permanent impairment of the right lower extremity. He
indicated that, since the time of that impairment rating, appellant underwent a plantar fascia release
on her right foot on June 6, 2004 and excision of ganglion and nerve decompression of her left
foot on August 2, 2013. Dr. Xeller posited that she was now entitled to schedule award
compensation for an additional permanent impairment of the left lower extremity due to permanent
effects of the August 2, 2013 surgery. He indicated that appellant was entitled to schedule award
compensation for an additional five percent permanent impairment of the left lower extremity
based on ongoing pain and treatment for a left foot ganglion, neuroma, and calcaneal cuboid joint
arthritis.15
Therefore the Board finds that the case should be remanded to OWCP to conduct a merit
review of appellant’s increased schedule award claim. Following this and other such further
development as deemed necessary, OWCP shall issue a de novo decision regarding appellant’s
request for an additional schedule award.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).

15
Dr. Xeller also indicated that appellant had additional permanent impairment of his right lower extremity due to
permanent effects of the June 6, 2004 surgery, but he did not discuss the specific degree of this additional permanent
impairment. He acknowledged that the A.M.A., Guides indicates that one needs to pick one impairment category for
each injury, but he posited that appellant “has had different diagnoses on different dates and different surgical dates.”

7

ORDER
IT IS HEREBY ORDERED THAT the October 12, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for action
consistent with this decision.
Issued: May 2, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
GARRISON, Fort Shafter, HI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1794
Issued: April 13, 2018

Case Submitted on the Record

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

JURISDICTION
On August 14, 2017 appellant filed a timely appeal from a June 13, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective June 13, 2017.
On appeal appellant contends that OWCP improperly weighed the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts of the case as presented in the
Board’s prior decisions are incorporated herein by reference. The relevant facts are as follows.
On October 19, 1987 appellant, then a 36-year-old maintenance worker, filed a traumatic
injury claim (Form CA-1) alleging that on October 15, 1987 he felt a tingling sensation in his left
arm and fingers while using his ram set nail gun to fasten a piece of wood onto a concrete wall.
OWCP accepted appellant’s claim for cervical strain, intervertebral cervical disc disorder with
myelopathy, brachial neuritis and disc protrusions, and aggravation of cervical disc dissection.3
Appellant stopped work on November 20, 1997.
The record substantiates that appellant received intermittent wage-loss benefits on the
supplemental rolls and payments on the periodic rolls are documented as of June 16, 2002.
Appellant continued to seek medical treatment over time with Dr. Jose C. De Leon, a
Board-certified orthopedic surgeon. Dr. De Leon continued to report that appellant was totally
disabled from work.
In an April 25, 2013 report, Dr. De Leon noted that appellant still suffered from left-sided
neck pain with radiation to the left hand and fingers and tingling, pain, and numbness. He noted
that the basis of these symptoms was neck sprain and cervical disc disease with radiculitis.
Dr. De Leon related that as appellant has suffered from the same neck pain with radiation to the
left arm since the injury of October 15, 1987, it logically should be considered permanent. He
further noted that appellant was totally disabled from work.
OWCP prepared a statement of accepted facts (SOAF) dated May 30, 2013. This SOAF
related appellant’s history of injury and that his case was accepted for cervical strain, intervertebral
cervical disc disorder with myelopathy, brachial neuritis and disc protrusions, and aggravation of
cervical disc dissection.
On May 31, 2013 OWCP referred appellant to Dr. Kenneth T. Kaan, a Board-certified
orthopedic surgeon, for a second opinion evaluation to determine appellant’s disability status. It
provided Dr. Kaan with the May 30, 2013 SOAF and informed him that the purpose of this
assessment was to provide additional evidence on the nature of appellant’s condition, the extent of
disability, and appropriate treatment. In a July 18, 2013 opinion, Dr. Kaan noted that appellant’s
diagnoses were C5 and C6 radiculopathy secondary to C4-5 left disc herniation, and C5-6 left
foraminal stenosis. He opined that appellant still had cervical disc disease and cervical
radiculopathy. Dr. Kaan noted that, although appellant was still complaining of cervical pain, the
cervical strain/sprain should have healed, but the cervical disc disease was still present and it was
his chronic pain syndrome which was primarily responsible for his symptomology. He indicated
2

Docket No. 15-0712 (issued June 23, 2016); Docket No. 99-1194 (issued March 22, 2001).

3

This claim has been administratively combined with OWCP File No. xxxxxx099. On July 3, 1986 appellant felt
neck and right shoulder pain while changing a light bulb in the performance of duty. This claim was never formally
adjudicated.

2

that the diagnosis of neck sprains could be considered a result of an aggravation of an underlying
condition, which was cervical disc disease. Dr. Kaan noted that it was unclear as to whether this
constituted a permanent aggravation, but appellant did have chronic pain as a result of his cervical
disc disease and cervical stenosis. He discussed appellant’s July 1992 magnetic resonance
imaging (MRI) scan, and indicated that, in general, degenerative changes as seen at C5-7 were not
caused by an acute injury. Dr. Kaan noted that the C4-5 disc herniation could have been caused
by an acute injury at work, but to make that determination, a cervical MRI scan prior to the
employment-related injury would be required. He opined that no further treatment was indicated
at this point. Dr. Kaan noted that appellant had decided to not pursue surgery. In an October 2,
2013 work capacity evaluation, he opined that appellant was able to work eight hours a day with
a lifting restriction of 10 pounds, and pushing/pulling limited to 20 pounds.
OWCP found that the weight of the medical opinion evidence rested with Dr. Kaan, and
referred appellant to vocational rehabilitation to be evaluated within the restrictions set by
Dr. Kaan. However, appellant was uncooperative with the vocational rehabilitation program and/,
by January 13, 2014 decision, OWCP notified appellant that his compensation was reduced to zero
due to his refusal to participate in vocational rehabilitation. This decision was affirmed by
OWCP’s hearing representative on August 5, 2014. Appellant subsequently appealed to the
Board.
By decision dated June 23, 2016, the Board reversed OWCP’s decision.4 The Board
determined that there was an unresolved conflict between the opinions of appellant’s treating
physician, Dr. De Leon, and the second opinion physician, Dr. Kaan, with regard to appellant’s
ability to work and whether appellant was physically capable of participating in vocational
rehabilitation. The Board concluded that OWCP should have referred appellant for an impartial
medical examination.
On January 10, 2017 OWCP referred appellant to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for an impartial medical examination to resolve the conflict between
Dr. De Leon, who indicated that appellant was incapable of working in any capacity and should
be considered totally disabled, and Dr. Kaan, who indicated that appellant was capable of working
eight hours a day with restrictions.
In a February 23, 2017 medical report Dr. Smith reviewed the medical reports of record.
He listed appellant’s diagnoses as age and genetically based preexisting degenerative disc disease
of the cervical spine. He opined that the established diagnoses were not medically connected to
the employment injury by direct cause, aggravation, precipitation, or acceleration. He noted that
there were no current injury related factors of disability, and that appellant’s subjective complaints
were out of proportion to any clinical findings. With regard to appellant’s employment injury,
Dr. Smith opined that the mechanism of the injury reported revealed that the magnitude of
exposure was minimal, and not of sufficient magnitude to count for the development of the claimed
clinical presentation. He opined that “causation is uncertain. The record reviewed is full of false
certainties. The mechanism of injury in both the change of ballast and the hand held nail gun
incidents lack credible evidence for causation.” Dr. Smith believed that appellant was capable of
4

Supra note 2.

3

working within a sedentary and light physical demand level for eight hours per day. However, he
noted that his opinion should not be the sole basis for returning appellant to work. He opined that
appellant’s perceived disability was not the result of a work-related condition, and was entirely
attributable to preexisting conditions of age and genetically based degenerative disc disease. He
further opined that appellant no longer had any residuals from his employment injury, and that
there was not a credible foundation for any of his claims. He noted that the eligibility for
compensation/litigation was actually the best predictor of persistent complaints, and that the
original work injuries are not responsible for all subsequent disease or illness. He agreed with
Dr. Kaan’s report, and opined that Dr. De Leon’s script of the fear of reinjury was a well-known
psychosocial determinant of disability, without basis, and thus, his opinion was of lesser probative
value than Dr. Kaan’s opinion.
In an April 27, 2017 report, Dr. De Leon noted that appellant was still complaining of pain
at posterior aspect of his neck with radiation of pain to his left deltoid muscles. He noted that
appellant had not worked since the date of injury due to his symptoms. He further noted that
appellant did not develop any muscle atrophy and thus he believed that his cervical disc disease
was stable although still symptomatic. Dr. De Leon opined that appellant was totally disabled
from work due to his recurring neck pain with radiation to left shoulder and deltoid muscles. He
stated that the posterior neck muscles and the radiating pain to the left shoulder and deltoid muscle
were aggravated by certain rotation movement of the shoulder and lifting more than 15 pounds
and that this limited his ability to be engaged in any gainful job.
On May 11, 2017 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits as the weight of the medical evidence established that appellant no longer had
any residuals or continuing disability stemming from his accepted employment injury based on
the opinion of the impartial medical examiner, Dr. Smith.
By June 5, 2017 response, appellant noted that his physician, Dr. De Leon, opined that he
was permanently disabled and was unable to work in a part-time or limited-duty capacity.
Appellant contended that the report of his treating physician should be entitled to greater weight
than the physicians who performed one-time evaluations. He further argued that Dr. Smith
emphasized that specific restrictions are generally the purview of the treating physician.
In an undated report received by OWCP on June 12, 2017, Dr. Leon K Liem, Boardcertified in neurosurgery, noted that appellant had cervical radiculopathy with marked weakness
and atrophy. He noted that he discussed with appellant the option of surgical decompression, and
appellant indicated that he would consider it. However, Dr. Liem indicated that it was doubtful
that appellant would have any increase in strength.
By decision dated June 13, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 13, 2017 as Dr. Smith’s report constituted the special weight
of the medical evidence and established that appellant no longer had any residuals related to his
accepted employment-related medical condition or disability work as a result of the October 15,
1987 injury.

4

LEGAL PRECEDENT
Once OWCP has accepted a claim and pays compensation, it bears the burden of proof to
justify modification or termination of benefits.5 Having determined that an employee has a
disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing either that the disability has ceased or that it is no longer related
to the employment.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 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.8 OWCP’s burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
Section 8123(a) provides that, if there is a disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint a
third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.11 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.12
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits.
OWCP accepted appellant’s claim for cervical strain, intervertebral cervical disc disorder
with myelopathy, brachial neuritis and disc protrusions, and aggravation of cervical disc
dissection. In the prior appeal, the Board found by decision dated June 23, 2016 that OWCP
5

Bernadine P. Taylor, 54 ECAB 342 (2003).

6

Id.

7

Roger G. Payne, 55 ECAB 535 (2004).

8

Pamela K. Guesford, 53 ECAB 726 (2002).

9

T.P., 58 ECAB 524 (2007); Furman G. Peake, 41 ECAB 351 (1975).

10

R.C., Docket No. 12-0437 (issued October 23, 2012).

11

20 C.F.R. § 10.321.

12

F.C., Docket No. 14-0560 (issued November 12, 2015).

5

improperly reduced appellant’s compensation benefits as there was an unresolved conflict between
appellant’s treating physician, Dr. De Leon, and the second opinion physician, Dr. Kaan with
regard to appellant’s ability to return to work and whether appellant was physically capable of
participating in vocational rehabilitation.13
On remand, OWCP referred appellant to Dr. Smith for an impartial medical examination
to determine appellant’s disability status. While the referral letter referred to the 2013 SOAF, a
copy of the SOAF was not attached to the referral letter. In his opinion of January 10, 2017,
Dr. Smith determined that appellant had no residuals from his accepted employment injury. Based
on Dr. Smith’s medical opinion, OWCP terminated appellant’s compensation effective
June 13, 2017.
The Board finds that OWCP improperly found that Dr. Smith’s report should be entitled to
the special weight afforded an impartial medical examiner.
While Dr. Smith reviewed appellant’s medical record in detail, his report does not relate
that he was provided a copy of the 2013 statement of accepted facts, or that he accepted these facts
in rendering his medical opinion. It is OWCP’s responsibility to provide a complete and proper
frame of reference for a physician by preparing a statement of accepted facts.14 OWCP procedures
dictate that when an OWCP medical adviser, second opinion specialist, or referee physician
renders a medical opinion based on a SOAF which is incomplete or inaccurate or does not use the
SOAF as the framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.15
Dr. Smith, in his voluminous report, indicated that he reviewed the medical reports of
record in detail and ultimately concluded that appellant did not sustain injury as a result of the
accepted employment injury. Contrary to the SOAF, he opined that the mechanism of injury did
not cause the accepted conditions. Dr. Smith indicated that there was not a credible foundation for
appellant’s claims although the SOAF indicated that the conditions were accepted for neck sprain,
intervertebral cervical disc disorder with myelopathy, brachial neuritis and aggravation of cervical
disc disease. The Board has explained that the report of an impartial medical examiner who
disregards a critical element of the SOAF and disagrees with the medical basis for acceptance of
a condition is defective and insufficient to resolve the existing conflict of medical opinion
evidence.16 Dr. Smith’s report is of diminished probative value as his opinion did not rely on the
2013 SOAF and it contradicted critical elements of the SOAF. The Board notes that it is the
function of a medical expert to give an opinion only on medical questions, not to find facts.17
Dr. Smith did not rely on a SOAF and as such his report is not based on an accurate history of

13

Supra note 2

14

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

15

See K.V., Docket No. 15-0960 (issued March 9, 2016).

16

See V.C., Docket No. 14-1912 (issued September 22, 2015).

17

See Paul King, 54 ECAB 356 (2003).

6

injury. His report is therefore insufficient to meet OWCP’s burden of proof to terminate
appellant’s wage-loss compensation and medical benefits.18
Accordingly, OWCP improperly terminated appellant’s wage-loss compensation and
medical benefits effective June 13, 2017.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective June 13, 2017.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 13, 2017 is reversed.
Issued: April 13, 2018
Washington, DC

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

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

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

18

Supra note 16.

7