United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 21-1025
Issued: March 18, 2022

Case Submitted on the Record

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

JURISDICTION
On June 21, 2021 appellant filed a timely appeal from a June 1, 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.
ISSUES
The issues are: (1) whether OWCP properly denied waiver of recovery of the $69,177.66
overpayment of compensation which occurred due to his concurrent receipt of Social Security
Administration (SSA) retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018; and (2) whether OWCP properly required recovery of
the overpayment by deducting $400.00 from appellant’s continuing compensation payments every
28 days.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. 2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 4, 2001 appellant, then a 56-year-old data entry technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 20, 2001 he twisted his right knee when his
knee caught on a black residue under his desk as he rose from his chair while in the performance
of duty. He stopped work on August 29, 2001. OWCP accepted the claim for right knee strain
and right knee medial meniscus tear. The record reflects that OWCP paid appellant wage-loss
compensation on the periodic rolls as of July 14, 2002.
By letter dated July 31, 2002, OWCP explained appellant’s entitlement to compensation
benefits. In an accompanying EN1049 form, it advised him, that, since he was covered under the
Federal Employees Retirement System (FERS), it would have to deduct at least part of his SSA
retirement benefit to which he would be entitled based on age, explaining that a portion of a FERS
benefit was included in SSA retirement benefits. Appellant was, therefore, advised to notify
OWCP immediately after filing for or receiving SSA retirement benefits.
On December 26, 2017 SSA forwarded a completed FERS/SSA dual benefits calculation
form to OWCP, noting appellant’s SSA age-related retirement benefit rates with and without
FERS. It noted that appellant began receiving retirement benefits effective September 2010.
In a FERS offset overpayment calculation form dated May 21, 2018 OWCP documented
its calculation of the total overpayment in the amount of $69,177.66 for the period September 1,
2010 until April 28, 2018.
On June 28, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $69,177.66 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA benefits that he received from September 1, 2010
through April 28, 2018 was based on credits earned while working for the Federal Government,
and this portion of his SSA was a prohibited dual benefit. OWCP found him at fault in the creation
of the overpayment as he had not reported receipt of SSA retirement benefits on his EN1032 forms.
It informed him of his review rights, via an overpayment action request form, and instructed him
to complete an enclosed overpayment recovery questionnaire Form OWCP-20 and submit
supporting documentation including copies of tax returns, bank account statements, bills and
cancelled checks, pay slips, and other records which supported the income and expenses listed.
OWCP allotted 30 days for him to respond.
On a July 2, 2018 appellant requested a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review. He contested OWCP’s findings regarding the fact and
amount of overpayment, and requested waiver of recovery of the overpayment.

2

Docket No. 19-0334 (issued August 7, 2020).

2

On a Form OWCP-20 dated October 10, 2018, appellant noted total monthly income of
$4,312.22 and total monthly expenses of $3,547.61, with assets of $795.00. He attached financial
information to substantiate his expenses.
A prerecoupment hearing was held on October 10, 2018. By decision dated November 14,
2018, the OWCP hearing representative finalized the preliminary determination, finding that an
overpayment of compensation in the amount of $69,177.66 occurred for the period September 1,
2010 through April 28, 2018 because appellant received FECA benefits and benefits from SSA
without the appropriate offset.3 She further found he was at fault in the creation of the overpayment
because he failed to report his SSA retirement benefits and that recovery of the overpayment,
therefore, could not be waived. The hearing representative found that recovery of the overpayment
would be made by deducting $500.00 every 28 days from appellant’s continuing FECA
compensation payments.
Appellant appealed the November 14, 2018 decision to the Board on November 30, 2018.
By decision dated August 7, 2020,4 the Board affirmed in part and set aside in part the
November 14, 2018 decision. The Board found that OWCP properly determined that an
overpayment in the amount of $69,177.66 had been created because appellant concurrently
received SSA age-related retirement benefits and FECA wage-loss compensation for the period
September 1, 2010 through April 28, 2018. The Board determined, however, that appellant was
without fault in the creation of the overpayment of compensation. The Board remanded the case
for OWCP to consider waiver of recovery of the overpayment.
On remand from the Board’s decision, OWCP provided appellant with another Form
OWCP-20 for his completion, noting that updated financial information was needed for
consideration of waiver of recovery of the overpayment.
In a letter dated February 8, 2021, OWCP’s hearing representative informed appellant that
an oral hearing would be held pursuant to the Board’s remand instructions to consider waiver of
recovery of the overpayment. She requested he complete an updated Form OWCP-20 and provide
supporting financial documentation. Appellant was informed that under 20 C.F.R. § 10.438 the
failure to submit the requested financial information would result in denial of waiver of the
overpayment.
On a Form OWCP-20 dated March 1, 2021, appellant noted monthly income of $2,760.00
from SSA and $144.14 from other benefits, for a total monthly income, without FECA benefits,
of $2,904.14. He listed monthly expenses of $3,490.00, which included $860.00 for rent, $500.00
for food, $100.00 for clothing, $605.00 for utilities, and $225.00 for miscellaneous expenses, he
also noted $1,000 in monthly installment payments to a credit union , and $200.00 in monthly
installment payments to a bank. He listed assets of $4,687.90. He attached numerous financial
documents to substantiate his expenses.

3

The Board notes that the hearing representative incorrectly identified the period of the overpayment as from
September 1, 2010 through December 1, 2017.
4

Supra note 2.

3

A hearing before an OWCP hearing representative was held on March 10, 2021.
By decision June 1, 2021, OWCP’s hearing representative found that, based on the
evidence appellant submitted regarding his income and expenses, his total monthly income was
$4,510.54 and his ordinary and necessary living expenses did not exceed $ 3,886.99. She
determined that recovery of the overpayment would not defeat the purpose of FECA as his monthly
income exceeded his monthly expenses by more than $50.00. The hearing representative further
found that there was no evidence that appellant relinquished a valuable right in reliance on the
additional compensation or changed his position for the worse in reliance on the erroneous
compensation payment such that recovery would be inequitable or against good conscience. The
hearing representative related that recovery of the overpayment would be made by deduction of
$400.00 every 28 days from appellant’s continuing FECA compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8129 of FECA 5 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus, a
finding that appellant was without fault does not automatically result in waiver of the overpayment.
OWCP must exercise its discretion to determine whether recovery of the overpayment would
defeat the purpose of FECA or would be against equity and good conscience. 6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose of
FECA if recovery would cause hardship because the beneficiary needs substantially all of his or
her income (including compensation benefits) to meet current ordinary and necessary living
expenses, and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics. 7 An individual’s liquid assets
include, but are not limited to, cash on hand, the value of stocks, bonds, savings accounts, mutual
funds, and certificates of deposits. 8
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting to repay the debt and when an individual, in reliance on such

5

Supra note 1.

6

J.T., Docket No. 21-0010 (issued September 30, 2021); G.L., Docket No. 19-0297 (issued October 23, 2019).

7

20 C.F.R. § 10.436. OWCP’s procedures provide that a claimant is deemed to need substantially all of his or her
current net income to meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00. Its procedures further provide those assets must not exceed a resource base of
$6,200.00 for an individual or $10,300.00 for an individual with a spouse or dependent plus $1,200.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment
Determinations, Chapter 6.400.4(a)(2) and (3) (September 2020).
8

Id. at Chapter 6.400.4b(3)(a), (b).

4

payments or on notice that such payments would be made, gives up a valuable right or cha nges
her position for the worse. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
The Board notes that after it remanded the case to OWCP for consideration of waiver,
OWCP provided appellant with another Form OWCP-20 to complete with updated financial
information. A prerecoupment hearing was held on March 10, 2021.
As appellant was found to be without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. The hearing
representative noted that the financial documentation appellant submitted prior to the hearing
represented his current monthly income and expenses. OWCP considered app ellant’s updated
financial information, as reported on appellant’s Form OWCP 20, to determine if recovery of the
overpayment would defeat the purpose of FECA or if recovery would be against equity and good
conscience.
The evidence of record establishes that appellant has monthly income totaling $4,510.54
and average monthly necessary expenses totaling $3,886.99. Appellant’s monthly income,
therefore, exceeds his monthly expenses by $623.55. As appellant’s monthly income exceeds his
ordinary and necessary living expenses by more than $50.00, he has not established that he needs
substantially all of his income for ordinary and necessary living expenses. 10
Appellant also has not established that recovery of the overpayment would b e against
equity and good conscience. He has not submitted evidence that he would experience severe
financial hardship in attempting to repay the debt, or that in reliance on the overpayment he gave
up a valuable right or changed his position for the worse.11 Therefore, OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and good
conscience.
LEGAL PRECEDENT -- ISSUE 2
Section 10.441 of OWCP’s regulations provides in pertinent part: “When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,

9

20 C.F.R. § 10.437(b)(1).

10

See G.L., Docket No. 19-0297 (issued October 23, 2019).

11

J.T., supra note 6; L.D., Docket No. 18-1317 (issued August 17, 2019); William J. Murphy, 41 ECAB 569 (1989).

5

taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.”12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly requested recovery of the overpayment by deducting
$400.00 every 28 days from appellant’s continuing compensation.
In determining whether appellant could repay the overpayment through $400.00
deductions from continuing compensation, OWCP took into account his financial information as
well as factors set forth in 20 C.F.R. § 10.441 and found that this method would minimize resulting
hardship. The Board finds that OWCP gave due regard to the financial information provided,
noting that appellant was not deemed to need substantially all of his monthly income to meet
current and ordinary living expenses as monthly income exceeds monthly expenses by $623.55.
Therefore, the Board finds that OWCP properly required recovery of the overpayment by
deducting $400.00 from appellant’s compensation payments every 28 days.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of the overpayment. The
Board also finds that OWCP properly required repayment of the overpayment by deduction of
$400.00 every 28 days from his continuing compensation payments.

12

20 C.F.R. § 10.441(a); J.T., supra note 6; A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler,
39 ECAB 1056, 1062 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employee’s Compensation Appeals Board
___________________________________________
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and
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U.S POSTAL SERVICE, POST OFFICE,
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Cleveland, OH, Employer
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___________________________________________ )
C.T., Appellant

Docket No. 08-480
Issued: June 17, 2008

Appearances:

Case Submitted on the Record

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

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 29, 2007 appellant filed a timely appeal of the November 2, 2007 merit
decision the Office of Worker’s Compensation Programs which affirmed a decision dated
May 10, 2007, denying his claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office properly denied appellant’s claim for a schedule award.
FACTUAL HISTORY
On August 26, 2003 appellant, then a 36-year-old auto mechanic, filed a claim alleging
that on August 26, 2003 his knee gave out while he was running to answer a telephone at work.
The Office accepted his claim for left knee sprain and expanded his claim to include tear of the
left lateral meniscus and authorized arthroscopic surgery which was performed on
November 4, 2003. Appellant stopped work on August 26, 2003 and returned to light duty on
November 24, 2003 and full duty on August 19, 2004. Appropriate compensation benefits were
paid.

Appellant was treated by Dr. Robert Yurick, a Board-certified orthopedist, who first
treated appellant on August 29, 2003, for a left knee injury sustained at work. Dr. Yurick noted
left knee findings of slight puffiness with significant pain along the lateral joint line and
diagnosed possible tear or possible loosening of the lateral or discoid meniscus. In a report dated
September 26, 2003, he diagnosed tear of the lateral meniscus and recommended surgery. In an
operative report dated November 4, 2003, Dr. Yurick performed an arthroscopy with partial
meniscectomy (lateral) of the left knee and diagnosed torn lateral meniscus of the left knee. On
November 7, 2003 he noted that appellant’s left knee looked good with little swelling and no
clicking of the joint. Dr. Yurick prescribed a knee support to be worn at night and crutches. In a
duty status report dated November 19, 2003, he noted that appellant could return to work full
time, limited duty, on November 24, 2003, subject to restrictions. Appellant submitted a first
report of injury dated August 26, 2003, prepared by a physician’s assistant, who noted a history
of injury and diagnosed left knee sprain. An August 26, 2003 x-ray of the left knee revealed no
fracture or subluxation. A September 23, 2003 magnetic resonance imaging (MRI) scan of the
left knee revealed mild to moderate joint effusion, tears of the lateral meniscus and posterior
horn and probable tear of the posterior horn of the medial meniscus.
Appellant continued to submit reports from Dr. Yurick dated December 1, 2003 to
March 1, 2004, who noted that appellant was doing well postoperatively, with range of motion of
the left knee measured at 115 degrees, good extension and no swelling. Dr. Yurick
recommended continued physical therapy. In a report dated March 26, 2004, he noted that
appellant finished the prescribed physical therapy and was doing extremely well with findings
upon physical examination of the left knee of essentially normal range of motion, no tenderness,
markedly improved quadriceps muscle and an improved osteochondral defect. Dr. Yurick
recommended one last check-up in a couple of months. In a duty status report dated March 26,
2004, he indicated that appellant could continue to work full time with restrictions.
On March 30, 2004 appellant requested a change in physicians to Dr. Kenneth W.
Chapman, a Board-certified orthopedist, as Dr. Yurick was retiring on April 1, 2004. In a duty
status report dated May 18 and August 19, 2004, Dr. Chapman continued appellant’s full-time
work status with restrictions.
On April 29, 2006 appellant filed a claim for a schedule award.1
In a letter dated May 23, 2006, the Office advised appellant of the need for additional
medical evidence. Specifically, it requested that appellant submit a physician’s opinion
regarding the extent of any permanent impairment due to the accepted left knee sprain and tear of
the left lateral meniscus. The Office advised that the impairment rating should be prepared in
accordance with the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.2 The Office attached an impairment form to be completed by
appellant’s treating physician and requested that the form be submitted within 30 days.

1

The record indicates that appellant relocated to Florida on March 21, 2006.

2

A.M.A., Guides (5th ed. 2001).

2

In a decision dated May 10, 2007, the Office denied appellant’s claim for a schedule
award. It noted that the evidence was insufficient to establish that he sustained permanent
impairment to a scheduled member due to his accepted work injury. The Office noted that
appellant was advised of the deficiencies in his claim in a letter dated May 23, 2006; however,
no additional evidence was received.
On May 17, 2007 appellant through his attorney, requested an oral hearing which was
held on September 18, 2007. He was not present at the oral hearing; however, his attorney
requested that the record be held open for 30 days so that he could obtain a medical report from
his treating physician. The attorney indicated that he had previously attempted to get an
impairment determination from appellant’s treating physician and was unsuccessful. No
additional evidence was received.
In a decision dated November 2, 2007, the hearing representative affirmed the Office
decision dated May 10, 2007.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, 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 regulation as the appropriate standard for evaluating schedule losses.5
ANALYSIS
Appellant alleges that he is entitled to a schedule award for permanent partial impairment
of the left lower extremity. The Office accepted his claim for left knee sprain and tear of the left
lateral meniscus.
Appellant, however, failed to submit sufficient medical evidence to establish entitlement
to a schedule award for his accepted left knee sprain and tear of the left lateral meniscus. He
submitted a report from Dr. Yurick dated March 26, 2004, who noted that he completed physical
therapy and was doing extremely well with essentially normal range of motion of the left knee,
no tenderness, markedly improved quadriceps and an improving osteochondral defect.
Dr. Yurick recommended one last check-up in a couple of months. In duty status reports dated
March 26 and August 19, 2004, Drs. Yurick and Chapman respectively indicated that appellant
could continue to work full time with restrictions. However, none of the reports from
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

3

Drs. Yurick and Chapman included an impairment rating nor did they provide an adequate
description of appellant’s physical condition so that an impairment rating could be determined by
an Office medical adviser. For instance, Dr. Yurick noted in his report dated March 26, 2004
that appellant was “doing extremely well now. He has good motion, essentially normal, no
tenderness”; however, he failed to explicitly define impairment in terms of the A.M.A., Guides,
i.e., whether it was based on findings of pain, loss of range of motion or loss of strength.6
Additionally, it is unclear from their reports whether appellant reached maximum medical
improvement, as Dr. Yurick opined on March 26, 2004, that appellant would undergo a final
examination in a couple of months. The Board notes that it is well established that a schedule
award cannot be determined and paid until a claimant has reached maximum medical
improvement.7
In order to determine entitlement to a schedule award appellant’s physician must provide
a sufficiently detailed description of his condition so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its resulting restrictions
and limitations.8 As Drs. Yurick and Chapman did not adequately describe appellant’s condition
or correlate his findings with the A.M.A., Guides, their reports are insufficient to establish the
extent of appellant’s permanent impairment. On May 23, 2006 the Office requested that
appellant provide a report from his treating physician with regard to his permanent impairment of
the left lower extremity in accordance with the A.M.A., Guides; however, no additional evidence
was submitted. Without the necessary reasoned medical opinion evidence establishing the type
and extent of appellant’s impairment correlated with the A.M.A., Guides, and explaining the
causal relationship between these findings and his accepted employment injury, he has failed to
establish that he sustained a permanent impairment as a result of his accepted conditions.9
CONCLUSION
The Board finds that appellant failed to establish that he is entitled to a schedule award.

6

Lela M. Shaw, 51 ECAB 372 (2000) (where the Board found that a physician’s opinion which does not
explicitly define impairment in terms of the A.M.A. Guides, i.e., whether it be based on findings of pain, loss of
range of motion or loss of strength, is insufficient to establish that appellant sustained any permanent impairment
due to her accepted employment injury).
7

See Joseph R. Waples, 44 ECAB 936 (1993).

8

Renee M. Straubinger, 51 ECAB 667, 669 (2000) (where the Board found in providing an estimate of the
percentage loss of use of a member of the body listed in the schedule provisions, a description of a claimant’s
impairment must be obtained from his or her physician which is in sufficient detail so that the claims examiner and
others reviewing the file will be able to clearly visualize the impairment and its resulting restrictions and
limitations).
9

Id.; see also Lela M. Shaw, supra note 6.

4

ORDER
IT IS HEREBY ORDERED THAT the November 2 and May 10, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Raleigh, NC, Employer
__________________________________________

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

Docket No. 13-375
Issued: May 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 6, 2012 appellant filed a timely appeal from July 9 and October 29, 2012
decisions of the Office of Workers’ Compensation Programs (OWCP) denying a traumatic injury
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained a traumatic injury on May 26,
2012 as alleged.
On appeal appellant asserts that he sustained a right inguinal hernia after pushing a heavy
box at work and that a postal customer provided a statement supporting his claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 26, 2012 appellant, then a 51-year-old city carrier, filed a traumatic injury (Form
CA-1) claiming that he sustained a right groin strain that day when stepping from his postal
vehicle at 2:15 p.m. He stopped work on May 26, 2012.
In a May 26, 2012 report, an emergency room physician whose signature is illegible
diagnosed an inguinal hernia and took appellant off work.
In a June 4, 2012 letter, OWCP advised appellant that additional factual and medical
evidence was needed to establish his claim. It requested a factual statement describing the
mechanism of injury and a report from his physician explaining how the May 26, 2012 incident
caused the claimed hernia injury. Appellant was afforded 30 days to submit such evidence.
On May 31, 2012 Dr. Christopher R. Watters, an attending Board-certified surgeon,
performed a right umbilical and right inguinal hernia repairs surgery with mesh. He held
appellant off work from June 6 to 27, 2012. Dr. Watters submitted progress notes.
By decision dated July 9, 2012, OWCP denied appellant’s claim finding that fact of
injury was not established. It found that he did not provide a sufficient description of how the
claimed May 26, 2012 incident occurred.
In an August 30, 2012 letter, appellant requested reconsideration. He stated that on the
morning of May 26, 2012, he pushed a large parcel to his delivery vehicle using a mail hamper.
When appellant stepped from his postal vehicle to deliver the parcel to a customer, he felt a pull
in his right lower quadrant and cried out in pain. The customer’s associate assisted him in lifting
the parcel from the vehicle. Appellant noted that he was a renal dialysis patient using nocturnal
home dialysis equipment.
The postal customer provided a notarized August 20, 2012 statement describing that on
May 26, 2012 appellant “opened his vehicle door and as he stepped down, he exclaimed in pain.”
Her associate then assisted him in unloading a parcel from the delivery vehicle.
Appellant also submitted May 26, 2012 imaging studies of a right inguinal hernia, as well
as findings consistent with his use of home renal dialysis. Dr. Watters released appellant to light
duty on July 1, 2012 and to full duty on July 31, 2012.
By decision dated October 29, 2012, OWCP modified its July 9, 2012 decision to find
that the May 26, 2012 incident occurred at the time, place and in the manner alleged.2 It denied
the claim finding that causal relationship was not established. OWCP found that appellant did
not submit sufficient medical evidence addressing how pushing a mail hamper or stepping from
his delivery vehicle caused or contributed to the claimed hernia.

2

OWCP’s October 29, 2012 decision refers to a May 20, 2012 incident.
typographical error.

2

The Board finds that this is a

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether 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. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.6 Rationalized
medical opinion evidence is generally required to establish causal relationship. The opinion of
the physician must be based on a complete factual and medical background, 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.7
ANALYSIS
Appellant claimed that he sustained a right inguinal hernia on May 26, 2012 when he
stepped from his delivery vehicle after pushing a hamper of mail earlier that day. OWCP
accepted that he stepped from his vehicle on May 26, 2012 as alleged. However, it denied the
claim as the medical evidence of record did not support a causal relationship between the
accepted incident and the claimed hernia.
In support of his claim, appellant submitted May 26, 2012 imaging studies and an
emergency room report diagnosing a right inguinal hernia. These forms do not mention that he
stepped from a postal vehicle that day. Dr. Watters, an attending Board-certified surgeon,
performed right inguinal and umbilical hernia repairs on May 31, 2012. He submitted progress
notes and released appellant to full duty as of July 31, 2012. Dr. Watters however did not
address a history of appellant’s May 26, 2012 work activities or attribute the diagnosed hernias

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

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

3

to any work-related cause. As he did not support that stepping from the postal vehicle caused the
claimed hernia, Dr. Watters’ opinion is insufficient to meet appellant’s burden of proof.8
The Board notes that OWCP advised appellant by June 4, 2012 letter of the need to
submit his physician’s opinion explaining how and why work factors would cause the claimed
injury. However, appellant did not submit such evidence. Therefore, he failed to meet his
burden of proof in establishing causal relationship.
On appeal, appellant asserts that he sustained the claimed hernia after pushing a heavy
box at work and that a postal customer wrote a notarized statement supporting his claim.
However, as stated above, he submitted insufficient medical evidence to establish the causal
relationship asserted. 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 established that he sustained a traumatic injury in
the performance of duty as alleged.

8

Deborah L. Beatty, supra note 6.

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 29 and July 9, 2012 are affirmed.
Issued: May 16, 2013
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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

Docket No. 18-0040
Issued: May 7, 2019

Case Submitted on the Record

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

JURISDICTION
On October 5, 2017 appellant filed a timely appeal from a May 31, 2017 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the May 31, 2017 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish total disability for
the period September 17 to December 16, 2016 due to her accepted December 6, 2012
employment injury.
FACTUAL HISTORY
On December 10, 2012 appellant, then a 56-year-old city letter carrier, filed a traumatic
injury claim (Form CA-1) alleging that on December 6, 2012 she sprained her left shoulder when
she tripped over a delivery point sequence while in the performance of duty. The record reveals
that she was working modified duty due to another work-related injury.
By decision dated December 18, 2012, OWCP accepted appellant’s claim for right ankle
contusion, right foot contusion, right hip contusion, and left shoulder contusion.
On February 3, 2014 appellant underwent authorized lumbar surgery for a previously
accepted claim and stopped work.3
Appellant submitted an April 29, 2016 report by Dr. Jon Hyman, a Board-certified
orthopedic surgeon, specializing in sports medicine. Dr. Hyman indicated that she was employed
as a mail carrier, but was currently not working. He related appellant’s complaints of discomfort
and pain with prolonged walking and unbearable pain and weakness in the bilateral hips.
Dr. Hyman described her December 6, 2012 employment injury and noted that she was also
receiving medical treatment for her back under a separate claim. He noted that, after appellant
underwent lumbar surgery in February 2014, she experienced more significant bilateral hip pain.
Upon examination of her bilateral hips, Dr. Hyman observed no tenderness or swelling. Range of
motion was limited at flexion due to pain. Dr. Hyman diagnosed bilateral hip pain; possible intraarticular synovitis; altered gait, status postsurgery in February 2014; and diminished quad
strength/decreased motor nerve innervation. He provided a work status form and indicated that
appellant could work with restrictions of no squatting, kneeling, bending, stooping, use of the
affected body parts, climbing, running, jumping, pivoting, or twisting and limited lifting, pushing,
or pulling.
In a May 10, 2016 work status form, Matthew Guffey, a certified physician assistant,
indicated that appellant had reached maximum medical improvement for her back, but needed
treatment for her hip. He noted that she should have “no activity” from May 10 to
November 8, 2016.

3

Under OWCP File No. xxxxxx907, OWCP accepted that on September 19, 2012 appellant sustained a low back
strain, left index finger sprain, and aggravation of degenerative disc disease as a result of lifting heavy restoration
books throughout her route in the performance of duty. Appellant stopped work on September 20, 2012 and returned
to full-time limited duty on September 21, 2012. She underwent surgery and stopped work on February 3, 2014.
OWCP paid wage-loss compensation benefits. By decision dated September 17, 2016, it terminated appellant’s wageloss compensation and medical benefits, effective September 13, 2016, because she no longer had residuals or
disability causally related to her September 19, 2012 employment injury.

2

OWCP received an October 12, 2016 letter from appellant to J.H., her manager. Appellant
informed him that she was appealing her case before OWCP and requesting 320 hours of leave
with pay. She explained that her physician referred her to Dr. Hyman for evaluation of her hip
and instructed her to remain on the same work restrictions. Appellant indicated that she was
enclosing forms requesting leave without pay (LWOP) for the required time including a request
for or notification of absence forms dated October 12, 2016, which requested LWOP from
September 19 to December 16, 2016 and several time analysis forms (Forms CA-7a) requesting
wage-loss compensation for total disability for the period September 19 to December 16, 2016.
She noted that the reason for using leave was “per [physician’s] orders.”
In a November 3, 2016 work status form, Dr. Hyman noted a left hip injury. He indicated
that appellant could work with restrictions of no squatting, kneeling, bending, stooping, climbing,
running, jumping, pivoting, or twisting and limited use of the affected body part.
Dr. Plas T. James, a Board-certified orthopedic surgeon specializing in spine surgery, also
treated appellant. In a November 8, 2016 work status form, he noted a date of injury of
September 19, 2012 and indicated that she should not work for the period November 8, 2016 until
her next visit in eight weeks on January 3, 2017.
On December 6, 2016 appellant filed a claim for wage-loss compensation (Form CA-7) for
LWOP for the period September 17 to November 11, 2016 and for leave buy back for the period
November 14 to December 16, 2016. On the reverse side of the claim form the employing
establishment confirmed that she was on LWOP status for the period September 19 to
November 25, 2016. In an attached Form CA-7a, appellant again indicated that the reason for
using leave was “per [physician’s] orders” or “per [physician’s] restriction.”
In a development letter dated December 12, 2016, OWCP informed appellant that it
received her claim for wage-loss compensation for the period September 17 through
December 16, 2016. It advised her that the evidence submitted was insufficient to establish her
claim and requested that she submit additional evidence to establish that she was unable to work
modified duty during the period claimed as a result of her December 6, 2012 employment injury.
Appellant was afforded 30 days to provide the requested information.
In a December 16, 2016 work status form, Dr. Hyman noted an injured body part of left
hip. He indicated: “no work until next office visit.”
By decision dated January 24, 2017, OWCP denied appellant’s claim for wage-loss
compensation benefits for the period September 17 to December 16, 2016. It found that the
medical evidence of record failed to establish that she was disabled from work or entitled to wageloss compensation during the claimed period as a result of her work injury. OWCP noted that the
medical records which had been submitted referred to treatment for appellant’s left hip and back,
which were not accepted conditions under her current claim.
On March 13, 2017 OWCP received appellant’s request for reconsideration. Appellant
explained that she disagreed with OWCP’s decision that her December 6, 2012 employment injury
had resolved and that she was no longer disabled. She noted that Dr. Hyman believed that she
needed further evaluation and should be on “no work” status. Appellant related that she was

3

currently receiving medical treatment for her feet and shoulder injuries. She noted that she was
authorized to return to work with restrictions, but the employing establishment could not
accommodate her restrictions.
Appellant continued to receive medical treatment from Dr. Hyman. In reports dated
November 8 and December 16, 2016, Dr. Hyman related that she was two years post status L4-5
fusion surgery and began to experience back pain, bilateral hip pain, and groin pain approximately
two months prior. Upon physical examination of appellant’s lumbar spine, he observed
paraspinous muscle spasm and minimal range of motion of the spine. Straight leg raise testing
was negative. Dr. Hyman reported that pinprick sensation was normal in the bilateral lower
extremities. Examination of appellant’s hip also showed positive Patrick test with groin and
anterior thigh pain. Dr. Hyman indicated that internal and external rotation of her hip caused pain
in the groin and anterior thigh. He diagnosed status post L4-5 fusion, L3-4 spinal stenosis, and
bilateral plantar fasciitis. In the December 16, 2016 report, Dr. Hyman noted that no new
restrictions were made with respect to appellant’s work status. He recommended that she avoid
actions that caused her pain directly.
Dr. Hyman continued to treat appellant for her bilateral hip pain. Appellant submitted
several medical reports and letters dated January 20 to March 1, 2017. She also provided
diagnostic medical reports dated February 9, 2017 of her pelvis and bilateral hips.
OWCP received a March 6, 2017 letter by Y.G., a customer services manager at the
employing establishment. Y.G. informed appellant that the employing establishment did not have
work available for her within her current work restrictions.
By decision dated May 31, 2017, OWCP denied modification of the January 24, 2017
decision. It found that the medical evidence of record was insufficient to establish that appellant
was unable to work for the period September 17 to December 16, 2016 as a result of her
December 6, 2012 employment injury. OWCP noted that the evidence submitted indicated that
her current symptoms and inability to work were related to her nonwork-related left hip and back
conditions.
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 any disability or specific condition for which
compensation is claimed is causally related to the employment injury.5 The term disability is
defined as the incapacity because of an employment injury to earn the wages the employee was
receiving at the time of the injury.6
Whether a particular injury causes an employee to be disabled from employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
4

Supra note 1.

5

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999).

4

reliable, probative, and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work.8
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part
of this burden of proof, the employee must establish either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.9
The Board will not require OWCP to pay compensation for disability in the absence of any
medical evidence addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish total disability
for the period September 17 through December 16, 2016 due to the December 6, 2012 employment
injury.
During appellant’s claimed period of disability, she received medical treatment from
Dr. Hyman. In a November 3, 2016 work status form, Dr. Hyman noted a left hip injury and
indicated that she could work with restrictions of no squatting, kneeling, bending, stooping,
climbing, running, jumping, pivoting, or twisting and limited use of the affected body part. The
Board finds that this work status form does not establish total disability for the period
September 17 to December 16, 2016. Rather, Dr. Hyman’s report provided appellant with work
restrictions and did not indicate that she was totally disabled from work due to her December 6,
2012 employment injury. Accordingly, his November 3, 2016 work status form fails to establish
disability from work on the claimed dates due to her accepted injuries.11
In reports dated November 8 and December 16, 2016, Dr. Hyman further related that
appellant began to experience back pain, bilateral hip pain, and groin pain approximately two
months prior. He provided physical examination of her lumbar spine and bilateral hips.
Dr. Hyman diagnosed status post L4-5 fusion, L3-4 spinal stenosis, and bilateral plantar fasciitis.
He reported that no new restrictions were made with respect to her work status. In a December 16,
2016 work status form, Dr. Hyman reported: “no work until next office visit.” Although he
7

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

8

Dean E. Pierce, 40 ECAB 1249 (1989).

9

C.G., Docket No. 16-1503 (issued May 17, 2017).

10

Amelia S. Jefferson, supra note 7.

11

See M.C., Docket No. 16-1238 (issued January 26, 2017). See also Jaja K. Asaramo, 55 ECAB 200 (2004) (the
Board found that for conditions not accepted or approved by OWCP as due to an employment injury, the claimant
bears the burden of proof to establish that the condition is causally related to the employment injury).

5

indicated that appellant should remain off work, he did not provide a medical explanation
explaining why her December 6, 2012 employment injury caused a period of total disability or
otherwise provide medical rationale why any current condition or disability was due to the
December 6, 2012 employment injury.12 In addition, Dr. Hyman did not identify the specific dates
that she was disabled from work nor did he explain how she was no longer able to work due to her
accepted employment injury. The Board will not require OWCP to pay compensation for
disability, in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed.13 To do so would essentially allow an employee to self-certify
his or her disability and entitlement to compensation.14 Because Dr. Hyman failed to provide
medical rationale for his conclusion, his opinion is of diminished probative value.15 His additional
reports are of limited probative value on the issue of total disability as they do not address the
claimed period of disability.
Appellant also submitted a November 8, 2016 work status from by Dr. James. Dr. James
noted a date of injury of September 19, 2012 and indicated that she should not work for the period
November 8, 2016 to January 3, 2017. Although he reported that appellant should not work during
the claimed period, he did not indicate that she was disabled from work due to her accepted
December 6, 2012 employment injury. Rather, Dr. James noted a date of injury of September 19,
2012, which was the date of injury under a previously accepted claim. The issue of whether a
claimant’s disability from work is related to an accepted condition is a medical question, which
must be established by a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disability is causally related to the employment injury and
supports that conclusion with sound medical reasoning.16 As Dr. James did not attribute
appellant’s inability to work to her December 6, 2012 employment injury, his opinion is of limited
probative value.
In addition, the May 10, 2016 work status form by Mr. Guffey, a physician assistant,
indicating that appellant have “no activity” for the period May 10 to November 8, 2016, is of no
probative value to establish her disability compensation claim because physician assistants are not
considered physicians as defined under FECA.17

12

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

13

Sandra D. Pruitt, 57ECAB 126 (2005).

14

J.S., Docket No. 16-1014 (issued October 27, 2014).

15

S.B., Docket No. 13-1162 (issued December 12, 2013).

16

See G.B., Docket No. 16-1003 (issued December 5, 2016).

17

5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law);
20 C.F.R. § 10.5(t). See also 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); K.S., Docket
No. 18-0954 (issued February 26, 2019); K.W., 59 ECAB 271, 279 (2007).

6

As the medical evidence of record does not contain sufficient rationale to establish disability during the claimed period, the Board finds that appellant has not met her burden of proof.
On appeal, appellant argues that, if she had been allowed to work, she could have reduced
the amount of debt that she owes. She explained that, beginning in late June 2017, she was not
receiving financial support and could not pay her debts. As explained above, however, appellant
has not provided rationalized medical evidence to establish her claim for total disability for the
period September 17 to December 16, 2016 due to her December 6, 2012 employment injury.
Accordingly, the Board finds that she has not established her claim for wage-loss compensation
for the claimed period.
The Board further finds, however, that the case is not in posture for decision regarding
whether appellant is entitled to wage-loss compensation for receiving medical treatment for her
accepted injury on November 3 and 8, and December 16, 2016.
The record contains evidence that appellant was treated by Dr. Hyman on November 3 and
8, and December 16, 2016. OWCP’s procedures provide that wages lost for compensable medical
examination or treatment may be reimbursed.18 It notes that a claimant who has returned to work
following an accepted injury or illness may need to undergo examination or treatment and such
employee may be paid compensation for wage loss while obtaining medical services and for a
reasonable time spent traveling to and from the medical provider’s location.19 As a rule, no more
than four hours of compensation or continuation of pay should be allowed for routine medical
appointments. Longer periods of time may be allowed when required by the nature of the medical
procedure and/or the need to travel a substantial distance to obtain the medical care.20 The case
will be remanded for payment of up to four hours of wage-loss compensation for each of these
medical appointments and travel time.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the period September 17 to December 16, 2016 as a result of the December 6, 2012
employment injury. The Board also finds that this case is not in posture for decision regarding her
reimbursement for medical appointments on November 3 and 8, and December 16, 2016.

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.19
(February 2013).
19

Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

20

Supra note 18 at Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998).

7

ORDER
IT IS HEREBY ORDERED THAT the May 31, 2017 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part. The case is remanded for further
development consistent with this decision of the Board.21
Issued: May 7, 2019
Washington, DC

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

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

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

21

On remand, OWCP should consider combining the case records for OWCP File Nos. xxxxxx242 and xxxxxx907.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF THE ARMY,
CORPS OF ENGINEERS, Memphis, TN,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1945
Issued: February 10, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On September 28, 2015 appellant timely appealed the September 8, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP), which granted a schedule award for
bilateral upper extremity impairment.1 The Board docketed the appeal as No. 15-1945.
Appellant, a 58-year-old retired motor vehicle operator, has an accepted occupational
disease claim for bilateral carpal, cubital, and radial tunnel syndromes, bilateral hand/wrist
tendinitis, and bilateral medial epicondylitis. His employment-related bilateral upper extremity
conditions arose on or about March 20, 2012.2
The September 8, 2015 schedule award decision, which is the subject of the current
appeal, referenced a prior claim (xxxxxx464) under which appellant had reportedly received a
schedule award for 16 percent impairment of the left arm. According to an April 1, 2015
statement of accepted facts (SOAF), the referenced traumatic injury claim was accepted for
1

Pursuant to the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101-8193 (2006), and 20 C.F.R.
§§ 501.2(c) and 501.3 (2014), the Board has jurisdiction over the merits of this case.
2

Appellant retired effective April 1, 2014.

lacerations of the left index and long fingers, which occurred on September 6, 1995, but the
latest SOAF did not specifically mention a prior upper extremity schedule award.3
In calculating appellant’s current left upper extremity impairment, the district medical
adviser (DMA) combined the prior 16 percent award (xxxxxx464) with appellant’s latest 4
percent impairment rating for epicondylitis and entrapment/compression neuropathy, and found a
total left upper extremity (arm) impairment of 19 percent. OWCP then reduced the 19 percent
impairment rating by the prior award (16 percent), and thus, granted an additional 3 percent for
appellant’s left upper extremity (arm).4 The Board does not have access to appellant’s file under
claim number xxxxxx464.5 Moreover, the current claim (xxxxxx618) file does not include the
referenced 16 percent left arm award or any of the relevant medical evidence that formed the
basis of that particular decision.
The Board finds that the case is not in posture for decision. Decisions on claims are
based on the written record, which may include forms, reports, letters, and other evidence of
various types such as photographs, videotapes, or drawings.6 Evidence may not be incorporated
by reference, nor may evidence from another claimant’s case file be used.7 Evidence contained
in another of the claimant’s case files may be used, but a copy of that evidence should be placed
into the case file being adjudicated.8 All evidence that forms the basis of a decision must be in
that claimant’s case record.9 Both the DMA and OWCP relied on evidence and information
reportedly contained in one of appellant’s other claim files (xxxxxx464). However, OWCP
failed to include all the evidence and information it relied upon in the current file. Because of
this oversight, the Board is not in a position to make an informed decision regarding appellant’s
entitlement to a schedule award.
As the record lacks sufficient evidence for the Board to render an informed decision, the
case shall be remanded to OWCP for further development. As noted, all evidence that forms the
basis of a decision must be included in the case record.10 After OWCP has developed the record
3

Elsewhere in the record there was reference to a February 8, 2000 schedule award for 16 percent impairment of
the left upper extremity, and a March 19, 1996 schedule award for 11 percent impairment of the left hand. Both
awards were reportedly issued under claim number xx-xxxx464.
4

The September 8, 2015 decision also award six percent impairment of the right upper extremity (arm).

5

OWCP did not double/combine the respective case files associated with appellant’s upper extremity claims. See
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000) (cases should be doubled when correct adjudication of the issues depends on frequent crossreference between files).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
7

Id.

8

Id.

9

Id.

10

Id.

2

consistent with the above-noted directive, it shall issue a de novo decision regarding appellant’s
request for reconsideration.
IT IS HEREBY ORDERED THAT the September 8, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this order.
Issued: February 10, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, LAKE FOREST POST
OFFICE, Jacksonville, FL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0563
Issued: March 22, 2022

Case Submitted on the Record

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

On March 8, 2022 appellant filed an appeal from a July 15, 2020 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
assigned Docket No. 22-0563.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the July 15, 2020 decision was January 11, 2021. As appellant
did not file an appeal with the Board until March 8, 2022, more than 180 days after the July 1 5 ,
2020 OWCP decision, the Board finds that the appeal docketed as No. 22-0563 is untimely filed.
The Board is without jurisdiction to review the appeal. Appellant has not explain ed her failure to
timely file an appeal with supporting documentation sufficient to establish compelling
circumstances. Because there is no final adverse decision issued by OWCP within 180 days of
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

the filing of the instant appeal, the Board concludes that the appeal docketed as No. 22 -0563,
must be dismissed. 3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0563 is dismissed.
Issued: March 22, 2022
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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Hartford, CT,
Employer
__________________________________________

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

Docket No. 10-347
Issued: September 9, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 18, 2009 appellant, through her attorney, filed a timely appeal of the
August 19, 2009 merit decision of the Office of Workers’ Compensation Programs. 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 established that she sustained fibromyalgia while in the
performance of duty.
FACTUAL HISTORY
On October 29, 2008 appellant, then a 45-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that on April 15, 2002 she first became aware of her chronic
myofascial pain and realized that her condition was caused by her numerous employment-related
sprains and strains. She also suffered from numerous side effects of her medication. Appellant
had fibromyalgia, depression and sleep deprivation which affected her mental capability. She
feared for her personal safety due to management’s actions. In an accompanying October 19,
2008 letter, appellant contended that her myofascial pain, which was primarily in her back, was

caused by unsafe working conditions and an overburdened workload. She contended that a
manager of distribution operations refused to help her with her heaviest workload because she
prevailed in a discrimination complaint she filed against the employing establishment.
Appellant submitted hospital records dated May 15 to November 5, 2008 from Linda U.
McEwen and Bethany W. Michaud, licensed social workers, and Jeremy Mirsky, Ph.D., a
clinical psychologist. Ms. McEwen and Ms. Michaud stated that appellant had depression, posttraumatic stress disorder, fibromyalgia, chronic lower back pain, left carpal tunnel syndrome,
bilateral fasciitis of the feet and anxiety. In reports dated June 1 and July 25, 2008, Dr. Mirsky
addressed the treatment of appellant’s emotional conditions, fibromyalgia and chronic lower
back pain. He concluded that appellant was partially disabled. In a June 11, 2008 medical
report, Dr. J.P. Augustine Noonan, a Board-certified psychiatrist and neurologist, advised that
she sustained post-traumatic stress disorder, myofascial pain and disc disease.
In a November 6, 2008 letter, the employing establishment controverted appellant’s
claim, contending that she failed to submit medical evidence establishing that her claimed injury
was causally related to factors of her employment.
By letter dated November 24, 2008, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It requested that she submit factual and
medical evidence. Also, on November 24, 2008 the Office requested that the employing
establishment submit factual evidence regarding appellant’s claim.
In a December 8, 2008 letter, the employing establishment contended that appellant’s
emotional conditions were not related to her alleged employment-related condition or factors of
her employment.
By decision dated March 12, 2009, the Office denied appellant’s claim, finding that the
medical evidence was insufficient to establish that she sustained fibromyalgia causally related to
the established work-related duties. In a March 17, 2009 letter, appellant, through counsel,
requested a telephonic hearing with an Office hearing representative.
In a June 1, 2009 medical report, Ms. McEwen stated that she had been treating appellant
for depression and post-traumatic stress disorder during the past year. She stated that appellant
had a history of moderate-to-severe depression. Appellant’s history of fibromyalgia and chronic
pain contributed to and exacerbated her depression. She exhibited a strong desire to maintain her
employment and functional level in spite of these problems. Ms. McEwen advised that
appellant’s mental/emotional and physical symptoms had increased since being placed on the
midnight shift. She stated that proper levels of rest and sleep were essential to maintaining
appellant’s well-being and keeping her chronic conditions at a manageable level. Ms. McEwen
recommended a work schedule that allowed appellant to consistently get the rest she needed to
maintain her health and functional level.
In a May 19, 2009 report, Dr. Jonathan A. Dixon, an attending Board-certified internist,
stated that he had been treating appellant for severe refractory fibromyalgia since 2005. He
related that her condition had been severe since that time and she failed to respond to treatment.
Dr. Dixon advised that appellant had difficulty with prolonged standing, bending and lifting.
Appellant also had decreased endurance due to severe fatigue associated with her fibromyalgia.

2

Her condition severely limited her ability to perform her mail handler work duties. Appellant
had difficulty working an evening shift because the change in her daily sleep pattern markedly
exacerbated her fibromyalgia. Dr. Dixon recommended a daytime work schedule.
In a June 16, 2009 letter, appellant contended that her fibromyalgia was caused by her
alleged March 11, 2000 employment-related injury1 and that her condition had worsened since
she began work on the midnight shift. She averaged two to four hours of sleep per night which
left her exhausted, in more pain and unable to concentrate, focus and memorize.
By decision dated August 19, 2009, an Office hearing representative affirmed the
March 12, 2009 decision, finding that the evidence was insufficient to establish that appellant
sustained fibromyalgia causally related to the established work-related duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of her claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that 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.3 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. 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
1

On June 29, 2008 appellant filed a CA-2 form assigned Office File No. xxxxxx036 alleging that she sustained
an emotional condition due to retaliation by the employing establishment for winning an Equal Employment
Opportunity grievance. She contended that on March 11, 2000 a manager failed to address her work safety concerns
and provide her with help during peak machine running hours. By decision dated January 5, 2009, the Office denied
appellant’s emotional condition claim, finding that the evidence was insufficient to establish a compensable
employment factor. The Board notes that File No. xxxxxx036 has been designated as a master file. The instant
claim, File No. xxxxxx854, has been designated as a subsidiary claim.
2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

3

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 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by her employment is
sufficient to establish a causal relationship.6
ANALYSIS
The Office accepted that appellant performed the work duties of a mail handler as
alleged. The Board finds, however, that the medical evidence submitted is insufficient to
establish that her diagnosed fibromyalgia was caused or aggravated by her work-related duties.
The reports from Dr. Mirsky, a clinical psychologist, addressed the treatment of
appellant’s emotional conditions, fibromyalgia and chronic lower back pain. He did not provide
a medical opinion attributing her conditions to the established work-related duties as a mail
handler. Moreover, Dr. Mirsky did not explain how and why those conditions disabled appellant
for work. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.7 The Board finds that Dr. Mirsky’s reports
are insufficient to establish appellant’s claim.
Similarly, Dr. Noonan’s June 11, 2008 report which found that appellant had posttraumatic stress disorder, myofascial pain and disc disease is insufficient to establish her claim.
This evidence does not discuss how these conditions were caused, precipitate or aggravated to by
the established work-related duties. As Dr. Noonan’s report does not contain a reasoned medical
opinion regarding the cause of appellant’s current emotional, myofascial and disc conditions, it is
of limited probative in establishing that she sustained an employment injury causally related to
the accepted employment-related work duties.8
Moreover, Dr. Dixon’s May 19, 2009 report is insufficient to establish appellant’s claim.
Although Dr. Dixon advised that her fibromyalgia caused difficulty with prolonged standing,
bending and lifting and decreased endurance due to severe fatigue which severely limited her
ability to perform her mail handler work duties, he did not discuss how the condition was caused
or contributed to by the established work-related duties.9 The Board finds that Dr. Dixon’s
report is insufficient to establish appellant’s claim.

5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

6

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

7

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

8

Id.

9

Id.

4

The reports from Ms. McEwen and Ms. Michaud, licensed social workers, have no
probative medical value in establishing appellant’s claim. A licensed social worker is not
considered to be a physician as defined under the Act.10
The Board finds that there is insufficient rationalized medical evidence to establish that
appellant sustained fibromyalgia causally related to the accepted factors of her federal
employment as a mail handler. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained fibromyalgia
while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Ernest St. Pierre, 51 ECAB 623, 626 (2000); 5 U.S.C. § 8101(2).

5


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

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

Docket No. 11-1120
Issued: December 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 5, 2011 appellant, through her attorney, filed a timely appeal from a January 28,
2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
request for reconsideration as it was untimely and did not show clear evidence of error. As the
most recent merit decision by OWCP was issued on August 8, 2008, the Board lacks jurisdiction
to review the merits of this case.1 Pursuant to the Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the January 28,
2011 nonmerit decision.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to demonstrate clear evidence of error.
1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal. See 20 C.F.R. § 501.3(d)(2). An appeal of a final adverse OWCP decisions issued on or after November 19,
2008 must be filed within 180 days of the decision. 20 C.F.R. § 501.3(e).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated September 6, 2000,
the Board affirmed February 20 and May 29, 1998 decisions finding that appellant was not
entitled to compensation after June 22, 1997 due to her accepted work injuries of cervical strain,
right shoulder strain and right hip strain.3 The Board found that OWCP met its burden of proof
to terminate her compensation effective June 22, 1997 based on its finding that the opinion of
Dr. Gerald M. DeBonis, a Board-certified orthopedic surgeon and OWCP referral physician,
constituted the weight of the evidence and established that she had no further disability due to
her work injury. On July 21, 2004 the Board affirmed a June 5, 2003 decision finding that
appellant had not established that she had employment-related disability after June 22, 1997 and
a December 16, 2003 decision denying her request for reconsideration under section 8128.4 In a
decision dated February 17, 2006, the Board affirmed a June 1, 2005 decision denying her
request for a hearing and a September 29, 2005 decision denying merit review under section
8128.5 On June 16, 2009 the Board affirmed an August 8, 2008 decision finding that appellant
had not established that she was disabled after June 22, 1997 due to her January 19, 1994 work
injury.6 The facts and the circumstances as set forth in the prior decisions are hereby
incorporated by reference.
On December 16, 2010 appellant requested reconsideration based on the November 15,
2010 medical report of Dr. John W. Ellis, Board-certified in family medicine, who discussed her
history of a January 19, 1994 injury when she fell on her right hip and shoulder. Dr. Ellis
reviewed the medical evidence and listed findings on examination. He diagnosed muscle tendon
strain of the neck, cervical disc derangement, cervical nerve root impingement bilaterally, back
muscle tendon strain and disc derangement, nerve root impingement at L5 and S1 bilaterally,
internal derangement of the right shoulder with impingement syndrome, traumatic arthritis and
mid brachial plexus impingement, a contusion of the right hip with bursitis and tendinitis and
internal derangement of the left knee with chondromalacia patella and laxity. Dr. Ellis attributed
the diagnosed conditions to appellant’s employment injury. He explained how the mechanics of
the fall caused each condition. Dr. Ellis found that appellant was totally disabled commencing
September 1994.7
By decision dated January 28, 2011, OWCP denied appellant’s request for
reconsideration after finding that it was untimely and did not establish clear evidence of error. It
3

Docket No. 98-2432 (issued September 6, 2000). OWCP accepted that on January 19, 1994 appellant sustained
cervical strain, right shoulder strain and right hip strain when she slipped and fell on ice.
4

Docket No. 04-630 (issued July 21, 2004).

5

57 ECAB 441 (2006). On May 16, 2007 the Board denied appellant’s petition for reconsideration. Order
Denying Petition for Recon., Docket No. 06-75 (issued May 16, 2007).
6

Docket No. 08-2358 (issued June 16, 2009). The Board found that, while OWCP’s August 8, 2008 decision
purported to be a nonmerit denial of appellant’s request for reconsideration, it had conducted a merit review of the
claim.
7

The record also contains progress reports dated 2009 and 2010 from Dr. M. Dennis Wachs, a Board-certified
orthopedic surgeon, discussing his treatment of appellant for multiple conditions, including back and knee pain.

2

found that Dr. Ellis’ report was not sufficiently rationalized to support that her fall caused the
diagnosed conditions and thus did not raise a substantial question regarding the correctness of its
decision.
On appeal appellant’s attorney argued that OWCP, in its February 20, 1998 decision,
violated her due process rights when it terminated her compensation without providing
pretermination notice. He asserted that the Board improperly affirmed the February 20, 1998
decision after finding that her opportunity to request further review remedied the procedural
error. Counsel further maintained that OWCP reviewed the merits of the case in its January 28,
2011 decision as it analyzed Dr. Ellis’ report to determine whether it had sufficient rationale. He
argued that the Board should review the case on the merits and remand it for further
development.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.8 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be sent within one year of the date of the
OWCP decision for which review is sought. OWCP will consider an untimely application only
if the application demonstrates clear evidence on the part of OWCP in its most recent merit
decision. The application must establish, on its face, that such decision was erroneous.9
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 OWCP’s 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.10 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.11
ANALYSIS
The Board finds that 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 decision.12 A right to
8

5 U.S.C. § 8101 et seq.

9

20 C.F.R. § 10.607.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991).

11

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
12

20 C.F.R. § 10.607(a).

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reconsideration within one year also accompanies any subsequent merit decision on the issues.13
As appellant’s December 10, 2010 request for reconsideration was submitted more than one year
after June 16, 2009, the date of the last merit decision of record, it was untimely. Consequently,
she must demonstrate clear evidence of error by OWCP in denying her claim for compensation.14
In support of her request for reconsideration, appellant submitted a report dated
November 15, 2010 from Dr. Ellis who reviewed her work history and listed findings on
examination. Dr. Ellis diagnosed numerous conditions involving the cervical spine, lumbar
spine, right shoulder, right hip and left knee. He attributed the diagnosed conditions to
appellant’s January 19, 1994 employment injury based on the mechanism of injury. Dr. Ellis
found that she was totally disabled from September 1994 onward. His report is detailed and
contains some rationale supporting his findings. The term “clear evidence of error,” however, is
intended to represent a difficult standard. The submission of a detailed well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error.15 Dr. Ellis’ report is
insufficient to establish on its face that OWCP erred in terminating appellant’s compensation and
thus does not show clear evidence of error.
Before OWCP appellant’s attorney argued that OWCP conducted a merit review when it
weighed the probative value of Dr. Ellis’ report. He thus contended that the Board should review
the merits of the case. However, to be entitled to a merit review of an untimely request for
reconsideration, appellant must demonstrate clear evidence of error.16 OWCP did not weigh
Dr. Ellis’ report against the other evidence previously of record. Instead, it considered the
probative value of his report for the limited purpose of determining whether it was sufficient to
raise a substantial question as to the correctness of the prior decision. OWCP found that
Dr. Ellis’ report did not show clear evidence of error and thus properly declined reopening
appellant’s case for further review of the merits.
Appellant’s attorney further argued that OWCP erred in failing to provide pretermination
notice before terminating her compensation in its February 20, 1998 decision. In a decision
dated September 6, 2000, however, the Board affirmed the February 20, 1998 termination. The
Board’s decision on this matter became final 30 days from the date of the filing of the decision.17
The issue is thus res judicata and is not subject to further consideration by the Board in this
appeal.18

13

Robert F. Stone, supra note 11.

14

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

15

See Joseph R. Santos, 57 ECAB 554 (2006).

16

See 20 C.F.R. § 10.607.

17

See 20 C.F.R. § 501.6(d); see also W.C., Docket No. 09-473 (issued October 9, 2009).

18

See Hugo A. Mentink, 9 ECAB 628 (1958). In the absence of further review by OWCP on the issue addressed
by a Board decision, the subject matter reviewed is res judicata and is not subject to further consideration by the
Board. See Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Morrisville, NC, Employer
__________________________________________

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

Docket No. 11-388
Issued: September 12, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 7, 2010 appellant, through her attorney, filed a timely appeal from a
November 1, 2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision which
denied her claim for an employment-related injury. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
right and left knee arthritis in the performance of duty causally related to factors of her federal
employment.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the November 1, 2010 OWCP decision and on appeal, appellant
submitted new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1).

On appeal, appellant’s attorney contends that OWCP’s decision was contrary to fact and
law.
FACTUAL HISTORY
On September 9, 2009 appellant, then a 39-year-old transportation security officer, filed
an occupational disease claim (Form CA-2) alleging that she developed right and left knee
arthritis which she attributed to factors of her federal employment on July 20, 2009 after a
physician suggested that it was aggravated by prolonged standing at work.
By letter dated September 11, 2009, OWCP requested additional evidence to support her
claim and allotted 30 days for submission.
In a September 29, 2009 narrative statement, appellant indicated that her duties required
standing, bending and squatting for seven hours a day.
Appellant submitted an undated radiological report by Dr. William T. Hardaker, Jr., a
Board-certified orthopedic surgeon, who diagnosed mild patellofemoral degenerative changes
based on a magnetic resonance imaging (MRI) scan of the right knee.
By decision dated October 14, 2009, OWCP denied appellant’s claim on the grounds that
the medical evidence submitted did not establish fact of injury.
In a September 15, 2009 medical report, Dr. Hardaker diagnosed chondral flap. In a
September 22, 2009 medical report, he reiterated his diagnosis of chondral flap.
In an October 8, 2009 medical report, Dr. Leonard D. Nelson, Jr., a Board-certified
orthopedic surgeon, reported that appellant went back to work and placed her on the following
restrictions: no lifting over 15 pounds, limited bending, stooping, twisting, kneeling, squatting,
repetitive motions, no pushing or pulling over 15 pounds and flexible sit/stand schedule with a
30-minute rotation.
On October 11, 2009 the employing establishment indicated that appellant was working a
light-duty assignment from October 14, 2006 to July 9, 2009 after a September 26, 2006 injury.
Appellant’s restrictions included no lifting over 15 pounds, limited bending, stooping, twisting,
kneeling, squatting, repetitive motions, no pushing or pulling over 15 pounds and flexible
sit/stand schedule with a 30-minute rotation.
On December 15, 2009 appellant accepted a limited-duty assignment as a transportation
security officer.
By letter dated April 26, 2010, appellant informed OWCP that Dr. Hardaker refused to
respond to letters and e-mail correspondence. She switched to Dr. David Boone, a Boardcertified orthopedic surgeon, who performed right knee surgery on January 18, 2010.
On September 15, 2010 appellant requested reconsideration and submitted additional
evidence. She also resubmitted her September 29, 2009 narrative statement.

2

In a September 15, 2009 medical report, Dr. Hardaker diagnosed minimal degenerative
changes in the patellofemoral joint, possible cartilaginous defect and a positive patellar inhibition
test. He reported appellant’s belief that her symptoms stemmed from long periods of time spent
standing at work.
In a September 17, 2009 radiological report, Dr. Brian C. Ruiz-de-Luzuriaga, a Boardcertified radiologist, reviewed a magnetic resonance imaging (MRI) scan of the right knee and
compared it to a right knee x-ray of July 20, 2009. He found a three-millimeter (mm) near full
thickness chondral defect involving the medial trochlear facet superiorly, a mild surface
regularity involving the lateral patellar facet and small Baker’s cyst.
In a September 22, 2009 progress report, Dr. Hardaker indicated that a September 17,
2009 MRI scan of the right knee revealed a chondral flap in the trochlea. He recommended an
arthroscopy and chondroplasty to prevent propagation and to help control her symptoms of
clicking, popping and catching.
In a January 18, 2010 operative report, Dr. Boone identified the preoperative diagnosis as
chondral lesion, trochlea and right knee. He performed a right knee arthroscopy with
chondroplasty of patella and abrasion chondroplasty trochlea and chondroplasty of lateral tibial
plateau. After surgery, Dr. Boone diagnosed chondral lesion, trochlea, right knee with
chondromalacia patella, chondromalacia lateral tibial plateau.
By decision dated November 1, 2010, OWCP granted modification, in part, of the
October 14, 2009 decision. It found that, while the medical evidence submitted was sufficient to
establish fact of injury, OWCP was not sufficient to establish causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical

3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

Ellen L. Noble, 55 ECAB 530 (2004). See O.W., Docket No. 09-2110 (issued April 22, 2010).

3

evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the implicated
employment factors. 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.7
ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish a claim that
federal employment factors caused or aggravated her right and left knee arthritis. While
appellant submitted a statement in which she identified the factors of employment that she
believed caused the condition, in order to establish a claim that she sustained an employmentrelated injury, she must also submit rationalized medical evidence which explains how her
medical conditions were caused or aggravated by the implicated employment factors.8
On September 15, 2009 Dr. Hardaker diagnosed minimal degenerative changes in the
patellofemoral joint and reported appellant’s belief that her symptoms stemmed from long
periods of time spent standing at work. On September 22, 2009 he indicated that a
September 17, 2009 MRI scan of the right knee revealed a chondral flap in the trochlea. In a
September 17, 2009 radiological report, Dr. Ruiz-de-Luzuriaga found a three mm near full
thickness chondral defect involving the medial trochlear facet superiorly, a mild surface
regularity involving the lateral patellar facet and small Baker’s cyst. In an October 8, 2009
medical report, Dr. Nelson reported that appellant went back to work and he issued medical
restrictions. On January 18, 2010 Dr. Boone performed a right knee arthroscopy with
chondroplasty of patella and abrasion chondroplasty trochlea and chondroplasty of lateral tibial
plateau. After surgery, he diagnosed chondral lesion, trochlea, right knee with chondromalacia
patella, chondromalacia lateral tibial plateau. Drs. Hardaker, Ruiz-de-Luzuriaga, Nelson and
Boone failed to directly address the issue of causal relationship as they did not provide a
rationalized medical opinion explaining how factors of appellant’s federal employment, such as
standing, bending and squatting, caused or aggravated her right and left knee arthritis. 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.9 Lacking
6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J.
Woodhams, 41 ECAB 345 (1989); D.R., Docket No. 09-1723 (issued May 20, 2010).
7

O.W., supra note 5.

8

See Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C. Moore, 52 ECAB 132 (2000). See also A.C., Docket
No. 08-1453 (issued November 18, 2008).
9

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

4

thorough medical rationale on the issue of causal relationship, the medical reports of
Drs. Hardaker, Ruiz-de-Luzuriaga, Nelson and Boone are insufficient to establish that appellant
sustained an employment-related injury.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the implicated employment factors, she
failed to meet her burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
developed right and left knee arthritis in the performance of duty causally related to factors of
her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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