United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
North Little Rock, AR, Employer
__________________________________________

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Appearances:
Daniel A. Webb, Esq., for the appellant
No appearance, for the Director

Docket No. 13-405
Issued: July 18, 2013

Oral Argument April 23, 2013

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On December 5, 2012 appellant, through his attorney, filed a timely appeal from a
June 11, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his 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 met his burden of proof to establish that he sustained a
stroke in the performance of duty as a Veterans Affairs (VA) painter.
FACTUAL HISTORY
On December 13, 2011 appellant, then a 66-year-old painter, filed an occupational
disease claim (Form CA-2) alleging that he developed high blood pressure and sustained a stroke
1

5 U.S.C. § 8101 et seq.

as a result of his federal employment duties. He stated that, while working on Ward 4C, he felt
nauseous and his leg went numb. Appellant went downstairs to the VA Primary Care Clinic
(PCC) and collapsed after being told he needed a computerized tomography (CT) scan. He first
became aware of his condition and of its relationship to his employment on November 17, 2011.
Appellant notified his supervisor on November 17, 2011.
By letter dated December 16, 2011, the employing establishment controverted the claim
stating that appellant did not establish performance of duty. It noted that he informed his
supervisor that his leg felt sluggish before he came to work the morning of the claimed incident.
In support of his claim, appellant submitted medical records, diagnostic tests, nursing
notes and physical therapy notes dated November 18 through December 16, 2011.
In a November 18, 2011 nursing note, Jotis Lee, a registered nurse, reported that
appellant presented at the primary care nursing triage at 10:00 a.m. complaining of breathing and
left-sided numbness. Nurse Lee consulted with Dr. Mohammad Zakiullah, a treating physician,
who ordered clonidine for appellant.
In a November 18, 2011 emergency room (ER) report, Dr. Richard P. Doncer, Boardcertified in family medicine, reported that appellant was admitted to the ER at 2:00 p.m.,
complaining of left-sided weakness. He reported that appellant went to work early in the
morning and felt like his left leg started to drag. Appellant also noticed weakness in his left arm.
Over the course of the morning, his condition worsened causing him to seek treatment at the VA
PCC around 11:00 a.m. While appellant was at the clinic, the weakness in his left leg worsened,
rendering him unable to walk out of the clinic. The PCC suspected that he could have had a
stroke and ordered a CT scan. Appellant was then sent to the ER with complaints of
nauseousness and weakness in the left arm and leg. Dr. Doncer noted that appellant did not have
a history of strokes but had a history of hypertension with elevated blood pressure. A CT scan of
the brain revealed white matter disease with no bleed or other acute abnormality. Dr. Doncer
diagnosed right hemispheric ischemic stroke.
In a November 22, 2011 medical report, Dr. Whitney J. Scifres, Board-certified in
physical medicine and rehabilitation, reported that appellant noticed that he was staggering when
he got out of bed to shower on November 18, 2011, prior to coming to work at the VA as a
painter. She noted that he arrived at work every morning at 6:30 a.m., prior to his shift to avoid
traffic and to get a parking space. Appellant took his typical “power nap” upon arrival and
decided to walk to the University of Arkansas for Medical Sciences (UAMS) building to get
breakfast before the start of his shift. On his return from breakfast, he noticed that he felt like a
“drunk man” and his left leg started to drag. Appellant further noticed it more when he started
downstairs to his work area. He obtained his supplies and proceeded to work but felt nauseous
with left arm numbness. Appellant visited the PCC and was told he needed a CT scan. When
attempting to leave, he fell upon rising. After completion of the CT scan, appellant was
transferred to the ER. A November 18, 2011 magnetic resonance imaging scan of the brain and
neck showed a focal area of restricted diffusion involving the right frontoparietal periventricular
white matter and the posterior external capsule suggestive of an acute infarction. Physical
therapy was recommended.

2

By letter dated March 6, 2012, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and asked that he respond to the provided questions within 30 days. In another March 6,
2012 letter, OWCP requested that the employing establishment provide information regarding
his employment duties and any information pertaining to the claimed November 18, 2011
incident.
In a March 25, 2012 narrative statement, appellant reported that his symptoms and
condition began on November 17, 2011, noting that his only preexisting condition was high
blood pressure. He stated that his tour of duty began at 7:30 a.m. and ended at 4:00 p.m.
Appellant stated that he drove to work around 5:30 a.m. and took a nap before walking to the
UAMS cafeteria at 6:45 a.m., which was connected to the VA hospital. After returning from
breakfast, he reported to the assigned area on Ward 4D to complete a work order to paint patches
on walls. Appellant was not on a ladder and had not begun to paint. He suddenly became
nauseated and felt very sick. When it worsened, appellant went to the PCC and Dr. Zakiullah
recommended that he get a CT scan. When he attempted to stand up from the chair, he fell to the
floor. Appellant stated that he did not have any falling or fainting episodes prior to
November 18, 2011, did not know if he had any visible trauma from his fall and did not know if
he struck any objects when falling to the floor because he was having a stroke. In support of his
claim, he provided a position description for painter-vinyl wallpaper hanger.
In an undated narrative statement, Mike Armack, appellant’s supervisor, reported that he
concurred with appellant’s claim. He stated that he did not know of any other fall or fainting
episode that may have occurred prior to November 18, 2011. Mr. Armack further stated that
appellant was in the nurse’s office when he fell so the physician and nurse witnessed his fall. He
reported that, on the morning of the November 18, 2011 incident, appellant informed him of the
incident and told him that his leg felt sluggish and heavy.
By decision dated June 11, 2012, OWCP denied appellant’s claim on the grounds that the
evidence submitted was not sufficient to establish that he was injured in the performance of duty.
It noted that the medical evidence of record failed to establish that the injury occurred during the
course of employment and within the scope of compensable work factors.
LEGAL PRECEDENT
In providing for a compensation program for federal employees, Congress did not
contemplate an insurance program against any and every injury, illness or mishap that might
befall an employee contemporaneous or coincidental with his or her employment. Liability does
not attach merely upon the existence of an employee-employer relation. Instead, Congress
provided for the payment of compensation for disability or death of an employee resulting from
personal injury sustained while in the performance of duty.2
The Board has interpreted the phrase while in the performance of duty to be the
equivalent of the commonly found requisite in workers’ compensation law of arising out of and
in the course of employment. In the course of employment deals with the work setting, the
2

See 5 U.S.C. § 8102(a).

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locale and time of injury whereas, arising out of the employment, encompasses not only the work
setting but also a causal concept, the requirement being that an employment factor caused the
injury. In addressing this issue, the Board has stated that in the compensation field, to occur in
the course of employment, in general, an injury must occur: (1) at a time when the employee
may reasonably be stated to be engaged in his or her master’s business; (2) at a place where he or
she may reasonably be expected to be in connection with the employment; and (3) while he or
she was reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.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.4
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.5 The opinion of the physician 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. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.6
ANALYSIS
The Board finds that appellant failed to establish that he sustained a stroke in the
performance of duty as a VA painter.
Appellant must establish all of the elements of his claim in order to prevail. He must
prove his employment, the time, place and manner of injury, a resulting personal injury and that
his injury arose in the performance of duty. Appellant alleged that he sustained a stroke as a
result of his federal employment duties as a painter.
Appellant has failed to establish that his injury occurred in the performance of duty as he
did not provide sufficient detail to establish that an occupational exposure occurred as alleged.7
3

Kathryn S. Graham Wilburn, 49 ECAB 458 (1998).

4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

6

James Mack, 43 ECAB 321 (1991).

7

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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On his Form CA-2, he stated that he was working on Ward 4C, his stomach was nauseous and
his leg went numb. Appellant failed to describe the circumstances of his alleged injury and the
duties he was performing which caused his injury. His March 25, 2012 narrative statement notes
that, on November 18, 2011, he returned from breakfast to the assigned area on Ward 4D to
complete a work order, but had not begun to paint and was not on a ladder. The record is silent
on what employment duties appellant was performing from 7:30 a.m., when his tour of duty
began, to 10:00 a.m., when he visited the PCC. The record only establishes that he was not
painting and had not climbed a ladder on November 18, 2011. As appellant filed a CA-2 form,
he has alleged that his stroke was caused by cumulative trauma produced by his work
environment over a period longer than a single workday or shift.8 However, he failed to provide
an adequate description of his employment duties, which he believed caused or aggravated his
condition to establish that an occupational exposure occurred as alleged.
The medical evidence of record further fails to substantiate appellant’s claim. In his
November 18, 2011 ER report, Dr. Doncer provided a diagnosis of right hemispheric ischemic
stroke. He reported that appellant went to work early in the morning and felt like his left leg
started to drag. Over the course of the morning, appellant noticed his condition worsening and
went to the VA PCC around 11:00 a.m. Dr. Scifres’ November 22, 2011 report noted that, on
November 18, 2011, appellant was staggering when he got out of bed to shower in the morning.
She noted that appellant arrived at work at 6:30 a.m., prior to his shift to avoid traffic, get a
parking space and to take a “power nap” before going to UAMS for breakfast. On his return
from breakfast, appellant noticed that he felt like a “drunk man” and his left leg started to drag.
He further noticed it more when he started downstairs to his work area. Appellant obtained his
supplies and proceeded to work but felt nauseous with left arm numbness. He visited the PCC
and fell when attempting to leave.
As appellant himself has alleged that his symptoms began on November 17, 2011, it is
unclear if he suffered a stroke on November 17, 2011 at the onset of his symptoms, on the
morning of November 18, 2011 prior to the start of his work shift or during the course of
employment while performing his federal employment duties on November 18, 2011. Though
his symptoms may have persisted into his workday on November 18, 2011, the medical reports
contain no discussion of his federal employment duties as a VA painter, how many hours he
worked a day and the frequency of other physical movements and tasks to establish an alleged
occupational exposure. The reports also provide no information on when appellant suffered his
stroke, whether it was during the course of employment and whether his employment duties
caused or aggravated his condition. Thus, the medical reports of record fail to factually establish
that an occupational exposure occurred while in the performance of duty.
Moreover, not only must appellant establish that an injury occurred in the performance of
duty as alleged, but he must also establish that his disability and/or specific condition for which
compensation is claimed are causally related to his injury by submitting rationalized medical
opinion evidence.9 The medical reports of record provide a firm diagnosis of right hemispheric
ischemic stroke. However, the condition cannot be connected to an alleged occupational
8

20 C.F.R. § 10.5(q).

9

Marie St. Clair, Docket No. 03-1688 (issued September 10, 2003).

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exposure in the workplace as the physicians failed to provide an opinion on the cause of
appellant’s stroke.10 The reports of Dr. Doncer and Dr. Scifres failed to describe with any
specificity when appellant suffered his stroke, the type work appellant was engaged in as a VA
painter and how this work could cause or aggravate his medical condition. The physicians failed
to describe a mechanism of injury, did not determine that his condition was work related and did
not offer a rationalized opinion on the issue of causal relationship.11 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.12 The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.13 As Dr. Doncer and Dr. Scifres failed to provide a
rationalized opinion that appellant suffered a stroke in the performance of duty as a result of his
employment activities as a VA painter, their reports are insufficient to meet his burden of
proof.14
The remaining medical evidence of record, including diagnostic studies, provide no new
information regarding the factual circumstances surrounding appellant’s stroke and fail to
provide any opinion on causal relationship.15 Moreover, the physical therapy reports are of no
probative value as physical therapists are not physicians under FECA.16 Thus, the medical
evidence of record fails to support that appellant suffered a stroke in the performance of duty as a
VA painter.17
As appellant has failed to establish an occupational exposure as a result of his work
duties, he has also failed to establish that his injury occurred while in the performance of duty.
On appeal, his counsel argued that appellant suffered his stroke sometime between 7:30 a.m.,
when his shift started, to 10:00 a.m., when he went down to the PCC. As previously mentioned,
the record before the Board does not contain any information regarding what work activities
appellant was performing, which he alleged caused or aggravated his condition. As appellant has
10

C.f. S.A., Docket No. 10-1786 (issued May 4, 2011) (where the Board found that appellant established that the
incident occurred as alleged, as there were no inconsistent statements from appellant or other evidence refuting the
occurrence of the alleged incident).
11

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
12

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

13

See Lee R. Haywood, 48 ECAB 145 (1996).

14

Supra note 12.

15

S.E., supra note 12.

16

Nurses, physician’s assistants, physical and occupational therapists are not “physicians” as defined by FECA,
their opinions regarding diagnosis and causal relationship are of no probative medical value. 5 U.S.C. § 8101(2) of
FECA provides that the term “physician” includes surgeons, podiatrists, dentists and clinical psychologists.
17

R.M., Docket No. 11-1921 (issued April 10, 2012).

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alleged an occupational disease, he must factually establish the regularly assigned work duties he
attributes to the cause of his condition.18 Moreover, though he has established a firm medical
diagnosis, he failed to submit rationalized medical evidence from a physician, which describes
his employment duties and provides an explanation on how these duties caused his injury.19 The
record lacks any evidence establishing the factual element of appellant’s claim, namely, that a
claimed occupational exposure caused him medical injury or disease.
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.20 An award of compensation may not
be based on surmise, conjecture, speculation or on the employee’s own belief of causal
relation.21 Appellant failed to provide evidence to prove the fact of injury, its time, place and
manner and that the injury was causally related to his federal employment. Because he did not
submit sufficient evidence demonstrating the alleged occupational exposure actually occurred as
alleged, OWCP properly denied his claim.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease in the performance of duty as a painter.

18

An occupational disease is defined as a condition produced by the work environment over a period longer than
a single workday or shift. Supra note 8. A traumatic injury means a condition of the body caused by a specific
event or incident or series of events or incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee).
19

Supra note 12.

20

Daniel O. Vasquez, 57 ECAB 559 (2006).

21

D.D., 57 ECAB 734 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the June 11, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 18, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, VA, Employer
_________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 08-675
Issued: September 4, 2008

Oral Argument July 22, 2008

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 9, 2008 appellant filed a timely appeal from a November 30, 2007 decision of
the Office of Workers’ Compensation Programs, denying her claim for a recurrence of disability,
and a December 21, 2007 decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of disability on July 16,
2007 causally related to her September 18, 2002 accepted lumbar strain; and (2) whether the
Office abused its discretion in denying her request for reconsideration.
FACTUAL HISTORY
On September 30, 2002 appellant, then a 27-year-old letter carrier, filed an occupational
disease claim alleging that, beginning on September 18, 2002, she sustained a low back injury
due to carrying a heavy mailbag. The Office accepted her claim for a lumbar strain. She was

released to return to work with restrictions on September 30, 2002. On December 9, 2002 she
returned to regular work.
On August 30, 2007 appellant filed a claim for a recurrence of disability as of July 16,
2007 causally related to her September 18, 2002 accepted lumbar strain.
In a disability certificate dated July 30, 2007, a physician indicated that appellant was
disabled until August 6, 2007 due to neck and back pain.
In disability certificates and reports
chiropractor, described his clinical findings
neurovascular test. He diagnosed “lumbar”
increasing neck pain worsened by her work.
restricted work on August 27, 2007.

dated August 6 to 17, 2007, Dr. J. Beauchamp, a
as restricted motion, painful spasm and a positive
and indicated that appellant experienced gradually
Dr. Beauchamp stated that appellant could resume

In reports dated July 18 and October 4, 2007, Virginia M. Vesay, a physician’s assistant,
stated that appellant was seen on July 16, 2007 for severe leg and back pain. X-rays of her
cervical and lumbar spine were normal. Appellant was advised to consult an orthopedic
specialist.
By letter dated September 20, 2007, the Office requested additional evidence, including a
comprehensive medical report addressing the history of appellant’s condition, clinical
examination findings including a discussion of any diagnostic test results, a firm diagnosis, the
course of treatment followed, the results of x-ray and laboratory studies and the physician’s
opinion on the causal relationship between the claimed July 16, 2007 recurrence of disability and
the September 18, 2002 employment-related lumbar strain. No further medical reports were
submitted.
By decision dated November 30, 2007, the Office denied appellant’s claim on the
grounds that the medical evidence failed to establish that she sustained a recurrence of disability
on July 16, 2007 causally related to her September 18, 2002 accepted lumbar strain.
Appellant requested reconsideration and submitted additional evidence which included a
bill from a physician and reports from her chiropractor dated August 6 to October 8, 2007. The
chiropractic reports contained no firm diagnosis, just an indication of cervical and lumbar spine
problems. Dr. Beauchamp noted that appellant was involved in a motor vehicle accident in
March 2007. Appellant also submitted evidence previously of record.
By decision dated December 21, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence did not warrant further merit review.1

1

Subsequent to the December 21, 2007 decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

2

LEGAL PRECEDENT -- ISSUE 1
An employee who claims a recurrence of disability under the Federal Employees’
Compensation Act2 due to an accepted employment-related injury has the burden of establishing
by the weight of the substantial, reliable and probative evidence that the disability for which
compensation is claimed is causally related to the accepted 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
the employment injury and supports that conclusion with sound medical rationale.4 Where no
such rationale is present, medical evidence is of diminished probative value.5
“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.”6
ANALYSIS -- ISSUE 1
Appellant has the burden to provide medical evidence establishing that she sustained a
recurrence of disability beginning July 16, 2007 causally related to her accepted September 18,
2002 lumbar strain.
In a disability certificate dated July 30, 2007, a physician indicated that appellant was
disabled until August 6, 2007 due to neck and back pain. There was no diagnosis or any
explanation as to how her condition and disability were causally related to her September 18,
2002 accepted lumbar strain. Therefore, this disability certificate is not sufficient to establish
that appellant sustained a recurrence of disability on July 16, 2007 causally related to her
September 18, 2002 employment injury.
Dr. Beauchamp, a chiropractor, described clinical findings of restricted motion, painful
spasm and a positive neurovascular test. His only diagnosis was the word “lumbar.”
Dr. Beauchamp indicated that appellant experienced gradually increasing neck pain worsened by
her work. In assessing the probative value of chiropractic evidence, the initial question is
whether the chiropractor is considered a physician under 5 U.S.C. § 8101(2). A chiropractor is
not considered a physician under the Act unless it is established that there is a spinal subluxation
as demonstrated by x-ray to exist.7 The Office’s implementing regulations define subluxation to
mean an incomplete dislocation, off-centering, misalignment, fixation or abnormal spacing of the
2

5 U.S.C. §§ 8101-8193.

3

Charles H. Tomaszewski, 39 ECAB 461 (1988).

4

Lourdes Davila, 45 ECAB 139 (1993).

5

Michael Stockert, 39 ECAB 1186 (1988).

6

20 C.F.R. § 10.5(x).

7

See Mary A. Ceglia, 55 ECAB 626 (2004).

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vertebrae which must be demonstrated on any x-ray film to an individual trained in the reading
of x-rays.8 Dr. Beauchamp did not diagnosis a subluxation demonstrated by x-ray. Therefore,
he is not a physician as defined in the Act and his reports are not probative on the issue of
whether appellant sustained a work-related recurrence of disability on July 16, 2007.
Ms. Vesay, a physician’s assistant, stated that appellant was seen on July 16, 2007 for
severe leg and back pain. Reports from a physician’s assistant are of no probative value.
Registered nurses, licensed practical nurses and physician’s assistants are not “physicians” as
defined under the Act and their opinions are of no probative value.9 Therefore, Ms. Vesay’s
reports are insufficient to establish that appellant sustained a recurrence of disability on July 16,
2007 causally related to her September 18, 2002 accepted lumbar strain.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act10 vests the Office with discretionary authority to determine
whether it will review an award for or against compensation. The Act states:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on [her] own motion or on application. The Secretary,
in accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Code of Federal Regulations provides that a claimant may obtain review of the
merits of the claim by setting forth arguments that either: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and new pertinent evidence not
previously considered by the Office.11 When an application for review of the merits of a claim
does not meet at least one of these requirements, the Office will deny the application for review
without reviewing the merits of the claim.12

8

20 C.F.R. § 10.5(bb) (2006).

9

See 5 U.S.C. § 8101(2) which provides: “physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law”; see also Roy L. Humphrey, 57 ECAB 238 (2005).
10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(2).

12

Id. at § 10.608(b).

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ANALYSIS -- ISSUE 2
In support of her request for reconsideration, appellant submitted a medical bill which did
not address the issue of causal relationship. This bill does not constitute relevant and pertinent
evidence not previously considered by the Office. She also submitted additional reports from her
chiropractor. As noted, a chiropractor is not considered a physician under the Act unless it is
established that there is a spinal subluxation as demonstrated by x-ray to exist. These additional
chiropractic reports did not diagnose a subluxation as shown on x-ray. Consequently, the
chiropractor does not meet the definition of a physician under the Act. His reports are therefore
not probative and do not constitute relevant and pertinent evidence not previously considered by
the Office. Appellant also submitted evidence previously of record. Because this evidence was
previously considered by the Office, it does not meet the criteria for granting a request for
reconsideration and reopening a case for further merit review.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
sustained a recurrence of disability on July 16, 2007 causally related to her September 18, 2002
accepted lumbar strain. The Board further finds that the Office did not abuse its discretion in
denying her request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 21 and November 30, 2007 are affirmed.
Issued: September 4, 2008
Washington, DC

David S. Gerson, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 21-0968
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On June 10, 2021 appellant filed a timely appeal from a March 18, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 18, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On November 30, 2020 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on November 23, 2020 she injured her right hand/wrist
when a large parcel slipped from her hand and caused her hand to bend backward while in the
performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that her injury had occurred in the performance of duty. It also indicated that
appellant had previously sustained a nonoccupational hand injury. Appellant stopped work on the
date of injury.
In a November 23, 2020 statement, appellant noted that she injured her right hand at work
earlier that day when she was lifting a large box off of a skid, which was at least two feet off the
floor. She explained that the box slipped from her hand, causing her hand to bend backward, which
caused pain in her wrist. Appellant noted that she yelled out in pain and that her supervisor came
to check on her. She indicated that she drafted a statement that would be seeking medical attention.
In a separate statement of even date, appellant noted that when she was lifting a large parcel, it
slipped and injured her right wrist.
In an undated witness statement, C.D., appellant’s supervisor, noted that, on November 23,
2020 at approximately 6:30 p.m., she saw appellant return to the office with a large parcel on a
skid. She stated that she witnessed appellant yell out in pain and saw the parcel was no longer on
the skid. C.D. asserted that appellant was holding her arm and notified her that she had tried
moving the parcel to the floor when it slipped out of her hands and hurt her right wrist. Appellant
also informed C.D. that she previously had surgery on the same wrist, which was the reason why
she was currently on restrictions. C.D. noted that a coworker helped appellant write her statement
before she signed it.
On November 23, 2020 the employing establishment executed an authorization for
examination and/or treatment (Form CA-16).
In a November 24, 2020 medical report, Dr. Paul Saccone, a cosmetic, plastic, and
reconstructive surgeon, reported that a heavy box slipped onto appellant’s right hand and wrist,
and bent them backward at work on November 23, 2020. Appellant complained that she
experienced pain in her wrist when she moved it. Dr. Saccone conducted a physical examination
and diagnosed a right wrist sprain. He noted that her right hand and wrist showed some mild
swelling, but no ecchymosis. Dr. Saccone also noted that appellant had decreased flexion and
extension of her wrist. He indicated that she previously underwent a carpal tunnel release on
September 24, 2018. In a disability certification of even date, Dr. Saccone noted that appellant
was totally incapacitated and required an x-ray to further determine the extent of her injury.
A November 25, 2020 x-ray of the right wrist revealed no fracture or dislocation. In an
attending physician’s report, Part B of the Form CA-16, also dated November 25, 2020,
Dr. Saccone again noted that a heavy box slipped onto appellant’s right hand and wrist, bending
them backward, at work on November 23, 2020. He reported that her right wrist was swelling
with decreased flexion and extension. Dr. Saccone diagnosed right wrist sprain and checked a box
marked “Yes,” indicating that appellant’s condition was caused or aggravated by the described
employment activity. He indicated that she was unable to work.

2

In a December 1, 2020 medical report, Dr. Saccone reiterated his findings and diagnosed
right wrist sprain and pain. In a disability certification of even date, he released appellant to return
to work on December 21, 2020, but indicated that her restrictions would be reevaluated on
December 15, 2020.
In a December 15, 2020 medical report, Dr. Saccone noted that appellant still experienced
pain and cramping in her right wrist. He conducted a physical examination and reiterated his
diagnoses. In a prescription slip of even date, Dr. Saccone prescribed occupational therapy and
again diagnosed a right wrist sprain.
Appellant underwent occupational therapy treatment on December 21 and 23, 2020.
In a January 8, 2021 medical report, Dr. Saccone reported that appellant was feeling better
since she began occupational therapy and that she wanted to return to work. He reiterated his
findings and diagnoses. In a prescription slip of even date, Dr. Saccone again prescribed
occupational therapy. In a disability certification of even date, he indicated that appellant could
return to work on January 9, 2021 with restrictions.
An undated report of work status (Form CA-3) completed by the employing establishment
indicated that appellant returned to full-time modified-duty work with restrictions on
January 9, 2021.
In a February 5, 2021 medical report, Dr. Saccone noted that appellant was doing well after
undergoing occupational therapy. He reiterated his findings and diagnoses. In a prescription slip
of even date, Dr. Saccone recommended that appellant continue occupational therapy. In a
disability certification of even date, he noted that appellant returned to work on January 9, 2021
with restrictions.
In a February 11, 2021 development letter, OWCP requested that appellant submit
additional medical evidence in support of her claim. It afforded her 30 days to respond. No
additional evidence was submitted.
By decision dated March 18, 2021, OWCP denied appellant’s traumatic injury claim,
finding that the medical evidence of record was insufficient to establish causal relationship
between the accepted November 23, 2020 employment incident and her diagnosed right wrist
sprain.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
3

Supra note 1.

4

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

and that any disability or medical condition for which compensation is claimed is 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 upon a traumatic injury or an occupational disease. 6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occ urred.8 The
second component is whether the employment incident caused a personal injury. 9
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 10 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background. 11 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition, and the
accepted employment incident. 12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.
In Part B of the Form CA-16, attending physician’s report, dated November 25, 2020,
Dr. Saccone diagnosed a right wrist sprain indicated by checking a box marked “Yes” that the
5

T.H., Docket No. 18-1736 (issued March 13, 2019); J.M., Docket No. 17-0284 (issued February 7, 2018); R.C.,
59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
6

T.E., Docket No. 18-1595 (issued March 13, 2019); K.M., Docket No. 15-1660 (issued September 16, 2016); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

8

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

9

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

10

S.S., supra note 7; Robert G. Morris, 48 ECAB 238 (1996).

11

C.F., Docket No. 18-0791 (issued February 26, 2019); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

Id.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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condition was caused or aggravated by an employment activity. The Board has held that a report
that addresses causal relationship with a checkmark, without medical rationale explaining how the
employment incident caused the alleged injury, is of diminished probative value and insufficient
to establish causal relationship. 14 Dr. Saccone did not provide any rationale in support of his
opinion. This report is, therefore, of diminished probative value and insufficient to establish
appellant’s claim.
In medical reports dated November 24, and December 1 and 15, 2020, and January 8 and
February 5, 2021, Dr. Saccone reported that a heavy box slipped onto appellant’s right hand and
wrist, bending it backward, at work on November 23, 2020. He conducted a physical examination
and consistently diagnosed a right wrist sprain. Similarly, in his December 15, 2020 prescription
slip, he diagnosed a right wrist sprain. However, Dr. Saccone did not address causation in his
reports. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship. 15
Moreover, the Board has consistently held that complete medical rationalization is particularly
necessary when there is a preexisting condition involving the same body part, and has required
medical rationale differentiating between the effects of the work-related injury and the preexisting
condition in such cases. 16 For these reasons, these reports are insufficient to establish appellant’s
claim.
OWCP received disability certifications and prescription slips from Dr. Saccone dated
November 24 and December 1, 2020, and January 8 and February 5, 2021. However, Dr. Saccone
did not offer a medical diagnosis or provide an opinion as to whether a diagnosed condition was
causally related to the accepted employment incident. The Board has held that medic al evidence
that does not include a firm diagnosis or an opinion regarding the cause of an employee’s condition
is of no probative value on the issue of causal relationship. 17 This evidence is, therefore,
insufficient to establish appellant’s claim.
Appellant also submitted occupational therapy reports dated December 21 and 23, 2020,
and January 20, 2021. These documents do not constitute competent medical evidence because
an occupational therapist is not considered a “physician” as defined under FECA. 18 Consequently,

14

D.S., Docket No. 21-0037 (issued May 27, 2021); S.C., Docket No. 20-0327 (issued May 6, 2021); A.R., Docket
No. 19-0465 (issued August 10, 2020); Gary J. Watling, 52 ECAB 278 (2001).
15

See O.N., Docket No. 20-0902 (issued May 21, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019).

16

Supra note 13. See also J.H., Docket No. 20-1645 (issued August 11, 2021).

17

R.Q., Docket No. 20-0585 (issued September 10, 2021); S.C., Docket No. 20-0492 (issued May 6, 2021).

18

Section 8101(2) of FECA provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law. 5
U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See supra note 13 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not
competent to render a medical opinion under FECA); S.J., Docket No. 20-1061 (issued December 22, 2020); see also
J.R., Docket No. 19-0812 (issued September 29, 2020) (an occupational therapist is not considered a physician under
FECA).

5

their medical findings and/or opinions will not suffice for purposes of establishing entitlement to
compensation benefits. 19
Lastly, appellant submitted a November 25, 2020 x-ray of the right wrist. The Board has
explained, however, that diagnostic studies, standing alone, lack probative value as they do not
address whether the employment incident caused any of the diagnosed conditions. 20 Thus, this
report is also insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing causal
relationship between her right wrist condition and the accepted November 23, 2020 employment
incident, the Board finds that she has not met her burden of proof to establish her claim. 21
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right wrist
condition causally related to the accepted November 23, 2020 employment incident.

19

Id.

20

M.B., Docket No. 19-1638 (issued July 17, 2020); T.S., Docket No. 18-0150 (issued April 12, 2019).

21

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee direct ly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); S.P., Docket No. 191904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB
608 (2003).

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ORDER
IT IS HEREBY ORDERED THAT the March 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

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

Docket No. 14-1664
Issued: December 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 28, 2014 appellant filed a timely appeal from an April 10, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish thoracic and cervical
conditions causally related to factors of his employment.
FACTUAL HISTORY
On September 21, 2013 appellant, then a 49-year-old distribution operations manager,
filed an occupational disease claim alleging that he developed thoracic spine degeneration as a
result of bending and reaching in all-purpose containers (APC), bulk mail centers (BMC), and
1

5 U.S.C. § 8101 et seq.

boxes in order to sort priority parcels, parcel post, and periodicals from delivery units and upstate
facilities. He first became aware of his condition and realized that it resulted from his
employment on January 19, 2013. Appellant noted that he had a previous back condition. The
employing establishment reported that appellant had not worked since June 5, 2013.2 Appellant
filed for disability compensation beginning June 11 to November 1, 2013.
In a June 10, 2013 report, Dr. Max C. Lee, a Board-certified neurological surgeon, related
appellant’s complaints of worsening leg numbness and difficulty walking since January. He
reviewed appellant’s history and noted that he suffered from chronic lower back pain since 2004
and bilateral weakness and numbness in the legs since June 2011. Appellant underwent lumbar
laminectomy in 2004 and pain pump placement in 2007. Dr. Lee reported that he initially treated
appellant in May 2012 for cervical cord compression but had not seen him since August 2012.
He noted that a June 7, 2013 cervical, thoracic, and lumbar computerized tomography (CT)
myelogram revealed evidence of reversal of the normal lordotic curvature and congenital
narrowing of the central canal. Dr. Lee also reported stenosis at C6-7 and C4-5 to a lesser
degree.
Upon examination, Dr. Lee observed spastic gait with ataxia. He stated that appellant
had difficulty performing sit to stand secondary to proximal bilateral lower extremity weakness.
Dr. Lee provided range of motion findings for appellant’s hip and lower extremities. Neurologic
examination demonstrated marked hyperreflexia with 4/4 bilateral knee and ankle jerks and
marked sustained clonus. Dr. Lee noted that appellant was unable to distinguish between sharp
and dull involving a stocking distribution of the entirety of the bilateral lower extremities. He
reported that no thoracic sensory deficit was noted. Sensation was grossly intact to light touch
and Hoffman’s sign was negative bilaterally. Dr. Lee stated that appellant was unable to meet
the demands of his job and had been off work. He related that, since appellant’s last examination
in January, he observed neurological deterioration with worsening leg numbness and weakness,
ataxia, and spasticity. Dr. Lee stated that surgical treatment was planned for next week. In an
attached note, he stated that surgery was planned for next week and noted that appellant would
need an extended period of time off work.
On June 19, 2013 appellant underwent thoracic decompression surgery.
In a July 1, 2013 report, Dr. Lee stated that he noticed a marked decline in appellant’s
condition since January. He related that appellant’s bilateral leg numbness was progressively
worsening and the numbness was in a stocking distribution of the entire bilateral lower
extremities. Dr. Lee also noted some combined thoracic back pain but without thoracic
radiculopathy. He reported that appellant’s legs were becoming progressively weaker and that
he had difficulty walking, climbing stairs, and standing from a sitting position. Upon
examination, Dr. Lee observed that appellant could sit to stand with minimal difficulty and
provided range of motion findings of the hip and feet. Neurologic examination demonstrated
improved hyperflexion of the bilateral knees and ankle jerks. Dr. Lee diagnosed thoracic
stenosis. He also noted neurologic deterioration from January to June 2013 with worsening leg
2

Appellant previously filed two occupational disease claims on March 29, 2001 (File No. xxxxxx540) and
June 15, 2011 (File No. xxxxxx726). He also filed 2 previous traumatic injury claims for April 17, 2006 (File No.
xxxxxx989) and September 26, 2007 (File No. xxxxxx106) employment injuries.

2

numbness, weakness, ataxia, and spasticity. Dr. Lee stated that repetitive work activity of daily
bending at the waist contributed to accelerated degenerative change. He explained that repetitive
bending and reaching into large mail containers at work certainly could have accelerated his
degenerative changes beyond normal progression and contributed to the need for decompressive
surgery.
In a July 29, 2013 report, Dr. Lee related that appellant was recovering well with
continued improvement of his strength and mobility since his most recent surgery. Upon
examination, he observed good strength of the bilateral upper extremities and 5/5 strength
throughout the bilateral lower extremities. Dr. Lee noted that appellant still had some difficulty
sit-to-stand and guarded gait but it had improved. Neurological examination demonstrated that a
few beats of left ankle clonus was present and bilateral knee jerks were slightly brisk.
By letter dated October 1, 2013, the employing establishment controverted appellant’s
claim. It noted that the medical evidence indicated that appellant had a previous nonindustrial
back issue and underwent several surgeries. The employing establishment reported that after
being off work from May through July 2012 due to surgery appellant returned to full duty on
August 8, 2012. It explained that appellant was allowed to use a motorized scooter while
performing his supervisory duties due to his difficulty in walking. On June 6, 2013 appellant
was placed in a totally incapacitated status and had not returned to work. The employing
establishment alleged that appellant’s condition appeared to be an on-going previous, nonworkrelated injury. It included a description of his position.
In a statement dated October 5, 2013, appellant reported that, after he returned to work in
August 2012 following neck surgery the employing establishment had hired more workers for
the holiday season. He explained that, as manager, he was required to be more “hands-on” in
assisting employees in moving heavy parcels. Appellant related that this work involved bending
into boxes, BMCs, APCs, hampers, and containers to perform quality checks of mail and bundles
being processed and lifting mail weighing up to 70 pounds out of parcel containers. He
performed these tasks five to six days a week up to 12 hours a day, especially during the holiday
peak. Appellant noted that since returning to work his thoracic and back conditions had severely
degenerated, causing numbness and weakness, from bending and lifting. He related that a
myleogram taken in late 2011 showed mild to moderate degenerative disease at T-10 and T-11
and a myleogram taken in June 2013 showed that the same area was severely degenerative.
Appellant stated that he had minor lower back and inguinal issues in the military but that since
working at the employing establishment the problems engulfed his entire back.
In a November 8, 2013 attending physician’s report, Dr. Lee diagnosed spinal cord
compression, thoracic spondylosis and myelopathy, degenerative disc disease, and spinal
stenosis of the thoracic region. He indicated that for history of injury, physical findings, and
causal relationship to refer to his note dated June 6, 2013. Dr. Lee opined that appellant was
totally disabled beginning June 10, 2013.
In a letter dated February 13, 2014, OWCP requested that Dr. Lee review the attached
statement of accepted facts (SOAF) and provide additional information. It asked that he respond
to specific questions with medical rationale and provide a detailed, narrative medical report
explaining whether appellant’s conditions were medically connected to his federal employment.

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In a March 11, 2014 report, Dr. Lee related that appellant had multiple issues, including
cervical stenosis leading to cervical myelopathy, thoracic stenosis with thoracic disc herniation,
and symptoms of thoracic myelopathy with spinal cord compression. He stated that these
conditions required a C4 to C7 anterior cervical discectomy and fusion and a T10-11
decompression and fusion. Dr. Lee also noted that appellant previously suffered from a lumbar
condition and underwent a lumbar laminectomy and anterior lumbar interbody fusion in 2004.
He opined that although he could not fully address appellant’s lumbar issues, he felt that
appellant’s cervical and thoracic issues could be attributed to the factors of employment
described in the SOAF as an aggravating and precipitating cause, in addition to accelerating
preexisting degeneration. Dr. Lee explained that during appellant’s initial presentation he did
not have symptoms of thoracic myelopathy and thoracic stenosis in 2012. He stated that he
could not comment on any nonindustrial or preexisting disability since he was unfamiliar with
appellant’s lumbar laminectomy and anterior lumbar interbody fusion. Dr. Lee noted that if
OWCP wanted a discussion he would need to reexamine appellant and would require further
imaging. He reported that appellant needed continual follow-up for both his cervical fusion and
thoracic fusion and may need further management, including physical therapy and pain
management. Dr. Lee stated that appellant may have had preexisting degeneration but he did not
have symptoms from it, especially related to his thoracic injury. He further opined that
appellant’s June 19, 2013 surgery was directly related to his employment.
In a decision dated April 10, 2014, OWCP denied appellant’s occupational disease claim.
It accepted that appellant worked as a distribution operations manager and sustained diagnosed
cervical and thoracic conditions but denied the claim finding insufficient medical evidence to
establish that his medical condition was causally related to his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the reliable, probative, and substantial evidence3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.6 The opinion of the physician must be
3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

4

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.7 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested, and the medical rationale expressed
in support of the physician’s opinion.8
ANALYSIS
Appellant alleges that he sustained thoracic and cervical conditions as a result of his
employment duties as a distribution operations manager. OWCP accepted that he worked as a
distribution operations manager and that he sustained diagnosed conditions. It denied appellant’s
claim finding insufficient medical evidence to establish that his conditions were causally related
to factors of his employment. The Board finds that he did not meet his burden of proof to
establish thoracic and cervical conditions due to his employment.
Appellant submitted various reports from Dr. Lee dated June 10, 2013 to March 11, 2014.
He reviewed appellant’s history and discussed his previous back surgeries. Dr. Lee reported that
a June 7, 2013 CT myleogram revealed reversal of the normal lordotic curvature, congenital
narrowing of the central canal, and reported stenosis at C6-7 and C4-5. He provided findings on
examination and diagnosed thoracic and cervical stenosis. In a July 1, 2013 report, Dr. Lee
opined that repetitive work activity of daily bending at the waist contributed to accelerated
degenerative change. He explained that repetitive bending and reaching into large mail
containers at work certainly could have accelerated his degenerative changes beyond normal
progression and contributed to the need for decompressive surgery. In a March 11, 2014 report,
Dr. Lee stated that he felt that appellant’s cervical and thoracic issues could be attributed to
factors of employment described in the SOAF as an aggravating and precipitating cause, in
addition to accelerating preexisting degeneration.
The Board finds that Dr. Lee’s opinion on causal relationship lacks probative value
because it is vague and equivocal, and does not adequately explain the causal relationship
between appellant’s cervical and thoracic conditions and his employment duties.9 His belief that
appellant’s employment activities “could have accelerated” his degenerative condition or that
appellant’s conditions “could be attributed” to the employment factors described in the SOAF is
speculative in nature and of diminished probative value.10 The Board finds that Dr. Lee fails to
explain, based on medical rationale, how any of appellant’s employment duties would have
physiologically caused or contributed to his cervical and thoracic conditions. The need for such
rationale is important in this case because appellant also suffers from preexisting conditions. In
controverting appellant’s claim, the employing establishment related that after appellant’s return
to work on August 8, 2012 he was allowed to use a motorized scooter, because of his difficulty
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

James Mack, 43 ECAB 321 (1991).

9

Roy L. Humphrey, 57 ECAB 238, 242 (2005); Michael E. Smith, 50 ECAB 313 (1999).

10

D.D., 57 ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).

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walking. The Board also notes that Dr. Lee noted appellant’s difficulty in walking, but did not
discuss how use of a scooter at work, rather than walking, would have impacted the diagnosed
conditions. Without such rationalized medical opinion evidence regarding causal relationship,
the Board finds that Dr. Lee’s reports are insufficient to establish appellant’s claim.
On appeal, appellant alleged that Dr. Lee’s March 11, 2014 report established a direct
relationship between his cervical and thoracic stenosis conditions were related to his
employment. As explained alone, however, the Board has found that Dr. Lee’s report is of
diminished probative value and fails to establish causal relationship. An award of compensation
may not be based on surmise, conjecture, speculation or upon appellant’s own belief that there is
causal relationship between his claimed condition and his employment.11 The Board finds that
appellant has not provided sufficient medical evidence to establish that his thoracic and cervical
conditions were causally related to his employment duties. He did not meet his burden of proof
to establish his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish cervical and
thoracic conditions causally related to factors of his federal employment.

11

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the April 10, 2014 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
COMMUNITY BASED OUTPATIENT CLINIC,
Jackson, TN, Employer
__________________________________________
Appearances:
Emma Cull, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-0340
Issued: July 28, 2021

Case Submitted on the Record

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

On January 4, 2020 appellant, through his representative, filed a timely appeal from a
July 8, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Board’s docketed the appeal as No. 21-0340.
On March 18, 2019 appellant, then a 54-year-old licensed practical nurse, filed a traumatic
injury claim (Form CA-1) alleging that on May 9, 2018 his left hip popped and he sustained lumbar
pain which radiated to his left hip, thigh, and knee when he stood up from a chair while in the
performance of duty.
After initial development of the claim, by decision dated April 30, 2019, OWCP denied
appellant’s claim, finding the medical evidence of record was insufficient to establish a diagnosed

1

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

condition causally related to the May 9, 2019 incident. It concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
OWCP received an x-ray report dated May 31, 2018 which related findings of left hip
nondisplaced tear and moderate arthrosis in the left hip.
Appellant submitted medical reports dated October 15 and November 19, 2019, and
January 21, 2020 from Dr. Stacey Hunt-Okolo, an obstetrician and gynecologist. Dr. Hunt-Okolo
related that on May 9, 2018, appellant heard a loud pop in his left hip as he stood up from his desk
chair. She diagnosed left hip avascular necrosis, tear of labrum, effusion, unilateral primary
osteoarthritis, left knee chondromalacia patellae, and a complex tear medial meniscus. Dr. HuntOkolo opined that appellant sustained a traumatic work injury which was caused by the shearing
force seen with twisting the hip while simultaneously standing which created significant stress at
the left hip joint. She also stated that his left knee injury was caused by forcefully twisting his left
bent knee as he quickly stood up from his chair. In a report dated February 25, 2020,
Dr. Hunt-Okolo diagnosed left hip injuries and left knee injuries. She also stated that the injuries
were directly and causally related to appellant’s work duties.
On May 13, 2020 appellant, through his representative, requested reconsideration of
OWCP’s April 30, 2019 decision, which the representative mailed to the London, KY office.
By decision dated June 12, 2020, OWCP denied appellant’s request for reconsideration,
finding it was untimely filed and failed to demonstrate clear evidence of error.
On July 2, 2020 appellant, through a representative, requested reconsideration.
Appellant’s representative argued that she did not know that the request for reconsideration should
have been sent to the district office in San Antonio, TX, instead of London KY, and that if the
request had not been rerouted it would have arrived on time.
By decision dated July 8, 2020, OWCP denied appellant’s request for reconsideration
finding that he neither raised substantive legal questions, nor submitted new and relevant evidence.
The Board finds that the case is not in posture for decision.
OWCP’s regulations2 and procedures3 establish a one-year time limit for requesting
reconsideration, which begins on the date of the last merit decision issued in the case. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.4
The most recent merit decision was OWCP’s April 30, 2019 decision. As appellant’s request for
reconsideration was received on July 2, 2020, more than one year after the April 30, 2019 merit
2

20 C.F.R. § 10.607(a); see J.W., Docket No. 18-0703 (issued November 14, 2018); Alberta Dukes, 56 ECAB
247 (2005).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
4
20 C.F.R. § 10.607(b); see A.M., Docket No. 20-0143 (issued October 28, 2020); Debra McDavid, 57 ECAB
149 (2005).

2

decision, the Board finds that it was untimely filed. Consequently, appellant must demonstrate
clear evidence of error on the part of OWCP in its April 30, 2019 decision.5
In denying appellant’s reconsideration request, OWCP did not review the request under the
clear evidence of error standard and it did not address appellant’s argument that his prior request
for reconsideration, received by OWCP on May 13, 2020 was untimely as it was rerouted from
London, KY to San Antonio, TX. Rather, it applied the standard of review for timely requests for
reconsideration. As OWCP applied the wrong standard of review to the untimely request for
reconsideration, the Board will set aside OWCP’s July 8, 2020 decision and remand the case for
proper review under the clear evidence of error standard as required by regulations.6
IT IS HEREBY ORDERED THAT the July 8, 2020 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further review under the clear
evidence of error standard.
Issued: July 28, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

Id. at § 10.607(b); see M.W., Docket No. 17-0892 (issued May 21, 2018); see S.M., Docket No. 16-0270 (issued
April 26, 2016).
6

See 20 C.F.R. § 10.607(b). See L.D., Docket No. 15-0865 (issued October 6, 2015).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0155
Issued: May 18, 2020

Case Submitted on the Record

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

JURISDICTION
On October 26, 2019 appellant filed a timely appeal from a July 19, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted March 30, 2018 employment incident.
FACTUAL HISTORY
On April 6, 2018 appellant, then a 34-year-old claim specialist, filed a traumatic injury
claim (Form CA-1) alleging that on March 30, 2018 he sustained an injury to his back when he
attempted to sit down in a chair, but the chair slipped from under him causing him to fall to the
ground while in the performance of duty. He explained that he hit the right side of his back on the
1

5 U.S.C. § 8101 et seq.

ground when he fell which caused swelling and tightness in his back. Appellant stopped work on
that day.
In support of his claim, appellant submitted a continuation of pay nurse report dated
April 18, 2018, noting that he stopped work on March 30, 2018 as he was totally disabled.
In an April 19, 2018 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of evidence necessary to establish his claim and afforded him
30 days to submit the necessary evidence.
In an April 3, 2018 work restriction note, Dr. Thomas D. Daum, Board-certified in family
medicine, reported that appellant had an unspecified illness and excused him from regular-duty
work until April 18, 2018.
In an April 16, 2018 report, Dr. Jennifer Wise, a chiropractor, noted that appellant was
under her care and held him off work for the period April 16 through May 13, 2018. In an April 23,
2018 report, she noted that he was treated for injuries sustained at work on March 30, 2018.
Dr. Wise indicated that appellant presented with low back pain with radiculopathy and was unable
to perform his work duties, as he was unable to sit and had difficulty moving from one position to
another and walking without assistance.
By decision dated May 31, 2018, OWCP denied appellant’s claim. It found that while he
had established that the employment incident occurred as alleged, the evidence of record was
insufficient to establish a medical diagnosis in connection with the accepted March 30, 2018
employment incident. Thus, OWCP concluded that the requirements had not been met to establish
an injury as defined by FECA.
On April 23, 2019 appellant requested reconsideration. In support of his request, he
submitted a March 30, 2018 report from Dr. Maura Dickinson, Board-certified in emergency
medicine, who noted that he presented to the emergency department with complaints of back and
neck pain. Appellant reported that he slipped from a chair at work and fell onto his buttocks which
aggravated his back. Dr. Dickinson conducted a physical examination and found no numbness or
tingling down appellant’s legs. She noted an impression of back pain and contusion.
Dr. Dickinson further reviewed his lumbosacral spine x-rays of the same date, which revealed no
abnormal lumbar spine findings and diagnosed back pain, including differential diagnoses “of
fracture vs sprain vs contusion.”
In an April 19, 2019 statement, appellant noted that he submitted a hospital report which
showed that he suffered from a contusion from his fall. He asserted that his back was swollen for
weeks and required massage therapy with a chiropractor.
By decision dated July 19, 2019, OWCP denied modification of its prior decision.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.6
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.7 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment factors
identified by the employee.8
ANALYSIS
The Board finds that appellant has met his burden of proof to establish the diagnosed
medical condition of a back contusion. The Board further finds, however, that the case in not in
posture for a decision as to whether his diagnosed contusion is causally related to the accepted
March 30, 2018 employment incident.

2

Id.

3

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

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

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

Dr. Dickinson, in her March 30, 2018 report, described the accepted March 30, 2018
employment incident, provided examination findings, and noted an impression of a contusion and
a differential diagnosis of “fracture vs sprain vs contusion.” Therefore, the Board finds that the
evidence of record establishes the diagnosis of a back contusion.
OWCP has not reviewed the medical evidence of record on the issue of whether the
established diagnosis of back contusion is causally related to the accepted employment incident.
Therefore, the case will be remanded to OWCP for consideration of the medical evidence on the
issue of causal relationship. Following such further development as deemed necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish the diagnosed
medical condition of a back contusion. The Board further finds that the case is not in posture for
a decision as to whether his diagnosed back contusion is causally related to the accepted March 30,
2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 19, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: May 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE
CROWNPOINT MEDICAL CENTER,
Crownpoint, NM, Employer
__________________________________________

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

Docket No. 19-0606
Issued: November 21, 2019

Case Submitted on the Record

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

JURISDICTION
On January 22, 2019 appellant filed a timely appeal from a January 10, 2019 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
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $31,966.52, for which she was not at fault, as she
concurrently received Social Security Administration (SSA) age-related benefits while receiving
1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the January 10, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FECA wage-loss benefits for the periods August 2 to 17, 2006, October 16, 2006 to July 7, 2007,
and September 27, 2009 to November 10, 2018; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $997.34 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On August 3, 2006 appellant then a 66-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on June 27, 2006 she injured her right knee when walking while
in the performance of duty.
OWCP accepted the claim for sprain of the right knee, lateral collateral ligament, and tear
of medial meniscus of knee, current, right. Appellant stopped work on July 25, 2006. She filed a
claim for compensation (Form CA-7) for leave without pay for the period August 2 to 17, 2016.
OWCP paid appellant wage-loss compensation benefits on the supplemental rolls for this claimed
period. Appellant filed a second Form CA-7 for leave without pay commencing October 16, 2016.
OWCP again paid her wage-loss compensation on the supplemental rolls on October 16, 2016 and
then on the periodic rolls, effective December 24, 2016.
In a memorandum dated July 11, 2007, OWCP related that appellant had received SSA
Federal Employees Retirement System (FERS) benefits. It explained that it was required to deduct
from FECA benefits the amount of SSA retirement benefits attributable to federal service. OWCP
advised that appellant was in receipt of $1,636.10 per month from SSA and that she would be
entitled to receive $1,453.30 if her “[f]ederal service was not included.” It noted that the difference
between the two amounts was $182.80, the amount that was attributable to her federal service, and
that this was also the amount that would be deducted from appellant’s FECA benefits.
By decision dated September 22, 2009, OWCP informed appellant that her wage-loss
compensation benefits would be reduced effective, September 27, 2009, as the constructed
position of Director, nursing services represented her wage-earning capacity. A wage-earning
capacity form (CA Form 816) determined appellant’s new compensation rate; however, the SSA
offset was not included in the calculation.
In a form dated November 7, 2018, the SSA advised OWCP that appellant had concurrently
received FECA benefits and SSA FERS retirement benefits for periods June 2006 to
December 2017. It provided the amount that she received in retirement benefits, including the
amount earned to FERS and the hypothetical amount that she would have received without FERS.
Including FERS, the SSA indicated: appellant was entitled to a monthly payment of $1,583.90,
effective June 2006; $1,636.10, effective December 2006; $1,673.70, effective January 2007;
$1,712.20, effective December 2007; $1,811.50, effective December 2008, January 2009, and
December 2010; $1,876.70, effective December 2011; $1,908.50, effective December 2012;
$1,937.10, effective December 2013; $1,970.00, effective December 2014 and December 2015;
$1,975.80, effective December 2016; and $2,015.30 effective December 2017.
Without FERS, appellant was entitled to a monthly payment of $1,386.40 effective
June 2006, $1,432.10 effective December 2006 and January 2007, $1,465.00 effective
December 2007, $1,549.90 effective December 2008, $1,552.60 effective January and
December 2009, and December 2010, $1,608.50 effective December 2011, $1,635.80 effective
2

December 2012, $1,660.30 effective December 2013, $1,668.50 effective December 2014 and
December 2015, $1,693.50 effective December 2016, and $1,727.30 effective December 2017.
In a preliminary determination dated December 4, 2018, OWCP notified appellant that she
had received an overpayment of compensation in the amount of $31,966.52 because it had failed
to reduce her wage-loss compensation benefits for the periods August 2 to 17, 2006, October 16,
2006 to July 7, 2007, and September 27, 2009 to November 10, 2018 to offset her SSA retirement
benefits, which were a prohibited dual benefit. It calculated the overpayment amount by
determining the difference between her SSA amount with and without FERS for each period and
adding this amount to find a total overpayment of $31,966.52.
OWCP further advised appellant of its preliminary determination that she was without fault
in the creation of the overpayment and requested that she complete an overpayment recovery
questionnaire (Form OWCP-20). It informed her that for consideration of waiver of recovery of
the overpayment and a reasonable method for recovery, she must provide a completed Form
OWCP-20 and attach supporting financial documentation. Additionally, OWCP notified appellant
that, within 30 days of the date of the letter, she could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing.
On December 18, 2018 appellant requested a decision based on the written evidence
regarding waiver of recovery of the overpayment. She completed the Form OWCP-20. However,
appellant did not submit supporting financial documentation. She requested waiver of recovery of
the overpayment and indicated, “If there was an overpayment, and I saw none, I depend on OWCP
to sent correct amount to my bank, or notify me of change.” Appellant also indicated that she was
“unable to pay anything back for something that she was not responsible for.” She listed her
income as: SSA benefits of $1,854.00 and OWCP benefits of $4,256.00. Appellant indicated that
her expenses included: rent, $3,860.00; food, $3,860.00; clothing, $100.00; utilities, $200.00; and
miscellaneous, $50.00 to $150.00. She indicated that her assets included: checking, $581.24 and
savings, $50,787.77.
By decision dated January 10, 2019, OWCP found that appellant had received an
overpayment of compensation in the amount of $31,966.52 for the periods August 2 to 17, 2006,
October 16, 2006 to July 7, 2007, and September 27, 2009 to November 10, 2018, because her
compensation payments were not offset by the portion of her SSA age-related benefits that were
attributable to her federal service. It determined that she was without fault in the creation of the
overpayment and denied waiver of recovery of the overpayment. OWCP explained that appellant
did not submit any financial documentation to support her reported income, expenses, and
resources. It found that it would recover the overpayment by deducting $997.34 every 28 days
from appellant’s continuing wage-loss compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA3 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.4 Section 8116 limits the right of an employee to receive
3

Id.

4

5 U.S.C. § 8102(a).

3

compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to
federal service of the employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.7
Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years.8 Section 404.409 of SSA regulations provides that, for individuals born from 1943 to
1954, full retirement age is 66 years.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $31,966.52 as she concurrently received SSA age-related benefits while receiving
FECA wage-loss benefits for the period August 2 to 17, 2006, October 16, 2006 to July 7, 2007,
and September 27, 2009 to November 10, 2018.
As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and
SSA retirement benefits attributable to federal service for the same period.10 The information
provided by SSA accurately indicated that appellant had received age-related SSA benefits that
were attributable to her federal service from August 2, 2006 and continuing. Thus, the record
establishes that appellant received an overpayment of FECA wage-loss compensation.11
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of age-based SSA retirement benefits that were attributable to
federal service. The Board also finds that OWCP properly determined the amount of the
overpayment. OWCP received documentation from SSA with respect to the specific amount of
age-related SSA retirement benefits that were attributable to federal service. OWCP properly
explained that no deduction for SSA age-based benefits had been recorded for the periods appellant
received FECA wage-loss benefits: August 2 to 17, 2006; October 16, 2006 to July 7, 2007; and
September 27, 2009 to November 10, 2018. Therefore an overpayment was created during these
5

Id. at § 8116.

6

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

7

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

8

20 C.F.R. § 404.310.

9

Id. at § 404.409.

10

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C.,
Docket No. 18-1550 (issued February 21, 2019).
11

Id.

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periods. However, OWCP had offset appellant’s SSA benefits during the period July 8, 2007 to
September 26, 2009. It provided its calculations of the amount that it should have offset for each
relevant period based on the SSA worksheet. No contrary evidence was provided.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $31,966.52, thus creating an overpayment of
compensation in that amount, for the periods August 2 to 17, 2006, October 16, 2006 to July 7,
2007, and September 27, 2009 to November 10, 2018.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”13 Section 10.438 of OWCP’s regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $31,966.52
overpayment.
The fact that OWCP may have been negligent in the creation of the overpayment does not
entitle appellant to waiver of the overpayment.15 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.16 Appellant, however, did not provide the requisite financial documentation to
OWCP.17
In its preliminary determination dated December 4, 2018, OWCP clearly explained the
importance of providing the completed overpayment recovery questionnaire (Form OWCP-20)
and supporting financial documentation. It advised appellant that it would deny waiver of recovery
if she failed to furnish the requested financial information within 30 days. While appellant
submitted a completed overpayment recovery questionnaire, she did not provide any financial
documentation supporting her income and expenses. As a result, OWCP did not have the
12

See L.L., Docket No. 18-1103 (issued March 5, 2019).

13

5 U.S.C. § 8129.

14

20 C.F.R. § 10.438.

15

R.B., Docket No. 15-0808 (issued October 26, 2015).

16

5 U.S.C. § 8129.

17

20 C.F.R. § 10.438.

5

necessary financial information to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience. OWCP was,
therefore, required to deny waiver of the overpayment.18
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$997.34 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant an overpayment recovery questionnaire (Form OWCP-20) with
the December 4, 2018 preliminary determination. Appellant completed the overpayment recovery
questionnaire, but did not provide any financial information to support her income and expenses
prior to the final January 10, 2019 overpayment decision. The overpaid individual is responsible
for providing information about income, expenses, and assets as specified by OWCP.20 When an
individual fails to provide requested financial information, OWCP should follow minimum
collection guidelines designed to collect the debt promptly and in full.21 As appellant did not
submit the financial documentation to OWCP as requested, the Board finds that there is no
evidence of record to establish that OWCP erred in directing recovery of the $31,966.52
overpayment at the rate of $997.34 every 28 days.22
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $31,966.52, for which she was without fault, as she concurrently
received SSA age-related benefits while receiving FECA benefits, for the periods August 2 to 17,
2006, October 16, 2006 to July 7, 2007, and September 27, 2009 to November 10, 2018, that
OWCP properly denied waiver of recovery of the overpayment, and that it properly required

18

Supra note 14.

19

20 C.F.R. § 10.441(a); see A.S., Docket No. 19-0171 (issued June 12, 2019); see Donald R. Schueler, 39 ECAB
1056, 1062 (1988).
20

20 C.F.R. § 10.438.

21

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2 (September 2018).
22

See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

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recovery by deducting $997.34 every 28 days from appellant’s continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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