United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Pittsburg, CA, Employer
__________________________________________

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

Docket No. 14-1185
Issued: September 10, 2014

Case Submitted on the Record

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

JURISDICTION
On April 28, 2014 appellant timely appealed the April 14, 2014 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied his request for a hearing.
The latest merit decision was issued on April 19, 2013, which was more than 180 days prior to
the filing of the appeal. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction extends only to the April 14, 2014
nonmerit decision.
ISSUE
The issue is whether the Branch of Hearings and Review properly denied appellant’s
March 13, 2014 hearing request.

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
Appellant, a 61-year-old consumer safety inspector, previously filed a traumatic injury
claim (Form CA-1) for an alleged August 21, 2012 employment injury (xxxxx7677). He
claimed to have slipped and fallen on a wet floor, twisting both knees and injuring his lower
back. OWCP denied appellant’s August 21, 2012 traumatic injury claim by decision dated
November 2, 2012.2 Appellant then filed an occupational disease claim (Form CA-2) for injury
to his lower back and both knees. He stated that he sustained multiple injuries during his career,
but never filed workers’ compensation claims. The November 27, 2012 CA-2 form indicated
that his current condition was the result of “cumulative injuries” from 1995 to the present.
Appellant identified August 21, 2012 as the date he first realized his claimed lower back and
bilateral knee conditions were employment related.
Appellant had a right total knee arthroplasty in April 2012 and was a candidate for left
knee replacement. In a November 16, 2012 report, Dr. Gary R. Wisner diagnosed bilateral knee
sprains and severe left knee osteoarthritis.3 He also diagnosed thoracic, lumbar and sacral
myofascial pain syndrome, with bilateral sciatica, left greater than right. Dr. Wisner stated that
appellant’s knee and back conditions were “directly related to repetitive cumulative movements
only.” He further stated that appellant’s “work [was] solely and totally the reason for [his]
injuries to [bilateral] knee and spine.”
The employing establishment advised that appellant was approved for disability
retirement effective December 29, 2012.
In a February 15, 2013 decision, OWCP denied the claim. It found that appellant did not
establish that he was injured in the performance of duty.
Appellant timely requested reconsideration.
By decision dated April 19, 2013, OWCP denied appellant’s claim, finding that the
medical evidence did not establish a causal connection between the accepted work factors and
his knee or back conditions.
On May 7, 2013 appellant underwent a left total knee arthroplasty.
On March 13, 2014 appellant requested an oral hearing before a hearing representative.
In a decision dated April 14, 2014, the Branch of Hearings and Review denied appellant’s
hearing request. The hearing representative noted that appellant had previously requested
reconsideration, and in response OWCP issued an April 19, 2013 merit decision. She
determined that because appellant previously requested reconsideration, he was not entitled to a
2

Appellant had been off work since February 20, 2012, and allegedly slipped and fell the same day he returned
from a six-month absence. His supervisor, Dr. Adil Chaudhry, challenged the alleged August 21, 2012 slip and fall.
Appellant stopped work on September 4, 2012.
3

Dr. Wisner, a Board-certified orthopedic surgeon, performed appellant’s April 24, 2012 right total knee
arthroplasty.

2

hearing as a matter of right. Further, the hearing representative denied the discretionary hearing
noting that the matter could be equally well addressed by filing a request for reconsideration with
OWCP and submitting new evidence regarding the relevant issue.
LEGAL PRECEDENT
Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for an
oral hearing or, in lieu thereof, a review of the written record. A request for either an oral
hearing or a review of the written record must be submitted, in writing, within 30 days of the
date of the decision for which a hearing is sought.4 If the request is not made within 30 days, a
claimant is not entitled to a hearing or a review of the written record as a matter of right. OWCP
regulations further provide that the “claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same decision.”5 Although a
claimant who has previously sought reconsideration is not, as a matter of right, entitled to a
hearing, the Branch of Hearings and Review may exercise its discretion to either grant or deny a
hearing following reconsideration.6
ANALYSIS
Appellant requested an oral hearing utilizing the appeal request form that accompanied
OWCP’s February 15, 2013 merit decision. The hearing request was dated and postmarked
March 13, 2014. Appellant had previously requested reconsideration of the February 15, 2013
decision for which OWCP issued the April 19, 2013 decision. OWCP’s latest merit decision
denied appellant’s claim, but for a different reason than the February 15, 2013 initial denial. The
March 13, 2014 hearing request was made approximately 11 months after the April 19, 2013
decision. Not only was the hearing request untimely, but appellant had already requested
reconsideration. Consequently, he is not entitled to a hearing as a matter of right.7 Although
appellant was not entitled to a hearing, the Branch of Hearings and Review exercised its
discretion to deny the hearing following reconsideration.8 In this instance, the hearing
representative denied a discretionary hearing on the basis that appellant could instead submit
new evidence and request reconsideration before OWCP.9 The Board finds that the hearing

4

20 C.F.R. § 10.616(a) (2012).

5

Id.

6

Hubert Jones, Jr., 57 ECAB 467, 472-73 (2006).

7

20 C.F.R. § 10.616(a).

8

D.E., 59 ECAB 438, 442-43 (2008); J.C., 59 ECAB 206, 210-11 (2007).

9

At the time, appellant had a few days remaining within which to timely request reconsideration of OWCP’s
April 19, 2013 merit decision. See 20 C.F.R. § 10.607(a).

3

representative properly exercised her discretionary authority in denying appellant’s request for a
hearing.10
CONCLUSION
The Branch of Hearings and Review properly denied appellant’s March 13, 2014 request
for a hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 10, 2014
Washington, DC

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

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

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

10

Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment or actions taken which are contrary to both logic and probable deductions from known facts. See André
Thyratron, 54 ECAB 257, 261 (2002).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE NATIONAL GUARD-TITLE 32,
Tacoma, WA, Employer
__________________________________________

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

Docket No. 18-1307
Issued: March 27, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 19, 2018 appellant filed a timely appeal from a May 17, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the May 17, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than four
percent permanent impairment of the right upper extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
On February 16, 2017 appellant, then a 29-year-old aircraft mechanic, filed a traumatic
injury claim (Form CA-1) alleging that he dislocated his right shoulder on February 15, 2017 when
he was loading aircraft jacks onto a transport trailer, slipped on a wet floor, and fell to the ground
while in the performance of duty.
On May 2, 2017 OWCP accepted the claim for unspecified dislocation of the right
shoulder. Preexisting or concurrent medical conditions included prior right shoulder Bankart
repair in 2001 and an open anterior capsule labral construction in 2002. On June 14, 2017
appellant underwent OWCP-approved arthroscopic lavage and debridement and open lateral
transfer of the coracoid with capsular repair.3 He stopped work on June 14, 2017 and received
wage-loss compensation for temporary total disability through September 17, 2017, when he
returned to work in a full-time, light/limited-duty capacity.
On September 26, 2017 appellant filed a schedule award claim (Form CA-7).
By development letter dated October 5, 2017, OWCP informed appellant that no medical
evidence had been received in support of his schedule award claim. It advised him of the evidence
necessary to support his schedule award claim including a detailed narrative medical report from
his treating physician, based on a recent examination, setting forth an opinion on maximum
medical improvement (MMI), and a rating of permanent impairment in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).4
In a November 15, 2017 report, Dr. Ryan Barnes, a neurosurgeon, provided range of
motion findings. For the right shoulder, he related 15 degrees for external rotation and 30 degrees
for internal rotation.
A November 28, 2017 memorandum of telephone call, indicates that appellant informed
OWCP that his treating physician would not provide a permanent impairment rating.
On November 30, 2017 OWCP referred appellant, a statement of accepted facts, and a list
of questions, to Dr. Eric Rudd, a Board-certified orthopedic surgeon, for a second opinion
evaluation.

3

Dr. Russel Vanderwilde, a Board-certified orthopedic surgeon, performed the procedures.

4

A.M.A., Guides (6th ed. 2009).

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In a December 12, 2017 report, Dr. Rudd noted appellant’s history of injury and medical
treatment. He utilized the A.M.A., Guides and explained that based on the diagnosis-based
impairment (DBI) method for rating permanent impairment, appellant did not have shoulder
instability and therefore did not qualify for a permanent impairment rating. Dr. Rudd employed
the range of motion (ROM) method, provided one set of measurements, and opined that appellant
had 10 percent right upper extremity permanent impairment.5
Dr. David J. Slutsky, a Board-certified orthopedic hand surgeon serving as an OWCP
district medical adviser (DMA), reviewed Dr. Rudd’s report on January 17, 2018. He disagreed
with Dr. Rudd’s right shoulder ROM permanent impairment rating, since he had not provided three
sets of range of motion measurements. Dr. Slutsky instead relied on the “preferred” DBI
methodology.6 He explained that appellant had zero percent right upper extremity permanent
impairment under Table 15-5 of the Shoulder Regional Grid7 because he had no shoulder
instability, minimal shoulder pain, no subjective instability, minimal palpatory findings, and a
limited loss of motion.
On January 19, 2018 OWCP requested clarification from Dr. Rudd with regard to
appellant’s right shoulder ROM findings.
In a March 14, 2018 report, Dr. Rudd explained that it was unnecessary to provide three
sets of measurements, as he found that appellant to be “straight forward” and “the gain would not
be worth the added steps.”
In a March 20, 2018 letter, appellant was advised that he was referred for a second opinion
examination with Dr. Kenneth Bode, a Board-certified orthopedic surgeon.
In a March 26, 2018 report, Dr. Bode noted appellant’s examination findings and provided
three sets of measurements for loss of ROM. He noted that appellant had: 175 degrees of flexion;
175 degrees of abduction; 60 degrees adduction; 60 degrees extension; 90 degrees external
rotation; and only 40 degrees of internal rotation. Dr. Bode explained his ROM measurements,
noting that he had appellant perform each test three times for all of the degrees of ROM, but the
only consistent deficit, through three measurements was 40 degrees of internal rotation. He
referred to Table 15-34 of the A.M.A, Guides8 and explained that appellant’s 40 degrees of internal
rotation was a moderate deficit, and correlated to four percent upper extremity permanent
impairment.
Dr. Bode also explained that he evaluated appellant’s permanent impairment under the DBI
methodology. He related that appellant had a functional history of 0 based on a QuickDASH score
of only 4.5. Dr. Bode determined that appellant had no residual shoulder instability following
5
Dr. Rudd noted that he was aware that appellant had two prior nonoccupational injuries and two prior
nonoccupational surgeries. He explained that appellant indicated that his ROM worsened after his work injury.
6

Dr. Slutsky explained that there was a lack of validated upper extremity ROM measurements.

7

A.M.A., Guides 401-10.

8

Id. at 475.

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surgery, and therefore had no ratable permanent impairment utilizing that method. He found a
mild problem for physical examination, due to loss of ROM, which he was using as a standalone
measurement. Dr. Bode determined that appellant was at MMI on the date of his last examination.
Dr. Slutsky reviewed Dr. Bode’s March 26, 2018 report on May 12, 2018. He concluded
that appellant had four percent right upper extremity permanent impairment, based upon loss of as
it was the greater award percentage. Dr. Slutsky advised that there were no discrepancies between
their evaluations. He also noted that he had rated appellant’s permanent impairment under the
DBI method, which resulted in zero percent right upper extremity permanent impairment.
Dr. Slutsky referred to Table 15-5 of the A.M.A., Guides, and found that there was no shoulder
instability, warranting a class 0 and a zero percent impairment.9 He advised that MMI was reached
on December 27, 2017.
By decision dated May 17, 2018, OWCP granted appellant a schedule award for four
percent permanent impairment of the right upper extremity. The award covered a period of 12.48
weeks, from December 27, 2017 to March 24, 2018.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement FECA program with the Director of OWCP.10 Section 8107 of
FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use of
specified members, functions, and organs of the body.11 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.12
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.14
The sixth edition requires identifying the impairment class for the class of diagnosis
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
9

Id. at 401.

10

See 20 C.F.R. §§ 1.1-1.4.

11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

12

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.806.5 (March 2017).
14

Isidoro Rivera, 12 ECAB 348 (1961).

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examination (GMPE), and clinical studies (GMCS).15 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).16
Regarding the application of the ROM or DBI methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original).17
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than four
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.
OWCP received a November 15, 2017 report from Dr. Barnes, who provided one set of
ROM measurements of appellant’s right shoulder, but he did not otherwise attempt to rate
appellant’s permanent impairment of the right shoulder. The Board has found that, when an
attending physician fails to provide a rating that conforms to the A.M.A., Guides, his opinion is of
limited probative value.19

15

A.M.A., Guides, 383-492

16

Id. at 411.

17

FECA Bulletin No. 17-06 (issued May 8, 2017).

18

Id.

19

See R.I., Docket No. 17-0920 (issued July 21, 2017).

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In a December 12, 2017 report, Dr. Rudd opined that appellant had 10 percent right upper
extremity impairment. He indicated that he had used the ROM method; however, he did not
provide three sets of measurements.20 As a result, Dr. Rudd’s report did not comply with the
A.M.A., Guides and his report is of limited probative value.21
The Board finds that Dr. Bode and Dr. Slutsky properly determined that appellant had no
more than four percent permanent impairment of his right upper extremity. Both Dr. Bode and
Dr. Slutsky utilized Table 15-34 on page 475 of the A.M.A., Guides for rating loss of ROM of the
shoulder and concluded that appellant had four percent permanent impairment of his right upper
extremity due to his loss of internal rotation of the right shoulder.
Furthermore, after rating appellant’s permanent impairment based upon loss of range of
motion, Dr. Slutsky followed OWCP’s procedures and properly determined that the DBI method
did not establish permanent impairment of appellant’s right shoulder. He properly calculated the
impairment using both the ROM and DBI methods and properly chose the higher rating.22
Dr. Slutsky explained that appellant’s diagnosis of unspecified dislocation of his right shoulder
resulted in a finding of no permanent impairment based upon no shoulder instability, minimal
shoulder pain, minimal palpatory findings, and some loss of motion under Table 15-5, Shoulder
Regional Grid.23
The Board finds that appellant has not established more than four percent permanent
impairment of his right upper extremity, for which he previously received a schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than four
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award.

20

Supra note 17.

21

See J.G., Docket No. 09-1128 (issued December 7, 2009) (an attending physician’s report is of little probative
value if the A.M.A., Guides are not properly followed).
22

Supra note 18.

23

Supra note 7.

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ORDER
IT IS HEREBY ORDERED THAT the May17, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 27, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melville, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1342
Issued: December 5, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 14, 2016 appellant, through counsel, filed a timely appeal from a May 24, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an occupational
disease causally related to factors of his federal employment.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 17, 2016 appellant, then a 54-year-old postal supervisor, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral flatfoot deformity,
tibial tendon insufficiency, midfoot collapse, pes planus, great toe metatarsophalangeal changes,
and left foot arthrodesis as a result of many years of walking on uneven ground at work. He
stopped work on February 18, 2015.
In an attached statement, appellant described the various positions he held at the
employing establishment. He explained that from 1994 to 2000 he worked as a letter carrier;
from 2000 to 2001 he worked as a mechanic; from 2001 to 2006 he worked as a vehicle
operation maintenance assistant; and from 2006 to 2015 he worked as a postal supervisor.
Appellant related that each assignment resulted in bilateral pressure on his feet, progressively
worsening bilateral flatfoot deformity, and other related conditions due to walking on uneven
ground and standing for excessive periods of time. He reported that he had never had any similar
conditions and alleged that his conditions progressed and worsened over the course of his
employment and were directly related to his occupation. Appellant noted that he was attaching
narrative medical evidence describing the relationship between his conditions and his
employment duties.
Appellant was examined by Dr. Steven Sampson, a Board-certified orthopedic surgeon,
who indicated in a January 29, 2016 narrative report that appellant worked as an employing
establishment supervisor and had a long history of flatfoot that progressively worsened over
time. Dr. Sampson noted that appellant denied any specific injury but emphasized that appellant
spent long hours walking on uneven ground throughout his more than 20 years of working as a
mail carrier. He related that upon initial examination on April 23, 2012 he observed evidence of
left greater than right midfoot collapse with marked soft tissue swelling and tenderness over the
course of the posterior tibial tendon bilaterally. Dr. Sampson also reported that appellant had
marked bilateral Achilles tendon tightness with a normal neurovascular examination. He related
that x-ray evaluation of both ankles and feet showed evidence of bilateral pes planus, left more
than right, with degenerative changes of bilateral great toe metatarsophalangeal joints and
findings consistent with bilateral tibiotalar arthritis. Dr. Sampson described the physical
examination he conducted and related appellant’s continued complaints of worsening foot pain.
He noted that on June 1, 2015 appellant began to complain of severe pain in his right foot.
Dr. Sampson related that appellant believed the worsening pain was due to excessive weight
bearing required on the right while trying to guard against injuring his left foot.
Dr. Sampson indicated that it was his opinion that appellant’s “bilateral acquired flatfoot
deformity was a result of the many years and miles of walking on an uneven ground that resulted
in the worsening of his bilateral flatfoot deformity.” He noted that appellant’s ultimate prognosis
for return to work in his former position was guarded and unlikely because of appellant’s job
requirement of having to stand and walk long distances on even and uneven ground.
Dr. Sampson noted that such walking could be unsafe, could result in giving way episodes and
instability of his ankle, and could result in serious falls or fractures in the future.
By letter dated March 22, 2016, OWCP advised appellant that the evidence submitted
was insufficient to establish his occupational disease claim. It requested that he respond to a

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questionnaire and provide medical evidence which established that he sustained a diagnosed
condition as a result of his employment duties. Appellant was afforded 30 days to submit the
requested evidence.
By letter dated April 5, 2016, counsel related that he received OWCP’s March 22, 2016
development letter. He noted that he was enclosing appellant’s response to the questionnaire and
would be providing supplemental medical evidence.
In the completed questionnaire form, appellant described the employment factors which
he believed caused his condition as bilateral pressure on his feet as a result of many years and
miles of walking on uneven surfaces, exacerbated by standing for excessive long periods of time.
He further explained that as a letter carrier he also carried, sorted, and delivered sacks of mail
and that as a mechanic and vehicle maintenance assistant he also drove excessively. Appellant
related that as an employing establishment supervisor he walked up to six miles per day. He
asserted that many years of performing these duties every day resulted in his foot conditions of
bilateral flatfoot deformity, bilateral tibial tendon insufficiency, bilateral midfoot collapse,
bilateral pes planus, bilateral great toe metatarsophalangeal changes, left foot arthrodesis, and all
conditions identified as work related in the previously provided narrative medical report by
Dr. Sampson. He noted that Dr. Sampson’s medical report also contained a history of his
symptoms, diagnoses of his conditions, and history of medical treatment.
In a decision dated May 24, 2016, OWCP denied appellant’s occupational disease claim.
It accepted appellant’s alleged duties as an employing establishment supervisor and that he
sustained diagnosed medical conditions, but denied his claim finding that the medical evidence
of record failed to establish that his diagnosed conditions were causally related to his federal
employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5

3

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

4

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

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

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Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 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
Appellant alleged various bilateral foot conditions as a result of walking on uneven
surfaces and prolonged standing as part of his employment duties. OWCP accepted the factors
of his employment and that he was diagnosed with bilateral foot conditions but denied his claim
because the medical evidence of record failed to establish that his conditions were causally
related to his employment duties. The Board finds that appellant has not met his burden of proof
to establish that his diagnosed conditions resulted from factors of his federal employment.
The only medical evidence is a January 29, 2016 narrative report from Dr. Sampson who
accurately described that appellant worked for the employing establishment for more than 20
years and spent long hours walking on uneven ground. Dr. Sampson noted that appellant also
had a history of flatfoot condition that progressively worsened over time. He provided findings
on examination and related that x-ray evaluation of both ankles and feet showed evidence of
bilateral pes planus, left more than right, with degenerative changes of bilateral great toe
metatarsophalangeal joints and findings consistent with bilateral tibiotalar arthritis. Dr. Sampson
opined that appellant’s “bilateral acquired flatfoot deformity was a result of the many years and
miles of walking on an uneven ground that resulted in the worsening of his bilateral flatfoot
deformity.”
Although Dr. Sampson’s report contained an accurate description of appellant’s
employment duties and an affirmative statement of causation, it did not contain a sufficient
explanation, based on medical rationale, of how any of appellant’s duties would have
physiologically caused or contributed to these various medical conditions.8 He based his opinion
on appellant’s belief that his worsening pain was due to excessive weight bearing required on the
right while trying to guard against injuring his left foot. Dr. Sampson failed to explain how the
specific duties of walking on uneven ground and prolonged standing caused or contributed to his
bilateral foot condition. A medical report is of limited probative value on the issue of causal
relationship if it contains a conclusion regarding causal relationship which is unsupported by
medical rationale.9 As the record did not contain sufficient medical evidence explaining how
appellant’s employment duties caused or contributed to his current bilateral foot conditions,
appellant has failed to establish his occupational disease claim.
6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

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

8

See M.M., Docket No. 15-607 (issued May 15, 2015); M.W., Docket No. 14-1664 (issued December 5, 2014).

9

T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

4

On appeal, counsel alleges that the medical evidence from appellant’s attending physician
and the correspondence and arguments previously submitted supported appellant’s claim of
work-related disability causally related to many years and miles of walking on uneven surfaces,
and exacerbated by standing for excessive long periods of time. As previously noted, however,
Dr. Sampson’s report lacked sufficient medical rationale to support a causal relationship and did
not establish appellant’s claim.
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.10 The mere fact that work activities may produce symptoms
revelatory of an underlying condition does not raise an inference of an employment relation.
Such a relationship must be shown by rationalized medical evidence of a causal relation based
upon a specific and accurate history of employment conditions which are alleged to have caused
or exacerbated a disabling condition.11 As appellant failed to submit such rationalized medical
evidence, he failed to meet his burden of proof to establish his claim.
Appellant may submit new evidence or argument as part of a formal 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. §§ 10.606 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an occupational disease causally related to factors of his federal employment.

10

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

11

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

5

ORDER
IT IS HEREBY ORDERED THAT the May 24, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 09-1878
Issued: April 5, 2010

Case Submitted on the Record

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

JURISDICTION
On July 16, 2009 appellant filed a timely appeal of an April 6, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim for compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
traumatic injury on February 23, 2009 in the performance of duty.
FACTUAL HISTORY
On February 23, 2009 appellant, then a 54-year-old tractor-trailer operator, filed a
traumatic injury claim alleging that on that day he injured his back and neck after his vehicle was
struck while in the performance of duty. Appellant stopped work that day and returned to work
on March 4, 2009.
In a February 26, 2009 letter, the Office advised appellant that the evidence was
insufficient to support his claim because no medical evidence had been received that showed that

appellant sustained an injury as a result of his reported accident. The Office requested that
appellant submit, within 30 days, a physician’s report with a diagnosis and an opinion regarding
whether the diagnosed condition was caused or aggravated by the claimed incident.
Appellant submitted a March 4, 2009 work status report from Dr. Heidi Klingbeil, a
Board-certified physiatrist, who advised that appellant could return to regular full-time work.
She indicated that appellant had “no impairment as a result of his recent injury.”
In an April 6, 2009 decision, the Office denied appellant’s claim finding that, although
evidence supported that he experienced the claimed incident, the medical evidence was
insufficient to establish that he sustained an injury as a result of the reported incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim, including the fact that the individual is
an “employee of the United States” within the meaning of the Act; 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. 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.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged. Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.3
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion 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
compensable 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.4

1

5 U.S.C. §§ 8101-8193.

2

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

3

Id.

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

2

ANALYSIS
The record supports that on February 23, 2009 appellant was driving a tractor trailer that
was struck by two other vehicles while in the performance of duty. The medical evidence does
not establish that the motor vehicle accident caused or aggravated appellant’s claimed back and
neck condition.
Dr. Klingbeil’s March 4, 2009 work status report indicated that appellant could return to
work and that he sustained no impairment due to his “recent injury.” However, she did not
provide a diagnosis or address whether the February 23, 2009 work incident caused or
aggravated appellant’s alleged back and neck condition. 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.5 Appellant did not submit any other
evidence from a physician, which addressed causal relationship between a motor vehicle incident
in the performance of duty and a back and neck condition. As noted, causal relationship is a
medical issue. To meet his burden of proof, appellant must submit medical evidence from a
physician addressing how the February 23, 2009 motor vehicle incident caused or aggravated a
specific back or neck condition.
The Office notified appellant of the type of evidence necessary to establish his claim on
February 26, 2009. Specifically, the Office advised that appellant needed to submit a physician’s
report explaining how the alleged work incident contributed to his back and neck condition.
However, he did not submit a reasoned medical opinion explaining how the February 23, 2009
work incident caused or aggravated a diagnosed medical condition.
On appeal, appellant asserts that he was operating a vehicle within the scope of his
employment during the incident on February 23, 2009. He further asserts that all of his medical
bills from treatment received for the work incident should be paid as he was in the performance
of duty at the time of the incident. It is not disputed that the February 23, 2009 incident occurred
in the scope of appellant’s employment. As noted, in order to receive any compensation
benefits, including payment of medical bills, appellant must submit rationalized medical opinion
evidence establishing causal relationship between the work incident and alleged medical
condition. Because the medical evidence of record did not address the issue of causal
relationship, appellant did not meet his burden of proof and, therefore, is not entitled to
compensation benefits.6
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on February 23, 2009 in the performance of duty.

5

S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009); A.D., 58 ECAB 149 (2006).

6

The Board notes that appellant submitted new evidence after the Office issued its decision. However, the Board
may only review evidence that was in the record at the time the Office issued its final decision. See 20 C.F.R.
§ 501.2(c).

3

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated April 6, 2009 is affirmed.
Issued: April 5, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, HOPE MILLS POST
OFFICE, Hope Mills, NC, Employer
__________________________________________

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

Docket No. 11-27
Issued: August 11, 2011

Case Submitted on the Record

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

JURISDICTION
On October 4, 2010 appellant filed a timely appeal from a July 27, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation. 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.
ISSUES
The issues are: (1) whether OWCP properly found a $13,519.75 overpayment of
compensation for the period April 17, 2008 to October 24, 2009 as he received retirement
benefits and actual earnings while on compensation; and (2) whether OWCP properly denied
waiver of the overpayment.
On appeal, counsel does not contest the fact or amount of the overpayment. He asserts
that OWCP’s July 27, 2010 decision was “contrary to fact and law.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is appellant’s second appeal before the Board in this case. By decision and order
issued June 19, 2009,2 the Board reversed April 16 and July 14, 2008 decisions of OWCP
terminating appellant’s wage-loss compensation and finding that he had no continuing disability
after April 15, 2008. The Board remanded the case to OWCP for resumption of wage-loss
compensation retroactive to April 16, 2008. The law and facts of the case as set forth in the
Board’s decision are incorporated by reference.
On July 1, 2009 appellant filed a claim for wage-loss compensation (Form CA-7) from
April 16, 2008 onward. He submitted an affidavit of earnings and employment (Form CA-1032)
stating that, during the 15-month period prior to June 26, 2009, he worked from March 18 to 28,
2009 for a self-storage company, earning a total of $328.61 as a receptionist. From April 2 to
July 1, 2009, appellant earned $6,055.00 working for a private-sector blood donation company.3
He also received disability retirement benefits through the Office of Personnel Management
(OPM) beginning on April 17, 2008.4
On July 16, 2009 OWCP placed appellant’s case on the periodic compensation rolls
retroactive to April 17, 2008. On July 14, 2009 it issued him an electronic $22,583.71 net
compensation payment covering the period April 17 to December 31, 2008, and a $2,400.14
payment for the period July 5 to August 1, 2009. OWCP deducted life and health insurance
premiums.
On August 24, 2009 appellant elected FECA benefits in lieu of OPM benefits effective
April 7, 2008. In an October 21, 2009 letter, OPM advised OWCP that, prior to his election of
benefits, appellant received $31,382.87 in retirement annuity benefits while receiving
compensation under FECA from April 17, 2008 to October 24, 2009. OPM directed OWCP to
repay those funds.
On October 28, 2009 OWCP issued a net compensation payment of $2,400.44 for the
period September 27 to October 24, 2009. On November 10, 2009 it issued a net compensation
payment of $20,753.23, by subtracting the $31,382.77 dual benefit amount from the $52,136.00
owed appellant for the period April 17, 2008 to September 30, 2009.
By notice dated February 23, 2010, OWCP advised appellant of its preliminary
determination that he received an overpayment in the amount of $13,519.75 for the period
April 17, 2008 to October 24, 2009 as he received a prohibited dual benefit from OPM while
2

Docket No.08-2477 (issued June 19, 2009).

3

In a June 19, 2009 report, Dr. Charles S. Haworth, an attending Board-certified neurosurgeon, diagnosed
degenerative disc disease at C6-7, T12-L3 and spondylolisthesis at L5-S1. He found appellant able to perform lightduty work. Dr. Haworth opined that appellant’s current work at the blood donation company was within his
physical limitations.
4

On August 11, 2009 OPM verified that appellant received $12,373.45 in disability retirement benefits from
May 1 to December 31, 2008 and $8,452.61 in disability retirement benefits from January through July 2009, after
deduction of appropriate health and life insurance premiums.

2

receiving compensation under FECA and had actual earnings from March 23 to July 1, 2009. It
calculated that appellant received $31,382.77 in compensation from April 17, 2008 to
October 24, 2009 although he was only entitled to $18,209.48, a difference of $13,519.75.5
OWCP found appellant at fault in creating the overpayment. Appellant was afforded 30 days to
request a telephone conference, prerecoupment hearing or a final decision based on the record.
OWCP also requested financial information and any additional arguments supporting waiver of
the overpayment.
In a March 4, 2010 letter, appellant, through counsel, requested a telephonic
prerecoupment hearing on the issues of fact, amount, fault and waiver. At the hearing held on
June 8, 2010, appellant asserted that he was not at fault as the overpayment was due solely to
OWCP error. He answered the hearing representative’s questions regarding his assets, expenses
and income. The hearing representative advised appellant to submit a detailed listing of his
income and expenses and copies of utility bills. Appellant did not submit any financial
documentation prior to July 27, 2010.
By decision dated and finalized July 27, 2010, OWCP’s hearing representative finalized
the fact and amount of the preliminary overpayment finding. However, the hearing
representative found that appellant was not at fault in creation of the overpayment as OWCP did
not advise him when his case was placed on the periodic rolls or when compensation payments
were issued. Although appellant was found to be without fault in the creation of the
overpayment, OWCP found that he had not justified waiver of recovery of the overpayment as he
failed to submit financial information as requested. The hearing representative directed recovery
of the overpayment by lump-sum payment.6
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA7 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.8 Section 8129(a) of FECA provides, in pertinent part, that when “an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”9

5

OWCP adjusted appellant’s entitlement amount to reimburse him for the duplicate deduction of health and life
insurance premiums.
6

The Board’s jurisdiction is limited to reviewing those cases where OWCP seeks recovery from continuing
compensation under FECA. Judith A. Cariddo, 55 ECAB 348, 353 (2004). As OWCP directed recovery by lumpsum payment, the Board does not have jurisdiction over the recovery issue.
7

5 U.S.C. §§ 8101-8193.

8

Id. at § 8102(a).

9

Id. at § 8129(a).

3

Section 8116(d)(2) of FECA10 provides for limitations on the right to receive
compensation benefits. This section of FECA provides that, while an employee is receiving
compensation, he may not receive salary, pay or remuneration of any type from the United
States, except for services actually performed or for certain payments related to service in the
armed forces, including benefits administered by the Department of Veterans Affairs unless such
benefits are payable for the same injury or the same death being compensated for under FECA.11
The implementing regulations provide that a beneficiary may not receive wage-loss
compensation concurrently with a federal retirement or survivor annuity.12 The beneficiary must
elect the benefit that he or she wishes to receive.13
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $13,519.75. The record reflects that, from April 17, 2008 to October 24, 2009, appellant
received compensation benefits under FECA at the same time that he received OPM disability
retirement benefits and had actual earnings. His compensation benefits had not been offset by
the correct amount of OPM benefits he received attributable to his federal service. The Board
finds that this created an overpayment of compensation.14
On appeal, counsel does not contest the fact or amount of the overpayment. He asserts
generally that OWCP’s July 27, 2010 decision was “contrary to fact and law.” However, there
is no contrary evidence regarding the fact and the amount of the overpayment. Also, counsel
alleged no specific error in OWCP’s calculations. The Board finds that appellant received an
overpayment of $13,519.75 for the period April 17, 2008 to October 24, 2009.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that, where an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made by decreasing later payments
to which an individual is entitled. The only exception to this requirement is a situation which
meets the tests set forth as follows in section 8129(b): Adjustment or recovery by the United
States may not be made when incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.15

10

Id. at § 8116(d)(2).

11

Id. at § 8116(a).

12

20 C.F.R. § 10.421(a).

13

Id.

14

Id.

15

5 U.S.C. § 8129.

4

OWCP regulations, at 20 C.F.R. § 10.438, state:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by [OWCP]. This
information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of [FECA] or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver and no further request for waiver shall be
considered until the requested information is furnished.”16
The Board has held that OWCP must rely on current financial information when
determining eligibility for waiver of an overpayment.17
ANALYSIS -- ISSUE 2
Although appellant was found without fault in creating the $13,519.75 overpayment, he
bears responsibility for providing the financial information necessary to support a request for
waiver of the recovery. OWCP requested that he provide financial information and submit any
request for waiver within 30 days of the preliminary overpayment determination. At the June 8,
2010 hearing, OWCP’s hearing representative again directed appellant to provide financial
documents showing his income, assets and expenses. However, appellant did not submit the
requested information. He did not supply the information that OWCP required to determine
whether or not recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience.18 The Board therefore finds that OWCP properly denied waiver of
recovery of the overpayment pursuant to 20 C.F.R. § 14.438(b).19
On appeal, counsel contends that OWCP’s July 27, 2010 decision, including the denial of
waiver, was “contrary to fact and law.” As stated, appellant failed to submit financial
information as requested. Therefore, OWCP properly denied waiver of recovery of the
overpayment.

16

20 C.F.R. § 10.438.

17

Thomas E. Ray, 51 ECAB 344 (2000) (the Board remanded the case for further development on the issue of
waiver where the Office relied on three-year-old financial information in its waiver determination); Carol R.
Graham, Docket No. 02-2198 (issued February 4, 2003) (the Board remanded the case for further development on
the issue of waiver as the Office relied on financial information that was 16 months old in determining the
claimant’s eligibility for waiver of the overpayment); Ronald E. Smith, 36 ECAB 652 (1985) (the Board found that
the Office should have attempted to obtain current financial information prior to determining the claimant’s
eligibility for waiver).
18

20 C.F.R. § 10.438(a).

19

See Madelyn Y. Grant, 57 ECAB 533 (2006). See also D.R., Docket No. 09-1537 (issued April 15, 2010).

5

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $13,519.75 for the period April 17, 2008 to October 24, 2009.
The Board further finds that OWCP properly denied waiver of the recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
DEPARTMENT OF THE AIR FORCE, ROBINS
AIR FORCE BASE, Warner Robins, GA,
Employer
__________________________________________

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

Docket No. 13-1123
Issued: August 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On April 10, 2013 appellant filed a timely appeal of a November 29, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established a low back condition/lumbar strain
causally related to the accepted December 29, 2011 employment incident.
FACTUAL HISTORY
On December 30, 2011 appellant, then a 68-year-old aircraft overhaul systems worker,
filed a traumatic injury claim alleging that on December 29, 2011 he strained or pulled a lower
1

5 U.S.C. § 8101 et seq.

back muscle due to bending over to pick up a screw driver. He stopped work on January 17,
2012 and returned to modified work on March 13, 2012.
The record contains treatment notes dated December 29 and 30, 2011 from Benjil
Lightfoot, a nurse. Physical examination findings were provided and a diagnosis of lumbar
strain. Under history of illness, it was noted that appellant felt lower back pain while bending
over to pick up a screw driver. A review of x-ray interpretation on December 30, 2011 revealed
severe L2-3 and markedly severe L5-S1 degenerative disc disease.
In a January 24, 2012 report, Dr. Winston Jeshuran, a treating Board-certified orthopedic
surgeon, diagnosed multilevel degenerative spondylosis at L2-3 and L5-S1 based on an x-ray
interpretation. Under history of injury, he noted that appellant developed low back pain on
December 29, 2011 due to bending over repeatedly to pick up a screw driver in a confined area.
Dr. Jeshuran indicated that appellant was totally disabled from working until March 13, 2012 in
a January 24, 2012 work status form.
In a March 13, 2012 letter, OWCP informed appellant that when his claim had been
received it appeared to be a minor injury and was administratively approved without
consideration of the merits. It informed him that his claim was reopened for consideration and
that the evidence of record was insufficient to support his clam. OWCP advised appellant as to
the medical and factual evidence required to support his claim. Appellant was given 30 days to
provide the requested information.
In response appellant submitted a January 30, 2012 work status form signed by
Mr. Lightfoot indicating that appellant was disabled from working until March 14, 2012.
By decision dated April 25, 2012, OWCP denied appellant’s claim on the grounds that
the evidence did not establish that his diagnosed condition of lumbar strain was causally related
to the accepted December 29, 2012 employment incident.
In a letter dated May 23, 2012, appellant’s counsel requested an oral hearing before an
OWCP hearing representative. A telephonic hearing was held on September 12, 2012.
By decision dated November 29, 2012, the hearing representative affirmed the denial of
appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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
employing establishment injury.3 These are the essential elements of each and every
2

Id.

3

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

2

compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employing establishment incident caused a personal injury.7
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.8 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.10 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 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.12

4

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

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

6

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

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

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

9

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

10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

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

12

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

3

ANALYSIS
OWCP accepted that the December 29, 2011 incident occurred as alleged. However, it
found the evidence insufficient to establish that appellant’s lumbar strain or any back condition
was causally related to the accepted December 29, 2011 employment incident. The issue on
appeal is whether the medical evidence of record establishes a causal relationship between the
lumbar strain/back condition and the accepted December 29, 2011 employment incident. The
Board finds that appellant failed to meet his burden of proof.
Appellant submitted a January 24, 2012 medical report and disability note from
Dr. Jeshuran, who diagnosed multilevel degenerative spondylosis at L2-3 and L5-S1. Under
history of the injury, he related developing low back pain on December 29, 2011 due to work
duties. Dr. Jeshuran offered no opinion as to the cause of the diagnosed back condition or any
relationship between the accepted December 29, 2011 employment incident and appellant’s
claimed back condition. Medical evidence which does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value.13
Appellant also submitted reports and disability notes signed by Mr. Lightfoot, a nurse.
The Board notes, however, that a nurse is not considered a physician as defined under FECA.14
Accordingly, Mr. Lightfoot’s medical opinion regarding diagnosis and causal relationship are of
no probative medical value.15
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.16 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report, which described his symptoms, test results, diagnosis, treatment and the
physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
submit appropriate medical documentation in response to OWCP’s request. As there is no
probative, rationalized medical evidence addressing how his claimed back condition was caused
or aggravated by the December 29, 2011 employment incident, he has not met his burden of
13

S.E., Docket No. 08-2214 (issued May 6, 2009); K.W., 59 ECAB 271 (2007); Jaja K. Asaramo, 55 ECAB
200 (2004); Dennis M. Mascarenas, 49 ECAB 215, 217 (1997)
14

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); G.A.,
Docket No. 09-2153 (issued June 10, 2010) (evidence from a registered nurse had no probative medical value as a
nurse is not a “physician” as defined under FECA); Roy L. Humphrey, 57 ECAB 238 (2005).
15

See G.A., id.; Thomas L. Agee, 56 ECAB 465 (2005) (A medical report may not be considered probative
medical evidence unless it can be established that the person completing the report is a “physician” as defined in 5
U.S.C. § 8101(2))
16

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158 (2007); Robert Broome, 55 ECAB
339 (2004); Anna C. Leanza, 48 ECAB 115 (1996).

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proof to establish that he sustained an injury in the performance of duty causally related to
factors of his federal employment
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 his burden of proof to establish that his
lower back condition/lumbar strain was causally related to the accepted December 29, 2011
employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 29, 2012 is affirmed.
Issued: August 19, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newburgh, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-792
Issued: October 7, 2011

Case Submitted on the Record

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

JURISDICTION
On January 31, 2011 appellant filed a timely appeal from an August 24, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her
occupational disease claim. 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.
ISSUE
The issue is whether appellant met her burden of proof to establish that her cervical and
shoulder conditions are causally related to her employment activities.
FACTUAL HISTORY
On June 10, 2010 appellant, then a 47-year-old automation clerk, filed an occupational
disease claim alleging cervical pain syndrome with a bulging disc and a left shoulder condition
as a result of constantly lifting 600 trays a day weighing up to 30 pounds each. She first became
1

5 U.S.C. § 8101 et seq.

aware of her condition on February 10, 2010 and realized it was caused by her employment on
May 25, 2010. The employing establishment noted that appellant worked limited duty three days
a week without restrictions.
In a June 16, 2010 letter, the employing establishment controverted appellant’s claim
alleging that because she has worked intermittently since 2008 she ran out of sick and annual
leave. It stated that she worked 39 days in 2008, about one-half of the year beginning in
February 2009 and only 35 days in 2010. The employing establishment disputed appellant’s
claim that she lifted approximately 600 trays a day because she had hardly worked over the past
few years. It included leave analysis reports and payroll printouts regarding her work shifts.
On June 28, 2010 OWCP advised appellant that the evidence submitted was insufficient
to establish her claim and requested additional evidence. It asked her to respond to the
employing establishment’s contention that she had hardly worked since 2007 and could not have
lifted 600 trays a day. OWCP also asked for a comprehensive medical report from a treating
physician, which included a description of symptoms, results of examinations and tests, a firm
medical diagnosis, treatment provided and a doctor’s opinion with stated rationale explaining
how her employment activities caused or contributed to her claimed condition.
In a July 15, 2010 statement, appellant explained that she was unable to work full time
due to an August 23, 2007 injury and a nonemployment-related May 3, 2010 injury. She stated
that it was possible to have lifted approximately 600 trays of mail in a 7.5-hour shift depending
on the sort plan and mail volume. Appellant explained that each automation machine had 200 or
more bins of mail and that sweeping, dispatching or rerunning two machines added up to 400
trays. She also described additional employment duties she performed which included feeding
and sweeping mail.
In a February 10, 2010 report, Dr. Andrew D. Brown, Board-certified in physical
medicine and rehabilitation, stated that appellant was a postal employee who worked with
automated machines. He noted that she had lifted approximately 600 trays a day weighing
between 20 and 30 pounds each for six hours a day, five days a week and forty-eight weeks a
year for approximately sixteen years. Dr. Brown initially evaluated appellant on April 11, 2008
for complaints of cervical pain which radiated to her left upper extremity. The examination of
her cervical spine revealed a range of motion of flexion 30 degrees, extension 5 degrees, rotation
to the right 30 degrees and to the left 10 degrees. Dr. Brown observed spasm and tenderness in
her paracervical musculature, left upper trapezius muscle and left rhomboid muscles.
Appellant’s compression sign was positive on the left side, but muscle testing for the upper
extremity was normal. Dr. Brown diagnosed cervical pain syndrome and recommended a
magnetic resonance imaging (MRI) scan test.
Dr. Brown noted that appellant was reevaluated by Dr. Adam Carter, a Board-certified
physiatrist, on May 9 and August 8, 2008. An MRI scan revealed reversal of the normal cervical
lordosis with a bulging disc at C6-7 and tenderness to palpation and hypertonicity over
appellant’s left paracervical musculature and rhomboid muscles. Appellant was also reevaluated

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by Dr. Douglas Schottenstein, a Board-certified neurologist, on May 28 and June 25, 2008.
Dr. Schottenstein diagnosed cervical C7 radiculitis and administered steroid injections.2
Dr. Brown reevaluated appellant on July 11 and September 12, 2008 and noted weakness
in and about her left shoulder girdle with diffuse tenderness. Appellant’s impingement signs
were also positive. Dr. Brown diagnosed left shoulder strain/impingement and opined that her
conditions were causally related to her employment activities. He stated that “[appellant’s]
cervical pain, pathology, dysfunction, and diagnoses described above [were] causally related to
the work responsibilities that I described in the beginning of this report” and also concluded that
her “left shoulder pathology [was] consequential causally related.”
In a letter dated August 4, 2010, the employing establishment provided OWCP with
appellant’s work history and previous accidents and claim numbers. It reiterated that appellant
hardly worked since 2008 and questioned whether she lifted approximately 600 trays a day.
In a decision dated August 24, 2010, OWCP denied appellant’s claim finding insufficient
medical evidence to establish that her back and shoulder conditions were causally related to her
employment activities.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of her claim by the weight of the reliable, probative and substantial evidence.3
In an occupational disease claim, appellant’s burden requires submission of the following: (1) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; and
(3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.4
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.5 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
specified employment factors or incident.6 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
2

While Dr. Brown recommended referring to Dr. Schottenstein’s full report for more extensive details, no other
medical reports are contained in the record.
3

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

4

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000); D.U., Docket No. 10-144 (issued
July 27, 2010).
5

D.I., 59 ECAB 158 (2007); I.R., Docket No. 09-1229 (issued February 24, 2010); W.D., Docket No. 09-658
(issued October 22, 2009).
6

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

3

certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.7 The mere fact that work activities may produce symptoms revelatory of an
underlying condition does not raise an inference of an employment relation. Such a relationship
must be shown by rationalized medical evidence of a causal relation based upon a specific and
accurate history of employment conditions which are alleged to have caused or exacerbated a
disabling condition.8
ANALYSIS
Appellant filed an occupational disease claim alleging that a cervical condition with a
bulging disc and a left shoulder condition as a result of her employment. OWCP accepted that
her employment duties included repetitive lifting, but denied her claim finding insufficient
medical evidence to establish that her conditions were causally related to the accepted
employment factors. The Board finds insufficient medical evidence that establishes appellant
sustained a cervical and shoulder condition as a result of her employment activities.
The only medical evidence of record is Dr. Brown’s February 10, 2010 medical report,
who diagnosed cervical pain syndrome with a bulging disc at C6-7 based on a 2008 MRI scan
report and left shoulder strain/impingement syndrome with possible internal derangement due to
positive impingement signs. Dr. Brown obtained a history that appellant was a postal employee
who lifted approximately 600 trays a day weighing between 20 to 30 pounds for 6 hours a day, 5
days a week or 48 weeks a year for approximately 16 years. He concluded that appellant’s
“cervical pain, pathology, dysfunction and diagnoses described above [were] causally related to
the work responsibilities that I described” above and that her “left shoulder pathology [was]
consequentially causally related.” This opinion, however, is of limited probative value because it
is based on an inaccurate employment history.9 Dr. Brown related appellant’s condition to
working full-time for approximately 16 years. In its controversion letter, the employing
establishment stated that she has worked only intermittently since 2008 and provided payroll
sheets to support its contention. In a July 15, 2010 statement, appellant confirmed that she was
unable to work full-time because of a 2007 injury. In addition Dr. Brown did not provide
adequate medical rationale to support his conclusion on causal relationship. He provided a
conclusory opinion that appellant’s work caused her cervical and shoulder conditions, but
offered no medical explanation of the physiological process by which her accepted work
activities would cause or contribute to the diagnosed conditions. As medical reports not
containing rationale on causal relation are of diminished probative value, Dr. Brown’s report is
insufficient to meet her burden of proof.10

7

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

8

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

9

M.W., 57 ECAB 710 (2006); John W. Montoya, 54 ECAB 306 (2003); B.H., Docket No. 10-907 (issued
November 9, 2010).
10

Elizabeth H. Kramm, 57 ECAB 117, 124 (2005); Ceferino L. Gonzales, 32 ECAB 1591 (1981); Jimmie H.
Duckett, 52 ECAB 332, 336 (2001).

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On appeal, appellant’s counsel contends that the file contains sufficient factual and
medical evidence to establish her claim. The record, however, is devoid of rationalized medical
opinion evidence which is based upon a proper factual background or which explains with
medical rationale how her accepted work duties caused her cervical or shoulder conditions.
Thus, she did not meet her burden of proof to support her 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 did not meet her burden of proof to establish that she
sustained a cervical and shoulder condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5