United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wells, VT, Employer
__________________________________________

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Appearances:
Stephen L. Cusick, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1006
Issued: May 3, 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 April 17, 2018 appellant, through counsel, filed a timely appeal from a January 18,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a left leg condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On June 3, 2015 appellant, then a 52-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed “ligament pull or meniscus tear, pain radiating in
lower and upper part of leg” as a result of hyperextension of his left leg while delivering mail. He
indicated that he first became aware of his condition and first realized that it was caused or
aggravated by his federal employment on May 22, 2015. Appellant stopped working on
June 2, 2015.
In a May 24, 2015 report, Dr. Rick Teetz, a Board-certified family practitioner, diagnosed
knee pain and indicated that he suspected ligamentous or meniscus pathology. He noted that
appellant had a one-week history of increasing left knee pain, mostly posteromedial with radiation
anteriorly. Dr. Teetz further noted that appellant recalled no specific strain or injury and was in
and out of his vehicle all day in his job as a mailman.
Appellant also submitted reports dated June 2 and 23, 2015 from Lisa M. Riley, a certified
physician assistant, who diagnosed effusion joint lower leg and noted that appellant’s left knee
pain was located medially and had been present for six months and ongoing for months related to
work. Ms. Riley indicated that appellant’s symptoms had worsened since onset and reported as
pain, aggravated by squatting. She advised that appellant was totally disabled for work.
In a development letter dated July 17, 2015, OWCP advised appellant of the deficiencies
of his claim. It advised that appellant had not established the implicated employment factors and
that there was no rationalized medical evidence containing a diagnosed condition and relating such
condition to the factors of his federal employment. OWCP afforded him 30 days to submit
additional evidence and to respond to its inquiries.
On July 7, 2015 Dr. Douglas P. Kirkpatrick, a Board-certified orthopedic surgeon,
performed a left knee scopic partial medial meniscectomy.
In a duty status report (Form CA-17) dated July 21, 2015, Dr. Kirkpatrick diagnosed left
knee meniscus tendon tear and advised that appellant was able to work two days per week effective
July 8, 2015.
In an attending physician’s report (Form CA-20), dated July 21, 2015, Dr. Kirkpatrick
diagnosed left dislocation knee tear of the medial meniscus and opined that appellant’s diagnosis
and location of meniscus tear were “in correspondence to his postal job duties.”
By decision dated September 4, 2015, OWCP denied appellant’s claim, finding that
appellant had not established that the alleged employment factors occurred as described.

2

Appellant subsequently submitted a July 1, 2015 magnetic resonance imaging (MRI) scan
of the left knee, which demonstrated small tear posterior horn prepatellar bursitis, mild medial
collateral ligament sprain, and grade IV chondromalacia patella.
On September 30, 2015 Dr. Kirkpatrick released appellant to work on “October 2, 2016.”
In an August 25, 2015 report, Dr. Kirkpatrick diagnosed dislocation knee tear of medial
cartilage or meniscus and noted that appellant’s left knee pain, located medially, had been present
since a work injury on May 22, 2015. On September 4, 2015 Dr. Kirkpatrick performed a left
knee arthroscopy with partial medial meniscectomy. In a September 15, 2015 report,
Dr. Kirkpatrick reiterated his diagnosis. In reports dated October 7, November 18, and
December 2, 2015, Dr. Kirkpatrick diagnosed other meniscus derangements, posterior horn of
medial meniscus and unilateral post-traumatic osteoarthritis of the left knee. He also reported that
appellant had persistent pain and swelling, exacerbated after returning to work. In these three
reports Dr. Kirkpatrick checked a box marked “yes” indicating that appellant’s description of the
incident “was the competent medical cause of this injury/illness,” that appellant’s complaints and
objective findings were consistent with the “history of the injury/illness,” and that he had a
resulting 25 percent disability.
A left knee MRI scan dated December 15, 2015 showed findings suggestive of a
subchondral fracture and/or osteonecrosis at the medial femoral condyle with an associated sizable
area of bone marrow edema.
In two reports dated January 19, 2016, Dr. Kirkpatrick diagnosed other osteonecrosis, left
femur and opined that he “correlate[d] this area of osteonecrosis with his initial injury of
[May 22, 2015].” He provided work restrictions of sit-down work only effective January 19, 2016.
Dr. Kirkpatrick checked the box marked “yes” in response to the same questions contained in his
October 7, November 18, and December 2, 2015 reports and increased appellant’s rating of
permanent impairment to 75 percent.
In a February 5, 2016 report, Dr. William Lighthart, a Board-certified orthopedic surgeon,
diagnosed osteonecrosis in the medial femoral condyle. He noted that appellant was injured on
May 22, 2015, had a knee arthroscopy on September 4, 2015, and was still having pain in his left
knee. Appellant reported that he had not sustained an “all-at-once injury,” but rather had repetitive
damage from 24 years as a rural carrier, twisting his knee awkwardly to deliver the mail. He also
reported that it was better with rest and worse with activity. Dr. Lighthart explained that
osteonecrosis in the medial femoral condyle was often thought to be a complication of arthroscopic
surgery, but now there was evidence of the problem developing prior to arthroscopic surgery and
that it had simply been unmasked where the symptoms correlated postsurgery.
On March 8, 2016 appellant requested reconsideration of the September 4, 2015 decision
and submitted an undated, unsigned duty status report (Form CA-17).
In a May 24, 2015 report, Dr. Teetz continued to diagnose knee pain and noted suspect
ligamentous or meniscus pathology. He pointed out that appellant was in and out of his vehicle
all day working as a mailman and reported an injury about 20 years prior where an effusion
required aspiration.

3

In reports dated June 9 and 30, and July 30, 2015, Dr. Carrie McNeil, a Board-certified
family practitioner, diagnosed diffuse left knee pain, particularly worsened with lateral movement
or stress, and calf swelling. She opined that appellant’s injury occurred over a period of years due
to repetitive movements in the left knee. Appellant believed his left knee pain was related to trying
to operate left-sided gas and brake pedals of his vehicle while sitting on the right side of the vehicle
“because it is the most efficient way to deliver the mail.”
In reports dated March 1 through April 22, 2016, Patrick McDermott, a certified physician
assistant, diagnosed other meniscus derangements and posterior horn of medial meniscus, and
released appellant to work effective March 28, 2016.
On February 24, 2016 Dr. Kirkpatrick indicated that appellant had been under his care for
his left knee since June 2, 2015 and opined that the ergonomics of the position, the rotation and
twisting and turning of his leg extended utilizing the left leg for gas and brake was a probable
cause of meniscal tear in his left knee and injury. He further opined that the meniscal tear had led
to other conditions to appellant’s left knee as well that were currently being treated.
A left knee MRI scan dated March 24, 2016 revealed near complete resolution of extensive
bone edema medial femoral condyle and postoperative changes medial meniscus, stable.
In a March 4, 2016 letter, counsel contended that appellant was a rural carrier who spent
up to 5.5 hours per day delivering mail from his vehicle. Appellant drove his personal vehicle,
which had a steering wheel, brake, and accelerator located on the left side. When he delivered the
mail, appellant operated the vehicle by sitting in the center of the front seat and extending his left
leg laterally to the left to operate the brake pedal and accelerator. To deliver mail in the rural
boxes, he was required to reach with his right arm out the window. Counsel argued that these
ergonomics resulted in the injury to his left knee. Additionally, he noted that appellant was
required to get out of the vehicle multiple times daily to deliver packages. Counsel further
contended that the medical evidence of record was sufficient to establish that appellant’s injury
was work related, caused by the constant twisting and turning of his left knee that was required to
operate his vehicle while delivering the mail.
By decision dated June 6, 2016, OWCP denied modification of its prior decision.
On April 12, 2017 appellant, through counsel, requested reconsideration and submitted a
December 1, 2016 narrative statement providing factual evidence in support of his claim.
Appellant indicated that he had been a full-time rural carrier since August 1998 and his current
mail route included about 440 mailboxes. He stated that he used his own vehicle for deliveries
and he sat in the center of the vehicle with his left leg extended laterally to operate the accelerator
and the brake. At the same time, when he pulled up to a mailbox, appellant extended his right arm
and torso to deliver the mail outside the right side of the vehicle. He argued that the ergonomics
of such delivery had caused strain to his left knee. Additionally, appellant noted that he had to get
in and out of the vehicle approximately 40 to 50 times per day to deliver oversized packages to
residences and he argued that this further caused left knee strain. He indicated that he performed
rural mail delivery in this manner since 1998, five days per week for 5.5 hours per day. Appellant
noted that he had previously suffered from left knee pain and injury in approximately 1995, but

4

those symptoms had resolved after undergoing surgery and he did not begin to experience pain in
that knee again until January 2015.
Appellant also submitted two reports dated December 27, 2016 and January 24, 2017 from
Mr. McDermott.
By decision dated October 19, 2017, OWCP modified its prior decision and found that the
factual evidence of record established that the alleged employment factors occurred as described,
but the claim remained denied because the medical evidence of record failed to establish causal
relationship between appellant’s diagnosed conditions and the accepted factors of his federal
employment.
On October 23, 2017 appellant, through counsel, requested reconsideration and submitted
a February 14, 2017 report from Dr. Kirkpatrick who opined that appellant’s MRI scan initially
had demonstrated a medial meniscal tear which was treated with surgery and he “did return to
work, but ultimately likely related to his meniscal tear, as well as additional work activities, he
developed bone marrow edema, possible avascular necrosis within his medial femoral condyle.”
Dr. Kirkpatrick found that this resolved with an extended period of nonweight bearing, but the
return of his symptomatology due to the left knee medial meniscal tear was caused by his work
duties which required stretching across his car and putting a fair amount of pressure on the medial
aspect of his knee. He also noted that appellant’s knee treatment 20 years ago did not appear to
have anything to do with his current status, as his medial meniscus was normal, except for the tear
witnessed at the time of surgery and the chondral damage noted to be in confluence with the
meniscal tear. Dr. Kirkpatrick concluded that appellant’s “avascular necrosis and developing
arthritis is a direct causal relationship to this as well.”
By decision dated January 18, 2018, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
3

Id.

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).

5

To establish that an injury was sustained in the performance of duty in 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 evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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.8
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left leg
condition causally related to the accepted factors of his federal employment.
In his February 5, 2016 report, Dr. Lighthart opined that appellant sustained an injury by
“twisting his knee awkwardly to deliver the mail.” However, such generalized statements do not
establish causal relationship because it merely repeats appellant’s allegations and are unsupported
by adequate medical rationale explaining how his physical activity actually caused the diagnosed
condition.9 The Board thus finds that Dr. Lighthart’s opinion regarding the cause of appellant’s
left knee condition is speculative and equivocal in nature10 and is insufficient to satisfy appellant’s
burden of proof with respect to causal relationship.11
In reports dated October 7, November 18, and December 2, 2015, as well as January 19,
2016, Dr. Kirkpatrick indicated by checking a box marked “yes” that appellant’s description of the
incident “was the competent medical cause of this injury/illness,” and that his complaints and
objective findings were consistent with the injury. The Board notes, that the doctor did not include
a history of the claimed injury, which diminishes the probative value of his report.12 Similarly, an

7

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

See J.R., Docket No. 17-1781 (issued January 16, 2018); I.J., 59 ECAB 408 (2008).

9

See K.W., 59 ECAB 271, 279 (2007).

10

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley,
55 ECAB 206 (2004).
11

See supra notes 3 to 5.

12
Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little probative
value); see also G.T., Docket No. 17-1959 (issued June 22, 2018).

6

affirmative checkmark indicating causal relationship, without more my way of medical rationale,
is also of diminished probative value and, thus, insufficient to establish causal relationship.13
Dr. Kirkpatrick, in his reports dated February 24, 2016 and February 14, 2017, opined that
the ergonomics of appellant’s position, the rotation and twist and turn of his leg extended utilizing
the left leg for gas and braking was a probable cause of meniscal tear in his left knee and injury.
He further opined that appellant’s left knee meniscal tear led to other conditions and he likely
developed bone marrow edema and possible avascular necrosis related to his meniscal tear and as
a result of his work activities. Dr. Kirkpatrick concluded that appellant’s left knee medial meniscal
tear, as well as the avascular necrosis and developing arthritis, was directly caused by his work
duties which required stretching across his car and putting a fair amount of pressure on the medial
aspect of his knee.
The Board finds that Dr. Kirkpatrick’s opinion regarding the cause of appellant’s left leg
conditions is speculative and equivocal in nature.14 Dr. Kirkpatrick did not otherwise sufficiently
explain the reasons why diagnostic testing and examination findings led him to conclude that
appellant’s driving a vehicle with his left leg and/or getting in and out of the vehicle to deliver
mail caused or contributed to the diagnosed conditions. The fact that a condition manifests itself
during a period of employment is not sufficient to establish causal relationship.15 Temporal
relationship alone will not suffice.16 A physician’s opinion must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s).17 For these reasons, Dr. Kirkpatrick’s report is also insufficient to
satisfy appellant’s burden of proof with respect to causal relationship.18
In his several reports, Dr. McNeil opined that appellant’s left knee condition occurred over
a period of years due to repetitive movements. However, his reports did not contain rationalized
medical evidence, based on a complete factual and medical background, supporting causal
relationship between the claimed knee condition and the accepted factors of his federal
employment.19 As such, these reports are insufficient to establish appellant’s claim.

13

See J.A., Docket No. 17-1936 (issued August 13, 2018).

14

Medical opinions that are speculative or equivocal in character are of little probative value. See Kathy A. Kelley,
55 ECAB 206 (2004).
15

20 C.F.R. § 10.115(e).

16

See D.I., 59 ECAB 158, 162 (2007).

17

Victor J. Woodhams, supra note 7.

18

See supra notes 3 to 5.

19

See G.T., Docket No. 18-1369 (issued March 13, 2019); S.J., Docket No. 17-0828 (issued December 20, 2017).

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The diagnostic reports lack probative value as diagnostic reports fail to provide an opinion
on causal relationship between appellant’s employment factors and his claimed condition. For this
reason, this evidence is insufficient to meet appellant’s burden of proof.20
As appellant has not submitted any rationalized medical evidence to support his allegation
that he sustained an injury causally related to the accepted employment factors, he has not met his
burden of proof to establish a left leg condition 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 has not met his burden of proof to establish a left leg
condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 3, 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
20

See M.S., Docket No. 18-1280 (issued March 12, 2019); A.B., Docket No. 17-0301 (issued May 19, 2017).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 18-1240
Issued: March 15, 2019

Case Submitted on the Record

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

JURISDICTION
On June 4, 2018 appellant, through counsel, filed a timely appeal from an April 12, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than two
percent permanent impairment of the right lower extremity, for which she previously received a
schedule award.
FACTUAL HISTORY
On April 10, 2014 appellant, then a 45-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on February 26, 2014, she fractured her right hip bone when she slipped
and fell on a curb that was covered with ice and snow while in the performance of duty. She
stopped work on April 3, 2014 and returned to full-duty work on October 17, 2015. OWCP
accepted appellant’s claim for a stress fracture of the right.
On June 8, 2016 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated June 20, 2016, OWCP advised appellant that the medical
evidence was insufficient to support a schedule award claim because it did not establish a
permanent impairment of a scheduled member or function of the body. It advised her of the
requirements to support a claim for a schedule award and afforded her 30 days to submit the
necessary evidence.
In an October 11, 2016 report, Dr. Catherine Watkins Campbell, Board-certified in
occupational and family medicine, noted appellant’s history of injury and treatment. She
referenced the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides)3 and provided examination findings. Dr. Watkins
Campbell noted three separate active range of motion (ROM) measurements for appellant’s right
hip. Based upon appellant’s ROM measurements, she calculated that appellant had 0 percent loss
of abduction, 5 percent loss of adduction, 10 percent loss of flexion, 5 percent loss of extension, 5
percent loss of internal rotation, and 0 percent loss of external rotation. Dr. Watkins Campbell
opined that utilizing the ROM methodology for rating permanent impairment, appellant had 25
percent permanent impairment, multiplied by 5 percent, for Grade 1 functional issues which
increased the total to 26 percent permanent impairment of the right lower extremity.
Dr. Watkins Campbell explained that an x-ray of the right hip and pelvis revealed no
remaining evidence of a hip or pubic rami fracture. She also determined that appellant’s joint
space was within normal limits for age. Dr. Watkins Campbell explained that there was no
diagnostic lower extremity category of diagnosis that covered the accepted condition.
On October 28, 2016 OWCP requested that Dr. Jovito Estaris, Board-certified in
occupational medicine, an OWCP district medical adviser (DMA) review Dr. Watkins Campbell’s
report and provide an impairment rating.
In a November 5, 2016 report, Dr. Estaris noted appellant’s history of injury and treatment.
He reviewed Dr. Watkins Campbell’s report and explained that she has assigned 26 percent
3

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

2

permanent impairment based upon the ROM methodology. The DMA explained that while
Dr. Watkins Campbell used the ROM methodology to rate appellant’s permanent impairment,
there was a diagnosis-based impairment (DBI) grid for a fracture of pubic rami, which was the
acceptable method for rating the accepted condition, Table 17-11.4 He advised that in the DBI
grid, there was no asterisk, which meant that the ROM method of impairment was not
recommended. The DMA explained that the ROM method could be used as a physical
examination adjustment factor, but for the pelvis, the physical examination adjustment did not
include a ROM deficit.
In calculating appellant’s permanent impairment, the DMA referenced Table 17-115 and
explained that for a fracture of the pelvic rami, appellant fell into a Class 1, with a default value of
2, for a nondisplaced fracture, healed and stable. He provided adjustments of a grade modifier for
functional history (GMFH) of 1 for pain and noted that the McGill pain questionnaire revealed a
moderate tendency for symptom amplification6 The DMA determined a grade modifier for
physical examination (GMPE) of 1 for a tender groin while performing activities.7 He advised
that the grade modifier clinical studies (GMCS) was not used in the adjustment as it had been used
in the diagnosis and classification in the DBI grid. The DMA utilized the net adjustment formula
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX) = (1-1) + = (1-1) = 0 and found no net
adjustment.8 He concluded that appellant had two percent permanent impairment of the pelvis.
By letter dated March 31, 2017, OWCP requested that Dr. Watkins Campbell review the
DMA’s findings. In a June 13, 2017 response, counsel noted that a rating of permanent impairment
based upon ROM methodology was allowed. He asserted that “Dr. Campbell is right and the DMA
is incorrect.”
On July 5, 2017 OWCP requested a follow-up response from the DMA.
The DMA provided clarification on July 9, 2017. He explained that there was a separate
DBI grid for the pelvis and it was the proper grid to be utilized, since the diagnosis was right pelvic
fracture. The DMA referred to Section 17.1, Principles of Assessment for Spine and Pelvis.9 He
noted that in the first column, the 4th paragraph: “Impairment values for the spine and pelvis are
calculated using the DBI method. Impairment class is determined by the diagnosis and specific
criteria that are considered the key factor and then adjusted by grade modifiers or nonkey factors.”
The DMA further indicated that there was “no mention of the use of ROM as an alternative for
Impairment rating of Spine and Pelvis.” He referred to Section 15.2 at page 387 and Section 16.2
at page 497 of the A.M.A., Guides and explained that at page 387, it was advised that the ROM
method was primarily used as a physical examination adjustment factor and was only used to
4

A.M.A., Guides 593.

5

Id.

6

Id. at 594.

7

Id. at 595.

8

Id. at 521.

9

Id. at 559.

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determine actual impairment values when it was “NOT possible to otherwise define impairment.”
The DMA reiterated that, with regard to the spine and pelvis, “the only recommended method of
impairment rating is the DBI method.” He again concluded that appellant had two percent
permanent impairment of the right lower extremity. The DMA noted that July 13, 2016, the date
of Dr. Watkins Campbell’s report, was the date of maximum medical improvement.
By decision dated September 15, 2017, OWCP granted appellant a schedule award for two
percent permanent impairment of the right lower extremity. The period of the award ran from
July 13 to August 22, 2016, for a total of 5.76 weeks of compensation.
By letter dated September 27, 2017, appellant, through counsel, requested a telephonic
hearing, which was held on March 7, 2018.
In a January 24, 2018 report, Dr. Watkins Campbell noted that she would not change her
26 percent permanent impairment rating for appellant’s right pelvic fracture. She explained that
the hip was a part of the pelvis, therefore appellant’s ROM had been properly assessed.
Dr. Watkins Campbell opined that “unless OWCP can document inconsistent ROM deficits closer
to the time of maximum medical improvement on April 26, 2016, an argument about inconsistency
in [ROM] is not felt to be valid.”
By decision dated April 12, 2018, OWCP’s hearing representative affirmed the
September 15, 2017 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,10 and its implementing federal regulations,11 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,
FECA 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.12 For decisions issued
after May 1, 2009, the sixth edition will be used.13

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. at § 10.404(a).

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).

4

In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class of diagnosis (CDX) condition, which is then adjusted by GMFH, GMPE, and
GMCS.14 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than two
percent permanent impairment of her right lower extremity, for which she previously received a
schedule award.
In support of her claim, appellant submitted an October 11, 2016 report from Dr. Watkins
Campbell, who opined that she had 26 percent right lower extremity permanent impairment
utilizing the ROM method for rating permanent impairment. However, she has not provided
rationale, supported by the A.M.A., Guides, to establish that the ROM method should be used to
rate permanent impairment of the pelvis. Thus, the Board finds that Dr. Watkins Campbell’s report
was not based upon a correct application of the A.M.A., Guides.17
Dr. Estaris, the DMA, explained why the ROM method could not be used to evaluate
appellant’s pelvis fracture. He referred to the appropriate tables and sections under the A.M.A.,
Guides. Dr. Estaris explained that with regard to the spine and pelvis, “the only recommended
method of impairment rating is the DBI method.” Furthermore, he advised that the nonkey
modifier for physical examination at Table 17-13 did not have criteria for a deficit of range of
motion of the lower extremity.18
The Board finds that the DMA properly referred to the appropriate sections of the A.M.A.,
Guides when providing his impairment rating. The DMA referred to Table 17-11, the DBI Grid
for the pelvis19 and explained that appellant had a class of diagnosis of 1, with a default value of
2, for a nondisplaced fracture, healed and stable. He noted a GMFH of 1, GMPE of 1, and he and
explained that GMCS had not been used in the adjustment because it was used in diagnosis and

14

A.M.A., Guides 494-531; see D.S., Docket No. 17-0419 (issued August 8, 2018).

15

A.M.A., Guides 521.

16

B.B., Docket No. 18-0782 (issued January 11, 2019).

17

An opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate
for evaluating schedule losses is of little probative value in determining the extent of a claimant’s permanent
impairment. I.F., Docket No. 08-2321 (issued May 21, 2009).
18

A.M.A., Guides 595.

19

Id. at 593.

5

classification in the DBI grid.20 The DMA utilized the net adjustment formula and found no net
adjustment.21 He concluded that appellant had two percent permanent impairment of the right
lower extremity.
The Board finds that there is no evidence of record, which establishes greater permanent
impairment than the two percent previously awarded.
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 her burden of proof to establish greater than two
percent permanent impairment of her right lower extremity for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2019
Washington, DC

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

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

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
20

Supra note 18.

21

Id. at 521.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 16-0761
Issued: January 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 3, 2016 appellant filed a timely appeal from a February 9, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a ratable impairment
due to her accepted conditions, for which a schedule award is warranted.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that the record includes evidence received after OWCP issued its February 9, 2016 decision.
On appeal, the Board is limited to reviewing the evidence that was before OWCP when it issued its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s September 19, 2011 decision are incorporated herein by reference.
The relevant facts follow.
Appellant, a 56-year-old transportation security officer, was injured in the performance of
duty on December 5, 2009 when she fell from a 20-inch high platform. Her current accepted
conditions include cervical, thoracic, and lumbar sprains, chest wall contusion, permanent
aggravation of cervical intervertebral disc disorder with myelopathy, and permanent aggravation
of lumbar intervertebral disc degeneration. When the case was last on appeal, OWCP had
terminated appellant’s wage-loss compensation and medical benefits effective May 12, 2010. By
decision dated September 19, 2011, the Board reversed OWCP’s termination of compensation
benefits because it had not met its burden of proof to justify the termination. On October 4, 2011
OWCP advised appellant that her claim was reopened for medical treatment. Appellant
subsequently received wage-loss compensation retroactive to February 11, 2010, and OWCP
placed her on the periodic compensation rolls effective April 8, 2012.4
In a February 13, 2014 report, appellant’s then-treating physician, Dr. John B. Siegler, a
Board-certified physiatrist, diagnosed cervical and lumbar radiculopathy and advised that
appellant was “incapable of even ‘low stress’ work.”
OWCP referred appellant to Dr. Mouchir Harb, a Board-certified neurologist, for a
second opinion evaluation to determine the nature and extent of her employment-related
conditions. He examined appellant on June 10, 2014 and provided a June 12, 2014 narrative
report. Dr. Harb reviewed appellant’s medical history, a statement of accepted facts, and
provided findings based upon his physical examination. Appellant’s paraspinal, cervical neck
muscles were tender to pressure and passive movements of the neck were painful for any minor
level of range of motion. He found lumbar paraspinal muscles were also exclusively tender and
her right hip was tender to pressure. Dr. Harb indicated that appellant appeared to be having
chronic pain syndrome caused by the work injury involving post-traumatic headache, lumbago,
and sciatica. He also noted that appellant was incapable of resuming work at the time.
In a September 3, 2014 report, Dr. Christopher A. Fisher, appellant’s new treating
physiatrist, diagnosed chronic neck pain, likely musculoligamentous and myofascial pain
etiology, as well as possible radicular symptoms.5
He also diagnosed lumbar
musculoligamentous and myofascial pain.
In an October 8, 2014 report, Dr. Fisher diagnosed mechanical low back pain, cervical
and lumbar muscular and myofascial pain, and ongoing cervical and lumbar pain likely due to
discogenic etiology at C4-5, C5-6, and L5-S1. He determined that appellant had reached
3

Docket No. 10-1998 (issued September 19, 2011).

4

The employing establishment removed appellant from service effective September 20, 2010 because it was
unable to accommodate her injury-related work restrictions.
5

Dr. Fisher assumed appellant’s care following Dr. Siegler’s death in 2014.

2

maximum medical improvement (MMI) and advised that she should be referred for a functional
capacity evaluation (FCE). Dr. Fisher also indicated that appellant could work in a light-duty
status pending the FCE results.
OWCP requested clarification from its referral physician, and in a November 12, 2014
supplemental report, Dr. Harb opined that appellant had reached MMI and her accepted
conditions had ceased without residuals. Dr. Harb asserted that appellant had an exaggerated
pain response to any minor mobilization or pressure to any part in the lumbar, thoracic, or
cervical spine area upon examination. Dr. Harb noted that appellant had degenerative changes in
her cervical spine, which were chronic and unrelated to her work injury, as well as scoliosis,
which was also unrelated to her work injury. He found that appellant’s diagnostic studies were
normal and demonstrated no findings to explain any injury-related conditions.
On January 7, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a February 5, 2015 letter, OWCP advised appellant of the need to submit an
impairment rating in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (2009) (A.M.A., Guides). It also provided
information regarding FECA methodology for rating spinal nerve extremity impairment.
In response, appellant submitted follow-up reports from Dr. Fisher dated January 7,
January 28, and February 25, 2015. Dr. Fisher reiterated that appellant had reached MMI and
opined that she needed ongoing pain management for her moderate-to-severe pain, which limited
activities of daily living, work duties, and recreational activities. However, he did not provide an
impairment rating in accordance with the A.M.A., Guides (6th ed. 2009).
On March 2, 2015 appellant underwent an FCE conducted by Doug Ellis, a physical
therapist. However, Mr. Ellis concluded that the FCE results were unreliable and invalid. He
noted there were inconsistencies in appellant’s performance and there was evidence of symptom
magnification. Mr. Ellis also indicated her observed self-limiting pain behavior.
In a report dated March 25, 2015, Dr. Fisher noted that appellant continued to have a
significant degree of muscular and myofascial pain, as well as discogenic pain symptoms. He
reiterated that appellant had reached MMI and recommended a repeat FCE given that the first
was invalid.
On March 30, 2015 Mr. Ellis conducted a repeat FCE. Once again, he found the results
unreliable and invalid due to continuing signs of symptom magnification and self-limiting pain
behavior.6
OWCP referred the case to its district medical adviser (DMA) to determine if appellant
had any impairment to her upper and/or lower extremities. On April 15, 2015 Dr. Ellen Pichey,
6

OWCP referred appellant for an FCE as part of its vocational rehabilitation process, which commenced in early
February 2015. Appellant also participated in vocational testing conducted on April 3, 2015. Because of the two
invalid March 2015 FCEs, OWCP issued an April 15, 2015 decision that reduced appellant’s wage-loss
compensation to zero under 5 U.S.C. § 8113(b). In a February 4, 2016 decision, an OWCP hearing representative
affirmed the April 15, 2015 decision.

3

a Board-certified occupational medicine specialist and DMA, reviewed the evidence of record
and Dr. Harb’s second opinion reports. She found that Dr. Harb’s physical examination revealed
normal symmetric muscle strength and tone, no atrophy or abnormal movements, and intact
sensation in the upper and lower extremities. Dr. Pichey also noted that there appeared to be no
positive electrodiagnostic nerve conduction velocity/electromyogram (NCV/EMG) testing, and
that appellant’s symptoms appeared to be pain related. OWCP’s medical adviser concluded that
appellant had no ratable impairment to the upper or lower extremities. She also indicated that
appellant reached MMI as of November 12, 2014, the date of Dr. Harb’s second opinion
examination.
By decision dated April 22, 2015, OWCP denied appellant’s schedule award claim as the
medical evidence did not establish a ratable impairment of a scheduled member.
On May 3, 2015 appellant requested an oral hearing before the Branch of Hearings and
Review, which was held before an OWCP hearing representative on December 15, 2015.
OWCP received additional follow-up treatment records from Dr. Fisher dated April 22, May 20,
June 17, July 29, September 2, October 7, November 4, December 2, 2015, and
January 20, 2016. In his latest report, Dr. Fisher continued to diagnose work-related mechanical
low back pain, cervical and lumbar muscular and myofascial pain, and ongoing cervical and
lumbar pain likely due to discogenic etiology at C4-5, C5-6, and L5-S1. He noted that appellant
was at MMI and she was not interested in surgery.
By decision dated February 9, 2016, the hearing representative affirmed OWCP’s
April 22, 2015 decision denying appellant’s claim for a schedule award.
LEGAL PRECEDENT
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.7 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. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.8
Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides (2009).9

7

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’
compensation. Id. at § 8107(c)(1). For a total or 100 percent loss of use of a leg, an employee shall receive 288
weeks’ compensation. Id. at § 8107(c)(1).
8

20 C.F.R. § 10.404.

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5a (February 2013); id., Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

4

Neither FECA nor the regulations provide for the payment of a schedule award for the
permanent loss of use of the back/spine or the body as a whole.10 However, a schedule award is
permissible where the employment-related spinal condition affects the upper and/or lower
extremities.11 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology
for rating spinal nerve extremity impairment.12 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the spine.
The FECA-approved methodology is premised on evidence of radiculopathy affecting the upper
and/or lower extremities. The appropriate tables for rating spinal nerve extremity impairment are
incorporated in the procedure manual.13
When determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.14 Impairment ratings for schedule awards include those
conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.15 If the work-related injury has affected any residual usefulness in
whole or in part, a schedule award may be appropriate.16 There are no provisions for
apportionment under FECA,17 but when the prior impairment is due to a previous work-related
injury and a schedule award has been granted for such prior impairment, the percentage already
paid is subtracted from the total percentage of impairment.18
ANALYSIS
The Board finds that the medical evidence of record fails to establish that appellant
sustained any permanent impairment to a scheduled member causally related to the December 5,
2009 employment injury. OWCP accepted appellant’s claim for cervical, thoracic, and lumbar
sprains, chest wall contusion, permanent aggravation of cervical intervertebral disc disorder with
myelopathy, and permanent aggravation of lumbar intervertebral disc degeneration. However,
the medical evidence of record does not establish that she sustained a permanent impairment due
to the accepted conditions.

10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5c(3) (February 2013).
12

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4.

14

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5d. (February 2013).
16

Id.

17

Id.

18

Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

5

The Board finds that OWCP’s medical adviser, Dr. Pichey, properly reviewed the
medical record and found there was no evidence of impairment to the extremities in the file.19
Dr. Pichey found that Dr. Harb’s second opinion examination revealed normal symmetric muscle
strength and tone, no atrophy or abnormal movements, and intact sensation in the upper and
lower extremities. She also noted that there appeared to be no NCV/EMG testing. OWCP’s
medical adviser concluded that appellant had no ratable impairment to the upper or lower
extremities based on her accepted conditions and had reached MMI as of November 12, 2014,
the date of Dr. Harb’s second opinion examination. The Board finds that the medical adviser
properly concluded that there was no medical evidence of impairment to the upper or lower
extremities resulting from the accepted conditions and that, therefore, there was no ratable
impairment of a scheduled member under the sixth edition of the A.M.A., Guides.
FECA does not authorize schedule awards for loss of use of the spine.20 A claimant may
still be entitled to an award for loss of use of a limb where the cause of the impairment originated
in the spine. Because the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities, OWCP has adopted the standard set forth
in The Guides Newsletter.21 In his reports, Dr. Fisher determined that appellant had reached
MMI, but he failed to provide an impairment rating based on the A.M.A., Guides. Consequently,
the Board finds that appellant failed to establish that she has a ratable impairment resulting from
the accepted employment injuries.22
Appellant has submitted no other current medical evidence in conformance with the sixth
edition of the A.M.A., Guides, or The Guides Newsletter, establishing permanent impairment of
a scheduled member. Accordingly, Dr. Pichey’s April 15, 2015 report represents the weight of
the medical opinion evidence.
Appellant may request, at any time, a schedule award or increased schedule award based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish any ratable
impairment related to her accepted conditions for which a schedule award is warranted.

19

The Board notes that it is appropriate for an OWCP medical adviser to review the medical evidence to
determine the percentage of permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -- Medical,
Functions of the Medical Unit, Chapter 3.200.4a (October 1990); Tommy R. Martin, 56 ECAB 273 (2005).
20

See M.R., Docket No. 14-833 (issued September 9, 2014).

21

See supra note 14.

22

Id. See J.Q., 59 ECAB 366 (2008) (when the examining physician does not provide an estimate of impairment
that conforms to the A.M.A., Guides, OWCP may rely on the impairment rating provided by an OWCP medical
adviser).

6

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Elephant Butte, NM, Employer
__________________________________________

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

Docket No. 17-1393
Issued: March 20, 2018

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 June 12, 2017 appellant filed a timely appeal from a May 22, 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 to
consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,387.01 for the period May 14, 2016 to
April 1, 2017; (2) whether it properly denied waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $250.00
from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 31, 2015 appellant, then a 45-year-old sales and service distribution associate,
injured both shoulders when a gate fell on her in the performance of duty. OWCP initially
denied appellant’s claim, but on January 22, 2016 accepted concussion without loss of
consciousness and sprain of the ligaments of the cervical and lumbar spine. It subsequently
expanded the acceptance of her claim to include cervical disc displacement, occipital atlanto
axial region, and intervertebral disc displacement of the lumbosacral region. Appellant stopped
work on March 31, 2015 and did not return.
In a pay rate memorandum dated April 15, 2016, OWCP indicated that appellant’s dateof-injury annual salary was $54,499.15 per year and she elected basic life insurance and
optional life insurance code “X0.” Appellant received continuation of pay from April 23 to
May 22, 2015. Beginning May 23, 2015, OWCP paid appellant wage-loss compensation for
temporary total disability. On November 13, 2016 it placed her on the periodic rolls and a
periodic disability worksheet, dated November 17, 2016, indicated that appellant was placed on
the periodic rolls for ongoing total disability. The employing establishment reported corrected
earnings on October 25, 2016 which required a new pay rate.
In a Form CA-1049, dated November 18, 2016, OWCP outlined appellant’s entitlement
to compensation benefits. It indicated that appellant’s regular payments included deductions for
health benefits, code 472, basic life insurance, and optional life insurance.2
In a March 16, 2017 letter, the Office of Personal Management (OPM) notified OWCP
that appellant’s salary rate on which the Federal Employees’ Group Life Insurance (FEGLI) was
based was $56,791.00. It advised that appellant elected code X0, basic life insurance, option A
standard and option B -- five times the salary. Appellant elected postretirement basic life
insurance (PRBLI) option of “No Reduction.” The commencing date for postretirement
deductions was May 14, 2016. OPM indicated that basic and optional coverage premiums began
on OWCP’s commencing date of May 14, 2016. Attached to this letter was a FEGLI
Continuation of Life Insurance Coverage form dated December 12, 2016. Appellant elected
basic life insurance, standard optional insurance, and additional optional insurance five times her
salary. Regarding basic life insurance, appellant checked a box marked “yes” that she wanted to
have basic life insurance in retirement or while on compensation and she also checked a box
marked “no” indicating that she wanted no reduction in her benefit.
In a periodic disability worksheet dated April 19, 2017, OWCP adjusted appellant’s
compensation payments, effective May 16, 2016. The FEGLI salary was changed to $56,791.00
and the PRBLI at “No Reduction” option was added pursuant to the March 17, 2017 OPM notice.
In a preliminary overpayment determination dated April 20, 2017, OWCP advised
appellant that she received an overpayment of compensation in the amount of $1,387.01 because
2

In a preliminary overpayment determination dated December 1, 2016, OWCP advised appellant that she
received a $224.11 overpayment of compensation because the employing establishment provided corrected earnings
for the weekly FECA pay rate. In a memorandum dated January 9, 2017, OWCP determined that, due to the low
amount of overpayment collection, the debt was administratively terminated.

2

PRBLI premiums had not been deducted from her compensation benefits for the period May 14,
2016 to April 1, 2017. It noted that on March 16, 2017 OPM provided a new final base salary on
which his FEGLI was based of $56,791.00 and noted two premiums appellant elected of optional
life insurance code of X0 and PRBLI at “No Reduction” option. OPM advised that these
premiums should have been deducted beginning May 14, 2016. OWCP indicated that the
premiums, however, were not deducted which created an overpayment. Optional life insurance
premiums should have been deducted at code “X0” based on the salary for FEGLI purposes of
$56,791.00 for the period May 14, 2016 to April 1, 2017. It advised that for the period May 14,
2016 to April 1, 2017, the following amounts were deducted from appellant’s compensation:
basic life insurance of $189.32; optional life insurance of $442.46; and zero for PRBLI of “No
Reduction” option, for total deductions of $631.78. OWCP advised that, for the same period, the
following amounts should have been deducted from appellant’s compensation: basic life
insurance of $204.18; optional life insurance of $476.43; and PRBLI of $1,338.18, for total
deductions of $2,018.79. It noted that this resulted in a $1,387.01 overpayment of compensation.
OWCP made a preliminary determination that appellant was without fault in the creation of the
overpayment. It informed her that, if she believed the overpayment should be waived, she should
complete an overpayment recovery questionnaire (Form OWCP-20) and submit detailed
supporting financial documentation within 30 days. No additional information was received.
By decision dated May 22, 2017, OWCP determined that appellant received an
overpayment of compensation in the amount of $1,387.01 for the period May 14, 2016 to
April 1, 2017. It found that she was without fault in the creation of the overpayment, but that
waiver of recovery was denied, as appellant did not submit a completed overpayment
recovery questionnaire and supporting financial documentation. As appellant failed to
submit current income and expense information, it determined that waiver of recovery of the
overpayment could not be granted. OWCP directed that $250.00 be withheld from his
continuing compensation payments in order to recover the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI program, most civilian employees of the Federal Government are
eligible to participate in basic life insurance and one or more of the options.3 The coverage for
basic life insurance is effective unless waived,4 and premiums for basic and optional life
coverage are withheld from the employee’s pay.5 Upon retirement, separation from the
employing establishment, or being placed on the periodic FECA compensation rolls, an
employee may choose to continue basic and optional life insurance coverage, in which case the
schedule of deductions made will be used to withhold premiums from his or her annuity or
compensation payments.6 Basic insurance coverage shall be continued without cost to an
employee who retired or began receiving compensation on or before December 31, 1989,7 but the
3

5 U.S.C. § 8702(a).

4

Id. at § 8702(b).

5

Id. at § 8707.

6

Id. at § 8706.

7

Id. at § 8707(b)(2).

3

employee is responsible for payment of premiums for optional life insurance coverage which is
accomplished by authorizing withholdings from his compensation.8
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his compensation, so that
his life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by 2 percent a month after age 65 with a
maximum reduction of 75 percent; option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by 1 percent a
month after age 65 with a maximum reduction of 50 percent; or option C -- basic coverage
subject to continuous withholdings from compensation payments with no reductions after age 65
(at a greater premium).9
Each employee must elect or waive option A, option B, and option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.10 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated
by OPM, specifically electing any type of optional insurance, is considered to have waived it and
does not have that type of optional insurance.11 When an under-withholding of life insurance
premiums occurs, the entire amount is deemed an overpayment of compensation because OWCP
must pay the full premium to OPM upon discovery of the error.12
FECA 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 duty.13
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.14

8

Id. at § 8706(b)(3)(B). See Edward J. Shea, 43 ECAB 1022 (1992) (the Board found that claimant received an
overpayment of compensation where he elected postretirement basic life insurance with no reduction and no
premiums had been deducted from his compensation from January 3, 1988 to May 6, 1989). See also Glen B. Cox,
42 ECAB 703 (1991) (the Board found that an overpayment was created due to no deduction of premiums for
optional life insurance for periods from July 1983 through November 1989).
9

See James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

10

5 C.F.R. § 870.504(a)(1)

11

Id. at § 504(b).

12

5 U.S.C. § 8707(d); see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, 48 ECAB 334 (1997).

13

Id. at § 8102(a).

14

Id. at § 8129(a).

4

ANALYSIS -- ISSUE 1
The Board finds that an overpayment of compensation in the amount of $1,387.01
was created due to OWCP’s failure to deduct premiums for PRBLI at “no reduction,” failure to
deduct optional life insurance premiums at code “X0,” and failure to use the correct final salary
for FEGLI purposes. OWCP explained how the overpayment occurred and provided this to
appellant with the preliminary determination of overpayment.15
Appellant does not dispute that she received the overpayment in question, nor does
she dispute the amount of the overpayment. Thus, the Board finds that OWCP properly
determined the fact and the amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.16 These statutory
guidelines are found in section 8129(b) of FECA which states: “Adjustment or recovery [of an
overpayment] 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
this subchapter or would be against equity and good conscience.”17 When a claimant is found to
be without fault in the matter of the overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.436 of the implementing regulations18 provide that recovery of an
overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks
recovery needs substantially all of his or her current income (including compensation benefits) to
meet current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined by OWCP from data furnished by the Bureau of
Labor Statistics.19 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.20

15

See Sandra K. Neil, 40 ECAB 924 (1989).

16

See Robert Atchison, 41 ECAB 83, 87 (1989).

17

5 U.S.C. § 8129(b).

18

20 C.F.R. § 10.436.

19

An individual’s assets must exceed a resource base of $3,000.00 for an individual or $5,000.00 for an
individual with a spouse or one dependent plus $600.00 for each additional dependent. This base includes all of
the individual’s assets not exempt from recoupment. See Robert F. Kenney, 42 ECAB 297 (1991).
20

See Sherry A. Hunt, 49 ECAB 467, 473 (1998).

5

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 payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.21
Section 10.438 of the regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets
as specified by OWCP. This information is needed to determine whether or not recovery on
an overpayment would defeat the purpose of FECA or be against equity and good
conscience. Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.22
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in the creation of the overpayment.
As such, it may only require recovery the overpayment if it would neither defeat the purpose of
FECA nor be against equity and good conscience.
On April 20, 2017 OWCP requested that appellant complete an overpayment recovery
questionnaire and provide supporting financial documentation, if she desired waiver of the
overpayment in question. Appellant did not respond. As a result, OWCP did not have the
necessary financial information to determine whether recovery of the overpayment would
defeat the purpose of FECA or if recovery would be against equity and good conscience.23
Consequently, as appellant did not submit the financial information required by section
10.438 of OWCP’s regulations,24 which was necessary to determine eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment.25

21

20 C.F.R. § 10.437.

22

Id. at § 10.438

23

See id. (in requesting waiver, the overpaid individual has the responsibility for providing financial
information).
24

Id.

25

D.C., Docket No. 09-1460 (issued April 19, 2010).

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LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.26 Section
10.441(a) of the regulations27 provide:
“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 same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”28
ANALYSIS -- ISSUE 3
The record reflects that appellant continues to receive wage-loss compensation under
FECA. When, as in this case, an individual fails to provide requested information on income,29
expenses, and assets, OWCP should follow minimum collection guidelines, which state in
general that government claims should be collected in full and that, if an installment plan is
accepted, the installments should be large enough to collect the debt promptly.30 Appellant, as
noted, did not provide any information for OWCP to consider in determining the amount to be
withheld from her continuing compensation. The Board, therefore, finds that OWCP did not
abuse its discretion in determining that the overpayment sum of $1,387.01 would be
recovered by deducting $250.00 from appellant’s continuing compensation payments.
On appeal appellant asserts that she was not at fault in the creation of the overpayment and
notes that her health insurance was terminated, leaving her without medicine and medical care.
She asserts that the employing establishment was trying to charge her for the insurance premiums,
and she was filing a grievance over all the errors made in the handling of her claim. Appellant
developed anxiety and financial hardship and requested forgiveness of the debt. As explained
above, OWCP found appellant without fault in the creation of the overpayment. Because
appellant did not provide a completed Form OWCP-20 overpayment recovery questionnaire and
supporting financial documentation as requested in OWCP’s April 20, 2017 letter, OWCP
properly denied waiver of recovery of the overpayment.31

26

Lorenzo Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).

27

20 C.F.R. § 10.441(a).

28

Id.

29

Supra note 23.

30

Gail M. Roe, 47 ECAB 268 (1995); Robin D. Calhoun, Docket No. 00-1756 (issued May 21, 2001).

31
See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).

7

CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,387.01 for the period May 14, 2016 through April 1, 2017,
properly denied waiver of recovery of the overpayment, and properly required recovery of the
overpayment by deducting $250.00 from appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the May 22, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 20, 2018
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
DEPARTMENT OF AGRICULTURE,
NATURAL RESOURCES CONSERVATION
SERVICE, Decatur, TX, Employer
__________________________________________

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Appearances:
S. Brock Benson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1316
Issued: November 6, 2014

Case Submitted on the Record

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

JURISDICTION
On May 19, 2014 appellant, through counsel, filed a timely appeal of a November 27,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of compensation
in the amount of $17,563.12 was created from November 25, 2012 to June 1, 2013; and
(2) whether OWCP properly denied waiver of recovery of the overpayment.
On appeal counsel contends that recovery of the overpayment would be against equity
and good conscience.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 14, 2012 appellant, then a 60-year-old soil conservationist, filed a traumatic
injury claim alleging that on October 10, 2012 he sustained a swollen and bruised ankle and
spinal stress fractures as the result of a grand mal seizure.2 He stopped work on the date of the
injury and has not returned to work.
On October 22, 2012 OWCP received an October 12, 2012 Authorization for
Examination and/or treatment (Form CA-16) and an attending physician’s report3 dated
October 12, 2012. Appellant was diagnosed with lumbar spine fracture, seizure and ankle injury
as the result of the incident. The physician checked “yes” to the question of whether the
diagnosed conditions were employment related. In support of this conclusion, the physician
noted that appellant was at work at the time the illness occurred.
On October 29, 2012 OWCP accepted appellant’s claim for aggravation of generalized
convulsive epilepsy, closed lumbar vertebra fracture with no spinal cord injury and left ankle and
foot arthropathy.
By letter dated March 26, 2013, OWCP placed appellant on the periodic rolls for
temporary total disability.
By decision dated April 18, 2013, OWCP rescinded acceptance of appellant’s claim. It
found that the medical evidence submitted at the time it accepted his claim was insufficient to
establish his claim.
On May 28, 2013 appellant requested reconsideration and submitted evidence in support
of his request.
By decision dated August 23, 2013, OWCP denied modification.
On October 15, 2013 OWCP advised appellant of a preliminary determination that an
overpayment of compensation in the amount of $17,653.12 was created. In an accompanying
memorandum, it noted that the acceptance of his claim had been rescinded and that
compensation paid to him from November 25, 2012 to June 1, 2013 was an overpayment of
compensation. Appellant was found not to be at fault in creating the overpayment. OWCP
provided various appeal rights to appellant to contest its preliminary determination.
On November 15, 2013 appellant requested a telephone conference with the district
director, which was held on November 26, 2013. By decision dated November 27, 2013, OWCP
finalized the finding of a $17,563.12 overpayment of compensation and also denied waiver of
recovery of the overpayment.

2

On the back of the form, the employing establishment noted the date of injury, first medical treatment and the
date appellant stopped work as October 9, 2012 and the date of notice of the injury as October 10, 2012.
3

The signature on the form is illegible.

2

LEGAL PRECEDENT -- ISSUE 1
If OWCP properly rescinds acceptance of a claim, the compensation for wage loss paid
does represent an overpayment of compensation.4 With respect to a rescission of acceptance, the
Board has upheld OWCP’s authority to reopen a claim at any time on its own motion under 5
U.S.C. § 8128 and, where supported by the evidence, set aside or modify a prior decision and
issue a new decision.5 The Board has noted, however, that the power to annul an award is not an
arbitrary one and that an award for compensation can only be set aside in the manner provided
by the compensation statute.6
It is well established that, once OWCP accepts a claim, it has the burden of justifying
termination or modification of compensation. This holds true where OWCP later decides that it
has erroneously accepted a claim for compensation.7 OWCP does not discharge its burden of
proof by reviewing the evidence of record at the time of acceptance and arriving at a different
conclusion from that of the initial adjudicator.8 Probative and substantial positive evidence9 or
sufficient legal argument10 must establish that the original determination was erroneous. OWCP
must also provide a clear explanation of the rationale for rescission.11
OWCP’s procedure manual requires a pretermination notice where OWCP has accepted a
claim and paid benefits and it is later determined that those benefits were accepted in error.12
ANALYSIS -- ISSUE 1
The underlying overpayment in this case was based on OWCP’s April 18, 2013
rescission of the acceptance of appellant’s traumatic injury claim. The Board must review the
underlying decision to determine if an overpayment has been established.13
The Board finds that OWCP improperly rescinded acceptance of appellant’s claim.
According to OWCP’s procedure manual, a pretermination notice is required when a rescission

4

J.F., Docket No. 08-2396 (issued March 19, 2009); see, e.g., Major W. Jefferson, III, 47 ECAB 295 (1996).

5

V.C., 59 ECAB 137 (2007); Eli Jacobs, 32 ECAB 1147 (1981).

6

Doris J. Wright, 49 ECAB 230 (1997); Shelby J. Rycroft, 44 ECAB 795 (1993).

7

20 C.F.R. § 10.610; see V.C., supra note 5.

8

Roseanna Brennan, 41 ECAB 92, 96 (1989).

9

See, e.g., Beth A. Quimby, 41 ECAB 683 (1990).

10

See V.C., supra note 5.

11

Belinda R. Darville, 54 ECAB 656 (2003).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4(b)(10) (February 2013).

13

See Russell E. Wageneck, 46 ECAB 653 (1995).

3

is issued.14 In this case, by decision dated October 29, 2012, OWCP accepted appellant’s claim
for aggravation of generalized convulsive epilepsy, closed lumbar vertebra fracture with no
spinal cord injury and left ankle and foot arthropathy. In correspondence dated March 26, 2013,
OWCP placed appellant on the periodic rolls for temporary total disability. By decision dated
April 18, 2013, it rescinded acceptance of appellant’s traumatic injury claim.15 The case record
does not establish that appellant received a pretermination notice between October 29, 2012 and
April 18, 2013. In view of this procedural error, OWCP’s original determination of rescission is
void ab initio.
The Board finds OWCP did not meet its burden of proof to rescind acceptance of the
claim. OWCP based the fact of overpayment on the rescission of acceptance of his claim. The
Board finds that as OWCP did not properly rescind acceptance of appellant’s claim, the fact of
overpayment has not been established. In view of the Board’s finding, OWCP’s denial of waiver
of recovery of the overpayment is moot.
CONCLUSION
Fact of overpayment has not been established in this case as OWCP did not properly
rescind acceptance of appellant’s claim.

14

Supra note 12. See also supra note 12 at Chapter 2.1400.19 (where the original decision may have been issued
in error, OWCP must perform any necessary case development to fully resolve the matter before rendering proposed
and final decisions rescinding the original finding), and P.V., Docket No. 12-1822 (issued June 7, 2013).
15

OWCP based the rescission of appellant’s claim on the grounds that the evidence at the time of its acceptance
was insufficient.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 27, 2013 is reversed.
Issued: November 6, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF THE ARMY, 81st
READINESS DIVISION, AREA
MAINTENANCE SUPPORT ACTIVITY,
Fort Buchanan, PR, Employer
__________________________________________

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

Docket No. 18-1165
Issued: January 15, 2019

Case Submitted on the Record

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

JURISDICTION
On May 22, 2018 appellant filed a timely appeal from an April 10, 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 to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met his burden of proof to establish a right knee
condition causally related the accepted February 7, 2018 employment incident.
FACTUAL HISTORY
On February 14, 2018 appellant, then a 39-year-old military technician/mechanic, filed a
traumatic injury claim (Form CA-1) alleging that, while repairing a truck in the performance of
duty on February 7, 2018, he slipped and fell from a height of approximately four feet which
resulted in a right meniscal tear. He stopped work the same day.
In support of his claim, appellant submitted a report dated February 8, 2018 from
Dr. Juan R. Suarez-Pesante, an attending Board-certified orthopedic surgeon. On examination of
the right knee, Dr. Suarez-Pesante observed swelling, severe tenderness, and decreased range of
motion after an unspecified traumatic injury.3 He diagnosed a right knee injury and osteoarthritis
superimposed on a history of a partial right anterior cruciate ligament (ACL) tear.
Dr. Suarez-Pesante prescribed a knee immobilizer and crutches.
In a report dated February 12, 2018, Dr. Magdiel Mayol-Urdaz, an attending Boardcertified orthopedic surgeon, noted a history of right knee trauma on February 7, 2018. On
examination, he observed swelling and instability of the right knee. Dr. Mayol-Urdaz noted that,
although a December 2017 magnetic resonance imaging (MRI) scan showed a small medial tear
of the posterior horn of the medial meniscus, appellant’s clinical presentation indicated a bucket
handle medial meniscal tear. He aspirated approximately 40 ccs of synovial fluid from the right
knee, “suggestive of acute trauma.”
By development letter dated March 1, 2018, OWCP advised appellant of the medical and
factual evidence needed to establish his claim, including a detailed description of the February 7,
2018 employment incident, and a narrative report from his physician explaining how and why that
event would cause the claimed right knee condition. It afforded him 30 days to submit the
necessary evidence. No response was received.
By decision dated April 10, 2018, OWCP accepted that the February 7, 2018 incident
occurred as alleged. It denied the claim, however, as causal relationship had not been established
between the diagnosed right knee condition and the accepted February 7, 2018 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
3

X-rays of the right knee obtained on February 7, 2018 were negative for fracture or dislocation.

4

Supra note 1.

2

disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.7 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.9 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.10
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 causal relationship.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his right
knee condition is causally related to the accepted February 7, 2018 employment incident.
Appellant first sought treatment on February 8, 2018 from Dr. Suarez-Pesante, who
diagnosed a right knee injury and osteoarthritis superimposed on a history of a partial right ACL
tear. However, Dr. Suarez-Pesante did not provide an opinion as to whether the diagnosed
condition was causally related to the accepted employment incident. The Board has held that
medical evidence that does not offer an opinion regarding the cause of an employee’s condition is

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

R.E., Docket No. 17-0547 (issued November 13, 2018); David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover,
51 ECAB 146 (1999).
8

R.E., id.

9

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

10

K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
11

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

3

of no probative value on the issue of causal relationship.12 This report is, therefore, insufficient to
establish appellant’s claim.
Appellant was also followed by Dr. Mayol-Urdaz, who noted a February 7, 2018 incident
and diagnosed a right meniscal tear with effusion suggestive of acute trauma. Dr. Mayol-Urdaz
too did not provide an opinion as to whether the right meniscal tear was causally related to the
accepted February 7, 2018 traumatic incident. As he did not address causal relationship, his report
is insufficient to meet appellant’s burden of proof.13
As appellant has not submitted rationalized medical evidence sufficient to establish that his
right knee condition was causally related to the accepted employment incident, he has not met his
burden of proof.14
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right knee
condition causally related to the accepted February 7, 2018 employment incident.

12

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

13

Id.

14

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 15, 2019
Washington, DC

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

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

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

5