United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MEDICAL RESEARCH INSTITUTE OF
INFECTIOUS DISEASES, Fort Detrick, MD,
Employer
__________________________________________

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

Docket No. 20-0011
Issued: March 9, 2021

Case Submitted on the Record

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

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal from a June 20, 2019
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 his burden of proof to establish that he contracted
an intestinal parasite infection (entamoeba polecki) causally related to the accepted employmentrelated exposures.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are set forth
below.
On November 16, 2011 appellant, then a 29-year-old animal caretaker, filed an
occupational disease claim (Form CA-2) alleging that he contracted systematic entamoeba polecki
infection as a result of factors of his federal employment while working with host animals
associated with parasitic infection. He indicated that he first became aware of his condition and
that it resulted from factors of his federal employment on October 19, 2011. Appellant stopped
work on October 19, 2011 and returned to work on November 7, 2011.
In a November 29, 2011 development letter, OWCP advised appellant of the type of factual
and medical evidence necessary to support his claim and provided a questionnaire for completion.
It afforded him 30 days to respond. In a separate letter of even date, OWCP also requested
additional information from the employing establishment regarding appellant’s employment duties
and whether it concurred with his allegations.
OWCP received an October 19, 2011 report cosigned by Dr. Alexander Ambroz, a Boardcertified occupational medicine physician. Dr. Ambroz recounted appellant’s complaints of
bloody diarrhea, vomiting, nausea, and abdominal pain for the prior two weeks. He indicated that
appellant worked as an animal caretaker. Dr. Ambroz ordered laboratory testing, which was
completed on October 20, 2011, and appellant subsequently tested positive of entamoeba polecki
trophozoites in his stool.
In a November 2, 2011 memorandum, Dr. Larry Shelton, deputy director of the veterinary
medicine division at the employing establishment, informed Dr. Roger McIntosh, the employing
establishment’s biological surety medical director, that an animal caretaker who worked with
nonhuman primates (NHP) recently missed work due to diagnosis and treatment of symptomatic
entamoeba polecki infection. He indicated that NHPs were quarantined and screened upon arrival
at the employing establishment and that animal caretakers were provided with protective
equipment. Dr. Shelton opined that it was highly unlikely that this case of entamoeba polecki was
a result of contact with the NHP at the employing establishment.
OWCP received copies of e-mails dated November 2 and 3, 2011. In a November 2, 2011
e-mail, Dr. Ronald Reisler, an employing establishment physician, indicated that 25 percent of the
NHP infections that were detected and subtyped contained polecki and that some of the NHP had

3
Docket No. 13-0081 (issued August 23, 2013); Order Granting Remand, Docket No. 17-1305 (issued
October 4, 2017).

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multiple types of entamoeba subtypes. He also submitted a 1998 journal article about entamoeba
histolytica that was contracted from well water in the Republic of Georgia.
In a November 22, 2011 report, Dr. Benjamin Palmer, a Board-certified preventive
medicine physician, recounted that on the week of October 12, 2011 appellant began to feel ill and
experienced worsening gastrointestinal symptoms. He indicated that recent testing of stool was
positive for entamoeba polecki. Dr. Palmer described appellant’s work duties as an animal
caretaker and noted that he used protective equipment while at work. He diagnosed parasitic
infestation. Dr. Palmer reported that appellant clearly experienced a case of gastroenteritis due to
entamoeba polecki and listed a number of possibilities for infection, but explained that the cause
and route of this infection could not be positively identified. He concluded that there was no clear
evidence that the infection was a result of an exposure at the employing establishment.
By decision dated February 15, 2012, OWCP denied appellant’s occupational disease
claim. It accepted that he was exposed to NHP feces while working with animals as part of his
employment duties and that he was diagnosed with a medical condition, but denied the claim
finding that the medical evidence of record was insufficient to establish causal relationship
between the diagnosed condition and the accepted employment exposure.
On March 12, 2012 appellant, through counsel, requested a telephonic hearing, which was
held on June 15, 2012. By decision dated September 13, 2012, an OWCP hearing representative
affirmed OWCP’s February 15, 2012 decision. Appellant filed an appeal to the Board.
By decision dated August 23, 2013, the Board set aside the September 13, 2012 OWCP
decision and remanded the case for further factual development of the record. The Board
specifically requested that OWCP develop whether the employing establishment performed testing
on certain NHP that would have been in quarantine at the same time that appellant worked with
them and clarify the meaning of Dr. Reisler’s e-mail regarding the detection of NHP infections.
Following the Board’s decision, OWCP issued an October 30, 2013 letter to the employing
establishment requesting additional information about whether any of the primates tested positive
for the entamoeba polecki organism and any relative records to this claim, including the results of
bacterial testing on the laboratory animals.
According to a memorandum of a telephone call (Form CA-110) dated December 16, 2013,
a physician at the employing establishment informed the claims examiner that fecal samplings
performed on the monkeys were “negative.”
In a December 16, 2013 decision, OWCP again denied appellant’s occupational disease
claim, finding that the evidence of record was insufficient to establish that his entamoeba polecki
infection was causally related to the accepted factors of his employment.
On December 27, 2016 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review. By decision dated January 12, 2017,
OWCP denied appellant’s request for hearing as it was not timely filed within 30 days of the most
recent OWCP decision.
Appellant appealed to the Board. By order dated October 4, 2017, the Board set aside the
January 12, 2017 OWCP decision. It found that OWCP’s December 16, 2013 and January 12,
3

2017 decisions were not properly issued as they were mailed to an incorrect address. The Board
remanded the case with instructions to issue a de novo decision to the proper mailing address.
By December 6, 2017 de novo decision, OWCP denied appellant’s occupational disease
claim finding that the medical evidence of record was insufficient to establish causal relationship
between the entamoeba polecki infection and the accepted employment factors.
On December 15, 2017 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review, which was held on May 31, 2018.
By decision dated August 14, 2018, an OWCP hearing representative set aside the
December 6, 2017 decision and remanded the case for OWCP to obtain specific records about the
bacterial testing of the animals to which appellant was exposed and to provide context about
Dr. Reisler’s November 2011 e-mail regarding positive results from the testing of primates.
In a September 13, 2018 letter, OWCP requested that an appropriate person from the
employing establishment respond to the fact that Dr. Reisler had included in his November 2011
e-mail that there were some positive results for polecki from the testing of primates.
In an October 5, 2018 statement, Dr. Reisler explained that the e-mail, which referenced
that 25 percent of the NHP infections that were detected and subtyped contained polecki, was
referring to an enclosed document. No additional evidence, however, was received.
In a November 1, 2018 letter, OWCP requested that the employing establishment provide
the results of any testing on animals of appellant’s work area during the time of his exposure while
performing his work activities.
In a November 14, 2018 letter, Dr. Kenneth O. Jacobsen, Deputy Director of
Administration and Training for the veterinary medicine division at the employing establishment,
related that their division no longer had any relevant animal medical records or test results from
the requested time period.
OWCP received a December 16, 2013 statement from Dr. Pedro L. Rico, director of the
veterinary medicine division for the employing establishment, who indicated that the safety office
evaluated the circumstances of appellant’s possible exposure in regards to his claim. Dr. Rico
noted that appellant was wearing the appropriate personal protective equipment as required for all
personnel working with animals. He reported: “under these circumstances there was no way for
[appellant] to ingest a cyst while working in the animal rooms.” Dr. Rico also indicated that they
tested fecal samples of monkeys in the colony and door knobs for the presence of cysts on any
possible fecal contamination and the results were negative. He noted that their final safety
investigation was unable to determine whether the incident was work related.
By decision dated November 29, 2018, OWCP denied appellant’s occupational disease
claim, finding that there was insufficient evidence to establish causal relationship between his
entamoeba polecki infection and the accepted employment exposure.
On December 4, 2018 appellant, through counsel, requested a telephonic hearing, which
was held on April 10, 2019.

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OWCP received a medical journal article entitled “Molecular Identification of Entamoeba
spp. in Captive Nonhuman Primates” dated January 2010.
By decision dated June 20, 2019, an OWCP hearing representative affirmed the
November 29, 2018 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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,5 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.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 claimant.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 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.10

4

Supra note 2.

5

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

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

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
10
M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41
ECAB 345, 352 (1989).

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Chapter 2.805.6 of OWCP’s procedures provides:
“High-Risk Employment. Certain kinds of employment routinely present situations
which may lead to infection by contact with animals, human blood, bodily
secretions, and other substances.
Conditions such as HIV [human
immunodeficiency virus] infection and hepatitis B more commonly represent a
work hazard in health care facilities, correctional institutions, and drug treatment
centers, among others, than in Federal workplaces as a whole. Likewise, claims for
brucellosis, anthrax, and similar diseases will most often arise among veterinarians
and others who regularly work with livestock.
“Establishing causal relationship in these types of complex cases usually requires
an in-depth discussion of causal relationship by an appropriate specialist (whether
it is the claimant’s physician or a second opinion specialist). When writing to a
specialist, the [claims examiner] should include a [statement of accepted facts]
(SOAF) to provide a complete and accurate factual background for a specialist to
render his/her opinion.”11
ANALYSIS
The Board finds that this case is not in posture for decision.
In its previous August 23, 2013 decision, the Board remanded the case for further factual
development of the record in order to determine whether appellant was actually exposed to
entamoeba polecki from NHP infections at work. On remand, OWCP subsequently accepted that
appellant was exposed to NHP feces while working as an animal caretaker at the employing
establishment and that he was diagnosed with an entamoeba polecki infection, but denied the claim
finding that the medical evidence of record was insufficient to establish causal relationship
between the diagnosed condition and the accepted employment exposure.
The Board initially finds that as appellant’s work as an animal caretaker placed him in
contact with animals and other potentially hazardous substances, his position constitutes high-risk
employment.12 As noted above, OWCP’s procedures contain specific provisions pertaining to
high-risk employment. Chapter 2.805.6 of the procedure manual provides that establishing causal
relationship in these types of complex cases usually requires in-depth discussion by an appropriate
medical specialist (whether it is the claimant’s physician or a second opinion specialist).13
To properly adjudicate this claim premised on an employee engaged in high-risk
employment, OWCP’s procedures require that the record include an in-depth discussion of any

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.6 (January 2013).

12

Id.

13

Id.

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causal relationship by an appropriate specialist.14 As none of the medical evidence in the record
offered an in-depth discussion on causal relationship by an appropriate specialist, the Board finds
that OWCP should have referred the record to an appropriate infectious disease specialist.15
On remand OWCP shall prepare a complete and accurate SOAF and refer the claim to an
appropriate medical specialist for a reasoned opinion as to whether the employee’s work as an
animal caretaker for the employing establishment caused or contributed to his diagnosed
entamoeba polecki infection. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 20, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.16
Issued: March 9, 2021
Washington, DC

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

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

14

See P.P., Docket No. 19-1359 (issued April 30, 2020) (the Board found that a claimant’s physician’s opinion
regarding the timeline of the development of positive diagnostic testing and his high-risk occupation as a nurse was
sufficient to establish causal relationship for his HIV and Hepatitis C and his employment).
15

See D.M., Docket No. 14-0460 (issued February 11, 2016); N.S., Docket No. 07-1652 (issued March 19, 2008).

16

Christopher J. Godfrey, Deputy Chief Judge, was no longer a member of the Board effective January 20, 2021.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 13-1723
Issued: June 17, 2014

Case Submitted on the Record

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

JURISDICTION
On July 15, 2013 appellant, through her attorney, filed a timely appeal from an April 9,
2013 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 OWCP properly rescinded acceptance of its authorization for
cervical spine surgery.
On appeal appellant’s attorney asserts that OWCP abused its discretion in rescinding
acceptance of cervical spine surgery and that the opinion of the referee physician is insufficient
to carry the weight of the medical evidence.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On December 18, 2010 appellant, then a 59-year-old city letter carrier, filed a traumatic
injury claim alleging that she injured her lower back when her stationary postal vehicle was rearended. She stopped work that day and did not return. The police report indicated that there was
no damage to either vehicle, no reported injuries, no summons issued and that the report was
needed to comply with postal policy. Dr. Mitash M. Shah, Board-certified in emergency
medicine, advised that appellant reported no neck pain and physical examination demonstrated
no neck tenderness. He diagnosed low back pain.
On February 1, 2011 OWCP accepted that appellant sustained employment-related sprain
of the back, thoracic and lumbar regions and referred her to a medical management nurse.
Appellant received continuation of pay and was placed on the periodic compensation rolls. In a
June 15, 2011 report, Dr. Nirav K. Shah, a Board-certified neurosurgeon, noted that appellant
was injured in a work-related vehicle accident. He provided physical examination findings and
diagnosed cervical radiculopathy, lumbar stenosis and lumbar disc without myelopathy.
Dr. Shah recommended an magnetic resonance imaging (MRI) scan study of the cervical spine.
In June 2011 OWCP referred appellant to Dr. Kenneth Heist, a Board-certified osteopath
specializing in orthopedic surgery, for a second opinion evaluation. A July 1, 2011 MRI scan
study of the cervical spine demonstrated multilevel degenerative changes, with bulges at C5-6
and C6-7 and a small disc protrusion at C4-5 without cord or foraminal encroachment. In a
July 7, 2011 report, Dr. Heist noted the history of injury, his review of the medical record,
including diagnostic studies, and appellant’s complaint of low back and neck pain and left arm
numbness. He provided examination findings including evidence of a slight left cervical
radiculopathy. Dr. Heist diagnosed: cervical, dorsal and lumbar sprain; preexisting degenerative
spinal disease of the cervical, dorsal and lumbar spines; and preexisting left cervical
radiculopathy. He advised that appellant had reached maximum medical improvement with
respect to the sprains, which were causally related to the December 18, 2010 employment injury,
and that her present complaints and findings were related to preexisting degenerative disc disease
and were not related to the employment-related motor vehicle accident. Appellant concluded
that appellant could perform light duty for eight hours a day with permanent restrictions on
lifting.
In October 2011 OWCP determined that a conflict in medical opinion had been created
between the opinions of Drs. Shah and Dr. Heist regarding the diagnoses caused by the
December 18, 2010 employment injury and referred appellant to Dr. James P. Taitsman, a
Board-certified orthopedic surgeon, for an impartial medical evaluation.
In a November 14, 2011 report, Dr. Taitsman noted the history of injury, his review of
the medical record, and appellant’s complaints of neck, thoracic and low back pain. Regarding
the cervical spine, he indicated that appellant began to have symptoms sometime in January
2011. Dr. Taitsman noted that the police report indicated that there was no damage to either
vehicle, that no injuries were noted, and that the emergency room reported back problems only
and made no reference to cervical symptoms. He stated that he had reviewed the medical record
which demonstrated significant preexisting degenerative disease of the cervical spine with a
possible preexisting cervical disc herniation. Dr. Taitsman opined that there was nothing in the

2

medical record or in the history given to suggest that there was an injury to the cervical spine on
December 18, 2010 resulting in the subsequent cervical pain, muscle spasm and radicular
symptomatology described three months later.
Dr. Taitsman’s physical examination demonstrated limited range of motion of the
cervical spine. He advised that appellant’s report of 8/10 neck pain and 10/10 radicular
symptoms would suggest possible symptom-magnification with regard to the cervical spine.
Dr. Taitsman advised that there was direct causation with regard to appellant’s thoracic and
lumbar symptomatology, with diagnoses of lumbar and thoracic strain, and exacerbation of
preexisting conditions, related to the December 18, 2010 motor vehicle accident which appeared
to be permanent. He indicated that appellant was unable to perform her regular duties due to the
thoracic and lumbar conditions, even absent cervical problems, and that she was totally and
permanently disabled. Dr. Taitsman concluded that his opinion was within a reasonable degree
of medical probability.
Additional medical reports were received from a Dr. Mahoney, a doctor of osteopathic
medicine, and Dr. Barry D. Fass, a Board-certified physiatrist describing appellant’s condition
and treatment.
On January 5, 2012 OWCP determined that appellant had reached maximum medical
improvement and was totally and permanently disabled from performing any type of work due to
the accepted lumbar and thoracic conditions. It further indicated that her cervical spine disease
was not causally related to the December 18, 2010 employment injury. Appellant remained on
the periodic compensation rolls.
Dr. Nirav Shah, appellant’s treating physician, requested authorization for surgery to the
cervical spine. On January 9 and 25, 2012 OWCP fiscal services authorized the procedure and in
February 2012 Dr. Shah performed an anterior cervical discectomy and fusion (ACDF)
procedure from C5 to C7.2
In correspondence dated February 8, 2012, OWCP advised appellant’s congressional
representative that a cervical condition had not been accepted. In a decision dated February 15,
2012, it denied the request for authorization for surgery. OWCP indicated that the prior
authorization was granted in error and found that the weight of the medical evidence rested with
the opinion of Dr. Taitsman, the referee physician, and that this decision superseded the prior
authorization.
On February 22, 2012 appellant, through her attorney, requested a hearing, and submitted
a February 3, 2012 computerized tomography (CT) scan study of the cervical spine that
demonstrated postanterior cervical discectomy and fusion changes. In a February 14, 2012
treatment note, Dr. Fass noted that appellant recently had neck surgery and deferred examination
of the cervical spine. In reports dated February 15, 2012, Dr. N. Shah noted that appellant was in
for evaluation, status post a February 2, 2012 ACDF procedure. He diagnosed cervical
myelopathy, neck pain and neck strain and advised that she was doing as well as could be
2

The operative note does not indicate a date of surgery. Appellant was admitted to the hospital on February 2,
2012 and discharged on February 4, 2012. Dr. Shah later identified the surgery as being done on February 2, 2012.

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expected. On March 12, 2012 Dr. Fass indicated that appellant reported cervical pain and
stiffness and upper extremity paresthesias.
In an April 12, 2012 decision, an OWCP hearing representative found that OWCP had
not provided proper notice of the decision to rescind authorization for the cervical spine surgery
and remanded the case to OWCP to issue a proposal to rescind surgical authorization.
By letter dated May 3, 2012, appellant’s attorney requested that the accepted conditions
be expanded to include aggravation of degenerative disc disease of the thoracic and lumbar
spine, L5-S1 radiculopathy, and herniated disc, based on the opinion of Dr. Taitsman.
In reports received by OWCP after the April 12, 2012 decision, in an April 10, 2012
treatment note, Dr. Mahoney noted that appellant still had some numbness in the left arm
following surgery but had definitely improved. On April 11, 2012 Dr. N. Shah reported that
appellant continued to have neck and back pain and numbness. He indicated that she needed to
continue physical therapy. In a letter dated April 13, 2012, Dr. N. Shah stated that appellant had
been referred to him for cervical radiculopathy, and that she had significant left-sided cervical
pain and left upper extremity weakness which started after the December 2010 work injury when
she was involved in an employment-related motor vehicle accident. He noted that she had
preexisting cervical disc disease but did not have significant symptoms or weakness until after
the December 2010 employment injury when she developed severe pain down the arms
consistent with radiculopathy and new onset weakness. Dr. N. Shah also described appellant’s
lower back and leg symptoms, which continued to persist, and indicated that she was unable to
work in a full-time capacity as she had prior to the accident. He advised that the December 2010
work injury caused an aggravation of appellant’s cervical condition that did not resolve with
conservative measures, and she therefore had required surgery, especially in light of the new
symptom of weakness. Dr. N. Shah concluded that appellant did well following the surgery but
had not returned to full strength.
By letter dated July 5, 2012, OWCP proposed to rescind authorization for the cervical
spine surgery. It noted that a cervical condition had not been accepted and found the weight of
the opinion rested with Dr. Taitsman, who provided an impartial evaluation, and advised that
appellant’s cervical condition was not related to the December 2010 employment injury. OWCP
indicated that, prior to the surgical authorization, OWCP procedures were not followed, noting
that there had been no formal acceptance of a cervical condition, and no review by OWCP’s
medical adviser or second opinion specialist as to the need for cervical spine surgery. It
concluded that Dr. Taitsman’s opinion was sufficient to support rescission of the surgical
authorization.
In reports dated May 7 to August 7, 2012, Drs. Fass, Mahoney and Shah described
appellant’s continuing treatment for her cervical and lumbar conditions.
By decision dated August 10, 2012, OWCP rescinded authorization for the cervical spine
surgery. Appellant’s attorney timely requested a hearing, later changed the request for a review
of the written record.

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In reports dated August 30 to December 20, 2012, Drs. Fass and Mahoney noted
appellant’s continued pain and stiffness in the cervical spine and worsening radiating low back
pain. The physicians indicated that lumbar spine surgery was contemplated.
On December 28, 2012 Dr. N. Shah disagreed with Dr. Taitsman’s evaluation of the case
on the basis of the police report. He stated that appellant provided a better history of injury than
that provided in the police report. Dr. N. Shah indicated that she stated that she was struck from
the rear and claimed that she immediately had neck pain, returned to her office, and then
developed severe back and right leg spasm, for which she went to the emergency room because
the leg pain was more concerning. He stated that appellant reported that she continued to be
worked up for her lumbar strain and radiculopathy but also had cervical issues which were not
treated until she developed neck pain with radiation into her left arm. Dr. N. Shah indicated that
appellant denied any preexisting neck radiculopathy or severe neck pain that required significant
medical attention. He opined that, while the cervical MRI scan study revealed degenerative disc
disease and degenerative changes, appellant clearly suffered an aggravation of this preexisting
condition which was unmasked by the December 2010 employment injury and her cervical
condition was progressive.
In reports dated January 22 to March 20, 2013, Drs. Mahoney, Fass and Shah discussed
appellant’s lumbar condition.
In an April 9, 2013 decision, an OWCP hearing representative affirmed the August 10,
2012 decision.
LEGAL PRECEDENT
Section 8128 of FECA provides that the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.3 The Board
has upheld OWCP’s authority to reopen a claim at any time on its own motion under 5 U.S.C.
§ 8128 and, where supported by the evidence, set aside or modify a prior decision and issue a
new decision. The power to annul an award, however, is not an arbitrary one and an award for
compensation can only be set aside in the manner provided by the compensation statute.
OWCP’s burden of justifying termination or modification of compensation holds true where
OWCP later decides that it has erroneously accepted a claim for compensation. In establishing
that its prior acceptance was erroneous, OWCP is required to provide a clear explanation of its
rationale for rescission.4
Section 8103 of FECA provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability or aid in lessening the amount of the monthly
compensation.5
While OWCP is obligated to pay for treatment of employment-related
3

5 U.S.C. § 8128.

4

Amelia S. Jefferson, 57 ECAB 183 (2005).

5

5 U.S.C. § 8103; see L.D., 59 ECAB 648 (2008).

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conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.6
Section 8123(a) of FECA provides that if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.7 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.8
ANALYSIS
In October 2011 OWCP determined that a conflict in medical evidence had been created
between the opinions of Dr. N. Shah, appellant’s attending neurosurgeon, and Dr. Heist, the
orthopedist who provided a second opinion evaluation for OWCP, regarding the diagnosed
conditions due to the December 2010 employment injury. It then referred appellant to
Dr. Taitsman for an impartial evaluation. In his comprehensive November 14, 2011 report,
Dr. Taitsman noted the history of injury and appellant’s complaints of neck, thoracic and low
back pain. He reviewed the police report which indicated that there was no damage to either
vehicle and that no injuries were noted, and also noted that the emergency room reported only
back problems and made no reference to cervical or other symptoms. Dr. Taitsman noted that
the medical record demonstrated significant preexisting degenerative disease of the cervical
spine with a possible preexisting cervical disc herniation. He opined that there was nothing in
the medical record or history to suggest that there was an injury to the cervical spine on
December 18, 2010 resulting in the subsequent cervical pain, muscle spasm and radicular
symptomatology.
The Board finds that OWCP properly provided sufficient rationale to justify the
rescission of the authorization for the February 2012 ACDF cervical procedure in that, as a result
of investigation by OWCP, it was discovered that OWCP’s fiscal unit had made an
administrative error and authorized the surgery in error. As discussed above, OWCP found that
a conflict in medical evidence had been created regarding diagnoses caused by the
December 2010 employment injury and referred appellant to Dr. Taitsman who opined that
appellant’s cervical condition was not caused by the December 2010 motor vehicle accident.
Workers’ compensation authorities generally recognize that compensation awards may be
corrected, in the discretion of the compensation agency and in conformity with statutory
provision, where there is good cause for so doing, such as mistake or fraud.9 In the July 5, 2012
notice of proposed rescission and the August 10, 2012 decision finalizing the rescission, OWCP
made clear that a cervical condition had not been accepted as caused by the December 18, 2010
6

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

7

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

8

Manuel Gill, 52 ECAB 282 (2001).

9

D.G., 59 ECAB 734 (2008).

6

employment injury and found that the weight of the medical evidence rested with the opinion of
Dr. Taitsman, who provided the impartial evaluation.10 Thus, it provided a clear explanation in
establishing that its prior authorization was erroneous and properly rescinded authorization for
the February 2012 cervical spine surgery. As OWCP properly rescinded authorization for the
February 2012 surgery, appellant would not be entitled to disability compensation for surgical
recovery. However, in the case at hand, it determined that appellant was totally disabled due to
the accepted thoracic and lumbar conditions and remains on the periodic compensation rolls.
The Board therefore finds that, based on these considerations, OWCP properly reopened
appellant’s claim for further review and determined that, as a cervical condition had not been
accepted as work related, the February 2012 ACDF procedure should not have been authorized.
CONCLUSION
The Board finds that OWCP properly rescinded authorization for the February 2012
cervical spine surgery.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.11
Issued: June 17, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
10

Contrary to the attorney’s argument on appeal, Dr. Taitsman provided a comprehensive evaluation and a clear
explanation as to why appellant’s cervical condition was not caused by the December 18, 2010 motor vehicle
accident. His opinion is therefore entitled to the special weight accorded a referee physician. See Manuel Gill,
supra note 8.
11

Richard J. Daschbach participated in the preparation of the decision but was longer a member of the Board after
May 16, 2014.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

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

Docket No. 08-1624
Issued: December 15, 2008

Case Submitted on the Record

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

JURISDICTION
On May 20, 2008 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ decision dated May 5, 2008 which denied his claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty on March 17, 2008.
FACTUAL HISTORY
Appellant, a 45-year-old postal carrier, filed a Form CA-1, traumatic injury claim for
continuation of pay/compensation on March 20, 2008, alleging that on March 17, 2008 he was
involved in a motor vehicle accident in the course of his employment during which the postal
vehicle he was driving was struck from behind by a sport utility vehicle. He alleged that he
suffered injury to his neck and lower back.

In support of his claim, appellant submitted nurse’s notes from Landmark Medical Center
indicating that he was treated at the medical center on March 17, 2008 for neck/lumbar strain and
was released to return to modified work on March 20, 2008 and to full duty on March 24, 2008.
He also submitted an attending physician’s report dated March 20, 2008, which was signed by a
physician,1 stating that appellant was examined on March 17, 2008, that he was not hospitalized,
that he had a prior history of “C5-6 replaced in 2002,” that his current diagnosis was
lumbar/neck strain, and indicated by check mark that his current diagnosis was not caused or
aggravated by his employment activity.
By letter dated April 4, 2008, the Office informed appellant that the evidence submitted
was insufficient to support a traumatic injury claim because he had not submitted the necessary
medical evidence providing a physician’s opinion as to how the alleged injury resulted in the
condition diagnosed. In response to this letter, appellant submitted additional evidence,
including: a duplicate copy of the attending physician’s report dated March 20, 2008; a
treatment note signed by Deb Beauvais, R.N.P., dated March 17, 2008; a copy of an offer of
modified assignment and a March 20, 2008 duty status report.
By decision dated May 5, 2008, the Office denied appellant’s claim because the medical
evidence presented did not demonstrate that the claimed medical condition was causally related
to an employment-related event.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim including: the individual is an
employee of the United States within the meaning of the Act; the claim was filed within the
applicable time limitation of the Act; an injury was sustained in the performance of duty as
alleged; and, that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee

1

The physician’s signature is illegible.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

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

2

must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician(s)
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 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 Office accepted that appellant was involved in a work-related incident on March 17,
2008 when his postal vehicle was rear-ended by another motor vehicle. Although appellant
submitted a number of medical records from the Landmark Medical Center concerning his
treatment on March 17, 2008, the only report signed by a physician indicated that appellant had a
diagnosis of lumbar/neck strain which was not caused or aggravated by the accepted
employment activity. This physician’s report indicates that appellant had cervical spine
complaints dating back at least to 2002. This evidence does not provide a positive opinion, with
detailed rationale, explaining the relationship between appellant’s lumbar/neck strain and the
employment incident. Rather it denies a causal connection entirely: stating that appellant’s
lumbar/neck strain was attributable to a preexisting condition or injury and was not caused or
aggravated by an employment activity.
Furthermore, the other treatment notes from Landmark Medical Center were all prepared
by nurses, not physicians. Health care providers such as nurses, acupuncturists, physician’s
assistants and physical therapists are not considered physicians under the Act.7 Thus, their
opinions on causal relationship do not constitute rationalized medical opinions and have no
weight or probative value regarding the issue of causal relationship.
Accordingly, the Board finds that appellant has not met his burden of proof in
establishing that he sustained a traumatic injury in the performance of duty on March 17, 2008.

4

Id.

5

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

6

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).
7

5 U.S.C. § 8101(2); see also Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J. Williams, 40 ECAB 649
(1989); Jan A. White, 34 ECAB 515 (1983).

3

CONCLUSION
The Board finds the Office properly concluded that appellant has not met his burden of
proof in establishing that he sustained an employment-related injury on March 17, 2008.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2008 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 15, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
NEWBURGH SOCIAL SECURITY OFFICE,
Newburgh, NY, Employer
__________________________________________

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Appearances:
Sean P. Lahiff, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0663
Issued: January 13, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2021 appellant, through counsel, filed a timely appeal from a November 27,
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 to consider the merits of this case. 3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the November 27, 2020 decision, appellant submitted additional evidence to OWCP.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case
record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $79,437.17, for the period February 27, 2006 through
September 12, 2020, for which he was without fault, because he concurrently received Social Security
Administration (SSA) age-related retirement benefits and FECA wage-loss compensation, without an
appropriate offset; and (2) whether OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On October 3, 2005 appellant, then a 66-year-old social insurance specialist, filed a traumatic
injury claim (Form CA-1) alleging that on September 20, 2005 he sustained a low back injury when
he bent and twisted numerous times to activate a numbering machine , while in the performance of
duty. On November 29, 2005 OWCP accepted the claim for lumbar sprain/strain. It paid appellant
wage-loss compensation on the supplemental rolls commencing February 27, 2006 and on the
periodic rolls commencing March 19, 2006.
On April 18, 2006 appellant underwent an OWCP-authorized right L3-4 hemilaminectomy
and partial discectomy, and “L4-5 laminectomy with in situ fusion and bone graft.”
On May 16, 2008 OWCP expanded its acceptance of the claim to include a lumbosacral disc
herniation.
On October 12, 2009 appellant underwent an OWCP-authorized bilateral lumbar
paravertebral injections.
On April 27, 2020 OWCP provided SSA a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. It listed the computation period as February 27, 2006 to
present. On July 13, 2020 OWCP received the completed dual benefits calculation form, wherein on
June 24, 2020 SSA calculated SSA benefit rates with a FERS offset and without a FERS offset from
January 1, 2004 through December 2019. Beginning January 1, 2004, the SSA rate with FERS was
$520.70 and without FERS was $276.60. Beginning February 1, 2004, the SSA rate with FERS was
$1,215.70 and without FERS was $971.60. Beginning July 1, 2004, the SSA rate with FERS was
$1,222.70 and without FERS was $971.60. Beginning December 1, 2004, the SSA rate with FERS
was $1,255.70 and without FERS was $997.80. Beginning January 1, 2005, the SSA rate with FERS
was $1,308.60 and without FERS was $997.80. Beginning December 1, 2005, the SSA rate with
FERS was $1,362.10 and without FERS was $1,038.70. Beginning January 1, 2006, the SSA rate
with FERS was $1,418.70 and without FERS was $1,038.70. Beginning December 1, 2006, the SSA
rate with FERS was $1,465.50 and without FERS was $1,073.00. Beginning January 1, 2007, the
SSA rate with FERS was $1,476.10 and without FERS was $1,073.00. Beginning December 1, 2007,
the SSA rate with FERS was $1,510.00 and without FERS was $1,097.60. Beginning December 1,
2008, the SSA rate with FERS was $1,597.50 and without FERS was $1,161.20. Beginning
December 1, 2011, the SSA rate with FERS was $1,655.00 and without FERS was $1,203.00.
Beginning December 1, 2012, the SSA rate with FERS was $1,683.10 and without FERS was
$1,223.40. Beginning December 1, 2013, the SSA rate with FERS was $1,708.20 and without FERS
was $1,241.60. Beginning December 1, 2014, the SSA rate with FERS was $1,737.20 and without
FERS was $1,262.70. Beginning December 1, 2016, the SSA rate with FERS was $1,742.40 and
without FERS was $1,266.50. Beginning December 1, 2017, the SSA rate with FERS was $1,777.20
and without FERS was $1,291.80. Beginning December 1, 2018, the SSA rate with FERS was
2

$1,826.90 and without FERS was $1,328.00. Beginning December 1, 2019, the SSA rate with FERS
was $1,856.00 and without FERS was $1,349.10.
On August 4, 2020 OWCP received a second completed FERS/SSA dual benefits calculation
form, wherein on July 16, 2020, SSA calculated SSA benefit rates with a FERS offset and without a
FERS offset from January 1, 2004 through December 2019. Beginning January 1, 2004, the SSA rate
with FERS was $520.70 and without FERS was $971.60. Beginning December 1, 2004, the SSA rate
with FERS was $1,255.70 and without FERS was $997.80. Beginning December 1, 2005, the SSA
rate with FERS was $1,362.10 and without FERS was $1,038.70. Beginning December 1, 2006, the
SSA rate with FERS was $1,465.50 and without FERS was $1,073.00. Beginning December 1, 2007,
the SSA rate with FERS was $1,510.00 and without FERS was $ 1,097.60. Beginning December 1,
2008, the SSA rate with FERS was $1,597.50 and without FERS was $1,161.20. Beginning
December 1, 2011, the SSA rate with FERS was $1,655.00 and without FERS was $1,203.00.
Beginning December 1, 2012, the SSA rate with FERS was $1,683.10 and without FERS was
$1,223.40. Beginning December 1, 2013, the SSA rate with FERS was $1,708.20 and without FERS
was $1,241.60. Beginning December 1, 2014, the SSA rate with FERS was $1,737.20 and without
FERS was $1,262.70. Beginning December 1, 2016, the SSA rate with FERS was $1,742.40 and
without FERS was $1,266.50. Beginning December 1, 2017, the SSA rate with FERS was $1,777.20
and without FERS was $1,291.80. Beginning December 1, 2018, the SSA rate with FERS was
$1,826.90 and without FERS was $1,328.00. Beginning December 1, 2019, the SSA rate with FERS
was $1,856.00 and without FERS was $1,349.10.
On August 12, 2020 OWCP requested that SSA clarify why the August 4, 2020 calculation
form did not include the January 1, 2006 rate increase as set forth in the July 13, 2020 calculation
form. SSA responded on August 19, 2020 that the August 4, 2020 calculation was correct and that
OWCP should disregard the July 13, 2020 calculation form.
In a FERS offset overpayment calculation form dated September 23, 2020, OWCP used the
information provided by SSA in the July 13, 2020 dual benefits calculation form to calculate the 28day FERS offset for the relevant periods, and calculated a total overpayment in the amount of
$79,437.17. It found that, during the period February 27 through November 30, 2006, appellant
received an overpayment of compensation in the amount of $3,470.11. During the period
December 1 through 31, 2006, he received an overpayment in the amount of $401.13; during the
period January 1 through November 30, 2007, appellant received an overpayment in the amount of
$4,483.53; during the period December 1, 2007 through November 30, 2008, he received an
overpayment in the amount of $4,975.99; during the period December 1, 2008 through November 30,
2009, appellant received an overpayment in the amount of $5,249.98; during the period December 1,
2009 through November 30, 2010, he received an overpayment in the amount of $5,249.98; during
the period December 1, 2010 through November 30, 2011, appellant received an overpayment in the
amount of $5,249.98; during the period December 1, 2011 through November 30, 2012, he received
an overpayment in the amount of $5,453.80; during the period December 1, 2012 through
November 30, 2013, appellant received an overpayment in the amount of $5,531.55; during the period
December 1, 2013 through November 30, 2014, he received an overpayment in the amount of
$5,614.58; during the period December 1, 2014 through November 30, 2015, appellant received an
overpayment in the amount of $5,709.64; during the period December 1, 2015 through November 30,
2016, he received an overpayment in the amount of $5,725.29; during the period December 1, 2016
through November 30, 2017, appellant received an overpayment in the amount of $5,726.49; during
the period December 1, 2017 through November 30, 2018, appellant received an overpayment in the
amount of $5,840.80; during the period December 1, 2018 through November 30, 2019, he received
3

an overpayment in the amount of $6,003.25; and during the period December 1, 2019 through
September 12, 2020, appellant received an overpayment in the amount of $4,796.05.
On September 29, 2020 OWCP issued a preliminary overpayment determination that
appellant received an overpayment of compensation in the amount of $79,437.17, for the period
February 27, 2006 through September 12, 2020, because the SSA/FERS offset was not applied to
payments for this period. It determined that he was without fault in the creation of the overpayment.
OWCP requested that appellant submit a completed overpayment recovery questio nnaire (Form
OWCP-20) to determine a reasonable repayment method, and advised h im that he could request a
waiver of recovery of the overpayment. It further requested financial documentation, including copies
of income tax returns, bank account statements, bills, pay slips, and any other records to support
income and expenses. Additionally, OWCP advised appellant that it would deny waiver of recovery
of the overpayment if he failed to furnish the requested financial information within 30 days. It
provided an overpayment action request form and further notified him that, within 30 days of the date
of the letter, he could contest the overpayment and request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing. Appellant did not respond.
By decision dated November 27, 2020, OWCP finalized the September 29, 2020 preliminary
overpayment determination, finding that appellant had received an overpayment of compensation in
the amount of $79,437.17, for the period February 27, 2006 through September 12, 2020, because
OWCP had failed to offset his compensation payments by the portion of his SSA age-related
retirement benefits that were attributable to federal service and that he did not have actual knowledge
of the calculation error. It further found that he was without fault in the creation of the overpayment,
but denied waiver of recovery of the overpayment because the evidence of record failed to establish
that recovery of an overpayment would defeat the purpose of FECA as he had not responded to the
request for financial information. OWCP required recovery of the overpayment in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of duty. 4
Section 8116 limits the right of an employee to receive 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 SSA age-related retirement 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
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); M.R., Docket No. 20-1622 (issued June 30, 2021); S.S., Docket No. 19-1945 (issued March 25,
2021); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).
7

FECA Bulletin No. 97-09 (issued February 3, 1997).

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment of
compensation for the period February 27, 2006 through September 12, 2020, for which he was
without fault, because he concurrently received SSA age-related retirement benefits and FECA wageloss compensation, without an appropriate offset.
Appellant received SSA age-related retirement benefits while also receiving FECA wage-loss
compensation, without an appropriate offset, for the period February 27, 2006 through
September 12, 2020. As noted above, a claimant cannot receive concurrent FECA wage-loss
compensation and SSA age-related retirement benefits attributable to federal service for the same
period.8 Therefore, fact of overpayment has been established for the period February 27, 2006
through September 12, 2020.
The Board further finds, however, that this case is not in posture for decision with regard to
the amount of the overpayment. SSA provided SSA/FERS offset calculations dated J uly 13, and
August 4, 2020, which listed differing benefit amounts. On August 12, 2020 OWCP requested that
SSA clarify why the August 4, 2020 dual benefits calculation form did not include the January 1,
2006 rate increase as set forth in the July 13, 2020 dual benefits calculation form. Although SSA
indicated in an August 19, 2020 response that OWCP should rely on the August 4, 2020 dual benefits
calculation form, OWCP instead based its overpayment determination on the July 13, 2020 dual
benefits calculation form that SSA noted was incorrect. The Board finds, therefore, that the case is
not in posture for decision with regard to the amount of the overpayment in question.9
The case will be remanded to OWCP for recalculation of the amount of the overpayment, to
be followed by a new preliminary determination of overpayment and a de novo overpayment
decision.10
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment of
compensation for the period February 27, 2006 through September 12, 2020, for which he was
without fault, because he concurrently received SSA age-related retirement benefits and FECA wageloss compensation, without an appropriate offset. The Board further finds, however, that this case is
not in posture for decision regarding the amount of the overpayment. 11

8

See id.; M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795 (issued January 4,
2019); A.C., Docket No. 18-1550 (issued February 21, 2019).
9

D.D., Docket No. 20-1172 (issued September 29, 2021).

10

Id. Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Action, Chapter 6.200.1 (September 2018).
11

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

5

ORDER
IT IS HEREBY ORDERED THAT the March 15, 2021 merit decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: January 13, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.T., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, NATIONAL COMPUTER
CENTER, Baltimore, MD, Employer
__________________________________________

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Appearances:
Milo G. Martin, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0250
Issued: July 16, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 7, 2014 appellant, through her representative, filed a timely appeal from a
May 12, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).1
As more than 180 days elapsed between the last merit decision dated February 21, 2008 and the

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from May 12, 2014, the date of OWCP’s last decision was
November 8, 2014, a Saturday; consequently, the period for filing the appeal ran to the next business day, Monday,
November 10, 2014. Since using November 12, 2014, the date the appeal was received by the Clerk of the
Appellate Boards would result in the loss of appeal rights, the date of the postmark is considered the date of
filing. The date of the U.S. Postal Service postmark is November 7, 2014, rendering the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).

filing of this appeal, the Board lacks jurisdiction to review the merits of her claim pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.3
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not establish clear evidence of error.
FACTUAL HISTORY
On July 23, 2007 appellant, then a 57-year-old information technology specialist, filed a
traumatic injury claim alleging that on July 21, 2007 she injured her left knee, low back, and
right upper arm when her left knee buckled and she fell backward on steps. She attributed her
fall to a prior knee injury that had occurred on December 21, 2006. Appellant stopped work on
July 22, 2007 and returned to work on August 21, 2007.
By decision dated February 21, 2008, OWCP denied appellant’s claim as the medical
evidence was insufficient to show that she sustained a diagnosed condition as a result of the
accepted work incident.
Subsequent to OWCP’s decision, appellant resubmitted a December 13, 2007 report from
Dr. James E. Wood, Jr., a Board-certified orthopedic surgeon, who noted that appellant had two
knee injuries as a result of falls at work, the first in December 2006 and the second on July 21,
2007 when her knee buckled and she fell backward. Dr. Wood diagnosed probable
chondromalacia of the left knee and recommended arthroscopic surgery to treat the
chondromalacia and to rule out internal derangement or a torn medial meniscus.
On January 30, 2008 Dr. Wood performed a debridement of the undersurface of the left
patella. In a February 8, 2008 progress report, he noted that appellant was status post a left knee
debridement for “severe patellofemoral arthritis.” Dr. Wood released her to resume work on
March 17, 2008.
On December 7, 2010 Dr. Wood again evaluated appellant for a December 6, 2010 injury
to her left knee. On July 19, 2011 he diagnosed a left knee contusion and a mild aggravation of
patellofemoral osteoarthritis following a July 13, 2011 fall.
On March 7, 2014 appellant requested reconsideration of the February 21, 2008 decision.
She maintained that her supervisor violated FECA by refusing to process or sign a Form CA-7 in
2007. Appellant resubmitted a December 14, 2007 claim for compensation from July 21 to
August 19, 2007. It was not signed by the employing establishment. Appellant also submitted a
July 23, 2007 statement from a witness who described appellant’s July 21, 2007 fall.
2

5 U.S.C. § 8101 et seq.

3

Appellant timely requested an oral argument pursuant to 20 C.F.R. § 501.5(b). After exercising its discretion
the Board, by order dated June 16, 2015, denied her request as her arguments on appeal could be adequately
addressed in a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket
No. 15-0250 (issued June 16, 2015).

2

By decision dated May 12, 2014, OWCP denied appellant’s request for reconsideration as
it was untimely and failed to demonstrate clear evidence of error. It determined that the evidence
submitted and arguments raised did not show any error in its February 21, 2008 decision.
On appeal appellant contends that she experienced an injury in the performance of duty
on July 21, 2007 which required surgery in 2008. She maintains that she is entitled to lost time
from work, lost overtime, and medical expenses.
LEGAL PRECEDENT
OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a) of FECA.4 One such limitation, 20 C.F.R.
§ 10.607 provides that an application for reconsideration must be received within one year of the
date of OWCP’s decision for which review is sought.5 OWCP will consider an untimely
application only if the application demonstrates clear evidence of error on the part of OWCP in
its most recent merit decision. The application must establish, on its face, that such decision was
erroneous.6
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.7 To establish clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise, and explicit and must manifest on its face that it committed an error.8
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time-limitation period for requesting reconsideration
begins on the date of the original OWCP decision.9 A right to reconsideration within one year
4

Supra note 2.

5

20 C.F.R. § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011).
6

Id. at § 10.607(b).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
Richard J. Rhodes, 50 ECAB 259, 264 (1999).
8

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
9

Supra note 5.

3

also accompanies any subsequent merit decision on the issues.10 As appellant’s March 7, 2014
request for reconsideration was received more than one year after the last merit decision of
record dated February 21, 2008, it was untimely. Consequently, she must demonstrate clear
evidence of error by OWCP in denying her claim for compensation.11
On reconsideration appellant argued that her supervisor violated FECA by not signing a
2007 Form CA-7. She resubmitted a claim for compensation (Form CA-7) dated December 17,
2007 requesting compensation from July 21 to August 19, 2007. Appellant also submitted a
statement from a witness who saw her fall on July 21, 2007. The issue, however, is whether the
medical evidence is sufficient to establish that she sustained a work-related medical condition on
July 21, 2007. In order to establish clear evidence of error, a claimant must submit evidence
relevant to the issue which was decided by OWCP.12 The claim for compensation and witness
statement are not relevant to this issue.
Appellant also resubmitted a December 13, 2007 report from Dr. Wood, who discussed
appellant’s history of injuries to her knee in December 2006 and July 2007. Dr. Wood diagnosed
probable left knee chondromalacia and ruled out a torn meniscus or internal derangement. His
report was already of record and appellant, in submitting this evidence, did not explain how it
manifested on its face that OWCP committed an error in denying her claim for compensation.
Resubmission of this evidence is not sufficient to raise a substantial question as to the
correctness of OWCP’s decision and thus is insufficient to show clear evidence of error.13
Appellant additionally submitted a January 30, 2008 operative report. The Board has
held that even a detailed well-rationalized medical report is still insufficient to establish error.14
On December 7, 2010 Dr. Wood evaluated appellant for an alleged December 6, 2010
injury, and on July 19, 2011 he evaluated her for an alleged July 13, 2011 injury. This evidence
is not relevant to the question of whether appellant sustained an injury on July 21, 2007.15
Appellant has not submitted evidence or argument sufficient to raise a substantial
question as to the correctness of OWCP’s last merit decision; thus, she has not established clear
evidence of error.16
On appeal appellant argues that she sustained a work injury on July 21, 2007 and
underwent surgery for this injury in 2008. She alleges that she is entitled to time lost from work,
10

Robert F. Stone, supra note 8.

11

Supra note 6; see Debra McDavid, 57 ECAB 149 (2005).

12

Howard Y. Miyashiro, 51 ECAB 253 (1999).

13

See A.C., Docket No. 14-1883 (issued January 26, 2015).

14

Supra note 7.

15

See supra note 12.

16

See G.H., 58 ECAB 183 (2006); Veletta C. Coleman, 48 ECAB 367 (1997).

4

lost overtime, and medical expenses. However, as noted, the Board does not have jurisdiction to
review the merits of the claim.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 16, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________

)
)
)
)
)
)
)
)

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).

4

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).

6

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

7