United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.W., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY,
COMMUNICATIONS COMMAND,
FORT RICHARDSON, AK, Employer
__________________________________________

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

Docket No. 07-1626
Issued: April 21, 2008

Case Submitted on the Record

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

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from a May 2, 2007 Office of Workers’
Compensation Programs’ decision, which found that she received an overpayment in the amount
of $2,617.55, for which she was at fault in creating. She also timely appealed the Office’s
March 14, 2007 wage-earning capacity decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over these issues.
ISSUES
The issues are: (1) whether the Office properly determined appellant’s wage-earning
capacity; (2) whether the Office properly determined that she received an overpayment in the
amount of $2,617.55; (3) whether the Office properly determined that appellant was at fault in
the creation of the overpayment; thus precluding waiver of recovery; and (4) whether the Office
properly determined that it would recover the overpayment by deducting $100.00 from her
continuing compensation payments.

FACTUAL HISTORY
On June 3, 2002 appellant, then a 37-year-old mail clerk, sustained an injury to her right
knee as she walked up a ramp and was hit by falling boxes in the performance of duty. The
Office accepted her claim for tear of the right anterior cruciate ligament. Appellant stopped
work on June 6, 2002 and was paid appropriate compensation and eventually placed on the
periodic compensation rolls.1
In a January 27, 2004 report, Dr. David A. McGuire, a Board-certified orthopedic
surgeon, noted that on November 18, 2004 appellant was placed on permanent light duty with
limitations of no driving, stairs, squatting, kneeling or jumping, climbing or running. The
restrictions also included no sitting longer than 30 minutes, no standing longer than 30 minutes,
no walking longer than 30 minutes and no lifting over 10 pounds. Dr. McGuire opined that
appellant had sustained permanent damage to her knee and advised that “it would be best [if] she
retire.” He opined that appellant’s job duties had worsened her symptoms and were the cause of
her current condition.
On July 27, 2005 the Office advised appellant that it would pay her wage-loss
compensation from November 18, 2003 to July 9, 2005 and then every 28 days thereafter.2 The
Office noted the circumstances under which appellant could receive wage-loss compensation.
Appellant was advised that to minimize the possibility of an overpayment, she must notify the
Office if she returned to work. She was also advised that a partially disabled employee who
returned to work was only entitled to compensation based upon the difference between the
monthly pay and the employee’s wage-earning capacity.
The Office referred appellant to vocational rehabilitation. The vocational rehabilitation
counselor determined that appellant’s medical restrictions would allow her to perform various
clerical positions, including a general office clerk, receptionist and information clerk.
On October 20, 2005 the Office advised appellant’s congressional representative that
appellant was entitled to benefits as long as she had continuing injury-related disability and or a
work-related medical condition. The Office also indicated that appellant would not be entitled to
continuing compensation benefits, if she were able to earn wages paid by her position at the time
of her injury.
In a January 3, 2006 report, Dr. R. Matison White, Jr., a family practitioner, determined
that appellant had severe degenerative arthritis of her right knee. He opined that appellant was in
need of a total knee replacement and should be retired from her work. Dr. White noted that there
was potential for further degenerative damage and loss of quality of life and basic functioning.
He advised that appellant should avoid a total knee replacement “for as long as possible in order
to have a normal, useful knee during her expected normal life expectancy.”
1

The record reflects that the Office also accepted appellant’s claim for a recurrence of disability related to a
worsening of her right knee condition on January 21, 2003.
2

The record reflects that appellant’s gross weekly pay rate when injured was $637.89.

2

On March 13, 2006 the Office noted that appellant was employed. She accepted a fulltime permanent position on March 13, 2006 with wages of $10.50 per hour as a general office
clerk performing duties and filling in as a relief receptionist.3 On March 27, 2006 appellant
received an offer to work as a temporary network assistant effective March 27, 2006. In an
April 5, 2006 report, appellant’s rehabilitation counselor advised that appellant was working in
the payroll and accounting department. The counselor noted that appellant continued to work in
the accounting department and enjoyed her work.
On April 12, 2006 appellant completed a Form CA-7 advising that she worked on
March 10, 2006 for Hope Community Resources. A wage statement from her employer
accompanied her form and indicated that she had received wages during the period February 27
to March 12, 2006.
In a May 25, 2006 report, Dr. T. Noah Laufer, a Board-certified family practitioner, noted
that appellant had a history of severe degenerative osteoarthritis of the right knee and was a
candidate for total knee replacement. Appellant related that, on May 19, 2006, she was asked to
work in a different building and carried boxes up and down stairs. Dr. Laufer noted that
appellant indicated that her supervisor acknowledged that this work was outside her restrictions
and that she had been asked to do further work under these circumstances. He opined that
appellant had worsening of her degenerative right knee osteoarthritis, which was an exacerbation
of her condition at work. Dr. Laufer opined that her symptoms would continue to be bothersome
and progress.
On June 16, 2006 the Office made a preliminary finding that an overpayment of
$2,617.55 arose because appellant received wage-loss compensation for total disability while
simultaneously receiving wages from her employer. The Office determined that she was at fault
in creating of the overpayment because she accepted a payment that she knew or reasonably
should have known to be incorrect. Appellant was informed of her right to challenge the
overpayment or request a waiver of the overpayment. If she wished a waiver of the
overpayment, she was specifically directed to submit financial information by completing an
overpayment recovery questionnaire. In an accompanying June 14, 2006 memorandum, the
Office noted that appellant was hired as a full-time employee effective March 10, 2006;
however, her periodic rolls compensation did not stop until April 16, 2006. As a result, appellant
received an overpayment from March 10 to April 15, 2006. The Office found that the
compensation payments that appellant received for the period February 19 to March 18, 2006
was $1,979.00. For the period March 19 to April 15, 2006 she received $2,048.00. The Office
added the payments, to equal $4,027.00 and subtracted the amount appellant should have
received from February 19 to March 9, 2006, $1,409.45, a total overpayment of $2,617.55. The
Office found that she was at fault as she was aware or reasonably should have been aware that
there was no entitlement to receive wage-loss benefits after returning to full-time work.
Appellant did not respond to the preliminary finding.

3

On May 18, 2006 appellant’s vocational rehabilitation file was closed. The vocational rehabilitation counselor
documented that appellant had obtained a full-time permanent job offer effective March 13, 2006 with wages of
$10.50 per hour as a general office clerk in the accounting department.

3

In a February 27, 2007 letter, appellant’s congressional representative asked that the
Office increase appellant’s benefits. It was noted that appellant’s position “ended in the middle
of January 2007.”
On March 14, 2007 the Office advised that appellant was employed as an accounting
assistant at the community resource center where she earned wages of $420.00 per week since
April 2006. The Office found that this fairly and reasonably represented her wage-earning
capacity. The Office determined that appellant performed the job until January 2007, had
demonstrated the ability to perform the job for two months or more and the position was suitable
to her partially disabled condition. The Office retroactively reduced appellant’s compensation
effective March 10, 2006.4 The Office determined that appellant’s gross weekly pay rate on the
date of injury was $637.895 and the current pay rate for the job as $685.73. The Office noted
that appellant earned $420.00 per week and that the percentage of the new wage-earning capacity
was equal to 61 percent, or a loss of wage-earning capacity of $248.78 per week. The Office
concluded that appellant’s new compensation rate was equivalent to $186.59 per week and
reduced her compensation accordingly.
On March 27, 2007 appellant contended that the employing establishment could find a
job to fit her disability. She wished to locate to a warmer climate and wanted back pay from
January to the present.
By letter dated March 29, 2007, the Office informed appellant that her disability had
extended beyond a year, and there was no requirement that the employing establishment provide
her with a position in Alaska or another state. The Office noted that employers were encouraged
to accommodate work limitations where feasible; however, they were under no obligation to find
suitable light duty. Appellant was also advised that, if she was requesting temporary total
disability from the date she was laid off, she had the burden to modify the loss of wage-earning
capacity determination.
The Office subsequently received a January 27, 2004 report from Dr. McGuire, who
opined that appellant had permanent damage to her knee and advised that “it would be best [if]
she retire.” He opined that appellant’s “job duties have worsened her symptoms and are the
causes of her current condition based on her medical record.” In chart notes dated April 9, 2007,
Dr. McGuire advised that appellant had severe degenerative joint disease, which he suspected
might warrant a total knee replacement.

4

On June 22, 2006 the Office determined that appellant was recently employed as a temporary network assistant
with wages of $420.00 per week, effective March 10, 2006, which fairly and reasonably represented her wageearning capacity. The Office determined that appellant had demonstrated the ability to perform the job for two
months or more, and the position was suitable to her partially disabled condition, and reduced her compensation
effective that date. On March 14, 2007 the Office rescinded this decision as it was issued in error due to the fact that
the Office was unaware that appellant had changed duties to an accounting assistant.
5

The decision actually contained a typographical error, stating that weekly pay rate when injured was $685.73.
However, the calculation is actually based on a weekly pay rate, when injured, of $637.89, an amount that is
supported by evidence of record.

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By letter dated April 18, 2007, the Office advised appellant’s congressional
representative that appellant received a cost-of-living increase. The Office indicated that
appellant was entitled to $818.00 less premiums for health benefits and life insurance, for a net
payment of $710.82. The Office also noted that Dr. McGuire’s January 27, 2004 report, was
prior to appellant’s return to work, and did not establish a worsening of her condition. The
Office also noted that the April 9, 2007 report did not explain how appellant’s condition had
changed since she had returned to work as a network assistant, or how these changes would
prevent her from performing her duties as a network assistant.
In a decision dated May 2, 2007, the Office finalized its preliminary findings on the fact
and amount of the overpayment. The Office found that appellant was at fault because she
accepted a payment which she knew or reasonably should have known was incorrect. The Office
noted that no response was received from appellant to the June 16, 2006 preliminary finding, that
appellant had not completed an overpayment questionnaire or provided any other financial
information. The Office determined that the amount of $100.00 would be withheld from her
continuing compensation every 28 days until the overpayment was recovered.
LEGAL PRECEDENT -- ISSUE 1
Under section 8115(a) of the Act,6 wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.7 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Board’s
decision in Albert C. Shadrick,8 has been codified by regulation at 20 C.F.R. § 10.403. Office
procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given
position for more than 60 days.9 The amount of any compensation paid is based on the wageearning capacity determination and it remains undisturbed until properly modified.10
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for tear of the right anterior cruciate ligament and
paid appropriate compensation.

6

5 U.S.C. §§ 8101-8193, 8115(a).

7

Hayden C. Ross, 55 ECAB 455 (2004).

8

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

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).
10

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

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The record reflects that appellant returned to work full time, as an accounting assistant
beginning in April 2006. She was able to perform various clerical positions in accordance with
Dr. McGuire’s January 27, 2004 restrictions. Appellant initially began working as a general
clerk on March 13, 2006, and later received an offer as a temporary network assistant effective,
March 27, 2006. She accepted an assistant accounting position in April 2006 and continued to
perform this position until January 2007. Accordingly, the Board finds that the position of an
accounting assistant that appellant held commencing April 2006 was an appropriate limited-duty
job which the Office properly determined represented her wage-earning capacity. Appellant
began her modified position on March 27, 2006 and subsequently worked in the position for over
60 days. Her case was closed by the rehabilitation counselor on May 18, 2006. Appellant’s
performance of this position in excess of 60 days is persuasive evidence that the position
represents her wage-earning capacity.11
As there was no evidence that appellant’s actual earnings as an accounting assistant did
not properly represent her wage-earning capacity, the Office properly accepted these earnings as
the best measure of her wage-earning capacity. The record reflects that, on March 14, 2007,
appellant’s compensation was reduced to reflect her actual earnings as an accounting assistant,
effective March 13, 2006, the date she returned to work.12
There is no evidence that the position was seasonal, temporary or make-shift work
designed for appellant’s particular needs.13 The record reflects that appellant was making
$420.00 per week and that her gross weekly pay rate on the date of injury was $637.89 and her
current pay rate was $685.73. The Office noted that the percentage of the new wage-earning
capacity was equal to 61 percent, or a loss of wage-earning capacity of $248.78 per week. The
Office accordingly reduced appellant’s compensation rate to $186.59 per week. Therefore, the
Office properly determined appellant’s loss of wage-earning capacity under the Shadrick formula
as of April 2006, as the Office found in its March 14, 2007 decision.14
LEGAL PRECEDENT -- ISSUE 2
The Federal Employees’ Compensation Act 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 duty.15 When an overpayment has been made to an individual

11

Office procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given position for more
than 60 days. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7(c) (December 1993).
12

While the Office used March 10, it appears that appellant actually began receiving wages on March 13, 2006.

13

Elbert Hicks, 49 ECAB 283 (1998).

14

Supra note 8.

15

5 U.S.C. § 8102(a).

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because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which the individual is entitled.16
A claimant is not entitled to receive total disability compensation and actual earnings for
the same period. Office procedures provide that an overpayment in compensation is created
when a claimant returns to work but continues to receive wage-loss compensation.17
ANALYSIS -- ISSUE 2
The record indicates that on June 16, 2006, the Office found that an overpayment had
occurred. The Office explained that the overpayment had occurred because appellant received
compensation for total disability while she was employed as a full-time employee beginning
March 10, 2006. The Office found that her periodic rolls compensation did not stop until
April 16, 2006. The Office further found that this error created an overpayment of compensation
to appellant. Appellant should not have received compensation for the period March 10 to
April 15, 2006, as she was working and receiving wages. The Office determined that she
received $1,979.00, plus $2,048.00 or a total of $4,027.00 for the aforementioned time frame.
The Office determined that appellant was entitled to receive compensation from February 19 to
March 9, 2006 in the amount of $1,409.45. The Office subtracted this amount from the
$4,027.00 to determine an overpayment in the amount of $2,617.55. The Board will affirm the
Office’s May 2, 2007 decision on the issue of fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to, or the amount of, benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).18
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.19
16

Id. at § 8129(a).

17

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).
18

20 C.F.R. § 10.433(a).

19

20 C.F.R. § 10.433(b).

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ANALYSIS -- ISSUE 3
The Office found that appellant was at fault in the creation of the overpayment based on
the third criterion above, that she accepted payments which she knew or should have known to
be incorrect. In order for the Office to establish that appellant was at fault in creating the
overpayment, the Office must show that, at the time she received the compensation checks in
question, she knew or should have known that the payment was incorrect.20
The record contains no evidence that appellant was apprised by the Office, as of the time
she accepted the compensation checks, of the specific period the check covered so as to put her
on notice that she was being paid incorrectly for a period of time during which he worked.21 If
such evidence existed which established that appellant had notice that she was accepting an
incorrect payment, this would establish fault. However, there is no evidence in the record that
any letter or other information which accompanied the check which would have reasonably put
appellant on notice that she had received an incorrect payment. As noted above, in determining
whether an individual is without fault, the Office must consider an individual’s understanding of
the obligation to return payments which were not due. If there is no evidence which indicates
that an individual knew or should have known at the time the incorrect payment was accepted
that the payment was not due, the Office cannot meet its burden of proof in finding that such
individual was at fault in accepting an incorrect payment. There is no other evidence of record
which put appellant on notice that the compensation check was for a period of time to which she
was not entitled to compensation. Appellant’s congressional representative received a notice on
October 20, 2005 that appellant would not be entitled to continuing compensation benefits, if she
were able to earn wages paid by her position at the time of her injury. However, there is no
evidence that the letter was sent to appellant or that she was aware of it prior to receipt and
acceptance of the check in question. As there is no evidence which indicates that appellant know
or should have known that she was not due the incorrect payment at the time she accepted the
payment, the Office has not met its burden. For this reason, the Office has not met its burden of
proof in establishing that she was at fault.
Thus, the May 2, 2007 decision is reversed as to the finding of fault for the overpayment
of compensation and the case is remanded to the Office for a determination on the issue of
whether appellant is entitled to waiver of the overpayment.22
CONCLUSION
The Board finds that the Office properly determined appellant’s wage-earning capacity.
The Board also finds that the Office properly determined that appellant received an overpayment
in the amount of $2,617.55. However, the Office did not meet its burden of proof in establishing
that appellant was at fault in creating the overpayment in the amount of $2,617.55. Thus, the
May 2, 2007 decision is reversed as to the finding of fault for the overpayment of and the case is
20

Robin O. Porter, 40 ECAB 421 (1989).

21

Id.

22

The issue regarding recovery of the overpayment is not in posture.

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remanded to the Office for a determination on the issue of whether appellant is entitled to waiver
of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2007 decision of the Office of Workers’
Compensation Programs is affirmed in part and reversed in part and the case remanded for
further action consistent with this decision. The March 14, 2007 decision is affirmed.
Issued: April 21, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.T., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
AGENCIES, DEFENSE FINANCE &
ACCOUNTING SERVICE, Columbus, OH,
Employer
__________________________________________

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

Docket No. 13-2172
Issued: March 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 25, 2013 appellant filed a timely appeal from a June 3, 2013 merit
decision and a July 29, 2013 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that
hypertension and situational anxiety were causally related to a March 30, 2012 employment
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence following the June 3, 2013 OWCP decision. Since the Board’s
jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not
consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005).

incident; and (2) whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed under 5 U.S.C. § 8124.
FACTUAL HISTORY
On January 2, 2013 appellant, then a 51-year-old supervisory accounting technician, filed
a traumatic injury claim alleging that on March 30, 2012 her left hand, arm and shoulder became
numb after a coworker slapped her hand in the performance of duty during a training class. She
stopped work and returned on April 17, 2012.
Appellant submitted various e-mails with her supervisors and coworkers dated
September 28 to December 14, 2012. In a December 14, 2012 e-mail, she stated that she
experienced a workplace violence-related injury that caused her to be out of the office from
April 2 to 17, 2012. On March 30, 2012 during a required training course for the employing
establishment, appellant was slapped really hard on the hand by a disgruntled employee named
Myrna Speers when she touched the tab key on the computer. She reported that her left hand and
arm grew numb and started to throb. Appellant reported the incident to the police and was
examined by a nurse who informed her that her blood pressure was elevated. She noted that she
experienced continuous choking spells and fatigue since the March 30, 2012 incident and had
multiple follow-up visits with her physician.
In a March 30, 2012 sworn statement, Ms. Speers advised that she was assisting appellant
during class when she noticed that appellant kept tabbing at the end of the line which added extra
lines. She joked with appellant that if she kept adding extra lines she would smack her hand.
Ms. Speers related that, when appellant did hit the “tab” key again, she tapped the back of
appellant’s hand with two of her fingers. She stated that she was joking and apologized.
In a March 30, 2012 sworn statement, appellant stated that she was in a classroom and
Ms. Speers offered to help her but became upset because she kept hitting the tab key by mistake.
Appellant alleged that Ms. Speers slapped the back of her left hand really hard which caused her
hand and left arm to grow numb from the slap. She reported that the incident made her very
uncomfortable and it was hard for her to focus afterwards. Appellant noted that her blood
pressure was high after the incident.
In a March 30, 2012 criminal incident report, a police officer stated that appellant was
attending a computer-based course in room B131 of building 21 and was being instructed by
another student named Ms. Speers. Appellant kept hitting the tab key when she was not
supposed to and was slapped on her left hand by Ms. Speers with force. She related that her
entire arm became numb and a nurse told her that her blood pressure elevated. The police officer
stated that Ms. Speers informed him that she only lightly tapped appellant’s wrist with two
fingers and that the gesture was meant as a joke, with no malicious intent. He noted that there
was no visible mark on appellant’s hand where she had been slapped.
In a March 30, 2012 report of injury or illness form, a registered nurse with an illegible
signature stated that appellant was receiving assistance from another student named Ms. Speers
who slapped appellant’s left hand really hard. Appellant related that her hand, arm and shoulder
became numb. The registered nurse noted that appellant’s blood pressure was high and that her

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left hand appeared within normal limits. In an April 3, 2012 request for cardiology services,
Dr. Richard E. Gordon, a Board-certified family practitioner, noted a diagnosis of labile
hypertension and requested a 24-hour blood pressure monitor.
In an April 13, 2012 return to work note, Dr. Gordon indicated that appellant had been
under his care for medical reasons and was able to return to work as of April 17, 2012.
Appellant also submitted various diagnostic and laboratory results performed on
August 30, 2012.
By letter dated March 12, 2013, OWCP advised appellant that the evidence submitted
was insufficient to establish her claim. It requested additional evidence to establish that she
sustained a diagnosed condition as a result of the alleged March 30, 2012 employment incident.
OWCP also sent a similar development letter to the employing establishment requesting
additional information regarding the alleged March 30, 2012 employment incident.
In a March 20, 2103 statement, appellant reported that there was no animosity with
Ms. Speers, who was upset at the way that the employing establishment was treating her. Since
the March 30, 2012 incident at work, she experienced choking when under pressure and related
that the workplace incident left her feeling scared, threatened and unsafe. Appellant reported
that she did not have any prior cardiac or emotional conditions or took any medication for an
emotional condition. She noted that she was currently taking medication for hypertension.
In an April 4, 2012 statement, Yvonne Crawford, the classroom instructor, reported that
at approximately 10:25 a.m. on March 30, 2012 appellant was late returning from a break and
Ms. Speers was assisting appellant in catching up to the class. She witnessed Ms. Speers take
appellant’s hand and hit the top of it. Ms. Crawford related that she told Ms. Speers not to do
that again and asked appellant if she was okay. During the next break, appellant informed
Ms. Crawford that she experienced pain in her hand and arm but, when Ms. Crawford asked if
appellant wanted to see the nurse, appellant reaffirmed that it was fine. Around 1:15 p.m. a
police officer knocked on the door and requested to speak to Ms. Speers. Ms. Crawford noted
that appellant informed the class that she reported the incident and that the nurse told her she had
high blood pressure.
In an April 17, 2013 e-mail to her supervisor, appellant stated that after the March 30,
2012 workplace violent incident she started to experience heavy blood flow and frequent
menstrual periods, which caused her to have low blood iron, shortness of breath, choking and
other health issues. She noted that her physician suggested surgery in order to control the
bleeding.
In a decision dated June 3, 2013, OWCP denied appellant’s traumatic injury claim. It
accepted that the March 30, 2012 incident occurred and that she was diagnosed with
hypertension and situational anxiety. OWCP denied appellant’s claim finding insufficient
medical evidence to establish that her cardiovascular or emotional condition was causally related
to the accepted incident.
In an undated appeal form postmarked on July 6, 2013, appellant requested an oral
hearing.

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By decision dated July 29, 2013, an OWCP hearing representative denied appellant’s
request for a hearing as untimely filed. OWCP noted that her request for an oral hearing was
postmarked July 6, 2013, which was more than 30 days after the June 3, 2013 decision. It
exercised its discretion and further determined that the issue in the case could be equally well
addressed by requesting reconsideration from OWCP and submitting evidence not previously
considered which establishes her claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.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.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.8 An employee may establish that the
employment incident occurred as alleged but fail to show that his disability or condition relates
to the employment incident.9
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.10 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.11 The weight of the medical evidence is determined by its reliability, its probative

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

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

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10

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

11

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

4

value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.12
ANALYSIS -- ISSUE 1
Appellant alleged that on March 30, 2012 her left arm became numb and that she
experienced high blood pressure and anxiety as a result of being slapped on the top of her hand
by a coworker. In a decision dated June 3, 2013, OWCP accepted that the March 30, 2012
incident occurred. It denied appellant’s traumatic injury claim finding that the medical evidence
was insufficient to establish an injury causally related to the accepted incident.
In an April 3, 2012 request for cardiology services, Dr. Gordon noted appellant’s
diagnoses of labile hypertension. In an April 13, 2012 note, he stated only that she was under his
medical care and authorized her to return to work on April 17, 2012. The Board notes that while
Dr. Gordon diagnosed hypertension he did not provide any opinion on the cause of appellant’s
diagnosed condition nor relate the condition to the accepted March 30, 2012 employment
incident. Dr. Gordon did not address how appellant being smacked on the hand by Ms. Speers
was competent to elevate her blood pressure. Further, he provided a history pertaining to
appellant’s hypertension. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.13 Thus, Dr. Gordon’s medical reports are insufficient to establish
appellant’s claim.
Appellant also submitted a March 30, 2012 report of injury form from a registered nurse
who described the March 30, 2012 incident and noted that her blood pressure was high. Because
a nurse is not a “physician” as defined under FECA this report is of no probative value and is
insufficient to establish appellant’s claim.14
On appeal, appellant contends that she was a victim of workplace violence and placed in
a hostile environment. She described her health issues and the March 30, 2012 incident at work.
The issue of causal relationship, however, is a medical question that must be established by
probative medical opinion from a physician.15 The Board finds that appellant has not submitted
such probative medical evidence from a physician to establish that her diagnosed hypertension
and anxiety was causally related to the March 30, 2012 employment incident.

12

James Mack, 43 ECAB 321 (1991).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
14

R.M., 59 ECAB 690 (2008); section 8101(2) of FECA provides as follows: the term 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).
15

W.W., Docket No. 09-1619 (June 2, 2010); David Apgar, supra note 8.

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.16 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.17 A claimant is entitled to a hearing or
review of the written record as a matter of right only if the request is filed within the requisite 30
days as determined by postmark or other carrier’s date marking and before the claimant has
requested reconsideration.18 Although there is no right to a review of the written record or an
oral hearing if not requested within the 30-day time period, OWCP may within its discretionary
powers grant or deny appellant’s request and must exercise its discretion.19 OWCP’s procedures
require that it exercise its discretion to grant or deny a hearing when the request is untimely or
made after reconsideration under section 8128(a).20
ANALYSIS -- ISSUE 2
On June 3, 2013 OWCP denied appellant’s traumatic injury claim. Appellant requested
an oral hearing in an undated appeal form that was postmarked July 6, 2013. The Board notes
that her request for an oral hearing was submitted more than 30 days after the June 3, 2013
decision.21 Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.22
The Board finds that OWCP properly determined that appellant’s request for an oral hearing was
not timely and, thus, she was not entitled to a hearing as a matter of statutory right under section
8124(b)(1) of FECA.
Although appellant’s request for a hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion. In its July 29, 2013 decision,
16

5 U.S.C. § 8124(b)(1).

17

20 C.F.R. §§ 10.616 and 10.617.

18

Id. at § 10.616(a).

19

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

20

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.2(a) (October 2011); see R.T., Docket No. 08-408 (issued December 16, 2008).
21

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989). The
Board notes that appellant did not submit a written request for an oral hearing by July 3, 2013, within 30 calendar
days after OWCP’s June 3, 2013 decision.
22

William F. Osborne, 46 ECAB 198 (1994).

6

OWCP properly exercised its discretion by notifying her that it had considered the matter in
relation to the issue involved and indicated that additional argument and evidence could be
submitted with a request for reconsideration. The Board has held that the only limitation on
OWCP’s authority is reasonableness and an abuse of discretion is generally shown through proof
of manifest error, a clearly unreasonable exercise of judgment or actions taken which are
contrary to both logic and probable deductions from established facts.23 In this case, there is no
evidence of record that OWCP abused its discretion in denying appellant’s hearing request.
Accordingly, the Board finds that OWCP properly denied her request for an oral hearing.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
diagnosed conditions were causally related to the March 30, 2012 employment incident. The
Board also finds that OWCP properly denied her request for an oral hearing pursuant to 5 U.S.C.
§ 8124(b)(1).
ORDER
IT IS HEREBY ORDERED THAT the July 29 and June 3, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

23

Samuel R. Johnson, 51 ECAB 612 (2000).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., 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. 10-78
Issued: July 27, 2010

Case Submitted on the Record

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

JURISDICTION
On October 13, 2009 appellant filed a timely appeal from a June 5, 2009 schedule award
decision of the Office of Workers’ Compensation Programs and a September 15, 2009 decision
denying his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the
Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than two percent impairment to her right
arm and two percent impairment to her left arm, for which she received schedule awards; and
(2) whether the Office properly determined that appellant’s application for reconsideration was
insufficient to warrant further merit review of the claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 28, 2004 appellant, then a 46-year-old mail handler, filed an occupational
disease claim alleging that on April 9, 2004 she first realized her bilateral carpal tunnel condition
was employment related. The Office accepted the claim for bilateral synovitis/tenosynovitis and

bilateral carpal tunnel syndrome. It authorized right and left carpal tunnel surgery and wrist
endoscopy/surgery, which were performed on April 16 and May 21, 2007. On August 23, 2007
appellant accepted a limited-duty job offer.
In an April 29, 2008 report, Dr. David W. Olson, a treating Board-certified orthopedic
surgeon and hand surgeon, advised that appellant had two percent impairment to each wrist. A
physical examination revealed a normal sensory examination and pinch strength.
In a report dated February 6, 2009, Dr. Olson reported that appellant’s carpal tunnel
surgery scars were well healed and that her ulnar and median intrinsic function was satisfactory.
Appellant had a negative Tinel’s sign and Phalen’s flex test. Dr. Olson reported that appellant
continued to have significant bilateral upper extremity pain, but had significant relief of hand
tingling and numbness following surgery. He noted that magnetic resonance imaging scan
findings were compatible with probable ulnar impaction.
The record was referred to an Office medical adviser for review. In a report dated
April 22, 2009, Dr. Amon Ferry, an Office medical adviser, utilized the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A,
Guides), to rate impairment. He found two percent left upper extremity and two percent right
upper extremity impairment. Dr. Ferry used Table 15-23, page 449 and Modifier 1 for carpal
tunnel syndrome. He noted that Modifier 1 was appropriate for both extremities based on
appellant’s normal physical findings and her continued complaints of pain.
By decision dated June 5, 2009, the Office issued schedule awards for two percent
impairment to the left and right upper extremities. The period of the awards was 12.48 weeks
commencing February 6, 2009 and ending May 4, 2009.
On September 8, 2009 appellant requested reconsideration. In a June 17, 2009 medical
report, Dr. Olson advised that appellant was capable of working an eight-hour day with breaks as
required, but was not to work any more than 40 hours per week. In an August 25, 2009 response
to interrogatories, Dr. Kevin A. Weidman, a Board-certified orthopedic surgeon, diagnosed
carpal tunnel syndrome, bilateral ulnar impaction syndrome, right medial epicondylitis,
fibromyalgia and right shoulder bursitis with a partial rotator cuff tear. He stated that these
conditions were employment related and that appellant was capable of working with restrictions.
By decision dated September 15, 2009, the Office denied appellant’s reconsideration
request finding that the evidence was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

2

the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.3 Effective
May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.4
ANALYSIS -- ISSUE 1
On February 2, 2009 Dr. Olson found that appellant had two percent impairment of both
her right and left upper extremities. However, he provided no explanation as to how he arrived
at his impairment rating. Moreover, he did not reference the A.M.A., Guides. The only medical
evidence discussing the A.M.A., Guides and the relevant tables in the sixth edition is the
April 22, 2009 report of Dr. Ferry, the Office medical adviser. The sixth edition requires grade
modifiers be applied to test results, history and physical findings when evaluating
entrapment/compression neuropathy impairments.5 The net adjustment formula is grade
modifier for history + grade modifier for physical findings + grade modifier for test findings.
Dr. Ferry applied Table 15-23 and found a Grade Modifier 1 for carpal tunnel syndrome as
appellant had normal physical finding but continued pain. He found that under Table 15-23 this
resulted in two percent impairment of the right and left upper extremities.
Dr. Ferry, the Office medical adviser provided a rationalized medical opinion on the
issue. His impairment rating represents the weight of the medical evidence. There is no
probative medical evidence to establish greater than two percent right and left upper extremity
impairments.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against payment of
compensation at any time on its own motion or upon application.6 The employee shall exercise
this right through a request to the district Office. The request, along with the supporting
statements and evidence, is called the application for reconsideration.7
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
3

Id.

4

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
5

A.M.A., Guides (6th ed. 2008) 448-49.

6

5 U.S.C. § 8128(a). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006).

7

20 C.F.R. § 10.605.

3

arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.8
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.9 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.10
ANALYSIS -- ISSUE 2
In her September 8, 2009 request for reconsideration, appellant did not show that the
Office erroneously applied or interpreted a specific point of law or advance a relevant legal
argument not previously considered by the Office. She submitted a June 17, 2009 medical report
from Dr. Olson, an August 25, 2009 response to interrogatories by Dr. Weidman and an
April 13, 2009 functional capacity evaluation report previously of record. None of the evidence
submitted addresses the relevant issue of the permanent impairment to her upper extremities.
Neither Dr. Olson nor Dr. Weidman addressed the nature or extent of appellant’s permanent
impairment. As the evidence did not address the issue in question, i.e., the degree of her upper
extremity impairments, it is not relevant or pertinent to this claim. The Board finds that
appellant did not submit relevant and pertinent new evidence not previously considered by the
Office. Because she did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2), the
Office properly denied further merit review.
CONCLUSION
The Board finds that appellant has two percent left and right upper extremity
impairments. The Office properly refused to reopen her case for further merit review.

8

Id. at § 10.606. See Susan A. Filkins, 57 ECAB 630 (2006).

9

Id. at § 10.607(a). See Joseph R. Santos, 57 ECAB 554 (2006).

10

Id. at §10.608(b). See Candace A. Karkoff, 56 ECAB 622 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 15 and June 5, 2009 are affirmed.
Issued: July 27, 2010
Washington, DC

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

Michael E. Groom, Alternate 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.J., Appellant
and
U.S. POSTAL SERVICE, PROVIDENCE
PROCESSING & DISTRIBUTION CENTER,
Providence, RI, Employer
__________________________________________

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

Docket No. 18-1116
Issued: January 23, 2019

Case Submitted on the Record

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

JURISDICTION
On May 10, 2018 appellant filed a timely appeal from an April 20, 2018 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 that her diagnosed
medical conditions were causally related to the accepted September 10, 2017 employment
incident.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On September 10, 2017 appellant, then a 62-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury that day when she lifted a tray full of mail
while in the performance of duty. She indicated that she felt pain in her left wrist which radiated
up to her elbow when moving her thumb and index finger. Appellant stopped work after the
incident and has not returned.3
On September 10, 2017 the employing establishment issued appellant a properly
completed authorization for examination and/or treatment (Form CA-16) dated September 10,
2017, which indicated that she was authorized to seek medical treatment for a left wrist/hand
injury.
September 10, 2017 emergency room reports from Dr. Achyut B. Kamat, a Board-certified
emergency medical specialist, were received. In an attending physician’s report attached to the
Form CA-16, he reported that appellant sustained injury on September 10, 2017 while lifting
boxes. Dr. Kamat diagnosed left wrist strain and possible scaphoid fracture. He checked a box
marked “yes” indicating that the diagnosed condition was caused or aggravated by the employment
activity described. In a September 10, 2017 duty status report (Form CA-17), Dr. Kamat
diagnosed a left wrist strain. In September 10, 2017 report, he diagnosed osteoarthritis of the
carpometacarpal (CMC) joint of left thumb and left wrist sprain. In all of his reports Dr. Kamat
released appellant to modified work on September 12, 2017 with no lifting.
In a September 15, 2017 report, Dr. Eric F. Walsh, a Board-certified orthopedic surgeon,
noted that appellant was last seen on August 10, 2017 status post right carpal tunnel release. He
reported that on September 10, 2017 she was lifting a 50-pound container when she felt sharp,
stabbing pain and burning over her left CMC region. Dr. Walsh noted that appellant sought care
at the emergency room where x-rays were taken. He reported that x-rays showed stage IV CMC
degenerative joint of the left thumb. Dr. Walsh provided an assessment of left thumb degenerative
joint which he opined was billable under workers’ compensation insurance as the injury had
occurred during the course of appellant’s employment. He discussed treatment options and kept
her off work. In a September 15, 2017 duty status report (Form CA-17), Dr. Walsh diagnosed
degenerative joint of the left thumb.
By development letter dated September 26, 2017, OWCP advised appellant that the
evidence received to date was insufficient to support her claim. It informed her of the type of
factual and medical evidence needed to establish her claim. OWCP afforded appellant 30 days to
submit further evidence. It subsequently received her statements dated October 6, May 9, and
October 27, 2017, which described her employment duties and the September 10, 2017 incident,
authorization requests for left thumb surgery, and September 10, 2017 emergency department

3
Appellant has a previous occupational disease claim (Form CA-2) filed on April 13, 2017, alleging bilateral carpal
tunnel syndrome and left basilar thumb. That claim was assigned OWCP File No. xxxxxx864. Appellant’s
occupational disease claim under OWCP File No. xxxxx864 was before the Board in Docket No. 18-0905 (issued
December 10, 2018).

2

records.
OWCP also received a September 12, 2016 nerve conduction velocity and
electromyogram testing study, which was reported as abnormal.
Medical reports from Dr. Walsh, which predated the September 10, 2017 work injury, were
also received. The reports discussed appellant’s left basilar thumb arthritis and bilateral carpal
tunnel conditions. In two separate May 5, 2017 reports, Dr. Walsh noted that appellant had worked
for the employing establishment for over 20 years and, during the last 4 to 5 years, she had worked
with magazines. He noted that she had reported no injuries outside of work pertaining to her
symptoms of carpal tunnel and basal thumb arthritis. Dr. Walsh opined that, based on appellant’s
work description of the many years of working with her hands, that her bilateral carpal tunnel and
left basal thumb arthritis were directly related to her work activities. He opined that surgical
treatment was the best opinion for both of the conditions.
In September 15, 26, and 29, 2017 duty status reports (Form CA-17), Dr. Walsh noted the
history of the September 10, 2017 employment injury and diagnosed left thumb degenerative joint
disease. He continued to hold appellant off work.
In an October 18, 2017 report, Dr. Walsh noted the history of injury and diagnosed left
thumb degenerative joint. He opined that appellant’s 22 plus years of working caused severe
degenerative joint disease of her left thumb. Dr. Walsh recommended surgical treatment.
In an October 31, 2017 duty status report (Form CA-17), Dr. Walsh noted on
September 10, 2017 that appellant had lifted a very heavy tray of mail weighing about 50 pounds
with her left hand. He diagnosed left thumb/wrist pain, which he opined with a “yes” in the box
marked diagnosis(es) due to injury. In the October 31, 2017 attending physician’s report (Form
CA-20), Dr. Walsh noted a September 10, 2017 date of injury and indicated that appellant had
exacerbated her left hand and thumb pain from prior injury. He opined that her left hand thumb
osteoarthritis/degenerative joint disease was caused or aggravated by her employment activity as
“[appellant] has a physical job.”
By decision dated November 9, 2017, OWCP denied appellant’s claim. It found that the
evidence submitted established that the September 10, 2017 incident occurred, as alleged.
However, OWCP further found that the medical evidence submitted was insufficient to establish
causal relationship between the diagnosed left wrist and thumb conditions and the accepted
September 10, 2017 employment incident.
OWCP received a November 28, 2017 statement from appellant and additional medical
evidence.
In duty status reports (Form CA-17) dated October 31 and November 17, 2017, Dr. Walsh
continued to hold appellant off work due to left thumb pain and weakness and wrist pain. He also
opined “yes” in the box diagnosis(es) due to injury.
In a November 28, 2017 letter, which OWCP received December 5, 2017, appellant
requested a review of the written record before an OWCP hearing representative and submitted
duplicative evidence.
By decision dated April 20, 2018, an OWCP hearing representative affirmed the prior
decision. The hearing representative found that the medical evidence of record failed to include a
3

rationalized opinion which explained how the diagnosed conditions were causally related to the
accepted September 10, 2017 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.5
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. Generally, fact of
injury consists of 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 occurred.6 The second component is whether the employment incident caused a personal
injury.7 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.8
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.9 A physician’s opinion on whether there is causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.10 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
appellant’s specific employment factor(s).11
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.12

4

See supra note 1.

5

20 C.F.R. § 10.115(e), (f); see T.O., Docket No. 18-1012 (issued October 29, 2018); see Jacquelyn L. Oliver, 48
ECAB 232, 235-36 (1996).
6

See T.O., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

7

See T.O., supra note 5; John J. Carlone, 41 ECAB 354 (1989).

8

See K.C., Docket No. 17-1693 (issued October 29, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

See K.C., id.; Robert G. Morris, 48 ECAB 238 (1996).

10

See K.C., supra note 8; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

4

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted September 10, 2017
employment incident.
In support of her claim appellant submitted a series of medical reports from her treating
physician, Dr. Kamat. The September 10, 2017 form reports from Dr. Kamat do not include an
opinion regarding causal relationship, if any, between her diagnosed conditions and the
September 10, 2017 employment incident. In his attending physician’s report, Dr. Kamat noted
the history of the September 10, 2017 employment incident and assessed a wrist strain and possible
scaphoid fracture. While he opined, by checking a box marked “yes,” that the diagnosed condition
was caused or aggravated by the employment activity, he provided no further explanation as to
how such causal relationship existed. The Board has held that a physician’s form report which
merely checked a box marked “yes” to the inquiry as to whether the condition for which treatment
is rendered is causally related to the history of injury as given, is of diminished probative value as
it constitutes a conclusion without the benefit of medical rationale.13 Dr. Kamat also completed
reports of even date and diagnosed a strain and osteoarthritis of the left thumb joint and left wrist
sprain, respectively. However, he did not offer an opinion on the diagnosed conditions. 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.14 Accordingly, Dr. Kamat’s
reports are insufficient to establish appellant’s claim.
The reports from Dr. Walsh are similarly deficient as they do not include a discussion of a
causal relationship between appellant’s diagnosed conditions and the September 10, 2017
employment incident. His reports which predate the September 10, 2017 employment incident
reflect that she had preexisting left basilar thumb arthritis and bilateral carpal tunnel conditions,
for which she underwent right-sided carpal tunnel release prior to the September 10, 2017
employment incident. In his September 15, 2017 report and form reports, Dr. Walsh noted the
history of the September 10, 2017 employment incident and that x-rays showed stage IV CMC
degenerative joint of the left thumb. While he opined that appellant’s left thumb degenerative joint
disease was billable under workers’ compensation insurance, as the injury occurred during the
course of her employment, he provided no further explanation as to how such causal relationship
existed. The Board has held that a report is of limited probative value regarding causal relationship
if it does not contain medical rationale explaining how a given medical condition/disability was
related to employment factors.15 A well-rationalized opinion is particularly warranted, as is the
case here, when there is a history of a preexisting condition.16

13

See S.G., Docket No. 18-0390 (issued September 11, 2018); Barbara J. Williams, 40 ECAB 649 (1989).

14

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

15

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability).
16
See S.G., supra note 13; T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB
379 (2006).

5

In multiple duty status reports (Form CA-17) dated September 15 through 29, 2017,
Dr. Walsh diagnosed left thumb degenerative joint disease, but did not offer an opinion regarding
the cause of appellant’s condition.17 In his October 18 and 31, 2017 reports, he opined that her 22
plus years of working or the fact that she had a physical job caused and/or aggravated the severe
degenerative joint disease in the left thumb. However, Dr. Walsh did not provide an explanation
or rationale as to how the accepted September 10, 2017 employment incident caused or aggravated
the diagnosed condition.18 He further opined in October 31 and November 17, 2017 duty status
reports that appellant’s left thumb and wrist pain was due to the September 10, 2017 employment
incident. However, this opinion merely related appellant’s painful left thumb and wrist to the
accepted September 10, 2017 employment incident. Pain is a description of a symptom rather than
a firm diagnosis of a compensable medical condition.19 The Board therefore finds that as
Dr. Walsh did not explain how physiologically appellant’s employment incident caused or
contributed to her diagnosed conditions, his opinion is of limited probative value.20
OWCP also received a diagnostic test report. However, the diagnostic test report of record
does not provide an opinion regarding cause of any diagnosed conditions. The Board has long
held that diagnostic reports which offer no opinion regarding causal relationship are of no
probative value.21
Because appellant has not submitted reasoned medical evidence explaining how a
diagnosed medical condition is causally related to her accepted employment incident, she has not
met her burden of proof.22
On appeal, appellant indicates that she had to retire from work and that her lifestyle was
restricted due to limited use of her left hand. She requested that her claim be approved so she
could undergo left wrist surgery. As discussed above, none of the medical evidence appellant
submitted contains sufficient rationale explaining how the diagnosed left hand/wrist conditions
was causally related to or aggravated by the accepted September 10, 2017 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

17

See M.S., Docket No. 16-1907 (issued August 29, 2017).

18

See supra note 16.

19

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See F.U.,
Docket No. 18-0078 (issued June 6, 2018); C.F., Docket No. 08-1102 (issued October 10, 2008).
20

See K.K., Docket No. 17-1061 (issued July 25, 2018).

21

See M.B., Docket No. 18-0906 (issued November 21, 2018).

22

The Board notes that the employing establishment executed a Form CA-16 on September 10, 2017 authorizing
medical treatment. The Board has held that where an employing establishment properly executes a Form CA-16,
which authorizes medical treatment as a result of an employee’s claim for an employment-related injury, it creates a
contractual obligation, which does not involve the employee directly, to pay the cost of the examination or treatment
regardless of the action taken on the claim. L.D., Docket No. 16-1289 (issued December 8, 2016).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed medical conditions were causally related to the accepted September 10, 2017
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 20, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 23, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Peoria, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-1230
Issued: February 16, 2021

Case Submitted on the Record

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

JURISDICTION
On May 29, 2020 appellant, through counsel, filed a timely appeal from an April 24, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a left rotator cuff
tear causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On September 24, 2019 appellant, then a 47-year-old sales and service associate, filed a
traumatic injury claim (Form CA-1) alleging that on December 7, 2017 she injured her wrist,
forearm and shoulder while in the performance of duty.3 She explained that she was misdiagnosed
as having tennis elbow and when her condition did not improve with treatment she underwent a
September 4, 2019 left shoulder magnetic resonance imaging (MRI) scan that demonstrated a torn
rotator cuff. On the reverse side of the claim form the employing establishment checked a box
marked “No” to indicate that appellant was not in the performance of duty when her injury
occurred and explained that she was not working the entire week of the date she claimed she
sustained her injury. It also noted that she did not provide any cause of injury on her claim form.
Appellant stopped work on December 4, 2017 and returned to work on December 13, 2017.
In a September 12, 2019 medical report, Joseph Emmerich, a physician assistant, reviewed
the September 4, 2019 MRI scan of appellant’s left shoulder and noted an articular-sided rim renttype tear with a delaminating component involving the supraspinatus and the leading edge of the
infraspinatus tendon. He performed an intra-articular cortisone injection and in an after-visit
summary of even date he referred her to physical therapy.
In an undated letter the employing establishment controverted appellant’s claim, asserting
that the date of injury was unknown as she did not notify the current management at the North
University Station of her alleged December 7, 2017 employment injury. It claimed that she was
employed at the employing establishment and not the North University Station. The employing
establishment noted that appellant did not work the entire week of December 7, 2017, the claimed
date of injury. It also noted that she was issued a notice of removal in August 2019 for falsification
of medical documentation/fraud and was involved in an ongoing criminal investigation related to
all medical evidence electronically signed by a specific physician beginning January 2019 and
continuing.
In a September 27, 2019 attending physician’s report (Form CA-20), Dr. Jeff Lowe, a
Board-certified orthopedic surgeon, provided a history of employment injury that included pain in
appellant’s wrists, left shoulder, and both arms. He diagnosed carpal tunnel syndrome and pinched
ulnar nerve. Dr. Lowe checked a box marked “Yes” to indicate his opinion that her conditions
were caused or aggravated by her federal employment and explained that her conditions were
continuously aggravated by her repetitive motion.

3

On April 26, 2019 appellant filed an occupational disease claim (Form CA-2) under OWCP File No. xxxxxx594
that it accepted for carpal tunnel syndrome, right upper limb and a lesion of the ulna nerve, left upper limb. She
contends that the present claim under OWCP File No. xxxxxx787 is related to her previously accepted injury under
xxxxxx594.

2

In an October 10, 2019 development letter, OWCP informed appellant that it had received
no evidence in support of her traumatic injury claim. It informed her of the evidence necessary to
establish her claim and provided a questionnaire for her completion regarding her employment
activities. OWCP also requested a narrative medical report from appellant’s treating physician,
which contained a detailed description of findings and a diagnosis, explaining how the claimed
employment incident caused, contributed to, or aggravated her medical conditions. It afforded her
30 days to respond.
In an August 27, 2019 medical report, Mr. Emmerich evaluated appellant following her
August 14, 2019 right carpal tunnel release procedure and noted improvements in her right arm.
Appellant informed him that she would like to have her left shoulder reevaluated as she was still
experiencing pain. Mr. Emmerich assessed left shoulder pain with internal derangement and
recommended that appellant undergo an MRI scan for further evaluation.
In a September 4, 2019 diagnostic report, Dr. George Gentry, a Board-certified radiologist,
performed an MRI scan of appellant’s left shoulder, which demonstrated a rim rent-type tear partial
articular side tear of the supraspinatus and a portion of the infraspinatus tendons of the left
shoulder.
In an October 24, 2019 statement, appellant explained that in November 2018 she sought
treatment with Kellie Dewitt, a physician assistant, with complaints of pain in her shoulders. She
underwent x-ray scans, cortisone shots and participated in physical therapy to treat her symptoms.
In March 2019, appellant was again seen by Ms. Dewitt with complaints of pain in her shoulders
and hands. She noted that carpal tunnel syndrome was discussed due to her work. Appellant was
referred to have an electromyography (EMG) scan performed for further evaluation. She
underwent cortisone injections, x-ray scans and physical therapy to treat her symptoms.
Ms. Dewitt diagnosed a pinched ulna nerve in the left arm and carpal tunnel syndrome of the right
wrist in April 2019. Appellant noted that she was seen by Dr. Lowe on May 2, 2019 who opined
that her conditions were work-related repetitive motion injuries and suggested she receive therapy
to treat her conditions. She underwent surgery on August 14, 2019 and claimed that the subsequent
therapy sessions afterwards aggravated her left shoulder. A September 4, 2019 MRI scan revealed
a torn rotator cuff in her left shoulder with evidence of arthritis and a bone spur. Appellant
indicated that she spoke with Dr. Lowe on October 24, 2019 who opined that her shoulder
condition was contributed to or aggravated by her pinched ulna nerve and recommended she
undergo left shoulder surgery. She contended that he was preparing Form CA-20 reports for her
present claim, as well as her previously accepted claim under OWCP File No. xxxxxx594, as he
believed her rotator cuff tear was caused by a “heavy package, bag, etc. at work” which
progressively worsened and caused damage to her right wrist when she tried to overcompensate
for her left arm injury.
In a medical report dated October 24, 2019, Dr. Lowe reviewed appellant’s history of
treatment for her left shoulder injury dating back to 2018. He referenced her past medical history
including an August 14, 2019 carpal tunnel release procedure. On evaluation, Dr. Lowe diagnosed
a delaminating articular surface rotator cuff tear and recommended she undergo a left shoulder
arthroscopy to treat her condition. In a medical note of even date, he recommended that appellant
remain out of work until after her left shoulder surgery.

3

In an October 25, 2019 Form CA-20, Dr. Lowe diagnosed a partial tear of the left rotator
cuff and, on review of the history of appellant’s injury, noted that her chief complaint was related
to her other May 2, 2019 claim under OWCP File No. xxxxxx594. He checked a box marked
“Yes” to indicate that her condition was caused or aggravated by her federal employment and
explained that she overcompensated for her right carpal tunnel syndrome in her wrist and pinched
ulnar in the left arm.
In a November 1, 2019 Form CA-20, Dr. Lowe again noted that appellant was experiencing
pain in her left shoulder, including her carpal tunnel syndrome and pinched ulnar nerve. He
checked a box marked “Yes” to indicate his opinion that her conditions were caused or aggravated
by her federal employment and explained that her conditions were continuously aggravated by her
repetitive motion.
In response to OWCP’s questionnaire, appellant submitted a November 6, 2019 statement
in which she clarified that her injury was an occupational disease claim and not a traumatic injury.
She stated that she used December 7, 2017 as the date of injury because this was the date used for
her original claim under OWCP File No. xxxxxx594. Appellant asserted that she did not intend
to file a new claim and only wanted to add her newly diagnosed injuries to her previous claim.
She then detailed her history of medical treatment as it related to pain she experienced in her
shoulders and bilateral upper extremities.
In a November 12, 2019 medical note, Dr. Lowe noted that he saw appellant for
preoperation testing for a right carpal tunnel release procedure, as well as for complaints of left
shoulder pain.
By decision dated November 21, 2019, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that her medical condition was
“causally related to the accepted work event(s).”
On November 27, 2019 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
In a December 19, 2019 medical note, Dr. Lowe reported that appellant’s left shoulder pain
was due to her workers’ compensation claim that began two years prior and that her left rotator
cuff tear was due to overcompensation of her left side, secondary to her 25 years working at the
employing establishment. He indicated that she recently underwent surgery on her left shoulder
and would continue to utilize physical therapy, bracing and activity modification for her recovery.
In a December 30, 2019 Form CA-20, Dr. Lowe diagnosed carpal tunnel syndrome, a
pinched ulnar nerve and a torn rotator cuff. He checked a box marked “Yes” to indicate his belief
that appellant’s conditions were caused or aggravated by her federal employment and explained
that the continuous repetitive motion and overcompensating for her right carpal tunnel syndrome
resulted in her left rotator cuff tear.
At the hearing held on March 12, 2020, counsel reasoned that appellant’s left rotator cuff
injury should have been included in her previous claim under OWCP File No. xxxxxx594 and that
her injury should have been treated as an occupational disease claim. He emphasized medical
evidence from Dr. Lowe where he opined that her right carpal tunnel syndrome was so severe that
4

she was overcompensating with her left arm to perform her employment duties, which ultimately
led to her left rotator cuff injury. Counsel requested that the current claim be administratively
combined with appellant’s previous claim. The hearing representative held the case record open
for 30 days to allow the submission of additional evidence.
Appellant submitted a December 14, 2018 medical report in which Dr. Brent Johnson, a
Board-certified orthopedic surgeon, evaluated her for left shoulder pain she had experienced for
the last year and a half. Dr. Johnson noted that, while performing her employment duties, which
required her to throw packages and sort mail, her shoulder would catch and that her pain was
exacerbated by reaching and lifting. He diagnosed left rotator cuff syndrome. Dr. Johnson
administered a cortisone injection and referred appellant to physical therapy.
Appellant also submitted physical therapy reports dated from December 19, 2018 to
January 17, 2019 in which she underwent therapy treatment for her left rotator cuff.
In a March 18, 2019 after visit summary, Ms. Dewitt evaluated appellant for paresthesia of
both hands.
In a November 20, 2019 medical note, Ms. Dewitt noted that appellant was seen on
November 19, 2018 for left shoulder pain and popping, as well as right hand pain, numbness and
tingling.
A December 1, 2019 medical note with no signature indicated that appellant underwent an
EMG/nerve conduction (NCV) study on April 3, 2019 which revealed paresthesia in both hands.
In a December 4, 2019 operative report, Dr. Lowe performed a left shoulder arthroscopy
in order to treat appellant’s partial articular supraspinatus tendon avulsion lesion.
By decision dated April 24, 2020, OWCP’s hearing representative explained that, based on
appellant’s description, her case would be treated as an occupational disease claim as opposed to
a traumatic injury and affirmed the November 21, 2019 decision. She also directed OWCP to
administratively combine OWCP File No. xxxxxx594 with the present claim.4
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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,6 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
4

Following the April 24, 2020 decision, OWCP administratively combined OWCP File Nos. xxxxxx787 and
xxxxxx594 with OWCP File No. xxxxxx594 serving as the master file.
5

Supra note 2.

6
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

5

to the employment injury.7 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.8
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.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 factor(s) 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 appellant’s
specific employment factor(s).12
ANALYSIS
The Board finds that the case is not in posture for decision.
In support of her claim, appellant submitted Form CA-20 reports dated October 25 and
December 30, 2019 from Dr. Lowe in which he detailed his treatment in relation to her left
shoulder pain. Dr. Lowe acknowledged her previously accepted right carpal tunnel syndrome and
pinched ulnar nerve in her left arm. He explained that the continuous repetitive motion and
appellant’s overcompensating for her right carpal tunnel syndrome and left pinched ulnar nerve
resulted in the left rotator cuff tear. In a separate December 19, 2019 medical note, Dr. Lowe
noted that appellant’s left shoulder condition was related to her previous workers’ compensation
claim and opined that her left rotator cuff tear was the result of overcompensation on her left side
secondary to her work at the employing establishment.
The Board finds that, while the reports from Dr. Lowe are not completely rationalized, they
are consistent in indicating that appellant’s repetitive motion and overcompensating for her right
7

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

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).
9
R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
10

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

11

M.V., Docket No. 18-0884 (issued December 28, 2018).

12

Id.; Victor J. Woodhams, supra note 9.

6

CTS and pinched ulnar nerve resulted in her rotator cuff tear and are not contradicted by any
substantial medical or factual evidence of record.13 While these reports do not provide medical
rationale to establish a consequential injury by which her accepted factors of federal employment
caused or aggravated her diagnosed left rotator cuff tear, they raise an uncontroverted inference
between appellant’s accepted right CTS and rotator cuff tear, and thus, they are sufficient to require
OWCP to further develop the medical evidence.14
On remand OWCP shall prepare a statement of accepted facts (SOAF) based on the present
claim setting forth the employment factors which have been established and refer appellant to a
second opinion physician in the appropriate field of medicine for an examination and a rationalized
medical opinion as to whether her accepted employment factors either caused or aggravated her
left rotator cuff tear.15 If the second opinion disagrees with the explanations provided by Dr. Lowe,
he or she must provide a fully-rationalized explanation explaining why his opinion is unsupported.
After this and such further development as is deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

See D.G., Docket No. 18-0043 (issued May 7, 2019).

14

See E.J., Docket No. 09-1481 (issued February 19, 2010); Richard E. Simpson, 55 ECAB 490, 500 (2004);
John J. Carlone, 41 ECAB 354, 360 (1989).
15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

7

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2020 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: February 16, 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

8