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

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

Docket No. 18-1438
Issued: February 1, 2019

Case Submitted on the Record

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

JURISDICTION
On July 17, 2018 appellant filed a timely appeal from a July 2, 2018 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issue are: (1) whether appellant received a $3,042.24 overpayment of compensation
for the period September 11 through October 14, 2017; and (2) whether OWCP properly
determined that she was at fault in the creation of the overpayment and thus not entitled to waiver
of recovery of the overpayment.
1

The record also contains a January 29, 2018 OWCP decision denying appellant’s request for four hours of wageloss compensation on December 7, 2017. Appellant did not appeal from that decision and thus it is not before the
Board. 20 C.F.R. §§ 501.2(c) and 501.3.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 5, 2015 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she injured her neck, shoulders, and the left side of her
arm causally related to factors of her federal employment. OWCP accepted the claim for bicipital
tendinitis of the left shoulder and an aggravation of cervical disc degeneration at the mid-cervical
region. Appellant worked in a limited-duty capacity beginning June 23, 2016.
On February 27, 2017 appellant underwent a left shoulder subacromial decompression and
debridement of the glenohumeral joint. OWCP paid her wage-loss compensation for total
disability beginning February 27, 2017. It, by letter dated March 30, 2017, informed appellant that
it was placing her on the periodic rolls, effective February 27, 2017. OWCP instructed her to
immediately notify it when she returned to work to avoid an overpayment of compensation.
On September 13, 2017 a nurse assigned by OWCP to appellant’s case advised that she
had returned to full-time limited-duty employment on September 11, 2017.
OWCP, by check dated September 16, 2017, issued appellant net wage-loss compensation
of $640.78 for the period September 11 to 16, 2017. By check dated October 14, 2017, it paid her
net wage-loss compensation of $2,990.30 for the period September 17 to October 14, 2017.
Appellant, on September 19, 2017, filed a claim for compensation (Form CA-7) requesting
intermittent wage-loss compensation from September 9 to 15, 2017. On October 3, 2017 she filed
a CA-7 form requesting intermittent wage-loss compensation from September 16 to 29, 2017.
Appellant submitted a time analysis form indicating the hours that she took leave without pay
(LWOP) because there was no work available.
The employing establishment, in a September 19, 2017 e-mail, notified OWCP that
appellant had resumed work on September 12, 2017. On October 17, 2017 it advised OWCP of
the hours that appellant intermittently used LWOP from September 30 to October 13, 2017.
In an October 25, 2017 memorandum, OWCP found that appellant had returned to limitedduty employment on September 11, 2017, but had received wage-loss compensation for total
disability through October 14, 2017. It indicated that it had paid her $3,661.08 in wage-loss
compensation for the 34 days from September 11 through October 14, 2017. OWCP determined
that it should have paid appellant $618.84 in wage-loss compensation for 28.67 hours of LWOP
from September 11 through October 14, 2017. It subtracted $618.84 from $3,661.08 to find a total
overpayment of compensation in the amount of $3,042.24.
By preliminary determination dated October 25, 2017, OWCP notified appellant that she
had received a $3,042.24 overpayment of compensation from September 11 through October 14,
2017 because it had paid her compensation for total disability after she returned to modified
employment. It further informed her of its preliminary determination that she was at fault in the
creation of the overpayment. OWCP requested that appellant complete the enclosed overpayment
recovery questionnaire (OWCP-20) and submit supporting financial documentation. Additionally,
it notified her that, within 30 days of the date of the preliminary determination, she could request
a telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.

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In a November 8, 2017 response, appellant requested a prerecoupment hearing before an
OWCP hearing representative. She challenged the finding that she was at fault in the creation of
the overpayment of compensation, noting that she had advised the employing establishment and
OWCP of her return to work. Appellant indicated that she had used LWOP for seven months
before OWCP had approved her claim and that the employing establishment had not provided her
with eight hours of daily work since her return.
During the telephone hearing, held on March 21, 2018, appellant related that she had not
worked full time since she had returned to work on September 11, 2017. She had submitted CA-7
forms and believed that the compensation that she had received was for time lost from work.
Appellant advised that she had notified OWCP of her return to work. She asserted that she was
unable to pay back the overpayment due to her financial circumstances. The hearing representative
requested that appellant complete an overpayment recovery questionnaire and submit supporting
financial documentation.
Thereafter, appellant submitted a completed overpayment recovery questionnaire (Form
OWCP-20). She noted her monthly income as $2,600.00 and listed monthly expenses. Appellant
also submitted earnings and leave statements from her work at the employing establishment and a
copy of a bank statement showing a balance of $7,653.01.
By decision dated July 2, 2018, OWCP’s hearing representative found that appellant had
received a $3,042.24 overpayment of compensation for the period September 11 through
October 14, 2017. She determined that appellant was at fault in the creation of the overpayment
of compensation as she accepted a payment that she knew or should have known was inaccurate
and thus was ineligible for waiver of recovery of the overpayment. The hearing representative
directed her to make payment of $100.00 per month to OWCP for recovery of the overpayment of
compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.3
Section 8116 of FECA defines the limitations on the right to receive compensation benefits.
This section of FECA provides that, while an employee is receiving compensation, he or she may
not receive salary, pay, or remuneration of any type from the United States, except in limited
specified instances.4 OWCP’s regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.5 A

3

Id. at § 8102.

4

Id. at § 8116(a).

5

20 C.F.R. § 10.500(a).

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claimant is not entitled to receive temporary total disability (TTD) benefits and actual earnings for
the same time period.6
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation as she resumed
work on September 11, 2017 and received TTD compensation for the period September 11 through
October 14, 2017.7 The Board finds, however, that OWCP failed to properly determine the amount
of the overpayment of compensation.
OWCP found that appellant received an overpayment of compensation in the amount of
$3,661.08 for the period September 11 through October 14, 2017. However, it offset this amount
with wage-loss compensation that was owed for 28.67 hours of LWOP during this period. OWCP
calculated the amount that it owed appellant for the period September 11 through October 14, 2017
as $618.84, which it subtracted from $3,661.08 to find an overpayment of $3,042.24.
Although such an offset appears administratively straightforward, the Board has held that
it may circumvent established legal procedures and protections if the claimant is entitled to
consideration of waiver.8 Such offsets are not allowed, as they permit an unrestricted recovery of
the offset portion of the overpayment without regard to the relevant factors set forth in 20 C.F.R.
§ 10.441(a)9 which denies administrative due process with respect to the amount offset.10
The case will, therefore, be remanded for OWCP to properly calculate the entire amount
of the overpayment of compensation. After conducting such further development as is deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that appellant received an overpayment of compensation for the period
September 11 through October 14, 2017, but that the case is not in posture for decision regarding
the amount of the overpayment.11

6

K.E., Docket No. 18-0687 (issued October 25, 2018).

7

Id.; see also L.W., Docket No. 17-0356 (issued June 22, 2018).

8

See S.P., Docket No. 17-1888 (issued July 18, 2018).

9

20 C.F.R. § 10.441(a). This section states that in collecting an overpayment of compensation, OWCP shall
decrease later payment of compensation by taking into account the probable extent of future payments, the rate of
compensation, the financial circumstances of the individual and any other relevant factors, so as to minimize hardship.
10

R.H., Docket No. 17-1933 (issued February 15, 2018); R.O., Docket No. 17-0894 (issued January 26, 2018).

11
As OWCP has not established the amount of overpayment, it is premature for the Board to address the issues of
fault and recovery. Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 2, 2018 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 consistent with this decision of the Board.
Issued: February 1, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Melville, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1508
Issued: February 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 19, 2016 appellant, through counsel, filed a timely appeal from a January 29,
2016 merit decision and a June 22, 2016 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish injuries
causally related to the accepted November 3, 2014 employment incident; and (2) whether OWCP
properly denied appellant’s request for further merit review of his claim pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On November 4, 2014 appellant, then a 50-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2014, he injured his lower back and right leg.
He stated that the injury occurred due to opening a door. A supervisor checked a box marked
“no” indicating that appellant had not been injured in the performance of duty, noting that it
occurred when he walked through a door to “punch in.”
In a statement dated November 3, 2014, appellant explained that as he was entering the
building through the door to punch in for work, the automatic door did not open. As he pushed
the door to get in he felt a sharp pain in leg and lower back (right).
On November 4, 2014 Dr. Robert Lippe, a Board-certified orthopedic surgeon, examined
appellant and diagnosed lower back pain and lumbar radiculitis. He noted that appellant was
engaged in manual labor at the time of injury.
In a note dated November 5, 2014, Dr. Lippe diagnosed lumbar radiculitis and lower
back pain, and recommended that appellant not return to work until further notice.
In a report dated November 19, 2014, Dr. Lippe noted that appellant’s injury occurred on
November 3, 2014 after the automatic door did not open, causing sudden pain.
By letter dated December 17, 2014, OWCP informed appellant of the evidence necessary
to establish his claim. It noted that he had not submitted sufficient evidence to establish his
claim, because his physicians had not provided a firm medical opinion based on clinical
objective findings as to how a task such as opening an automatic door manually could directly
cause or aggravate his diagnosed lumbar radiculitis. OWCP further noted that back pain was not
a valid diagnosis, but instead a symptom of an underlying condition. It requested that appellant
submit additional evidence and afforded him 30 days to do so.
On December 31, 2014 Dr. Lippe described appellant’s injury as occurring when he
pushed a button to open an automatic door. The door began to close, appellant attempted to stop
the large door from closing with his arms full. When he tried to push it open he felt a sharp pain
in his back. Dr. Lippe examined appellant and reviewed diagnostic reports, rendering diagnoses
of lower back pain and lumbar radiculitis. He related that appellant was unable to return to
work. Dr. Lippe opined that the incident caused appellant’s injuries as the automatic door closed
against him while he was walking through it.
In a report dated December 31, 2014, Dr. Seth A. Grossman, a Board-certified orthopedic
surgeon, reviewed a magnetic resonance imaging (MRI) scan of appellant’s lumbar spine, noting

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right-sided severe nerve root impingement at L3-5 and severe right leg radiculopathy. He
recommended operative decompression to relieve appellant’s pain.
On January 7, 2015 Dr. Grossman opined that appellant sustained a work injury on
November 3, 2014 when he strained his back opening a large automatic door. He noted
immediate pain, which became very severe over the next hour. Dr. Grossman related that
appellant had not yet returned to work.
By decision dated January 23, 2015, OWCP denied appellant’s claim for compensation.
It accepted that the incident occurred as alleged. OWCP noted that appellant had provided
reports from physicians containing a valid diagnosis of lumbar radiculopathy, but that no reports
had been received containing a well-reasoned medical opinion based on objective findings as to
how the incident of November 3, 2014 caused or aggravated this diagnosis. As such, it denied
his claim because he had not submitted sufficient evidence to establish a causal relationship
between his diagnosed lumbar radiculopathy and the accepted work incident of
November 3, 2014.
On November 2, 2015 appellant, through counsel, requested reconsideration of OWCP’s
January 23, 2015 decision.
With the reconsideration request, appellant submitted a
September 10, 2015 report from Dr. Lippe. Dr. Lippe related that on November 3, 2014,
appellant pushed a button to open an automatic door and while walking through, the door
malfunctioned and began to close and struck him. Appellant attempted to stop the large door
from closing with his arms full. When he tried to push it open he felt a sharp pain in his back
causing sudden pain with increased pain down his right leg with a sensation of numbness.
Dr. Lippe examined appellant and reviewed his history of treatment and diagnostic tests. He
concluded that appellant sustained back injury causally related to the November 3, 2014
employment incident.
Appellant also submitted November 3, 2014 hospital records. These records, signed by
Dr. Robert Rajkumar, Board-certified in internal medicine, related appellant’s history of injury
as he was pushing a heavy automatic door at work on that date and felt pain in the right low
back. Appellant’s diagnosis was noted as lumbar radiculopathy and low back and right thigh
strain.
By decision dated January 29, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decision of January 23, 2015. In response to counsel’s
contention that the report of September 10, 2015 was sufficient to support appellant’s claims,
OWCP found that it included an inaccurate history of injury because no other evidence of record
indicated that he had been struck by a door. OWCP further found that the September 10, 2015
report failed to explain how the event of November 3, 2014 biomechanically caused appellant’s
diagnosed injuries.
On February 8, 2016 appellant, through counsel, again requested reconsideration. With
the request for reconsideration, appellant resubmitted the November 3, 2014 hospital records.
By decision dated June 22, 2016, OWCP denied appellant’s request for reconsideration,
noting that the November 3, 2014 reports were previously of record.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.9 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.11 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and

3

Id.

4

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364, 366 (2006).

5

S.P., 59 ECAB 184, 188 (2007); Joe D. Cameron, 41 ECAB 153, 157 (1989).

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

D.B., 58 ECAB 464, 466 (2007); David Apgar, 57 ECAB 137, 140 (2005).

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734, 737 (2008); Bonnie A. Contreras,
supra note 4.
9

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

10

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

11

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).

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compensable employment factors.12 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.13
ANALYSIS -- ISSUE 1
The Board finds that the medical evidence submitted by appellant is insufficient to
establish that the accepted incident of November 3, 2014 caused an injury.
Appellant submitted several reports containing descriptions of the incident, along with
medical opinions as to the cause of his diagnosed lumbar radiculopathy. On December 31, 2014
Dr. Lippe described appellant’s injury as occurring when appellant pushed a button to open an
automatic door. Appellant attempted to stop the large door from closing with his arms full, when
he tried to push it open he felt a sharp pain in his back. Dr. Lippe opined that appellant sustained
injury when the automatic door closed against him while appellant was walking through it. In a
September 10, 2015 report, he stated, that appellant’s injury occurred when he was struck by the
malfunctioning door.
Medical evidence submitted to support a claim for compensation should reflect a correct
history, and the physician should offer a medically sound explanation of how the claimed work
event caused or aggravated the claimed condition.14 Dr. Lippe’s initial report of December 31,
2014 noted a history of injury consistent with appellant’s allegation that he sustained sharp back
pain when he pushed the door to keep it from closing on him. His September 10, 2015 report
does not provide a consistent history of injury as it relates that appellant sustained injury when
the door struck him. It is unclear, based on these reports, whether Dr. Lippe believed that it was
the door closing on appellant, or whether it was appellant later pushing on the door to open it that
caused his diagnosed lumbar radiculopathy. Further, he does not provide a sufficient
biomechanical explanation of how appellant’s allegation that his attempt to stop the door from
closing would have caused his lumbar radiculopathy.15 Lacking such an explanation, Dr. Lippe’s
reports are insufficient to establish a causal relationship between the events of November 3, 2014
and his diagnosed condition.
On January 7, 2015 Dr. Grossman noted that appellant sustained a work injury on
November 3, 2014 when he strained his back opening a large automatic door, and immediately
noticed pain. While his history of injury is consistent with appellant’s allegations, he provided
no medical rationale to explain how physiologically this action would have caused the diagnosed
lumbar radiculopathy. Without explaining how physiologically the movements involved in the
employment incident caused or contributed to the diagnosed conditions, Dr. Grossman’s opinion

12

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

13

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

14

D.D., Docket No. 13-1517 (issued April 14, 2014).

15

E.E., Docket No. 15-0073 (issued March 9, 2015).

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is of limited probative value.16 As appellant has not submitted any sufficiently rationalized
medical evidence to support his allegation that he sustained an injury causally related to a workrelated incident on November 3, 2014, he has not met his burden of proof to establish his claim.
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.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.17 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.18
ANALYSIS -- ISSUE 2
OWCP issued a January 29, 2016 decision finding that appellant had not submitted
sufficient medical evidence to establish a causal relationship between the accepted employment
incident on November 3, 2014 and his diagnosed conditions. On February 8, 2016 appellant,
through counsel, requested reconsideration. With the request, he resubmitted November 3, 2014
hospital records.
As noted above, the Board does not have jurisdiction over the merits of the January 6,
2015 decision. The issue presented on appeal is whether appellant met any of the requirements
of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of his
claim. In his December 22, 2015 request for reconsideration, he did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. Thus, appellant is not entitled to a review of the merits of
his claim based on the first and second above-noted requirements under section 10.606(b)(3).
The underlying issue is whether appellant has submitted sufficient evidence to establish a
causal relationship between an employment incident on November 3, 2014 and his diagnosed
conditions. A claimant may be entitled to a merit review by submitting pertinent new and
relevant evidence, but appellant did not submit any such evidence in this case. The only
evidence submitted by appellant on reconsideration of the January 29, 2016 decision were the
hospital records dated November 3, 2014. This evidence was previously of record. Evidence or
16

H.H., Docket No. 16-0897 (issued September 21, 2016).

17

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

18

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

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argument that repeats or duplicates evidence previously of record does not constitute a basis for
reopening a case.19
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish injuries
causally related to a November 3, 2014 employment incident. The Board further finds that
OWCP properly denied appellant’s request for review of the merits of his claim pursuant to 5
U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 22 and January 29, 2016 are affirmed.
Issued: February 3, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

J.M., Docket No. 15-1537 (issued November 12, 2015).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Mary, FL, Employer
__________________________________________

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

Docket No. 09-317
Issued: August 12, 2009

Case Submitted on the Record

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

JURISDICTION
On November 13, 2008 appellant, through his attorney, filed a timely appeal from a
March 28, 2008 decision of the Office of Workers’ Compensation Programs’ Office hearing
representative dated October 27, 2008 denying his claim for an emotional condition. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction to review the merits of this
case.
ISSUE
The issue is whether appellant established that he sustained an emotional condition
causally related to a January 18, 2008 employment injury.
FACTUAL HISTORY
On January 18, 2008 appellant, then a 50-year-old sales service associate, was injured
when a cage bounced back after striking double doors and hit his forehead between his eyes. He
also claimed an emotional condition. The employing establishment agreed that appellant
sustained two surface cuts as a result of the incident but controverted his claim of depression.

In a February 11, 2008 statement, John M. Grimsley, a postmaster, noted that on
January 18, 2008 appellant reported to his supervisor that he bumped his head while pushing a
piece of equipment out of the vestibule. Appellant had two small cuts on his forehead and was
given first aid. On January 19, 2008 he completed a traumatic injury claim and noted that he did
not require medical attention at that time. On February 1, 2008 appellant indicated that he was
having some personal problems and that he wanted to leave. Mr. Grimsley met with him and
asked if stress had anything to do with his employment, noting that he had worked long hours as
they were shorthanded. Appellant replied that he was having issues outside of work that caused
stress and affected him emotionally. He went home early that day and called in sick on
February 2, 2008. Mr. Grimsley noted that appellant came back to work on February 4, 2008 but
again asked for leave due to personal issues. Appellant subsequently requested sick leave for the
remainder of the week (February 5 to 8, 2008). On February 11, 2008 he called and asked if he
could see a doctor because he believed that his emotional problems could be related to the bump
on his head that he incurred on January 18, 2008.
Jelores Blake, an injury compensation specialist, noted on February 22, 2008 that there
was no objective medical evidence establishing that appellant’s current treatment was causally
related to his employment. Appellant advised that he spent three hours at a behavioral healthcare
facility on February 4, 2008 and, on February 6, 2008, he sought treatment at a hospital where he
“snapped.” He was discharged later that day and admitted to the mental hospital. The
compensation specialist noted that appellant’s first treatment for an emotional condition was 17
days after the work incident and after advising the postmaster of personal problems.
By letter dated February 26, 2008, the Office accepted appellant’s claim for open wounds
to the forehead without complication. By letter dated the same date, it requested that appellant
submit further information with regard to his claim for an emotional condition.
By decision dated March 28, 2008, the Office denied appellant’s emotional condition
claim. Although the January 18, 2008 injury occurred, appellant did not submit medical
evidence which provided a diagnosis connected to the injury.
In a February 7, 2008 report, Dr. Marielle B. Lazard, a Board-certified internist, listed her
impressions as depression and chest pain, atypical in etiology. She noted that appellant would
benefit from an extensive psychiatric evaluation. Dr. Lazard advised that appellant wished to be
discharged from the hospital.
In a February 11, 2008 report, Dr. Myrna A. Garcia, a Board-certified psychiatrist, listed
impressions of major depressive disorder, recurrent, moderate, chest pains, etiology to be
determined and psychosocial stressors, including the most recent work injury. She noted that
appellant’s voluntary hospitalization should be rescinded as he had improved and no longer
posed a danger to himself or others. Dr. Garcia prescribed medications and advised that
appellant was psychiatrically cleared for discharge.
In a February 12, 2008 note, Dr. Michael Gebauer, a Board-certified family practitioner,
indicated that appellant would make follow-up arrangements for psychiatric care. He listed a
mood disorder, mild depression and moderate anxiety.

2

By letter dated April 7, 2008, appellant, through his attorney, requested a telephonic
hearing, held on August 12, 2008. He testified that he was hired by the employing establishment
on August 15, 1987. On January 18, 2008 while moving a mail cage, struck double doors, and
they “jumped back” and hit the cage, pushing the cage into his forehead. He noted that he was
bleeding and “[p]ractically passed out.” Appellant did not seek medical treatment at the time but
a supervisor put a bandage on the cut. He first sought treatment at the Fitch Hospital for
depression, mood swings and memory loss. Appellant was admitted for five or six days to deal
with depression. He was placed on medication, and had a relapse, and was subsequently
hospitalized for five or six days. At the hospital, a different medication started to help appellant.
He returned to work about two to three months later. Appellant was currently under medical
care and receiving psychotherapy. He noted a prior history of depression eight to ten years prior
for which he was on medication. At the time of the January 18, 2008 employment injury,
appellant was not undergoing therapy for emotional problems or taking medication. He also
discussed a fight that he had with his roommate the same day he wound up at the hospital, but
noted that he was already emotionally disturbed at the time of the fight.
By letter dated September 5, 2008, the employing establishment addressed the hearing
transcript. After appellant sustained the minor surface cuts on his forehead, he continued to
work that day and worked for two additional weeks with no displays of depression or anger
while at work. Three weeks after the date of injury, he first alleged that his emotional condition
was related to the bump on his head.
Appellant submitted an April 8, 2008 intake form from Lakeside Behavioral Healthcare,
notes by nurses and licensed social workers and copies of prescriptions. In a May 31, 2008
report, Dr. Syed A. Abbas, a Board-certified cardiologist and internal medicine, diagnosed him
with bipolar I disorder and high blood pressure. He adjusted appellant’s medications.
By decision dated October 27, 2008, the Office hearing representative affirmed the
March 28, 2008 decision, finding that the medical evidence failed to establish that appellant’s
depression was causally related to the January 18, 2008 head injury.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.1 Second, the employee must submit
sufficient evidence, in the form of medical evidence, to establish that the employment incident
caused a personal injury.2

1

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

2

T.H., 59 ECAB ____ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 356357 (1989).

3

Workers’ compensation does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force (RIF) or his frustration from not being permitted to work
in a particular environment or to hold a particular position.4
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.5 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates the
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.6
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that an emotional condition was caused or adversely affected by his
employment.7 Neither the fact that a disease or condition manifests itself during a period of
employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.8
ANALYSIS
The Office accepted that on January 18, 2008 appellant sustained two small open wounds
on his forehead while in the performance of duty, but it denied his claim for an emotional
condition related to this incident. There is no dispute that appellant established being hit on his
head on January 18, 2008. Given that this accident happened while he was performing his
employment duties, the Office properly found that he established a compensable employment
factor.9
3

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

4

Gregorio E. Conde, 52 ECAB 410 (2001).

5

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

6

Id.

7

See Charles D. Edwards, 55 ECAB 258 (2004).

8

See Ronald K. Jablanski, 56 ECAB 616 (2005); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

Lillian Cutler, supra note 3.

4

Appellant’s burden of proof is not discharged simply by the fact that he has established
an employment factor which may give rise to a compensable disability under the Act. To
establish his claim for an emotional condition, he must also submit rationalized medical evidence
establishing that he had an emotional or psychiatric disorder and that such disorder is causally
related to the accepted compensable employment factors.10
Appellant has not established an emotional condition causally related to the
January 18, 2008 incident. Initially, the Board notes that any records submitted from nurses or
licensed social workers do not constitute competent medical evidence for the purpose of the Act.
Social workers and nurses are not physicians as defined by the Act.11 Furthermore, no physician
provided a rationalized medical opinion explaining how appellant’s emotional condition was
caused or contributed to by the accepted incident. Dr. Garcia, a psychiatrist, noted only that
appellant sought hospitalization for a recurrent depressive disorder. She noted a recent work
injury as a psychosocial stressor, but did not address the January 18, 2008 employment injury.
Dr. Garcia did not provide a rationalized medical opinion relating appellant’s emotional
condition to the January 18, 2008 work accident. Dr. Gebauer only noted that appellant would
follow up with psychiatric care. No opinion or casual relationship was provided. Dr. Abbas
provided diagnoses of a bipolar disorder but failed to address causal relation. Similarly, the
report of Dr. Lazard noted treatment of appellant for an emotional condition but she did not
address causal relation. This medical evidence is insufficient to establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture, speculation or
appellant’s belief of causal relationship.12 There is insufficient medical evidence to establish that
he sustained an emotional condition causally related to the January 18, 2008 work incident.
Accordingly, the Board finds that appellant failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant has not established that he sustained an emotional
condition causally related to a January 18, 2008 employment injury.

10

See William P. George, 43 ECAB 1159, 1168 (1992).

11

See 5 U.S.C. § 8101(2); see also Phillip L. Barnes, 55 ECAB 426 (2004).

12

John D. Jackson, 55 ECAB 465 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 27 and March 28, 2008 are affirmed.
Issued: August 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, NAVAL UNDERSEA
WARFARE CENTER, Keyport, WA, Employer
__________________________________________

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

Docket No. 18-0820
Issued: April 1, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 7, 2018 appellant filed a timely appeal from a December 18, 2017 merit decision
and a February 21, 2018 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish bilateral
hearing loss in the performance of duty as alleged; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 21, 2017 appellant, then an 80-year-old retired electrical engineer, filed an
occupational disease claim (Form CA-2) alleging that he developed gradual and progressive
bilateral hearing loss due to noise exposure. He noted that he first became aware of the condition
and its relationship to his federal employment on January 1, 1994. The employing establishment
noted that appellant had retired effective September 30, 1994.
With his claim, appellant attached employing establishment hearing conservation data and
audiograms dated from May 9, 1961 to January 14, 1994. A list of audiograms from June 7, 1969
to July 10, 1979 described noise exposure from 1960 through 1968 of chipping and other shipboard
noise. Appellant also attached the results of an audiogram dated March 13, 2017.
On April 6, 2017 appellant signed an employment history summary. The summary
indicated that: from 1956 through 1960 he worked for the United States Air Force as a fire control
technician, where he was exposed to noise from jet engines; from 1961 through 1966 he worked
at the Puget Sound Naval Shipyard as an electronic technician, where he was exposed to noise
from the waterfront, chippers, grinders, sandblasters, deck crawlers, pneumatic noises, and other
sources for eight hours per day; from 1966 through 1969 he worked at the 13th Naval District in
Seattle, Washington as a supervisor of shipbuilding, where he was exposed to noise from the
waterfront, new construction of ships, and electronics for eight hours per day; from 1969 through
1994 he worked at the Naval Undersea Warfare Center in Keyport, Washington as an electrical
engineer, where he was exposed to noise from the waterfront and on ships. Appellant indicated
that, after his retirement in 1994, he worked for British Airways as a senior engineer in an office
environment until 2001. In an attached checklist for a federal occupational hearing loss claim,
signed on April 6, 2017, he indicated that he had no history of ear or hearing problems, no hobbies
involving exposure to loud noise, and no prior claims for workers’ compensation benefits for
conditions involving the ears or hearing.
In a development letter dated July 24, 2017, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of evidence necessary to establish his claim and provided
a questionnaire for completion regarding noise exposure. OWCP afforded him 30 days to respond.
In a separate letter dated July 24, 2017, OWCP requested that the employing establishment
provide information regarding appellant’s claimed noise exposure. Specifically, it asked the
employing establishment to provide comments from a knowledgeable supervisor regarding the
accuracy of appellant’s statements relative to his claim and to indicate whether it concurred with
his allegations. OWCP requested information regarding the locations of job sites where exposure
allegedly occurred, the sources of exposure to noise, the decibel and frequency level (per noise
survey report) for each job site, the period of exposure (hours per day and days per week), and the
types of ear protection provided. It also asked the employing establishment to provide copies of
appellant’s job sheet, employment record, and application for federal employment (Form SF-171).
OWCP noted that in the absence of a full reply from the employing establishment, OWCP could
accept his allegations as factual.
In a letter dated August 7, 2017, the employing establishment responded that, because
appellant had retired from federal service in 1994, no additional comments could be obtained from

2

a knowledgeable supervisor. 2 It indicated that, for the same reason, it could not respond to the
inquiry regarding noise exposure. The employing establishment confirmed that appellant had been
part of a hearing conservation program and had been provided safety devices for his position s
between June 7, 1969 and January 14, 1994. In response to the inquiry regarding his job history,
it referred to appellant’s previously submitted employment history dated April 6, 2017.
On August 9, 2017 appellant resubmitted the April 6, 2017 employment history, along with
previously submitted hearing conservation data and audiograms. He also resubmitted his signed
response to the development questionnaire.
By decision dated December 18, 2017, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish the factual component of fact of injury because his
claimed work exposure remained unclear.
On January 16, 2018 appellant requested reconsideration. In an attached letter dated
January 10, 2018, he described his employment-related noise exposure.
By decision dated February 21, 2018, OWCP denied appellant’s request for reconsideration
without reviewing the merits of his claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee. 6

2

A notification of personnel action (Form SF-50) recorded that appellant had retired with a separation incentive
under the Civil Service Retirement System effective September 29, 1994, with a service compensation date of
May 10, 1957.
3

Id.

4

D.J., Docket No. 19-1387 (issued December 20, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

5

Id.

6

L.C., Docket No. 19-1301 (issued January 29, 2020); Roy L. Humphrey, 57 ECAB 238 (2005).

3

Appellant’s burden of proof includes the submission of a detailed description of the
employment factors which he believes caused or adversely affected a condition for which
compensation is claimed. 7
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In support of his claim, appellant has submitted an employment history summary of his
noise exposure at various employing duty stations with the employing establishment from 1961 to
1994. During this lengthy time period he has indicated that he was exposed to multiple noise
sources including: chippers, grinders, sandblasters, deck crawlers, pneumatic noise, as well as
noise from ship construction activities, and naval waterfront activities. Appellant has also
submitted audiograms which establish that he was enrolled in employing establishment hearing
conservation programs for the entire time he worked at these duty stations. He therefore has
sufficiently identified the employment factors alleged to have caused or contributed to his
condition.8
OWCP sent a development letter, dated July 24, 2017, to the employing establishment
requesting that it provide specific information regarding appellant’s claimed noise exposure. This
was to include comments from a knowledgeable supervisor regarding the accuracy of all
statements provided by appellant relative to his claim. The employing establishment responded
on August 7, 2017 that because appellant had retired from the federal service in 1994, no additional
comments could be obtained from a knowledgeable supervisor, and it could not describe the
sources, periods, or sound levels of appellant’s claimed noise exposure. However, the employing
establishment confirmed that appellant had participated in a hearing conservation program and had
been provided protective hearing devices from 1969 to 1994. Given the circumstances presented,
the Board finds that appellant’s allegation that he was exposed to various sources of hazardous
noise during the performance of his federal employment is accepted as factual. Therefore, the case
will be remanded to OWCP to evaluate the medical evidence and determine whether he has met
his burden of proof to establish an occupational hearing loss causally related to the accepted
employment noise exposure. 9 Following any further development as deemed necessary, OWCP
shall issue a de novo decision.10
CONCLUSION
The Board finds that this case is not in posture for decision.

7

S.J., Docket No. 17-1798 (issued February 23, 2018).

8

Supra note 6.

9

D.C., id.; A.R., Docket No. 18-0924 (issued August 13, 2019); Constance G. Patterson, 41 ECAB 206 (1989);
Thelma S. Buffington, 34 ECAB 104 (1982).
10

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

4

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2018 and December 18, 2017
decisions of the Office of Workers’ Compensation Programs are set aside and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: April 1, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket Nos. 17-0875
Issued: December 13, 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 March 13, 2017 appellant filed a timely appeal from two February 15, 2017 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the February 15, 2017 decisions, 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability
during the periods March 30 to May 15, 2015; October 8 to December 2, 2015; and December 21,
2015 to April 2, 2016 as causally related to her accepted February 13, 2014 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior appeal are incorporated herein by reference. The relevant facts are as follows.
On February 15, 2014 appellant, then a 40-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on February 13, 2014 she sustained neck, back, lumbar
spine, left hip, and right knee injuries when she was involved in a motor vehicle accident while
delivering mail. She stopped work on February 13, 2014 and has not returned. OWCP initially
accepted the claim for head contusion. The record indicates that appellant was paid wage-loss
compensation on the supplemental rolls for the period February 14 to May 16, 2014.
In a letter dated March 19, 2014, the employing establishment advised OWCP that it had
terminated appellant’s employment, effective March 8, 2014.
In an August 26, 2014 memorandum to file, OWCP reported that appellant had been
employed less than one year and that the employing establishment terminated her during her
probationary period. It reported that she had been released to full-duty work in a medical report
dated May 16, 2014.
On March 30, 2015 appellant was examined by Dr. Kathleen Warner, a Board-certified
internist, who diagnosed lumbosacral, right knee, and left hip sprains and lumbar radiculopathy.
She noted that appellant had been involved in a motor vehicle accident while delivering mail on
February 13, 2014 and that the claim had been accepted for head contusion only. Dr. Warner
provided a medical history and details of the February 13, 2014 motor vehicle accident. She noted
that appellant had been disabled from work since February 13, 2014 and that the employing
establishment terminated appellant’s employment on March 8, 2014 based on her failure to report
to work. Dr. Warner related that the mechanism of injury was consistent with the diagnosed low
back conditions.
In a March 30, 2015 duty status report (Form CA-17), Dr. Warner noted a February 13,
2014 injury and provided work restrictions.

3

Docket No. 16-1838 (issued October 17, 2017). The Board notes that one of the February 15, 2017 decisions
presently on appeal addressed the issue of whether appellant was disabled from work for the period May 31 to
June 22, 2016. On September 16, 2016, however, the Board had acquired jurisdiction over that period of wage loss
under Docket No. 16-1838. The Board and OWCP may not have concurrent jurisdiction over the same issue in a case.
Thus, the Board finds that the February 15, 2017 decision is null and void with respect to the period of wage-loss
claimed for the period May 31 to June 22, 2016. See Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings,
41 ECAB 880 (1990); see also 20 C.F.R. § 501.2 (c)(3).

2

On May 18, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) for
disability during the period March 30 to May 18 2015.
By development letter dated May 22, 2015, OWCP informed appellant that additional
evidence was needed to establish disability from work during the period March 30 to
May 18, 2015. It advised her of the type of medical evidence required and afforded her 30 days
to provide the necessary evidence.
In a report dated June 1, 2015, Dr. Rhett Krone, an emergency medicine physician,
provided examination findings. He opined that appellant’s motor vehicle accident aggravated a
chronic underlying lumbosacral condition as she had no pain prior to the accident. Dr. Krone
observed that her symptoms were suggestive of L4-5 radiculopathy.
On July 7, 2015 OWCP denied appellant’s claim for wage-loss compensation for the period
March 30 to May 18, 2015.
By decisions dated July 29 and August 7, 2015, OWCP advised appellant that acceptance
of her claim had been expanded to include the conditions of right lateral collateral knee ligament
sprain, hip and thigh sprain, and lumbar sprain.
On August 3, 2015 appellant requested a review of the written record of the July 7, 2015
decision by an OWCP hearing representative.
On September 16, 2015 OWCP referred appellant to Dr. Gordon S. Jones, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine whether she continued
to have residuals or disability from the accepted February 3, 2014 employment injury.
In an October 1, 2015 report, Dr. Jones, following review of the medical records, as well
as appellant’s history of injury and physical examination, reported persistent knee, lumbar, and
hip pain following the accepted February 13, 2014 employment injury. He noted that she had been
diagnosed with right knee and left hip contusions, and lumbar spine pain. A physical examination
revealed pain with full range of motion, lower back tenderness and pain, left hip pain with full
range of motion and internal rotation, 1+ right knee effusion, and right knee full range of motion
with some diffuse tenderness. Dr. Jones reviewed x-ray interpretations of the lumbar spine and
knee, which he reported were negative. He determined that appellant had no residuals from her
accepted employment injury and was capable of performing her date-of-injury position. Dr. Jones
observed that her work capacity was “limited only by her own tolerance.”
Appellant filed additional Form CA-7 claims for wage-loss compensation for disability
during the period October 8 to December 2, 2015.
By development letters dated November 2 and December 9, 2015, OWCP advised
appellant that additional evidence was needed to establish disability from work during the period
October 8 to December 2, 2015. It advised her of the type of medical evidence required and
afforded her 30 days to provide the requested evidence.

3

By decision dated January 19, 2016, an OWCP hearing representative affirmed the July 7,
2015 decision denying appellant’s claim for wage-loss compensation for the period March 30 to
May 15, 2015.4
By decision dated January 29, 2016, OWCP denied appellant’s claims for wage-loss
compensation for the period October 8 to December 2, 2015.
In a February 8, 2016 supplemental report, Dr. Jones reviewed lumbar and knee MRI
scans, which were unavailable at the time of his prior report. After reviewing the MRI scans, he
concluded that there was no objective evidence of any lumbar or right knee residuals causally
related to the accepted February 13, 2014 employment injury.
In a March 2, 2016 report, Dr. Jeffrey T. Summers, Board-certified in pain medicine and
anesthesiology, noted that appellant was seen for injuries sustained as the result of a motor vehicle
accident in February 2014. Physical examination findings were provided and he diagnosed hip
pain and lumbar spondylosis.
On March 26, 2016 OWCP received a January 12, 2016 report from Dr. Michael
Winkelmann, a treating Board-certified physiatrist.
Dr. Winkelmann noted appellant’s
employment and injury histories, provided physical examination findings. He noted an MRI scan
showed no abnormalities. Dr. Winkelmann reported that appellant had been diagnosed with scalp
contusion, right hip contusion, lumbar strain, and left-side sciatica, which he attributed to the work
motor vehicle accident. In a March 23, 2016 progress report, he noted that she was given a facet
injection for pain relief.
On April 2, 2016 OWCP received a December 21, 2015 report from Dr. Philip Lee, a
Board-certified internist. Dr. Lee indicated that appellant had been seen for low back pain. He
reported that she had been involved in a motor vehicle accident approximately one year prior.
Dr. Lee diagnosed lumbar strain, scalp and right hip contusions, and left-side sciatica.
On April 4, 2016 appellant filed a Form CA-7 claim for wage-loss compensation during
the period December 21, 2015 to April 2, 2016.
In a development letter dated April 11, 2016, OWCP informed appellant that the medical
evidence did not establish that she was disabled from work for the period claimed in the CA-7
form received on April 4, 2016. It advised her as to the type of medical evidence required and
afforded her 30 days to provide the necessary evidence.
Dr. Summers, in reports dated April 6 and May 4, 2016, diagnosed lumbar spondylosis and
lumbar radiculopathy. He noted that appellant continued to have pain radiating down her back
into her left lower extremity. Physical examination findings were provided and Dr. Summers
recommended bilateral L4-5 facet injection.

4
The Board notes that the CA-7 form filed by appellant requested compensation commencing March 30, 2015 and
ending May 18, 2015.

4

By decision dated May 25, 2016, OWCP denied appellant’s claim for wage-loss
compensation for the period December 21, 2015 to April 2, 2016. It found that none of the medical
reports submitted addressed her ability to work. OWCP noted that the medical reports of record
lacked work restrictions and medical opinion regarding appellant’s work capacity.
On June 14, 2016 appellant requested reconsideration of the January 19, 2016 decision
denying her claim for wage-loss compensation from March 30 to May 15, 2015.5 On
November 10, 2016 she requested reconsideration of the January 29, 2016 decision denying her
claim for wage-loss compensation for the period October 8 to December 2, 2015 and the
May 25, 2016 decision denying her claim for wage-loss compensation for the period December 21,
2015 to April 2, 2016.
By decision dated December 16, 2016, OWCP denied modification of the January 19, 2016
decision. It found that the evidence of record was insufficient to establish total disability for the
period March 30 to May 15, 2015. Appellant requested reconsideration on January 4, 2017 and,
by decision dated February 15, 2017, OWCP denied modification of its December 16, 2016
decision denying her claim for wage-loss compensation for the period March 30 to May 15, 2015.
By separate decision also dated February 15, 2017, OWCP denied modification of its
January 29 and May 25, 2016 decisions, which denied appellant’s claims for wage-loss
compensation for the periods October 8 to December 2, 2015 and December 21, 2015 through
April 2, 2016.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.7 For each period of disability
claimed, the employee has the burden of proof to establish that he or she was disabled from work
as a result of the accepted employment injury.8 Whether a particular injury causes an employee to
become disabled from work, and the duration of that disability, are medical issues that must be
proven by a preponderance of probative and reliable medical opinion evidence.9
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.10 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
5

See id. The Board notes that OWCP has not adjudicated total disability for the period May 16 to 18, 2015.

6

Supra note 1.

7
See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel A. Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
8

See Amelia S. Jefferson, id.; see also David H. Goss, 32 ECAB 24 (1980).

9

See Edward H. Horton, 41 ECAB 301 (1989).

10
S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796 (2003);
20 C.F.R. § 10.5(f).

5

wages.11 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.12
ANALYSIS
The Board finds that appellant has not established total disability during the periods
March 30 to May 15, 2015; October 8 to December 2, 2015; and December 21, 2015 to
April 2, 2016.
The Board finds initially that appellant has not established total disability during the period
March 30 to May 15, 2015.
In support of this period of disability, OWCP received reports from Dr. Warner and
Dr. Krone. Dr. Warner diagnosed lumbosacral, right knee and hip strains, as well as lumbar
radiculopathy.
She also related that appellant had been disabled from work since
February 13, 2014. Dr. Warner, however, did not explain why appellant was disabled during this
time period due to objective medical findings. To establish a period of disability the medical
evidence must provide a discussion of how objective medical findings attributable to the accepted
conditions support a finding that appellant could not perform her job duties.13
Dr. Krone provided examination findings and opined that the accepted employment
incident aggravated a chronic underlying lumbosacral condition, however, he offered no opinion
regarding appellant’s disability status. 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 employees to self-certify their
disability and entitlement to compensation.14
The Board, therefore, finds that appellant has not established total disability during the
period March 30 to May 15, 2015 causally related to her accepted February 13, 2014 employment
injury.
The Board also finds that appellant has not met her burden of proof to establish total
disability for the periods October 8 to December 2, 2015 and December 21, 2015 through April 2,
2016 causally related to her accepted February 13, 2014 employment injury.
In support of her claims for wage-loss compensation for the periods in question, appellant
submitted reports from Drs. Lee, Summers, and Winkelmann. Dr. Lee noted that appellant had
been involved in a motor vehicle accident the prior year, provided physical examination findings,
and diagnosed scalp and right hip contusion, left sciatica, and lumbar strain. Dr. Summers
11

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

12

Merle J. Marceau, 53 ECAB 197 (2001).

13

See W.E., Docket No. 17-0451 (issued November 20, 2017).

14

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

provided examination findings and diagnoses including hip pain, lumbar spondylosis and lumbar
radiculopathy. None of the reports from Drs. Lee or Summers addressed any specific dates of
disability. As previously noted, 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 employees to self-certify their
disability and entitlement to compensation.15
The May 31, 2016 Form CA-20 report from Dr. Winkelmann is the only report addressing
a period of disability. He diagnosed left sciatica and lumbar disc disorder, which he attributed to
the February 13, 2014 employment injury and opined that appellant was totally disabled for the
period February 13, 2015 to May 31, 2016. However, Dr. Winkelmann did not relate her disability
to the accepted conditions. As noted above, OWCP only accepted the conditions of face, scalp,
and neck contusions, right knee, hip, thigh and lumbar sprains. Appellant has the burden of proof
to establish causal relationship between the conditions not accepted by OWCP and the
February 13, 2014 employment injury.16
Dr. Winkelmann did not specifically explain whether appellant’s disability between
October 8 to December 2, 2015, and from December 21, 2015 and April 2, 2016 was causally
related to the accepted employment conditions or otherwise provide medical reasoning explaining
why any current condition or disability was due to the employment injury.17 He failed to address
how the February 13, 2014 employment injury caused the currently diagnosed conditions of left
sciatica and lumbar disc disorder. Rather, Dr. Winkelmann correlated in general terms that
appellant’s conditions were caused by accepted work injury. Generalized statements do not
establish causal relationship because they are unsupported by adequate medical rationale.18 For
conditions not accepted by OWCP as being employment related, it is the employee’s burden of
proof to provide rationalized medical evidence sufficient to establish causal relation, not OWCP’s
burden of proof to disprove such a relationship.19 Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value.20
Dr. Jones, OWCP’s second opinion physician, completed a report on October 1, 2015
describing appellant’s history of injury as well as his examination findings. He opined that she no
longer had residuals or disability due to her accepted employment injuries. Dr. Jones also opined
that appellant was capable of performing her date-of-injury job. In a February 8, 2016

15

Supra note 12.

16

Michael S. Mina, 57 ECAB 379 (2006); Kimper Lee, 45 ECAB 565 (1994); Thomas D. Petrylak, 39 ECAB
276 (1987).
17

See C.L., Docket No. 16-0004 (issued June 14, 2016).

18

L.M., Docket No. 16-0188 (issued March 24, 2016); K.W., Docket No. 10-0098 (issued September 10, 2010).

19

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
20

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

7

supplemental report, he reviewed lumbar and knee MRI scans and found no objective evidence of
any condition causally related to the accepted February 13, 2014 employment injury.
The relevant medical reports do not support appellant’s allegations of periods of total
disability due to her accepted employment injury for the periods October 8 to December 2, 2015,
December 21, 2015 to April 2, 2016.
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 total disability
during the periods March 30 to May 15, 2015; October 8 to December 2, 2015; and December 21,
2015 to April 2, 2016.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2017 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: December 13, 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
__________________________________________
M.C., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY,
Fort Buchanan, Puerto Rico, Employer
__________________________________________

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

Docket No. 09-1889
Issued: May 4, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 20, 2009 appellant filed a timely appeal from the January 22, 2009 merit decision
of the Office of Workers’ Compensation Programs terminating his compensation. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
February 15, 2009 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
The Office accepted that on August 24, 2001 appellant, then a 50-year-old maintenance
mechanic, sustained a lumbosacral strain when he slipped off a bench at work.1 He stopped
work for various periods and received appropriate compensation from the Office.
1

Appellant’s supervisor indicated that appellant’s temporary position would have ended on September 28, 2001.

Appellant received periodic medical treatment from several attending physicians.
Diagnostic testing from late 2001 and early 2002 showed that he had degenerative disc disease of
the lumbar spine, small disc herniation at L5-S1 and left arm radiculopathy emanating from L5S1. In November 2002, the Office referred appellant to Dr. Francisco J. Carlos, a Board-certified
orthopedic surgeon, for further evaluation. On November 21, 2002 Dr. Carlos determined that
appellant continued to have partial disability due to the August 24, 2001 work injury.
Appellant received medical treatment from Dr. Maria I. Palou, an attending Boardcertified physiatrist. On April 27, 2004 Dr. Palou indicated that his condition was complicated
by the fact that diagnostic testing of his cervical spine showed degenerative disc disease and mild
stenosis at C2-3 and C3-4. In brief reports dated April 25, 2005 and May 25, 2006, Dr. Palou
continued to treat appellant for low back and neck problems.
In an April 25, 2007 report, Dr. Palou stated that after his August 24, 2001 injury
appellant was found to have a herniated disc a L5-S1, left S1 radiculopathy and peripheral
polyneuropathy. Pain started to radiate to appellant’s neck area and hands in 2003 with several
episodes of neck stiffness and he was found to have cervical osteoarthritis and canal stenosis at
the C2-3 and C3-4 levels. Dr. Palou indicated that examination showed that he had severe
muscle spasm in his lumbar, dorsal and cervical spines, stiffness, 4/5 muscle strength and hand
grip of four pounds per square inch. She indicated that appellant’s neck, back and depression
conditions were work related and stated that he continued to be totally disabled from all work.2
In an April 24, 2008 report, Dr. Palou described appellant’s medical history and stated
that when she examined him on April 21, 2008 he had muscle spasms in his lumbar, dorsal and
cervical areas with tenderness, worse at the left lumbar area.3 Mobility of appellant’s spine and
muscle strength were reduced. Dr. Palou indicated that all of his physical conditions were
related to his work injury and found that he was still disabled with an inability to lift, carry, pull
or push and limited capacity for static or repetitive movements. In an April 23, 2008 form
report, she stated that appellant could not perform work because he had cervical canal stenosis
and a lumbar herniated nucleus pulposus with chronic pain that did not allow him to perform
repetitive movements, assume static positions or engage in lifting, carrying, pushing or pulling.
Dr. Palou indicated that he could sit or walk for 20 minutes and stand for 15 minutes but could
not perform any other activities.
In May 2008, the Office referred appellant to Dr. Fernando Rojas, a Board-certified
orthopedic surgeon, for further evaluation. On July 11, 2008 Dr. Rojas described appellant’s
factual and medical history, including the findings of diagnostic testing and the course of his
medical treatment since his August 24, 2001 work injury. He noted that appellant complained of
intermittent left leg weakness and pain which radiated down the left leg. Dr. Rojas observed that
appellant walked with no limp and that he was able to get onto the examining table with ease.
On examination appellant had loss of lower back lordosis and there was hardening of the
2

In an April 25, 2007 report, Dr. Palou stated that appellant’s chronic pain prevented him from performing any
work. She indicated that appellant could sit, stand or walk for 15 minutes but could not perform any other activities.
3

Dr. Palou also indicated that recently appellant had developed allergic rhinitis, pharyngitis, sleep apnea,
bronchial asthma and right bundle branch block.

2

paraspinal muscles on both sides upon palpation. Range of motion of the back included flexion
of 15 degrees, extension of 0 degrees and lateral bending of 20 degrees to each side. Dr. Rojas
noted that there were no sensory or motor deficits. Appellant’s patellar reflex was +2 on the
right and +1 on the left; ankle reflex was +2 on the right and +1 on the left.
Dr. Rojas further stated that appellant had a lumbosacral sprain with discogenic disease
and a herniated disc at LS-Sl to the left. Appellant’s condition had not resolved completely but
the physical examination and diagnostic testing showed that he remained in a stable situation
where his pain was controlled with decreased activity and medications. Dr. Rojas stated that
appellant had reached maximum medical improvement and was not capable of returning to his
regular maintenance mechanic job since it would require him to bend, stoop and to lift heavy
machinery. However, appellant was able to perform work within certain work restrictions. In a
July 30, 2008 work restrictions form, Dr. Rojas advised that appellant could work eight hours a
day. He could engage in sitting or standing for up to four hours per day, walking for up to two
hours, repetitive wrist or elbow movement for up to eight hours and lifting, pushing or pulling up
to 20 pounds. Appellant could not engage in such activities as reaching, twisting, bending,
stooping, squatting or kneeling.
On September 30, 2008 the employing establishment offered appellant a job as a
modified maintenance mechanic.4 The position involved performing preventative maintenance
in office buildings, warehouses and other properties through such activities as installing and/or
maintaining wiring systems, switches, wall outlets, fuses, plugs, faucets, showerheads, doors,
sinks and dishwashers. The job might also include such activities as unstopping clogged drains
with snakes, cleaning and flushing grease traps, tightening screws and fittings and adjusting and
repairing range burner controls and thermostats. The physical requirements included sitting or
standing for up to four hours per day, walking for up to two hours, repetitive wrist or elbow
movement for up to eight hours and lifting, pushing or pulling up to 20 pounds.
In a November 20, 2008 letter, the Office advised appellant of its determination that the
position offered by the employing establishment was suitable. It informed him that his
compensation would be terminated if he did not accept the position or provide good cause for not
doing so within 30 days of the date of the letter.
In a November 7, 2008 letter, appellant contended that he was not physically or mentally
capable of returning to work.5
In a December 1, 2008 letter, the Office advised appellant that his reasons for not
accepting the position were unjustified. It advised him that his compensation would be
terminated if he did not accept the position within 15 days of the date of the letter.

4

The position was temporary, not to exceed 90 days.

5

Appellant had not explicitly accepted or refused the offered position prior to this time.

3

In a January 22, 2009 decision, the Office terminated appellant’s compensation effective
February 15, 2009 on the grounds that he refused an offer of suitable work. It indicated that the
opinion of Dr. Rojas showed that appellant could perform the offered position and that the
opinion of Dr. Palou did not contain adequate medical rationale.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who ... (2) refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”6 However, to justify such termination, the Office
must show that the work offered was suitable.7 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.8 A temporary job will be considered unsuitable unless the claimant was a
temporary employee when injured and the temporary job reasonably represents the claimant’s
wage-earning capacity. Even if these conditions are met, a job which will terminate in less than
90 days will be considered unsuitable.9
Section 8123(a) of the Act provides in pertinent part: “If there is 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 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.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 Office accepted that on August 24, 2001 appellant sustained a lumbosacral strain
when he slipped off a bench at work. Appellant was working as a maintenance mechanic at the
time, a temporary position that was set to end on September 28, 2001. In a January 22, 2009
decision, the Office terminated his compensation effective February 15, 2009 on the grounds that
he refused an offer of suitable work.
6

5 U.S.C. § 8106(c)(2).

7

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

8

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4b (July 1997).
10

5 U.S.C. § 8123(a).

11

William C. Bush, 40 ECAB 1064, 1975 (1989).

12

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

In September 2008, the employing establishment offered appellant a job as modified
maintenance mechanic.13 The position involved performing preventative maintenance in office
buildings, warehouses and other properties through such activities as installing and/or
maintaining wiring systems, switches, wall outlets, fuses, plugs, faucets, showerheads, doors,
sinks and dishwashers.14 The physical requirements included sitting or standing for up to four
hours per day, walking for up to two hours, repetitive wrist or elbow movement for up to eight
hours and lifting, pushing or pulling up to 20 pounds.
In determining that appellant was physically capable of performing the modified
maintenance mechanic position, the Office relied on the opinion of Dr. Rojas, a Board-certified
orthopedic surgeon who served as an Office referral physician. On July 11, 2008 Dr. Rojas
indicated that on examination appellant had loss of lower back lordosis and there was hardening
of the paraspinal muscles on both sides upon palpation. Range of motion of the back included
flexion of 15 degrees, extension of 0 degrees and lateral bending of 20 degrees to each side.
Dr. Rojas stated that appellant had a lumbosacral sprain with discogenic disease and a herniated
disc at L5-Sl to the left. He found that appellant’s condition had not resolved completely but
noted that the physical examination and diagnostic testing showed that he remained in a stable
situation where his pain was controlled with decreased activity and medications. Dr. Rojas
concluded that appellant was able to perform work within certain work restrictions. In a July 30,
2008 work restrictions form, he advised that appellant could work eight hours a day. Appellant
could engage in sitting or standing for up to four hours per day, walking for up to two hours,
repetitive wrist or elbow movement for up to eight hours and lifting, pushing or pulling up to
20 pounds. He could not engage in such activities as reaching, twisting, bending, stooping,
squatting or kneeling.
The Board finds that Dr. Rojas’ opinion regarding appellant’s ability to perform the
offered maintenance mechanic position conflicts with that of Dr. Palou, an attending Boardcertified physiatrist. In contrast to Dr. Rojas’ opinion, Dr. Palou found in April 23 and 24, 2008
reports that appellant was totally disabled from work. She stated that appellant could not
perform work because he had cervical canal stenosis and a lumbar herniated nucleus pulposus
with chronic pain that did not allow him to perform repetitive movements, assume static
positions or engage in lifting, carrying, pushing or pulling.15 Dr. Palou indicated that he could sit
or walk for 20 minutes and stand for 15 minutes but could not perform any other activities listed
on a work restrictions form. She noted that when she examined appellant on April 21, 2008 he
had muscle spasms in his lumbar, dorsal and cervical areas with tenderness, worse at the left
lumbar area. Dr. Palou also indicated that the mobility of his spine and his muscle strength were
reduced.

13

Although the modified mechanic position was temporary in nature, this was permissible as appellant’s date-ofinjury job was temporary and the modified mechanic position would not expire in less than 90 days. See supra
note 9.
14

The job might also include such activities as unstopping clogged drains with snakes, cleaning and flushing
grease traps, tightening screws and fittings and adjusting and repairing range burner controls and thermostats.
15

It is well established that the Office must consider preexisting and subsequently acquired conditions in the
evaluation of suitable work. See Richard P. Cortes, 56 ECAB 200 (2004).

5

The Board finds that, because a continuing conflict exists in the medical evidence
regarding appellant’s ability to perform the offered maintenance mechanic position, the Office
did not meet its burden of proof to show that the offered position was suitable. For these
reasons, the Office improperly terminated his compensation effective February 15, 2009 on the
grounds that he refused an offer of suitable work.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s compensation effective
February 15, 2009 on the grounds that he refused an offer of suitable work.
ORDER
IT IS HEREBY ORDERED THAT the January 22, 2009 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 4, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 11-1023
Issued: January 24, 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 March 22, 2011 appellant filed a timely appeal from a February 15, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her claim for
wage-loss compensation. 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
ISSUE
The issue is whether appellant met her burden of proof to establish that her disability for
the period January 3 to 21, 2011 was causally related to the November 12, 2010 employment
injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the February 15, 2011 OWCP decision, appellant submitted new
evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued its
final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal appellant contends that OWCP accepted her employment injury and therefore
it is inconsistent for OWCP to disallow her claims for wage-loss compensation.
FACTUAL HISTORY
On November 13, 2010 appellant, then a 53-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a left elbow contusion after being struck by
a flat bed container in the performance of duty on November 12, 2010.
In a November 12, 2010 authorization for examination and/or treatment form (CA-16)
Dr. Jose G. Trevino, an internist, diagnosed elbow contusion. In a medical report of the same
date, Dr. Trevino diagnosed left elbow contusion with ulnar nerve neurapraxia and released
appellant to light-duty work that same day with restrictions.
On December 2, 2010 Dr. R. Robert Ippolito, a Board-certified plastic surgeon,
diagnosed contusion of the left elbow and ordered a magnetic resonance imaging (MRI) scan of
the left elbow due to possible injury to the collateral radial ligament.
Appellant filed a claim on December 30, 2010 for compensation (Form CA-7) for the
period January 3 to 21, 2011. She submitted two time analysis forms indicating that Dr. Ippolito
took her off work for a total of 88 hours for the period January 3 to 17, 2011 and 16 hours for the
period January 20 to 21, 2011. In a December 16, 2010 progress report, Dr. Ippolito reiterated
his diagnosis and indicated that his plan to continue with conservative treatment.
By decision dated January 14, 2011, OWCP accepted appellant’s claim for left elbow
contusion.
On January 14, 2011 OWCP requested additional medical evidence establishing
disability for work during the period January 3 to 21, 2011 and allotted 30 days for submission.
Appellant submitted a December 2, 2010 duty status report by Dr. Ippolito, who
reiterated his diagnosis and advised appellant not to resume work. In a December 30, 2010
attending physician’s report, Dr. Ippolito reiterated his diagnosis and opined that appellant was
totally disabled from December 2, 2010 to February 2, 2011. A January 13, 2011 work release
form by Dr. Ippolito revealed that appellant had been injured and unable to work from
January 13 to 27, 2011.
In a December 30, 2011 work release form, Dr. Ippolito reported that appellant had been
injured and unable to work from December 30, 2010 to January 13, 2011.
On February 8, 2011 OWCP expanded appellant’s claim to include aggravation of lesion
of ulnar nerve, left.
By decision dated February 15, 2011, OWCP denied appellant’s claim for disability for
the period January 3 to 21, 2011 on the grounds that the medical evidence submitted was not
sufficient to support disability due to the November 12, 2010 employment injury.

2

LEGAL PRECEDENT
Section 8102(a) of FECA3 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”4 This meaning, for brevity, is expressed as disability for work.5
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.6 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.7
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.8
ANALYSIS
The Board finds that appellant has not established that she was disabled for the period
January 3 to 21, 2011 causally related to the November 12, 2010 employment injury. On appeal
appellant contends that it is inconsistent for OWCP to accept her employment injury and then
disallow her claim for wage-loss compensation. While OWCP accepted that appellant sustained
an employment injury, she bears the burden to establish through medical evidence that she was
disabled during the claimed time periods and that her disability was causally related to her
accepted injury.9 The Board finds that she submitted no rationalized medical evidence
explaining how the November 12, 2010 employment injury materially worsened or aggravated

3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
5

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

6

William A. Archer, 55 ECAB 674 (2004).

7

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

8

Id.

9

See supra notes 6-7. See also V.P., Docket No. 09-337 (issued August 4, 2009).

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her left elbow condition and caused her to be disabled for work for the period January 3
to 21, 2011.
In a series of medical reports, Dr. Ippolito diagnosed contusion of the left elbow. On
December 2, 2010 he advised appellant not to resume work. On December 30, 2010 Dr. Ippolito
opined that she was totally disabled from December 2, 2010 to February 2, 2011. In a series of
work release forms, he reported that appellant had been injured and unable to work from
December 30, 2010 to January 27, 2011. Although Dr. Ippolito provided a firm diagnosis and
opined that appellant was disabled, he failed to provide a rationalized medical explanation as to
why appellant had employment-related residuals and how the residuals of the November 12,
2010 employment injury prevented her from continuing in her federal employment. Thus,
appellant has not met her burden of proof to establish that she was disabled for work due to the
employment injury.
In several reports dated November 12, 2010, Dr. Trevino diagnosed left elbow contusion
with ulnar nerve neurapraxia and released appellant to light-duty work with restrictions that same
day. As he failed to offer any probative medical opinion on whether appellant was disabled on
the dates at issue due to her accepted conditions, his reports are of diminished probative value.10
Appellant has not submitted any rationalized medical evidence establishing that she was
disabled during the period January 3 to 21, 2011 causally related to the November 12, 2010
employment injury. Thus, appellant has not met her burden of proof to establish that she is
entitled to compensation for any loss of wage-earning capacity.
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 was
disabled for the period January 3 to 21, 2011 causally related to the November 12, 2010
employment injury.

10

See Sandra D. Pruitt, 57 ECAB 126 (2005). See also V.P., supra note 9.

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ORDER
IT IS HEREBY ORDERED THAT the February 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 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

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