United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.K., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Hillard, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1208
Issued: January 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 21, 2011 appellant filed an application for review of a March 15, 2011 decision
of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx748, which
denied appellant’s claim for an emotional condition filed on December 27, 2010.1 The appeal
was docketed as number 11-1208. The March 15, 2011 decision referenced another emotional
condition claim filed by appellant, claim number xxxxxx433, which noted a date of injury of
February 8, 2007.
In its March 15, 2011 decision, OWCP noted that employment factors appellant alleged
in his current claim, xxxxxx748, were also previously alleged in his prior emotional condition
claim, xxxxxx433, specifically, that a stressful work environment on February 8, 2007 caused
him to have a seizure while at work.2 It stated that in file number xxxxxx433 appellant alleged
1

On December 27, 2010 appellant filed a Form CA-2, notice of occupational disease, alleging that he developed
post-traumatic stress disorder and seizures as a result of workplace stress. He became aware of his condition on
February 8, 2007 and realized it was causally related to his work environment on December 27, 2007. Appellant
retired on March 26, 2008.
2

In claim number xxxxxx433, appellant filed a Form CA-1 alleging that a stressful environment on February 8,
2007 caused him to have a seizure at work. OWCP advised that it denied this claim on March 23, 2007. The record
pertaining to claim number xxxxxx433 is not in the record before the Board.

that on February 8, 2007 he had a seizure at work which was caused by traumatic stress.
Additionally, in the March 15, 2011 decision, OWCP noted reviewing the other claim file and
findings made in claim number xxxxx433 in reaching its decision.
The Board has duly considered the matter and notes that the case is not in posture for a
decision. The claim before the Board, number xxxxxx748, involves appellant’s claim for an
emotional condition. In the March 15, 2011 decision, OWCP noted reviewing evidence and
findings made in claim number xxxxx433, also for a stress condition, in reaching its decision.
This indicates that file number xxxxxx433 may have evidence germane to claim number
xxxxxx748. Pursuant to OWCP procedures, OWCP has determined that cases should be
combined where correct adjudication depends on cross-referencing between files.3 In the instant
appeal, it appears that, for a full and fair adjudication, its claims pertaining to appellant’s
emotional conditions should be combined pursuant its procedures. This will allow OWCP to
consider all relevant claim files in developing appellant’s claim.
The case will be remanded to OWCP to combine case file numbers xxxxxx748 and
xxxxxx433. Following this and such other development as deemed necessary, it shall issue an
appropriate merit decision on appellant’s claim.4

3

Federal (FECA) Procedure Manual, Part 2 – Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
4

Appellant also submitted new evidence on appeal. However, the Board may not consider evidence for the first
time on appeal. See 20 C.F.R. § 501.2(c).

2

IT IS HEREBY ORDERED THAT the March 15, 2011 decision be set aside and the
matter remanded to the Office of Workers’ Compensation Programs for further proceedings
consistent with this order of the Board.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, West Columbia, SC,
Employer
__________________________________________

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

Docket No. 11-1794
Issued: March 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 1, 2011 appellant filed a timely appeal from a June 23, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has established that his neck and left upper extremity
injuries were sustained in the performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence with his appeal to the Board. However, the Board may
only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. § 501.2(c)(1);
M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007);
Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On October 3, 2010 appellant, then a 37-year-old mail processing machine operator, filed
a traumatic injury claim alleging that on October 2, 2010 he injured his neck, left shoulder and
arm while cleaning stackers.3
In support of his claim, appellant submitted an October 3, 2010 emergency room report
and diagnostic tests. The emergency room discharge summary reported diagnoses of chest pain
and musculoskeletal neck pain. The first part of a stress test performed on October 3, 2010
revealed “clinically negative but electrocardiographically positive stress test.” The second part
of a stress test performed the same day revealed no evidence of a myocardial infarction or
ischemia. An electrocardiogram performed on October 3, 2010 revealed sinus rhythm within
normal limits.
On November 2, 2010 OWCP informed appellant that the evidence submitted was
insufficient to support his claim. Appellant was advised as to the type of medical and factual
evidence to submit and given 30 days to provide the requested information.
In a November 20, 2010 statement, Lucenda Stephens stated that on October 2, 2010
appellant told her about his neck burning while clearing mail from a machine. Appellant later on
related having pain going from his neck to his shoulder down into his arm with tingling and
numbness. He subsequently requested medical treatment as he believed he was having a heart
attack. At this point appellant was instructed to go to the hospital.
By decision dated December 10, 2010, OWCP denied appellant’s claim on the grounds
that he failed to establish fact of injury. It found that the record was devoid of any medical
evidence diagnosing a medical condition.
On January 4, 2011 appellant requested an oral hearing before an OWCP hearing
representative. A telephonic hearing was scheduled for April 21, 2010, which he did not attend.
By decision dated June 23, 2011, an OWCP hearing representative affirmed the
December 10, 2010 decision, modifying it to find that appellant failed to establish that the
incident occurred as alleged and that there was no medical evidence diagnosing a medical
condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his 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
3

Appellant subsequently filed an occupational disease claim alleging the same facts. OWCP assigned File No.
xxxxxx425. It later deleted that number finding that it was a duplicate of the traumatic injury claim.
4

Supra note 1.

2

specific condition for which compensation is claimed are causally related to the employment
injury.5 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.6
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.7
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.8 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.9
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.10 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.11
Causal relationship is a medical issue and the medical evidence generally required to
establish that causal relationship is rationalized medical opinion evidence.12 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 the
compensable employment factors.13 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.14

5

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

6

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

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

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

9

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

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

11

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

12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
13

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

14

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

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ANALYSIS
Appellant alleged that he sustained a neck, left shoulder and arm injury while cleaning
stackers on October 2, 2010. OWCP’s hearing representative found the evidence insufficient to
establish that the incident occurred as alleged and that the evidence of record was devoid of any
medical evidence diagnosing the claimed conditions. Appellant has consistently maintained that
he was clearing the stackers of mail on October 2, 2010 when he allegedly sustained an injury to
his neck and left shoulder. As there is no dispute as to the employment activity he engaged in at
the time of the alleged injury, the Board finds that the incident occurred as alleged. The issue is
whether appellant has established that he sustained a neck, left shoulder and arm injury causally
related to the October 2, 2010 employment incident. The Board finds that he has failed to meet
his burden of proof.
The medical evidence of record fails to provide a history of injury, medical diagnosis or a
physician’s opinion explaining how appellant sustained an injury to his shoulder, arm and neck
as a result of the accepted October 2, 2010 incident. It also contains no firm diagnosis, rationale
or explanation of the mechanism of injury arising from the employment incident on
October 2, 2010.15
The only medical evidence with a firm diagnosis is an October 3, 2010 emergency room
discharge summary diagnosing chest pain and musculoskeletal neck pain. This report is without
a physician’s signature or other proper identification. The Board has held that a medical report
with no indication that the person completing the report qualifies as a physician as defined in
5 U.S.C. § 8102(2) or without proper identification of who provided the signature does not
constitute probative medical evidence.16 This medical report did not contain any information
from which it could be inferred that a physician completed the report and signed the paper.
Thus, it is of no probative value to establish that appellant sustained any injury on
October 2, 2010.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. As appellant has failed to submit any probative medical evidence
establishing that he sustained an injury in the performance of duty on October 2, 2010 he has
failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

15

See S.E., Docket No. 08-2214 (issued May 6, 2009); S.D., 58 ECAB 713 (2007); Cecelia M. Corley, 56 ECAB
662 (2005) (where the Board found that a medical opinion not fortified by medical rationale is of little probative
value).
16

E.K., Docket No. 09-1827 (issued April 21, 2010); D.D., 57 ECAB 734 (2006); Richard J. Charot, 43 ECAB
357 (1991).

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CONCLUSION
The Board finds that appellant has not established that he sustained neck and left upper
extremity injuries in the performance of duty on October 2, 2012 as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2011 is affirmed, as modified.
Issued: March 26, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensboro, NC, Employer
__________________________________________

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

Docket No. 14-1200
Issued: September 5, 2014

Case Submitted on the Record

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

JURISDICTION
On April 25, 2014 appellant filed a timely appeal from the October 28, 2013 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.

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. One hundred and eighty
days from October 28, 2013, the date of OWCP’s decision, was April 26, 2014. Since using April 29, 2014, the date
the appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark
is considered the date of filing. The date of the U.S. Postal Service postmark is April 25, 2014, which renders the
appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
five percent permanent impairment of his left arm or more than five percent permanent
impairment of his right arm, for which he received a schedule award.
FACTUAL HISTORY
On February 24, 1993 OWCP accepted that appellant, then a 34-year-old letter carrier,
sustained bilateral carpal tunnel syndrome due to the performance of his repetitive work duties.3
On October 29, 2009 it accepted that he sustained bilateral/lateral and medial epicondylitis due
to his work.
On March 25, 2011 appellant filed a claim for a schedule award due to his accepted work
injuries.
In a June 9, 2011 report, Dr. Anthony J. Defranzo, an attending Board-certified
orthopedic surgeon, provided an opinion that appellant had seven percent impairment to both
arms under the standards of the sixth edition on the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009). He stated that under Table 15-4 on
page 399 appellant fell under the diagnosis-based rating for class 1 bilateral/lateral and medial
epicondylitis, which equaled two percent permanent impairment of appellant’s left arm and two
percent permanent impairment of his right arm. Dr. Defranzo discussed appellant’s impairment
rating due to bilateral carpal tunnel syndrome under Table 15-23 on page 449 and concluded that
appellant had a five percent permanent impairment of his left arm and a five percent permanent
impairment of his right arm due to this condition. He stated:
“[Appellant] has had nerve conduction studies that have been interpreted as
borderline normal. Looking at his motor latencies, in our laboratory, a motor
latency greater than four is abnormal. [Appellant] has had abnormal motor
conduction with a motor latency recorded in 1994 of 4.3 on the right and an
abnormal motor latency recorded in 1995 of 4.5 on the left.4 These are abnormal
motor conduction blocks documented by nerve conduction study. They are
mildly abnormal motor conduction blocks but they are abnormal motor
conduction blocks. That qualifies [appellant] as a grade 2 or class 2 B2 that
should give him an impairment of somewhere between four percent or six percent
of each upper extremity due to his carpal tunnel syndrome. He was given a five
percent permanent impairment of each upper extremity due to his carpal tunnel
syndrome.”
In a June 22, 2011 report, Dr. H.G. Hogshead, a Board-certified orthopedic surgeon
serving as an OWCP medical adviser, reviewed the June 9, 2011 impairment rating of
3

On June 2, 1993 appellant underwent right carpal tunnel release surgery. On September 16, 1996 he underwent
left carpal tunnel release surgery. The procedures were authorized by OWCP.
4

It does not appear that these test results are currently in the record.

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Dr. Defranzo. He stated that Dr. Defranzo’s assessment of appellant’s impairment due to
epicondylitis was reasonable, but noted that he disagreed with the assessment of appellant’s
impairment due to carpal tunnel syndrome. Dr. Hogshead stated, “[Appellant] does not
acknowledge earlier electrodiagnostic testing studies and normal physical examinations:
November 8, 1994.”5 He noted that Dr. Defranzo repeatedly referred to motor blocks rather
than motor delays and stated that this was “a significant distinction in class 1 or class 2” under
Table 15-23 on page 449. Dr. Hogshead noted that Dr. Defranzo did not provide the physical
examination and Semmes-Weinstein graduation of sensory loss. He concluded that three
percent impairment to each arm due to carpal tunnel syndrome was “a reasonable compromise.”
Adding the two percent impairment to each arm due to epicondylitis to the three percent
impairment in each arm due to carpal tunnel syndrome meant that appellant had five percent
impairment of his left and right arms.
In a July 1, 2011 decision, OWCP granted appellant schedule awards for five percent
permanent impairment of his left and right arms. The awards ran for 31.2 weeks and were
based on the June 22, 2011 opinion of Dr. Hogshead.
In a June 21, 2012 letter, appellant requested reconsideration of his schedule award claim.
He argued that OWCP did not adequately consider the severity of his carpal tunnel test results
as found by Dr. Defranzo.
In an August 7, 2012 decision, OWCP affirmed its July 1, 2011 decision, noting that
appellant did not meet his burden of proof to establish that he had more than five percent
impairment to each arm. It found that Dr. Hogshead’s impairment rating was proper.
In a July 26, 2013 letter, appellant requested reconsideration of his claim. He again
argued that OWCP did not adequately consider the severity of his carpal tunnel test results.
In an October 28, 2013 decision, OWCP affirmed the August 7, 2012 schedule awards.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

5

The record contains a November 8, 1994 report in which Dr. Defranzo stated, “[Appellant] has normal
[electromyogram] nerve conduction studies.” However, the record does not appear to contain the actual full report
of any testing performed on November 8, 1994.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

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appropriate standard for evaluating schedule losses.8 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.9
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in
Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant
text.10 In Table 15-23, grade modifiers levels (ranging from zero to four) are described for the
categories test findings, history and physical findings. The grade modifier levels are averaged to
arrive at the appropriate overall grade modifier level and to identify a default rating value. The
default rating value may be modified up or down by one percent based on Functional Scale, an
assessment of impact on daily living activities.11
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-4 (Elbow Regional Grid) beginning on page 398.
After the class of diagnosis (CDX) is determined from the Shoulder Regional Grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).12
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13
ANALYSIS
On February 24, 1993 OWCP accepted that appellant, then a 34-year-old letter carrier,
sustained bilateral carpal tunnel syndrome due to the performance of his repetitive work duties.14
On October 29, 2009 it accepted that he sustained bilateral/lateral and medial epicondylitis due
to his work. In a July 1, 2011 decision, OWCP granted appellant schedule awards for five
percent impairment to his left and right arms. The awards were based on the June 22, 2011
opinion of Dr. Hogshead, a Board-certified orthopedic surgeon serving as an OWCP medical
8

Id.

9

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

10

See A.M.A., Guides 449, Table 15-23.

11

A survey completed by a given claimant, known by the name QuickDASH, may be used to determine the
Function Scale score. Id. at 448-49.
12

See A.M.A., Guides (6th ed. 2009) 398-400, 405-11.

13

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

14

On June 2, 1993 appellant underwent right carpal tunnel release surgery. On September 16, 1996 he underwent
left carpal tunnel release surgery. The procedures were authorized by OWCP.

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adviser. Dr. Hogshead reviewed the physical findings and impairment ratings of Dr. Defranzo, a
Board-certified orthopedic surgeon.15
The Board finds that the case is not in posture for decision as Dr. Hogshead did not
adequately explain how his impairment rating comported with the relevant standards of the sixth
edition of the A.M.A., Guides. Dr. Hogshead found that Dr. Defranzo’s assessment of
appellant’s impairment due to epicondylitis was reasonable and adopted the position that
appellant had two percent impairment to each arm due to this condition. However, he did not
explain how he reached this conclusion. Dr. Hogshead did not make reference to Table 15-4
(Elbow Regional Grid) or explain which diagnosis-based class under the table was warranted by
appellant’s bilateral epicondylitis, nor did he identify grade modifiers or apply the net adjustment
formula.16 With respect to appellant’s arm impairment due to bilateral carpal tunnel syndrome,
Dr. Hogshead stated that Dr. Defranzo overstated the severity of appellant’s carpal tunnel
syndrome as evidenced by electrodiagnostic testing studies. However, he did not provide an
adequate discussion of appellant’s diagnostic testing with respect to the upper extremity nerve
distributions. The Board notes that the record does not contain any reports detailing the results
of diagnostic testing of appellant’s upper extremities.17 Dr. Hogshead indicated that three
percent impairment in each arm due to carpal tunnel syndrome was “a reasonable compromise,”
but he did not explain this conclusion.18
Given these deficiencies, the case shall be remanded to OWCP for further development
of the medical evidence with respect to appellant’s impairment. After such further development
as it deems necessary, OWCP shall issue an appropriate decision regarding appellant’s
permanent impairment to his upper extremities.
CONCLUSION
The Board finds that the case is not in posture for decision as to whether appellant has
more than five percent impairment of each arm.

15

Dr. Defranzo found that appellant had a seven percent permanent impairment of his left arm and a seven
percent permanent impairment of his right arm.
16

See supra note 12.

17

Dr. Hogshead appears to have referenced a November 8, 1994 report in which Dr. Defranzo stated,
“[Appellant] has normal [electromyogram] nerve conduction studies.” However, the record does not appear to
contain the actual full report of any testing performed on November 8, 1994.
18

Dr. Hogshead added together his impairment ratings due to epicondylitis and carpal tunnel syndrome and
concluded that appellant had five percent permanent impairment of his left arm and five percent permanent
impairment of his right arm.

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ORDER
IT IS HEREBY ORDERED THAT the October 28, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: September 5, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, W. WABASH
STATION, Evansville, IN, Employer
__________________________________________

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

Docket No. 11-1092
Issued: December 14, 2011

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 March 29, 2011 appellant filed a timely appeal of a November 18, 2010 and
March 16, 2011 Office of Workers’ Compensation Programs’ merit decisions. 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 the case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a recurrence of disability on October 30, 2009; and (2) whether appellant met her
burden of proof to establish that she was disabled for the period July 30, 2010 to
February 11, 2011.
On appeal, appellant alleged that OWCP’s decision contained factual errors.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 19, 2007 appellant, then a 52-year-old rural carrier, filed a traumatic injury
claim alleging that she injured her left arm lowering a heavy box onto a porch on
January 17, 2007. OWCP assigned File No. xxxxxx709 and accepted a left shoulder strain.
Dr. Glenn T. Johnson, II, an orthopedic surgeon, released appellant to full-duty work on
January 17, 2007. On January 29, 2007 he examined her and stated that she could work without
restrictions. Dr. Johnson completed a report on February 26, 2007 and noted that appellant
reported that her shoulder was feeling better. He noted that she was performing her regular
work, but was having the steering wheel moved to the other side of her car. Appellant filed a
notice of recurrence of disability on October 3, 2009 alleging that on January 30, 2007 her left
shoulder pain recurred. OWCP accepted her claim for left shoulder sprain on October 8, 2009.
In a letter dated October 8, 2009, OWCP requested information from appellant informed
her that her claim was open for medical treatment and advised her to file a claim for
compensation for wage loss.
Dr. Johnson completed notes on October 1 and November 5, 2009 and stated that
appellant’s left shoulder had no evidence of a rotator cuff tear, but mild joint arthrosis. He also
diagnosed carpal tunnel syndrome. On June 7, 2010 Dr. Johnson noted appellant’s diagnoses of
bilateral carpal tunnel releases and left shoulder pain. He diagnosed impingement syndrome left
shoulder on July 15, 2010. Dr. Johnson recommended shoulder arthroscopy and acromioplasty.
Appellant filed a second notice of recurrence of disability on July 28, 2010 alleging a
recurrence of disability of the January 17, 2007 shoulder injury and noting that she had
undergone carpal tunnel surgery on both hands. In a letter dated July 30, 2010, OWCP requested
additional factual and medical information from her regarding her claimed recurrence.
The employing establishment responded on July 30, 2010 and stated that appellant had
been off work for several months due to another accepted claim for bilateral carpal tunnel
syndrome. The employing establishment noted that she returned to work with no restrictions due
to carpal tunnel syndrome on July 28, 2010 and filed a claim for recurrence of disability on that
date.
Appellant responded and stated that she sought medical treatment for her left shoulder on
October 30, 2009 because of pain. She stated that she required surgery. Appellant filed a claim
for compensation requesting compensation from July 28, 2010.
In a report dated October 10, 2010, Dr. Johnson noted appellant’s history of left shoulder
injury and noted that she had cased, hauled and delivered over 200 pounds of mail daily, pulling
mail bundles over the seat, delivering parcels weighing up to 75 pounds, driving on the right
hand side of her car, steering and shifting for approximately 65 miles every day using her left
arm. He stated that based on his examination of her she had pain with rotator cuff strength
testing, pain with impingement testing and she was precluded from performing her normal job.
Dr. Johnson stated that appellant could lift less than 10 pounds and could not perform her dateof-injury position.

2

In a decision dated November 18, 2010, OWCP denied appellant’s claim for recurrence
of her left shoulder sprain. It found that she had implicated new employment factors for a new
occupational disease claim for her left shoulder condition.
On November 29, 2010 appellant filed an occupational disease claim alleging that she
developed left rotator cuff tendinitis and impingement with pain as a result of her employment
duties of driving and gathering mail from the back seat with her left arm. OWCP assigned File
No. xxxxxx183 with File No. xxxxxx709 as the Master File No.
OWCP completed a letter dated December 15, 2010 and requested that appellant provide
additional medical evidence regarding her left shoulder condition. Dr. Johnson completed a
report on December 27, 2010 and stated that her occupation was the major contributing factor to
her rotator cuff injury. He again recommended surgery.
By decision dated January 14, 2011, OWCP accepted appellant’s claim for impingement
syndrome of the left shoulder and left shoulder tendinitis.
Appellant filed claims for compensation beginning on October 26, 2009. OWCP
authorized compensation benefits from November 2, 2009 through January 11, 2010. It notified
appellant on February 1 and 15, 2011 that there was insufficient medical evidence to support
total disability from July 28 through December 3, 2010. OWCP requested additional medical
evidence.
Dr. Johnson submitted a note dated March 1, 2011 and recommended surgery to
appellant’s conditions of pain left shoulder, impingement syndrome left shoulder, rotator cuff
and tendinitis left shoulder.
By decision dated March 16, 2011, OWCP denied appellant’s claim for compensation for
the period July 28, 2010 to February 11, 2011 on the grounds that the medical evidence was not
sufficient to establish that she was totally disabled due to her accepted conditions beginning
July 28, 2010.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.2
A claimant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between her recurrence of disability and an employment

2

20 C.F.R. § 10.5(x).

3

injury.3 This burden includes the necessity of furnishing medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the
disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.4
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a left shoulder strain as a result of her
January 17, 2007 employment injury. Appellant returned to full duty and then stopped work due
to her accepted condition of bilateral carpal tunnel in a separate claim. Dr. Johnson released her
to return to work on July 28, 2010 with no restrictions due carpal tunnel syndrome. Appellant
returned to work and filed a recurrence of disability alleging that she was totally disabled from
that date due to her accepted left shoulder strain.
Dr. Johnson completed a narrative report on October 10, 2010. He listed appellant’s
employment duties of casing, hauling and delivering over 200 pounds of mail daily, as well as
pulling mail bundles over the seat, delivering parcels weighing up to 75 pounds, driving on the
right hand side of her car and steering and shifting for approximately 65 miles every day with her
left arm. Dr. Johnson advised that these actives contributed to her left shoulder condition. Based
on his examination, appellant had pain with rotator cuff strength testing, pain with impingement
testing and was precluded from performing her normal job. Dr. Johnson stated that appellant
could lift less than 10 pounds and could not perform her date-of-injury position.
This report does not establish a causal relationship between appellant’s accepted left
shoulder strain in 2007 and her current shoulder condition. Rather, Dr. Johnson attributed her
left shoulder condition to the daily occupational duties of her position as a rural mail carrier.
These constitute new employment exposures rather than spontaneous recurrence and may be the
basic for a new occupational claim. There is no other medical evidence in the record supporting
that appellant’s left shoulder condition in 2009 was due to her accepted left shoulder strain. The
Board finds that she failed to meet her burden of proof in establishing a causal relationship
between her accepted condition and her current condition or disability.
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
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.6 The term disability is
3

Dominic M. DeScala, 37 ECAB 369, 372 (1986); Bobby Melton, 33 ECAB 1305, 1308-9 (1982).

4

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

5 U.S.C. §§ 8101-8193.

6

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning
capacity.7
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative and substantial medical evidence.8 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that she hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.9 The Board will not require OWCP to pay compensation for
disability in the absence of any 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.10
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.11 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.12 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 causal relationship.13
ANALYSIS -- ISSUE 2
Appellant filed a claim alleging that she had developed left shoulder conditions as a result
of her employment duties. OWCP accepted this claim for impingement syndrome of the left
shoulder and left shoulder tendinitis based on the reports from Dr. Johnson. Appellant filed
claims for compensation requesting wage-loss compensation from July 28, 2010 due to her
7

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
8

See Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

10

Id.

11

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

12

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

13

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

5

accepted shoulder conditions. The Board finds that the medical evidence in the record is not
sufficient to establish that she was totally disabled due to her accepted left shoulder conditions
beginning on July 28, 2010.
The medical evidence consists of reports from Dr. Johnson. On July 15, 2010 he
diagnosed impingement syndrome left shoulder and recommended shoulder arthroscopy and
acromioplasty. Dr. Johnson did not address appellant’s ability to work or provide any work
restrictions in this note. Without an opinion that appellant was totally disabled, this note is not
sufficient to establish her entitlement to compensation.
In his October 10, 2010 report, Dr. Johnson provided a diagnosis of appellant’s left
shoulder condition and attributed these conditions to her employment duties. However, he
indicated that, while she could not perform her date-of-injury position, she could lift up to 10
pounds and was therefore not totally disabled. This report did not support appellant’s claim for
total disability and cannot establish her entitlement to compensation benefits.
The record does not contain medical evidence establishing that appellant was totally
disabled for work beginning in July 2010. In fact, the medical evidence consisting of
Dr. Johnson’s reports indicate that in October 2010 she was capable of performing light-duty
work. The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish that she was totally disabled beginning in July 2010 due to her accepted shoulder
conditions.
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 failed to meet her burden of proof in establishing a
recurrence of disability causally related to her January 17, 2007 employment injury. The Board
further finds that she has not submitted the necessary medical opinion evidence to establish that
she was disabled beginning on July 28, 2010 due to her accepted left shoulder conditions.

6

ORDER
IT IS HEREBY ORDERED THAT March 16, 2011 and November 18, 2010 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 14, 2011
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

7


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

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

Docket No. 07-611
Issued: May 23, 2007

Case Submitted on the Record

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

JURISDICTION
On December 18, 2006 appellant filed a timely appeal from the January 25 and
November 17, 2006 merit decisions of the Office of Workers’ Compensation Programs which
denied his claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained an emotional injury in the performance of duty.
FACTUAL HISTORY
On December 6, 2005 appellant, then a 53-year-old mail handler (detailed as an acting
manager), filed a claim alleging that his stress headaches were a result of his federal
employment. He stopped work that day and sought medical attention. The history appellant
provided was that he was off work since June, “returned yesterday and received news of change
in job (location, hours, duties), became very upset, headache, similar to before stroke.”
Appellant felt the change in job was vindictive.

Dr. Pauline A. Clansy, a licensed clinical psychologist, reported that appellant was under
her care for depression subsequent to referral from his primary care physician on
December 7, 2006. She recommended a leave of absence effective December 8, 2005 due to
stress and anxiety-related issues.
A postal inspector interviewed appellant on January 10, 2006. Appellant stated that he
suffered a stroke in May 2005. Other than a few days in June 2005 he was off work until
December 5, 2005. The following day appellant was given a letter stating that he would be
returned to a mail handler position at the employing establishment’s main facility in Houston,
Texas. He stated that he did not want to return as a mail handler and did not want to work a shift
starting at 7:00 p.m. The postal inspector noted: “[Appellant] did not provide any further
explanation other than being informed that he was to return to his original job duties to explain
how his headache was work related and caused within one day of return to work.”
In a decision dated January 25, 2006, the Office denied appellant’s claim for
compensation. The Office found that the change from appellant’s detail position to the position
of mail handler was not a compensable factor of employment.
At an August 31, 2006 hearing before an Office hearing representative, appellant testified
how he returned to work for a low-stress or less-stress environment and how he was then given a
letter demoting him back to the position of mail handler, requiring him to report to work
downtown at 7:00 p.m. Saturday. Appellant filed a grievance that was still pending. He
explained that he filed a claim for workers’ compensation because he was at work, on the clock
and being paid. Appellant stated that it was totally unfair, after all his years of service, to be
handled that way.
In a decision dated November 17, 2006, the hearing representative affirmed the denial of
appellant’s claim for compensation. The hearing representative found that objecting to the
manner in which the employing establishment carried out administrative functions was not
compensable and there was no evidence of error or abuse by the employing establishment.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim. When an employee claims that
he sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.2

1

5 U.S.C. §§ 8101-8193.

2

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton,
40 ECAB 1143 (1989).

2

Workers’ compensation, however, does not cover each and every injury or illness that is
somehow related to employment.3 An employee’s emotional reaction to an administrative or
personnel matter is generally not covered. Thus, the Board has held that an oral reprimand
generally does not constitute a compensable factor of employment,4 neither do disciplinary
matters consisting of counseling sessions, discussion or letters of warning for conduct;5
investigations;6 determinations concerning promotions and the work environment;7 discussions
about an SF-171;8 reassignment and subsequent denial of requests for transfer;9 discussion about
the employee’s relationship with other supervisors;10 or the monitoring of work by a
supervisor.11
Nonetheless, the Board has held that error or abuse by the employing establishment in an
administrative or personnel matter or evidence that the employing establishment acted
unreasonably in an administrative or personnel matter, may afford coverage.12 Perceptions alone
are not sufficient to establish entitlement to compensation. To discharge his burden of proof, a
claimant must establish a factual basis for his claim by supporting his allegations with probative
and reliable evidence.13
ANALYSIS
Appellant attributes his emotional condition to the reassignment he received on
December 6, 2005. As he testified, he was at work, was on the clock and he was being paid, but
not everything that happens to an employee at work is covered by workers’ compensation. As a
general rule, appellant’s reaction to the reassignment is not a compensable factor of his
employment. Coverage may be afforded when the evidence of record establishes error or abuse
by the employing establishment in the implicated administrative or personnel matter. The record
here makes no such showing. Appellant has his beliefs as to the motives of his superiors and he
clearly feels that they did not treat him fairly, but his claim for compensation benefits may not
rest solely on his perceptions. He must submit reliable, convincing evidence of error or abuse.
3

Lillian Cutler, 28 ECAB 125 (1976).

4

Joseph F. McHale, 45 ECAB 669 (1994).

5

Barbara J. Nicholson, 45 ECAB 803 (1994); Barbara E. Hamm, 45 ECAB 843 (1994).

6

Sandra F. Powell, 45 ECAB 877 (1994).

7

Merriett J. Kauffman, 45 ECAB 696 (1994).

8

Lorna R. Strong, 45 ECAB 470 (1994).

9

James W. Griffin, 45 ECAB 774 (1994).

10

Raul Campbell, 45 ECAB 869 (1994).

11

Daryl R. Davis, 45 ECAB 907 (1994).

12

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
13

Ruthie M. Evans, 41 ECAB 416 (1990).

3

Appellant testified that he was currently pursuing a grievance. However, grievances or Equal
Employment Opportunity complaints by themselves do not establish workplace harassment or
unfair treatment.14 As appellant testified, the grievance remains pending. With no proof of error
or abuse by management in its treatment of appellant on or about December 6, 2005, he has
failed to establish that his claim falls within the exception to the general rule that reactions to
administrative or personnel matters are not compensable. The Board will affirm the denial of
appellant’s claim for benefits. Appellant has not demonstrated error in the decision to assign him
to work as a mail handler.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 17 and January 25, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: May 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

14

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

4


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

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Appearances:
Larry Walker, for the appellant
Office of Solicitor, for the Director

Docket No. 13-110
Issued: May 28, 2013

Case Submitted on the Record

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

JURISDICTION
On October 20, 2012 appellant, through her representative, filed a timely appeal of a
June 26, 2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying her
occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a left knee injury causally
related to factors of her federal employment.
FACTUAL HISTORY
On September 22, 20112 appellant, then a 46-year-old part-time flexible city carrier, filed
a claim for traumatic injury. She alleged that on May 18, 2011 she injured her left knee while
1
2

5 U.S.C. § 8101 et seq.

Appellant listed the date of notice as September 22, 2011, but noted the date of September 28, 2011 with her
signature.

stepping out of a postal vehicle.3 In support of her claim, appellant submitted a July 8, 2011
magnetic resonance imaging (MRI) scan diagnosing a complex left knee medial meniscus tear.
By correspondence dated October 4, 2011, OWCP informed appellant that the evidence
of record was insufficient to support her claim. Appellant was advised to submit additional
medical and factual evidence to support her claim and given 30 days to provide the information.
In response to OWCP’s request, appellant submitted a claim for an occupational disease.
In an accompanying statement, she noted that, prior to May 2011, “from time to time around 17
May 2011,” she experienced severe pain and occasional left knee irritation when stepping from
the postal vehicle in May 2011. Appellant also contended that prolonged standing while casing
mail was a cause of the damage to her knee.
In a May 17, 2011 report, Dr. Jeffrey W. Webb, a treating Board-certified physician in
sports medicine, noted that appellant was seen for bilateral knee problems, but particularly the
left knee. He diagnosed mild left knee patellofemoral pain syndrome. Appellant related a
history of pain for the past few months and that she could not recall any specific injury. She
noted pain at the end of a cruise that she had just returned from. On physical examination, the
left knee revealed mild effusion, no pain at the lateral or medial joint line, mild pain at the
proximal patella tendon, negative McMurray’s test and stable laxity.
In a June 29, 2011 report, Dr. Webb reported that appellant was seen for left knee pain.
Appellant stated that, about a week prior, she felt significant knee pain while walking for 10
minutes in the mall. Dr. Webb diagnosed mild left knee osteoarthritis, possible left knee medial
meniscus tear and left knee pain with patellofemoral pain. He noted obesity with normal gait,
mild left knee effusion, moderate anteromedial joint line and medial patellar facet tenderness,
mild pain with deep flexion, normal ligament stability and fair range of motion.
On July 13 and August 24, 2011 Dr. Webb diagnosed complex left knee medial meniscus
tear and left knee mild medial compartment osteoarthritis. On physical examination, he noted a
normal gait, mild left knee effusion, mild tenderness at the medial knee joint line and patella, no
instability and normal range of motion. On August 24, 2011 Dr. Webb related that appellant
continued to have left knee pain and “had two episodes of catching since her last visit.”
By decision dated November 7, 2011, OWCP denied appellant’s occupational disease
claim finding that the medical evidence did not establish that her left knee condition was causally
related to her employment.4

3

Appellant originally filed a traumatic injury claim form which OWCP converted into an occupational disease
claim on November 2, 2011. OWCP also informed her by separate letter dated November 2, 2011 that it had deleted
file number xxxxxx806 as it was found to be a duplicate of file number xxxxxx090, the current file. All contents
from file number xxxxxx806 were moved to file number xxxxxx090.
4

Appellant filed a traumatic injury claim, alleging that she tore her left medial meniscus on October 27, 2011.
OWCP assigned file number xxxxxx162 and denied the claim on January 12, 2012. An OWCP hearing
representative affirmed on August 6, 2012, which is the subject of a Board appeal under Docket No. 13-111.

2

On December 11 and 12, 2011 appellant requested an oral hearing before an OWCP
hearing representative, which was held on March 20, 2012.
Appellant submitted an October 28, 2011 attending physician’s report5 that diagnosed left
knee chronic pain and left knee meniscal tear. The explanation given under the history of the
injury is illegible, except for noting a date of May 2011 and left knee. The “yes” box is checked
on the question of whether the diagnosed condition was caused or aggravated by an employment
activity. On December 5, 2011 an explanation was added by Dr. John I. Foster, III, a treating
Board-certified orthopedic surgeon, who stated that a “near fall” caused the work injury. In a
December 8, 2011 attending physician’s form, Dr. Foster diagnosed left medial meniscal tear
based on an MRI scan. Under history of the injury, he stated that appellant fell and twisted her
left knee at work on October 27, 2011. The “yes” box is checked on the question of whether the
diagnosed condition was caused or aggravated by an employment activity. Dr. Foster stated that
the “near fall [was positive] causation to a work injury.”
In a March 29, 2012 report, Dr. Foster diagnosed left medial meniscal tear which he
attributed to appellant twisting her knee at work on October 27, 2011. He related that she
informed him that she had no symptoms prior to an October 27, 2011 incident which occurred
while she was delivering mail. In addition, Dr. Foster related that appellant’s “[s]ymptoms
remain moderate, constant and have been present since the date of injury and were not present
before the date of injury.” On physical examination he noted a full range of motion, no
instability, normal motor and sensory examinations, left knee medial joint line tenderness and no
instability. In an addendum, Dr. Foster stated that appellant had clarifications, which included
that her first injury occurred on May 18, 2011. Appellant also related falling two more times
since the October 27, 2011 injury.
By decision dated June 26, 2012, an OWCP hearing representative affirmed the
November 7, 2011 denial of appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 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.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8

5

One of the physician’s signatures on the form is illegible.

6

5 U.S.C. § 8101 et seq.

7

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

8

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

3

To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (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.9
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.10 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.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 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 the
compensable employment factors.13 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.14
ANALYSIS
Appellant filed a claim for a traumatic injury which OWCP adjudicated as an
occupational disease claim as the factors appellant alleged occurred over more than one workday
or shift. OWCP denied her claim finding insufficient medical evidence to support a causal
relation between her left knee condition and her employment. The medical evidence of record
diagnosed a left medial meniscal tear, mild left knee osteoarthritis and mild left knee
patellofemoral pain syndrome. The Board finds that the medical evidence is insufficient to
establish that the diagnosed conditions are causally related to appellant’s work as a city carrier.

9

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
10

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

11

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

12

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
13

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

14

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

4

Dr. Foster opined that appellant’s left medial meniscal tear was employment related in a
December 8, 2011 form report and a March 29, 2012 report. He checked “yes” to the form
question of whether the diagnosed condition was caused or aggravated by an employment
activity. Dr. Foster’s basis for his conclusion was that a near fall was positive for causation of a
work injury. In this case, appellant premised her claim on stepping from her postal vehicle and
prolonged standing. There is no supporting medical rationale explaining this history. Medical
form reports merely asserting causal relationship without adequate rationale on causal
relationship are of diminished probative value and are insufficient to meet an employee’s burden
of proof.15
On March 29, 2012 Dr. Foster’s concluded that appellant’s injury was employment
related due to the lack of symptoms prior to an October 27, 2011 employment incident and being
symptomatic subsequent to her employment injury. The Board has held that an opinion that a
condition is causally related because the employee was asymptomatic before the injury is
insufficient, without sufficient rationale, to establish causal relationship.16 The March 29, 2012
report from Dr. Foster is insufficient to support appellant’s claim. He did not provide a full
history of the employment activities alleged by appellant in this claim.
Dr. Webb provided physical findings and diagnosed mild left patellofemoral pain
syndrome, mild left knee osteoarthritis, left knee pain and left medial meniscus tear. He did not
address the issue of causal relationship in any of his reports. Dr. Webb noted that appellant felt
significant left knee pain after walking in a mall for 10 minutes. He did not address the work
factors of prolonged standing or stepping from a vehicle. The Board has held that medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.17 The MRI scan and Dr. Webb’s
reports are insufficient to establish appellant’s claim.
In a March 29, 2012 report, Dr. Foster provided physical findings and a diagnosis of left
medial meniscus tear. He attributed the condition to appellant’s employment incident of
October 27, 2011 due to the lack of any symptoms prior to this incident which occurred while
she was delivering mail. Again, the factors of appellant’s work as alleged under this claim were
not addressed.
By letter dated October 4, 2011, OWCP informed appellant of the medical and factual
evidence required to support her claim. Appellant failed to provide a medical report adequately
explaining how her condition was causally related to her employment. An award of
compensation may not be based on surmise, conjecture or speculation. Neither the fact that
appellant’s conditions became apparent during a period of employment nor the belief that her
condition was caused, precipitated or aggravated by her employment is sufficient to establish

15

D.U., supra note 9; Sedi L. Graham, 57 ECAB 494 (2006).

16

T.M., Docket No. 08-975 (issued February 6, 2009); Michael S. Mina, supra note 13.

17

C.B., Docket No. 09-2027 (issued May 12, 2010); K.W., 59 ECAB 271 (2007); J.M., 58 ECAB 303 (2007);
Jaja K. Asaramo, 55 ECAB 200 (2004).

5

causal relationship.18
evidence.19

Such a relationship must be shown by rationalized medical opinion

OWCP advised appellant of the evidence required to establish her claim; however, she
failed to submit such evidence. Consequently, appellant has not met her burden of proof in
establishing that her claimed left knee condition was causally related to employment factors.
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 did not establish that she sustained a left knee injury
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 26, 2012 is affirmed.
Issued: May 28, 2013
Washington, DC

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

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

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

18

See D.U., supra note 9; D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB 339 (2004); Anna C. Leanza, 48
ECAB 115 (1996).
19

Patricia J. Bolleter, 40 ECAB 373 (1988).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-1650
Issued: April 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 12, 2006 appellant filed a timely appeal of a June 28, 2006 merit decision of the
Office of Workers’ Compensation Programs in which an Office hearing representative affirmed
the denial of wage-loss compensation and finalized an overpayment determination. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this overpayment
decision.
ISSUES
The issues are: (1) whether the Office properly determined that the issue presented was
whether appellant met his burden of proof to establish that he had partial disability for two hours
a day during the period January 8 to March 4, 2005 due to his accepted employment injuries;
(2) whether the Office properly determined that appellant received a $1,986.74 overpayment of
compensation for the period July 23 to September 3, 2005; (3) whether the Office properly
determined that appellant was at fault in creating the overpayment; and (4) whether the Office
properly recovered the overpayment by withholding $163.00 from continuing compensation
payments.

FACTUAL HISTORY
On March 1, 1999 appellant, then a 43-year-old mail processor, filed an occupational
disease claim alleging that the standing and pivoting in his job caused a right knee condition.
The Office accepted the claim for exacerbation of rotatory instability, joint derangement and
osteoarthritis right knee with arthroscopic surgery completed November 12, 1999, arthroscopic
surgery to the right knee on August 7, 2001, right total knee arthroplasty surgery on February 25,
2003 and revision right knee arthroplasty surgery on April 7, 2005. It also expanded the claim to
include a consequential injury to his fractured fifth metacarpal bone left hand. Appellant
returned to limited-duty work following each surgery and the Office paid appropriate
compensation benefits.
By decision dated December 22, 2000, the Office issued a schedule award for a 25
percent permanent impairment of the right leg. By decision dated April 16, 2002, the Office
found that appellant’s actual earnings as a modified mail processor, effective October 27, 2001,
fairly and reasonably represented his wage-earning capacity and that he had no loss of wageearning capacity. Following his February 25, 2003 total right knee replacement surgery, the
Office placed appellant on its periodic rolls. In an April 2, 2003 letter, the Office advised
appellant of the terms and conditions of being on the periodic rolls. This included notifying the
Office immediately upon return to work and returning any checks to the Office which included a
portion of a period in which he worked in order to avoid an overpayment of compensation.
Appellant returned to work on May 31, 2003 and continued to work in a limited-duty
capacity. In a September 26, 2003 decision, the Office found that appellant received an
overpayment in the amount of $1,438.93 for the period May 31 to June 14, 2003 as he received
compensation for wage loss after he returned to work.1
Medical evidence from appellant’s treating physician, Dr. Bernard D. Fishalow, a Boardcertified orthopedic surgeon, indicated that appellant’s right knee condition was worsening and
that he should work daytime hours due to his knee condition. On November 9, 2004 the
employing establishment offered appellant limited duty casing mail in a sit down position from
6:00 a.m. to 2:50 p.m. Following a period of partial disability,2 Dr. Fishalow stated, in a
December 27, 2004 return to work slip, appellant could return to light-duty work on
December 28, 2004. He advised that, due to appellant’s knee condition, he needed to stay on the
day shift to avoid “driving conditions/heavy traffic.” On December 28, 2004 the employing
establishment offered appellant limited duty for sedentary work casing mail with hours of work
from 3:30 a.m. to 12:00 p.m.
On January 5, 2005 appellant indicated that the work hours offered were outside the work
hours of 6:00 a.m. to 12:30 p.m. set by Dr. Fishalow. He indicated that he would work only the

1

The Office eventually wrote this debt off as uncollectible as appellant had declared bankruptcy.

2

Appellant filed a Form CA-7 claim for compensation for 32 hours of leave without pay for the period
November 29 to December 1, 2004. By decision dated February 15, 2005, the Office paid appellant 4 hours of pay
each day for a total of 12 hours of leave without pay.

2

hours set by his physician and would file a Form CA-7 claiming compensation for the “work
hours that I am not able to work due to my job-related medical restrictions.”
Medical reports from Dr. Fishalow were submitted. In a December 31, 2004 report,
Dr. Fishalow stated that appellant had problems with his right knee and “cannot be on it for any
long periods of time.” He indicated rotary instability with synovial thickening, but no effusion
or swelling. In a January 28, 2005 report, Dr. Fishalow advised that appellant’s right knee
showed rotary instability with no frank effusion. He noted that appellant reported problems with
prolonged standing, walking, squatting, kneeling, climbing and driving.
In a March 8, 2005 letter, Freda Infinger, an injury compensation specialist for the
employing establishment, noted that Dr. Fishalow had previously recommended that appellant
work daylight hours 6:00 a.m. to 2:30 p.m. to avoid heavy traffic and due to the rotary instability
of the right knee. She argued that the modified job offered to appellant began at 3:30 a.m.,
which would have less traffic than at 6:00 a.m., and that Dr. Fishalow had not provided any
medical rationale as to why appellant could only work between 6:00 a.m. to 2:30 p.m.
On March 9, 2005 appellant filed a Form CA-7 for wage loss commencing January 8 to
March 4, 2005 claiming 2 hours per day wage-loss compensation for a total of 76 hours.
Submitted were copies of his time analysis starting in January 2005 which indicated that he had
worked six hours per day.3 Also submitted was a June 17, 2004 report from Dr. Fishalow which
advised that appellant needed to work 6:00 a.m. to 2:30 p.m. due to the rotary instability and
swelling of the right knee.
In a March 15, 2005 report, Dr. Fishalow recommended a revision to appellant’s right
knee prosthesis as his right knee had progressive swelling, pain and instability. In a March 30,
2005 report, he advised that appellant would be out approximately three months following his
scheduled April 7, 2005 surgery. The Office approved the revision right total knee arthropathy
and paid compensation for eight hours per day wage loss for the period beginning April 7, 2005.
In a letter dated April 6, 2005, the Office advised appellant that it could not pay two
hours of wage-loss compensation per day for the period January 8 to March 4, 2005 because
there was no medical justification from his physician explaining why he could only work six
hours a day. It also noted that appellant had been released to work eight hours a day and there
appeared to be no medical rationale from his physician explaining why he could only work from
6:00 a.m. to 2:30 p.m. as opposed to working 3:30 a.m. to 12:00 p.m. The Office requested that
appellant have his physician explain why he could not work beginning 3:30 a.m. Appellant was
provided 30 days to provide the requested information. No medical reports were submitted.

3

Appellant also filed CA-7 forms claiming wage-loss compensation for the period March 5 to April 8, 2005 for
50 hours and April 8 to 15, 2005 for 40 hours. As indicated in the text, the Office paid wage-loss compensation for
the period beginning April 7, 2005. The record does not contain any decision pertaining to appellant’s claim of
wage-loss compensation for the period March 5 to April 8, 2005; thus, the Board does not have jurisdiction over this
matter as it only has jurisdiction to consider and decide appeals from final Office decisions. 5 U.S.C. § 501.2(c).

3

By decision dated May 25, 2005, the Office denied compensation for wage loss for the
period January 8 to March 4, 2005 for two hours a day on the basis that the medical
documentation did not support disability during that period.
On June 20, 2005 appellant requested an oral hearing of the Office’s May 25, 2005
decision. Additional reports from Dr. Fishalow noting appellant’s condition following the
April 7, 2005 surgery were submitted.4
On July 19, 2005 the employing establishment made an offer of limited duty to appellant
for sedentary work with hours of 3:30 p.m. to 7:30 p.m.5 On July 23, 2005 appellant returned to
work in a four-hour, sedentary duty capacity. On August 23, 2005 he accepted the July 19, 2005
job offer.
The Office terminated compensation for eight hours per day wage loss effective
September 4, 2005. Appellant received four hours of wage-loss compensation per day effective
September 5, 2005.6
On September 8, 2005 the Office made a preliminary determination that appellant
received an overpayment in the amount of $1,986.74 from July 23 to September 3, 2005 as
appellant had worked limited duty four hours a day since July 23, 2005 but continued to receive
total disability compensation. The Office determined that appellant was with fault in the creation
of the overpayment as he knew or should have known that he was no longer entitled to
compensation benefits once he returned to work on July 23, 2005 and should have returned the
payments to the Office. It requested that appellant submit financial information and state
whether he wanted a hearing or requested a waiver of the overpayment. The worksheets indicate
that for the period July 23 to September 3, 2005 appellant received total disability compensation
in the amount of $4,010.79 but should have been paid $2,024.05 for 4 hours loss of wages per
day.
The record reflects that appellant stopped work September 17, 2005 and filed a claim for
wage-loss compensation. Medical evidence of record included: reports and OWCP-5 forms
from Dr. Fishalow, which advised that appellant could only work four hours per day sedentary
work, along with medical reports from July 18, September 13, October 6, 10 and 13,
November 7 and December 9, 2005, which reported on appellant’s condition and advised of the
medical necessity to work during daytime hours only. Also submitted were: medical reports
from Dr. Marc Alan Reiskind, Board-certified in physical medicine and rehabilitation, dated
January 10 through April 4, 2005; a September 12, 2005 medical report from Dr. Frances
4

In a July 18, 2005 report, Dr. Fishalow indicated that appellant could return to sedentary work four hours a day
from 6:00 a.m. to 10:00 a.m. before the leg starts swelling.
5

In a July 19, 2005 letter, Ms. Infinger advised that because Dr. Fishalow provided no medical rationale for his
requested hours, the specific hours requested were not considered a physical restriction as it was not medically
justified for appellant’s recovery.
6

The record reflects that appellant received supplemental payments for wage loss covering the periods
September 4 to 23, 2005 and September 24 to 30, 2005.

4

Sahebzamani, Ph.D., ARNP; reports from Maureen Kapatkin, ARNP, MB, dated October 6 and
20, 2005; a December 1, 2005 report from Dr. George Haidukewych, a Board-certified
orthopedic surgeon; and a January 18, 2006 report from Dr. Thomas Bernasek, a Board-certified
orthopedic surgeon. These reports noted appellant’s right knee conditions and/or provided
comments on whether it was medically preferable for appellant to work the day shift.7
A hearing was held on April 3, 2006. Appellant provided a history of the hours he
worked at the employing establishment. With respect to his claim for two hours wage-loss
compensation for the period January 8 through March 4, 2005, he stated that he worked limitedduty daytime hours from about 2003 to January 2005 and his right knee did not swell. In
January 2005, appellant stated that the employing establishment only had six hours of limited
duty available during daytime hours, so he worked six hours a day from about January 8 to
March 4, 2005 and claimed compensation for the two hours per day wage loss. Concerning the
overpayment, appellant stated that he returned to work four hours a day on July 23, 2005 to
about September 14, 2005. He stated that, when he received a compensation check after he
returned to work, he thought he was entitled to it as he knew he was entitled to half-time
compensation. Appellant stated that he did not recall receiving a letter telling him to return any
checks received after returning to work. He further stated that he did not believe that he was at
fault in the creation of the overpayment as he was unaware that he received an overpayment in
compensation. Appellant further stated that he would experience financial hardship if he had to
repay the overpayment. The Office hearing representative provided appellant 30 days to submit
medical evidence in support of his partial wage-loss compensation claim and a documented
financial statement showing financial hardship.
In an April 17, 2006 statement, Pat Davis-Weeks, a union representative, argued that the
medical evidence supported appellant’s wage-loss claim for two hours per day compensation in
early 2005 as it indicated earlier work hours were a medical necessity because appellant’s edema
was less early in the day. Of record were reports from Dr. Fishalow dated January 23,
February 6 and April 6, 2006, noting appellant’s progress.
In an April 19, 2006 financial statement, appellant indicated that his monthly income was
workers’ compensation of $1,632.00; and from the Department of Veterans Affairs was
$2,523.00 and after June 1, 2006 would be $391.00. Accordingly, he stated that he currently
received $4,155.00 monthly income but as of June 1, 2006 would receive $2,023.00 monthly
income. Appellant listed his expenses as: mortgage $1,249.00; cable $54.00; Alltel $71.00;
divorce payment $500.00; electric $100.00; car insurance $68.00; dentist $25.00; orthodontist
$120.00; loan to CIV $207.00; food $500.00; gas $200.00; house expenses $25.00; property tax
$133.00 for a total of $3,252.00. Documentation was provided for the above expenses with the
exception of food, gas, house expenses and property tax. No list or documentation of assets was
provided.
In a decision dated June 28, 2006, the Office hearing representative found that appellant
was not entitled to partial wage-loss compensation for two hours a day for the period January 8
7

Appellant subsequently returned to work after the Office, in an April 19, 2006 letter, denied appellant’s request
to change his work hours to the day.

5

to April 8, 2005. The Office hearing representative additionally found that appellant received an
overpayment in the amount of $1,986.74 for which he was at fault in the acceptance of the
overpayment. The Office hearing representative noted that, since appellant did not provide a list
of assets and failed to document all his expenses, recovery of the overpayment would be set at a
minimal rate of 10 percent of the current four-week compensation payment or $163.00.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8
The Office’s procedure manual provides that, [i]f a formal loss of wage-earning capacity
decision has been issued, the rating should be left in place unless the claimant requests
resumption of compensation for total wage loss. In this instance, the claims examiner will need
to evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity.9
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was, in fact, erroneous.10 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.11
ANALYSIS -- ISSUE 1
The Office developed the evidence and determined that the issue presented was whether
appellant had established a partial disability for two hours of work for the period January 8 to
March 4, 2005. Under the circumstances of this case, however, the Board finds that the issue
presented was whether the April 16, 2002 wage-earning capacity determination should be
modified.
Appellant is seeking compensation for a partial disability for a total of 76 hours of work
for the period January 8 to March 4, 2005 directly related to the accepted right knee conditions.
At the time appellant claimed his partial disability, he was working in a permanent light-duty
position casing mail and performing sedentary duties only. Thus, appellant must show a material
change in the nature and extent of the injury-related condition, that he had been retrained or
8

See Sharon C. Clement, 55 ECAB 552 (2004).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).
10

Sue A. Sedgwick, 45 ECAB 211 (1993).

11

Id.

6

otherwise vocationally rehabilitated, or that the original April 16, 2002 wage-earning capacity
determination was, in fact, erroneous.
According to the evidence, appellant returned to work as a modified mail processor on
October 27, 2001 and a loss of wage-earning capacity decision was issued on April 16, 2002. On
March 9, 2005 appellant filed a Form CA-7 for 2 hours of wage loss commencing January 8 to
March 4, 2005 for a total of 76 hours and submitted reports from Dr. Fishalow, which the Office
advised were insufficient to support his claim for employment-related disability. It is clear that
the claim in this case was that appellant’s right knee condition had deteriorated such that he had
difficulty working or was unable to work in his permanent light-duty position. The employing
establishment had accommodated his doctor’s request by offering a light-duty position involving
sedentary duties casing mail from November 2004. The Board has held that, when a wageearning capacity determination has been issued, and appellant submits evidence with respect to
disability for work, the Office must evaluate the evidence to determine if modification of wageearning capacity is warranted.12
As noted above, the Office procedure manual directs the claims examiner to consider the
criteria for modification when the claimant requests resumption of compensation for total wage
loss. This section of the procedure manual covers the situation when a claimant has stopped
working, but the principle is equally applicable to a claim of increased disability. The Board
finds that the Office should have considered the issue as a request for modification of the wageearning capacity determination.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of the Federal Employees’ Compensation Act13 provides in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”
Section 8116(a) of the Act provides that an employee who is receiving compensation for
an employment injury may not receive wages for the same time period.14

12

See Sharon C. Clement, supra note 8. The Board notes that consideration of the modification issue does not
preclude the Office from acceptance of a limited period of employment-related disability, without a formal
modification of the wage-earning capacity determination. Id. at n.10, slip op. at 5; Cf. Elsie L. Price, 54 ECAB 734
(2003) (acceptance of disability for an extended period was sufficient to establish that modification of the wageearning capacity determination was warranted).
13

5 U.S.C. § 8129(a).

14

5 U.S.C. § 8116(a).

7

ANALYSIS -- ISSUE 2
The record reveals that appellant returned to work on July 23, 2005 for four hours a day
five days a week in a limited-duty position. He was entitled to compensation for four hours a
day. During the claimed period of compensation from July 23 to September 3, 2005, the Office
determined that appellant was only entitled to $2,024.05 for four hours of disability
compensation per day. However, the Office paid him $4,010.79 for total disability wage loss
during that period. Because appellant worked at the employing establishment for four hours a
day and received regular wages for those hours during the period July 23 to September 3, 2005,
he was not entitled to total disability compensation from the Office for the same period. The
record establishes that he received an overpayment of compensation in the amount of $1,986.74.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act provides as follows: Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.15 No waiver of an overpayment is possible if the claimant is at fault
in creating the overpayment.16
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to or the amount of, benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) failed to provide information which he or she knew or
should have known to be material; or (3) accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).17
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.18

15

5 U.S.C. § 8129(b).

16

Gregg B. Manston, 45 ECAB 344 (1994).

17

20 C.F.R. § 10.433(a); Kenneth E. Rush, 51 ECAB 116 (1999).

18

20 C.F.R. § 10.433(b).

8

ANALYSIS -- ISSUE 3
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. In order for the Office to establish that appellant was with fault in creating the
overpayment of compensation, the Office must establish that, at the time appellant received the
compensation check in question, he knew or should have known that the payments were
incorrect.19 The record establishes such knowledge.
The Board notes that, where an overpayment resulted from negligence on the part of the
Office, this does not excuse the employee from accepting payments he knew or should have
known were incorrect.20 Appellant returned to work for four hours a day on July 23, 2005. The
Office, however, continued to pay him temporary total disability compensation during the period
July 23 to September 3, 2005. The September 8, 2005 preliminary determination stated that
appellant should have realized he was not entitled to compensation for the period July 23 to
September 3, 2005, as he was advised by the April 2, 2003 letter that, once he returned to work,
he was not entitled to any further compensation and that he should return any compensation
checks received after returning to work even if he worked for part of the period for which
compensation was paid. The Office additionally noted that appellant’s overpayment in 2003 was
sufficient to have put appellant reasonably on notice to return to the Office any compensation
checks he received after a return to work. Under the circumstances of this case, the Office
provided a sufficient explanation for the fault determination. Appellant returned to work four
hours a day on July 23, 2005. At the April 3, 2006, hearing, appellant acknowledged that he was
aware of receiving wage-loss compensation after he returned to work on July 23, 2005.
Although appellant remained entitled to four hours of disability compensation, he accepted
payments he knew or should have known were incorrect as he returned to work and the checks
were for temporary total disability. Moreover, the record contains evidence that appellant had a
previous overpayment in 2003 which was similar to the present situation. This should have put
appellant on notice that he could not accept compensation after he returned to work.
The Board finds that, under the circumstances of this case, the Office properly found that
appellant knew or should have known that the checks issued from July 23 to September 3, 2005
were incorrect. As appellant was not without fault under the third standard outlined above,
recovery of the overpayment of compensation in the amount of $1,986.74 may not be waived.
LEGAL PRECEDENT -- ISSUE 4
Section 10.441(a) of the Office’s regulations provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
same. If no refund is made [the Office] shall decrease later payments of
19

Lorenzo Rodriguez, 51 ECAB 295, 298 (2000); Robin O. Porter, 40 ECAB 421 (1989).

20

See Russell E. Wageneck, 46 ECAB 653 (1995).

9

compensation, taking into account the probably extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”21
ANALYSIS -- ISSUE 4
With respect to the $163.00 withheld from appellant’s continuing compensation
payments to recoup the amount of the outstanding payment, the Office’s regulations note the
factors to be considered in determining repayment from continuing compensation.22 The
implementing regulations provide that the Office must take 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 any hardship.23 In this case, the Office hearing
representative noted that since appellant did not provide a list of assets and failed to document all
his expenses, recovery of the overpayment would be set at a minimal rate of 10 percent of the
current four-week compensation payment or $163.00.
Prior to the Office’s June 28, 2006 decision, appellant submitted an April 19, 2006
financial statement in which he indicated that his monthly income comprised of compensation
payments from the Office as well as the Department of Veterans Affairs. He indicated that his
monthly income prior to June 1, 2006 was $4,155.00 but would decrease to $2,023.00 as of
June 1, 2006. Appellant additionally stated that his monthly expenses totaled $3,252.00. Thus,
the record indicates that as of June 1, 2006 his monthly expenses exceeded his monthly income
by approximately $1,229.00. No list of assets were provided. There is no indication in the
Office’s June 28, 2006 decision that the hearing representative took this information into
consideration in setting the rate of recovery at $163.00 from his continuing compensation
payment. Therefore, the Board finds that the Office abused its discretion in determining the rate
of recovery in this case. The case will be remanded to determine the rate of recovery after
considering the evidence of record concerning appellant’s financial circumstances.24
CONCLUSION
The Board finds that appellant’s claim for compensation for the period January 8 to
March 4, 2005, due to his accepted right knee condition, raised the issue of whether a
modification of the April 16, 2002 wage-earning capacity decision was warranted and the case
must be remanded for an appropriate decision on this issue. The Board also finds that the Office
properly determined that appellant received a $1,986.74 overpayment of compensation from
July 23 to September 3, 2005 for which he was at fault in creating. The Board further finds that
the case is set aside with respect to the rate of recovery from continuing compensation.
21

20 C.F.R. § 10.441(a).

22

Id. See Fred A. Cooper, Jr., 44 ECAB 498 (1994).

23

Id.

24

See Stephen A. Hund, 47 ECAB 432 (1996) (where the Board found that the Office abused its discretion in
determining the rate of adjustment without considering the evidence of record including an overpayment
questionnaire).

10

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated June 28, 2006 is set aside and remanded
for further action consistent with this decision of the Board with respect to appellant’s claim for
wage-loss entitlement during the period January 8 to March 4, 2005 and the issue of rate of
recovery. The decision regarding the fact and amount of overpayment and waiver is affirmed.
Issued: April 12, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11