United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, MORGAN
PROCESSING & DISTRIBUTION CENTER,
New York, NY, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-2111
Issued: March 6, 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 September 16, 2013 appellant, through her attorney, filed a timely appeal from a
March 27, 2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her request for reconsideration. The final merit decision of record is dated
February 3, 2010. There is no merit decision within 180 days of September 16, 2013, the date
appellant filed her appeal with the Board. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, counsel asserts that OWCP should not have selected an independent medical
examiner as there was no conflict of medical opinion.
FACTUAL HISTORY
OWCP accepted that on April 18, 2008 appellant, then a 49-year-old mailhandler,
sustained a contusion of the lower left leg when she struck wood on the side of a trailer. She
stopped work on April 18, 2008. Appellant did not return and received compensation beginning
June 4, 2008.
Dr. Frank Carr, an attending Board-certified orthopedic surgeon, submitted periodic
treatment notes from May 2008 to May 2009. He noted limited left knee and ankle motion
following a left calf and Achilles tendon contusion. Dr. Carr found appellant totally disabled for
work. On December 4, 2008 OWCP obtained a second opinion from Dr. Michael J. Katz, a
Board-certified orthopedic surgeon, who diagnosed a resolved left leg contusion. Dr. Katz found
appellant able to perform full-time limited duty.
OWCP found a conflict of medical opinion between Dr. Carr, for appellant, and Dr. Katz,
for the government, regarding the nature and extent of the accepted injury and her capacity for
work. To resolve the conflict, it selected Dr. Stanley Soren, a Board-certified orthopedic
surgeon, as the impartial medical specialist, who submitted a March 24, 2009 report reviewing
the medical record and a statement of accepted facts. On examination, Dr. Soren noted no
objective findings of a left calf contusion. He found appellant able to perform full-time limited
duty.
Appellant was then followed by Dr. Arthur Thompson, a Board-certified orthopedic
surgeon, who submitted reports through July 2009 holding her off work due to a left flexor
hallucis longus tear or strain that he attributed to the accepted injury.
By notice dated June 26, 2009, OWCP advised appellant that it proposed to terminate her
wage-loss and medical benefits, based on Dr. Soren’s opinion that the accepted injury had ceased
without residuals. In response, appellant submitted a July 14, 2009 report from Dr. Thompson
diagnosing a left calf muscle contusion and Achilles tendon contusion. He found that she
remained totally disabled for work.
By decision dated July 29, 2009, OWCP terminated appellant’s compensation benefits
effective that day on the grounds that the accepted injury had ceased without residuals.
Dr. Soren’s opinion represented the weight of the medical evidence.
On August 19, 2009 appellant requested a review of the written record. She submitted
March 2009 reports from Dr. Carr and July 21 to August 4, 2009 reports from Dr. Thompson,
finding edema in the left flexor halluces longus muscle and Achilles tendon. Appellant also
provided reports dated October 20 to November 7, 2009 from Dr. Laxmindhar Diwan, an
attending Board-certified orthopedic surgeon, who noted an unspecified April 18, 2008 injury
and diagnosed an unresolved left ankle sprain.
By decision dated February 3, 2010, an OWCP hearing representative affirmed the
July 29, 2009 termination. He found that the additional evidence submitted was insufficient to
2

outweigh Dr. Soren’s opinion. The hearing representative noted that Dr. Carr was on one side of
the conflict resolved by Dr. Soren. Further, Dr. Diwan did not review the medical record,
provide a history of injury or offer medical rationale explaining how or why the accepted injury
would continue to disable appellant for work. The hearing representative also noted that
Dr. Soren’s opinion contained detailed rationale resolving the conflict between Dr. Carr and
Dr. Katz regarding the nature and extent of the accepted left leg injury and appellant’s capacity
to work.
In an October 9, 2012 letter, counsel requested reconsideration, asserting that there was
no conflict in opinion between Dr. Katz and Dr. Carr. He argued that in the absence of a
conflict, Dr. Soren could not serve as an impartial medical examiner and his opinion should not
be accorded special weight. Counsel submitted reports dated from March 2, 2010 to July 26,
2011 from Dr. Richard M. Seldes, an attending Board-certified orthopedic surgeon, who found
appellant totally disabled for work due to mild internal derangement of the left knee and an
unresolved left ankle sprain. Counsel also provided July 10, 2011 and July 24, 2012 reports
from Dr. Dimitry Fuzaylov, an attending Board-certified orthopedic surgeon, finding appellant
totally disabled for work due to vasculitis and possible complex regional pain syndrome of the
lower left leg. He also submitted an August 12, 2012 imaging study of the left ankle and a
December 19, 2012 report from Dr. Maxim Tyorkin, a Board-certified orthopedic surgeon,
diagnosed internal derangement of the left knee and an unresolved left lower extremity sprain.
Counsel also provided a September 3, 2009 report from Dr. Diwan diagnosing the same
conditions as in his reports previously of record.
By decision dated March 27, 2013, OWCP denied appellant’s October 9, 2012 request for
reconsideration finding that it was not timely filed and failed to present clear evidence of error.
It found that her request was received on October 9, 2012 more than one year after the
February 3, 2010 decision, the final merit decision in the claim. OWCP further found that
counsel’s argument did not establish clear evidence of error and that the medical evidence
submitted was irrelevant as it did not address appellant’s condition on or before July 29, 2009.
LEGAL PRECEDENT
Section 8128(a) of FECA2 does not entitle a claimant to a review of an OWCP decision
as a matter of right.3 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.4 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that it will not
review a decision denying or terminating a benefit unless the application for review is filed
within one year of the date of that decision.5 The Board has found that the imposition of this

2

5 U.S.C. § 8128(a).

3

Thankamma Mathews, 44 ECAB 765, 768 (1993).

4

Id. See also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

5

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).

3

one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).6
In those cases where requests for reconsideration are not timely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.7
OWCP’s regulations state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the claimant’s
request for reconsideration shows “clear evidence of error” on the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which decided by OWCP.9 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.13 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.14
ANALYSIS
In its March 27, 2013 decision, OWCP found that appellant failed to file a timely
application for review. It rendered its most recent merit decision on February 3, 2010.
Appellant requested reconsideration on October 9, 2012, more than one year from the issuance of
the February 3, 2010 decision. OWCP denied the request by March 27, 2013 decision on the
grounds that it was not timely filed and failed to present clear evidence of error. The Board finds
that the October 9, 2012 reconsideration request was not timely filed. It must now be determined
whether the request demonstrated clear evidence of error in OWCP’s February 3, 2010.

6

5 U.S.C. § 10.607(b); supra note 4.

7

Supra note 3.

8

20 C.F.R. § 10.607(b).

9

Supra note 3.

10

Leona N. Travis, 43 ECAB 227 (1991).

11

Jesus D. Sanchez, supra note 4.

12

Supra note 10.

13

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Gregory Griffin, supra note 5.

4

In his October 9, 2012 letter, counsel asserted that there was no conflict between
Dr. Carr, an attending Board-certified orthopedic surgeon, and Dr. Katz, a Board-certified
orthopedic surgeon and second opinion physician. The Board finds that this argument does not
raise a substantial question as to whether OWCP’s February 3, 2010 decision was in error or
shift the weight of the evidence in appellant’s favor. The conflict in medical opinion was
previously set out in the prior OWCP merit decisions. Therefore, it is insufficient to establish
clear evidence of error. The reports of Drs. Fuzaylov, Seldes and Tyorkin, attending Boardcertified orthopedic surgeons, do not address appellant’s medical condition on or before July 29,
2009, which was the underlying issue at the time of the February 3, 2010 decision. Evidence
which is irrelevant to the claim does not establish clear evidence of error.15 The September 3,
2009 report from Dr. Diwan, an attending Board-certified orthopedic surgeon, duplicates his
reports previously of record. The Board has held that evidence that repeats or duplicates
evidence previously submitted is insufficient to shift the weight of the evidence or support clear
evidence of error.16 Consequently, OWCP properly denied appellant’s reconsideration request as
her request does not establish clear evidence of error.
On appeal, counsel asserts that OWCP should not have selected an impartial medical
examiner as there was no conflict of opinion. The Board notes that this argument was previously
considered and rejected by OWCP.
CONCLUSION
The Board finds that the evidence submitted does not demonstrate clear evidence of error.
Appellant has not provided argument or evidence of sufficient probative value to shift the weight
of the evidence in her favor and raise a substantial question as to the correctness of OWCP’s
February 3, 2010 merit decision.

15

Supra note 10.

16

D.E., 59 ECAB 438 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 27, 2013 is affirmed.
Issued: March 6, 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

6


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

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

Docket No. 17-1138
Issued: October 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 2, 2017 appellant, through counsel, filed a timely appeal from a January 27,
2017 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 the accepted factors of appellant’s 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 November 4, 2015 appellant, then a 40-year-old automotive technician, filed a
traumatic injury claim (Form CA-1) alleging that on October 14, 2015, over the course of two
days of lifting and reaching over his shoulders, he aggravated a previous injury and sustained a
strain in his neck.3
In a January 4, 2016 report, Dr. T. Maxwell Kelley, a Board-certified family practitioner,
noted seeing appellant for a follow up on his cervical condition. He indicated that he had last
seen appellant in his office on December 23, 2015. Appellant’s symptoms started after an injury
at work on September 19, 2013 when appellant hit his head on the frame of a truck and that these
symptoms consisted primarily of involuntary titubation of the head and neck. Dr. Kelley noted
that these symptoms occurred episodically and were typically triggered by overhead movements
and reaching outward, and that this abnormal movement caused dizziness and sometimes pain.
On February 2, 2016 Dr. Kelley diagnosed cervical dystonia.
By letter dated February 8, 2016, OWCP informed appellant that further information was
necessary to support his claim and afforded him 30 days to submit this information.
Appellant thereafter submitted multiple medical documents that were dated before the
alleged October 2015 employment injury. From May 23 through June 10, 2014, Dr. T.L.
Bradley, a chiropractor, treated appellant for cervical segmental dysfunction and cervicalgia.
Dr. Bradley released appellant to return to work effective December 30, 2014 with restrictions of
no reaching above shoulders and no reaching beyond length of arms. Appellant submitted notes
from Novant Health Matthews Medical Center dated September 19, 2013, wherein Dr. Erin
Smith, an emergency room physician, diagnosed near syncope, benign position vertigo.
Appellant also submitted multiple progress notes from the Carolinas Health System commencing
September 24, 2013. These notes described treatment for multiple medical conditions including:
vertigo, dizziness, cervical segment dysfunction, cervicalgia, hypertension, and chronic
headaches.
In a March 7, 2016 note, Dr. Bradley noted that a lateral x-ray of appellant’s cervical
spine revealed loss of normal lordotic curvature with slight reversal apex at C-4. He diagnosed
cervicalgia and segmental and somatic dysfunction of the cervical region and noted that supine
adjustment had been performed. Dr. Bradley noted that appellant had made good progress, but
continued to have muscle tightness with fixation in the cervical and upper thoracic spine. He
indicated that appellant’s neck pain started on September 13, 2014.
By decision dated March 8, 2016, OWCP denied appellant’s claim. It determined that,
although the evidence supported that the events occurred as alleged, the medical component of

3

Appellant had previously filed a claim in OWCP File No. xxxxxx134. He had alleged in the prior claim that on
September 19, 2013 he sustained a neck injury when he struck his head on the frame of a truck. In a decision dated
January 6, 2015, OWCP denied appellant’s claim as it determined that he failed to submit medical evidence
providing a medical diagnosis. It also noted that appellant had not established causal relationship. There is no
evidence that appellant pursued any form of appeal from the January 6, 2015 decision.

2

fact of injury had not been met. Specifically, appellant failed to submit medical evidence
containing a medical diagnosis in connection with the accepted factors.
On March 24, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
At the hearing held on November 15, 2016, appellant testified that in his previous job he
was a mobile mechanic and that most of his duties were performed below waist level. However,
on October 13 and 14, 2016 the employment establishment placed him in a job that required him
to lift above his shoulders, and he injured his neck from repeated lifting. Appellant noted that
when he left and went to the parking lot, his head started shaking like a “bobble head.” He noted
that he had previously injured his neck in September 2013, when he jumped up from underneath
a truck and caught his forehead and ripped something in the left side of the neck. Appellant
described his medical treatment and noted that he was not currently under a physician’s care.
The hearing representative advised appellant of the importance of submitting medical evidence
in support of his claim.
In a letter dated December 29, 2016, M.A., a manager for health and resource
management for the employing establishment, contended that appellant did suffer a serious
injury on September 19, 2013 and again on October 14, 2015. She argued that the medical
evidence established that appellant had a traumatic injury to his neck which had now resulted in
a diagnosis of cervical dystonia, which was also called spasmodic torticollis. M.A. noted that, in
meeting with appellant, she has witnessed the spasmodic attacks, and that it was evident that
appellant experienced incredible pain and uncontrollable shaking of his head. She also stated
that appellant did not receive the support and guidance he was entitled to from the employing
establishment. M.A. requested that OWCP accept appellant’s claims.
By decision dated January 27, 2017, the hearing representative affirmed the March 8,
2016 decision as appellant had not submitted medical evidence of a diagnosis in connection with
the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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, that an injury was sustained in the performance of duty as alleged, and
that any disabilities and/or specific conditions for which compensation is claimed are causally
related to the employment injury.4 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.5

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

3

Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
The only issue before the Board is whether appellant sustained an injury due to his work
activities of October 13 and 14, 2015. There is no dispute that the employment events occurred
as alleged. However, the Board finds that appellant has failed to submit medical evidence to
establish a medically-diagnosed condition as a result of these employment factors.
The medical evidence indicates that, at the time of the alleged October 2015 employment
injury, appellant had already been treated for cervical segment dysfunction and cervicalgia.
Appellant has not submitted any medical evidence after the October 2015 employment factors
that establish an employment injury.
Appellant submitted a January 4, 2016 narrative medical report by Dr. Kelley, as well as
a February 2, 2016 progress report. Dr. Kelley treated appellant for cervical dystonia. He
indicated that appellant’s symptoms of involuntary titubation of the head and neck started after
the work injury of September 19, 2013. Dr. Kelley never addressed the alleged October 2015
employment factors. As previously noted, to establish an occupational disease claim, the
claimant must submit medical evidence establishing that the employment factors identified by
the claimant were the proximate cause of the condition for which compensation is claimed or,
stated differently, medical evidence establishing that the diagnosed condition is causally related
to the employment factors identified by the claimant.9 Dr. Kelley’s reports did not address how

6

See S.P., 59 ECAB 184, 188 (2007).

7

See Roy L. Humphrey¸ 57 ECAB 238, 241 (2005); see also P.W., Docket No. 10-2402 (issued August 5, 2011).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 4.

9

See George G. Wilk, Docket No. 03-0453 (issued May15, 2003).

4

the accepted October 2015 employment factors caused the diagnosed condition. As such, his
reports are of limited probative value.
Appellant also submitted a March 7, 2016 report wherein his chiropractor, Dr. Bradley,
diagnosed cervicalgia and segmental and somatic dysfunction of the cervical region based on
cervical x-rays. Dr. Bradley performed spinal manipulation.10 However, he also noted that these
conditions started on September 13, 2014, and did not address the October 2015 employment
factors. As such, his report is of limited probative value.11
Finally, the Board notes the statement and argument from M.A., a manager of the
employing establishment, in support of appellant’s claim. However, because causal relationship
is a medical issue, it can only be proven by probative medical opinion evidence.12 Lay persons
are not competent to render medical opinion.13
An award of compensation may not be based on surmise, conjecture, speculation, or
appellant’s belief of causal relationship.14 Appellant has failed to submit rationalized medical
evidence to meet his burden of proof on causal relationship.
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 his burden of proof to establish an
occupational disease causally related to the accepted factors of his federal employment.

5 U.S.C.§ 8101(2) of FECA provides that the term “physician” includes chiropractors only to the extent that
their reimbursable services were limited to treatment consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by x-ray to exist. Dr. Bradley is a physician pursuant to this definition.
10

11

Supra note 7.

12

S.C., Docket No. 16-1322 (issued January 18, 2017).

13

James A. Long, 40 ECAB 538, 542 (1989).

14

John D. Jackson, 55 ECAB 465 (2004); William Nimitz¸30 ECAB 57 (1979).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 27, 2017 is affirmed.
Issued: October 19, 2017
Washington, DC

Christopher J. Godfrey, 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
___________________________________________
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J.C., Appellant
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and
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DEPARTMENT OF HEALTH & HUMAN
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SERVICES, NATIONAL INSTITUTES OF
)
HEALTH, Bethesda, MD, Employer
)
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 09-1526
Issued: June 1, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 12, 2009 appellant filed a timely appeal of an April 7, 2009 decision of the
Office of Workers’ Compensation Programs regarding a schedule award and a May 7, 2009
decision regarding an overpayment of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUES
The issues are: (1) whether appellant sustained greater than a five percent impairment of
his left upper extremity for which he received a schedule award; and (2) whether the Office
properly determined that appellant received an overpayment in the amount of $20,475.00; and
(3) whether the Office properly determined that the overpayment was not subject to waiver.
FACTUAL HISTORY
On March 22, 2004 appellant, then a 57-year-old printing specialist, filed an occupational
disease claim, alleging that he sustained carpal tunnel syndrome in both hands in the
performance of duty. He did not stop work. The Office accepted appellant’s claim for bilateral
tendinitis. On August 17, 2004 it accepted bilateral carpal tunnel syndrome. Appellant
underwent right carpal tunnel release surgery in October 2004. He stopped work on January 25,

2006 to undergo left carpal tunnel release surgery. Appellant returned to work. He received
appropriate compensation benefits. On September 18, 2007 the Office granted appellant a
schedule award for 20 percent impairment of the right arm.
On November 1, 2007 appellant filed a claim for a schedule award for the left arm. In a
November 27, 2007 report, Dr. Raymond D. Drapkin, a Board-certified orthopedic surgeon and
treating physician, noted appellant’s history, which included surgery on both hands and provided
findings. For the left hand, he noted that appellant had a well-healed surgical scar and
complained of numbness in all four fingers. Dr. Drapkin advised that, when appellant attempted
to make a fist, it was difficult to get his hand into his palm. He noted that appellant had positive
Tinel’s and Phalen’s signs. Left wrist x-rays did not reveal any evidence of fracture or
dislocation and the osseous spaces were well maintained. Dr. Drapkin advised that appellant was
status post carpal tunnel surgery on the left hand. He advised that, as a result of appellant’s
“carpal tunnel, Table 15, this is equivalent to 20 percent impairment.” Dr. Drapkin opined that
20 percent to the hand was equal to 18 percent to the left upper extremity.
In an April 2, 2008 report, the Office medical adviser noted appellant’s history of injury
and treatment and utilized the A.M.A., Guides. He noted that Dr. Drapkin did not provide a
detailed sensory examination. The Office medical adviser explained that appellant underwent
left carpal tunnel release on January 25, 2006. He noted that the electromyogram (EMG) and
nerve conduction tests from December 19, 2006 were primarily for the right arm and included
findings which “suggest the presence of a superimposed mild generalized sensorimotor
neuropathy involving both median and ulnar nerves.” The Office medical adviser noted that
while Dr. Drapkin mentioned Table 15 in his report, he was not sure which Table 15 he
referenced. He noted that it was possible he was referring to Table 16-15 and noted that the
applicable tables would be Tables 16-10, 16-11 and 16-15 and page 495 of the A.M.A., Guides.
The Office medical adviser noted that utilizing a Grade 4 sensory and motor deficit with a
maximum percentage for both of 25 percent and multiplying by 45, the maximum combined
motor and sensory deficit for the median nerve below the midforearm, Table 16-15, would result
in an 11 percent impairment of the left arm. However, he also indicated that Dr. Drapkin did not
correctly apply the A.M.A., Guides and questioned the rating. The Office medical adviser
opined that appellant reached maximum medical improvement on January 25, 2007, one year
from the date of left carpal tunnel release.
On April 15, 2008 the Office granted appellant a schedule award for 11 percent
impairment of the left upper extremity. The award totaled $37,408.75 and covered a period of
34.32 weeks from January 25 to September 22, 2007.
Appellant requested a hearing that was held on August 22, 2008. He questioned the
differences in impairment and noted that the Office medical adviser indicated that Dr. Drapkin
did not correctly utilize the A.M.A., Guides. Appellant indicated that he should not be
“punish[ed] for his mistake.”
On December 8, 2008 an Office hearing representative determined that the April 15,
2008 decision should be vacated and the case remanded. He found that the medical evidence
lacked sufficient evidence to visualize the nature and extent of appellant’s permanent partial
impairment. The Office hearing representative found that the Office medical adviser was not

2

provided with the results of the physical examination or complete citations and was therefore
unable to appropriately determine the nature and extent of appellant’s impairment, due to his
accepted employment-related conditions. He directed the Office to refer appellant and the case
file to a second opinion examination for a complete and thorough examination of the left upper
extremity, including complete measurements and citations.1
On December 22, 2008 the Office referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. Sunjay Berdia, a
Board-certified orthopedic surgeon.
In a report dated January 7, 2009, Dr. Berdia described appellant’s history of injury and
treatment and utilized the A.M.A., Guides. He noted that examination of the hands showed wellhealed scars over the transverse carpal ligament bilaterally and had no appreciable thenar
atrophy. Dr. Berdia indicated that appellant had 5/5 palmar abduction and two-point
discrimination of five millimeters in his median and ulnar distribution bilaterally. He advised
that appellant had difficulty with active flexion of his left hand although he was passively able to
get all of his tips down to his palm. Dr. Berdia diagnosed bilateral residual carpal tunnel
syndrome and bilateral hand pain. He opined that, while appellant currently had residuals of
carpal tunnel syndrome after carpal tunnel release, due to the March 24, 2004 work injury, no
further medical treatment was warranted. Dr. Berdia noted that appellant reached maximum
medical improvement in January 2007, about one year after his surgery. He opined that
appellant had a permanent impairment due to residuals of carpal tunnel syndrome and indicated
that his distal motor latency on the left side improved from a 7.2 to 5.5. Dr. Berdia referred to
page 495 of the A.M.A., Guides, regarding carpal tunnel syndrome which sets for three possible
scenarios after optimum recovery from surgical decompression. He determined that appellant
had normal sensibility and opposition strength with abnormal sensory and motor latencies.
Dr. Berdia opined that appellant had five percent impairment of the left arm.
In a February 7, 2009 report, the Office medical adviser noted appellant’s history and
utilized the A.M.A., Guides. He noted that appellant complained of pain and decreased strength
in both hands. The Office medical adviser noted the physical examination findings from
Dr. Berdia and that nerve conduction studies showed some improvement after the release. He
referred to page 495 of the A.M.A., Guides and opined that five percent of the left upper
extremity was warranted. The Office medical adviser determined that in cases with normal
sensibility and opposition strength with abnormal sensory and/or motor latencies or abnormal
EMG testing of the thenar muscles, a residual carpal tunnel syndrome was still present, and an
impairment rating not to exceed five percent of the upper extremity was justified. The Office
medical adviser opined that appellant reached maximum medical improvement on January 25,
2007, one year from the date of the more recent carpal tunnel release.
On April 7, 2009 the Office granted appellant a schedule award for five percent
permanent impairment of the left upper extremity. The award totaled $16,933.75 and covered a
period of 18.82 weeks from January 25 to May 14, 2007.
1

A hearing representative initially issued a November 13, 2008 which erroneously referred to Dr. Drapkin as an
Office referral physician. The December 8, 2008 decision corrected the errors in the November 13, 2008 decision.

3

By notice dated April 7, 2009, the Office advised appellant of its preliminary
determination that an overpayment of $20,475.00 was created as he received $37,408.75 in
compensation for 11 percent left upper extremity impairment, whereas he only had 5 percent
impairment, entitling him to $16,933.75. Appellant was afforded the opportunity to submit
financial information and request a prerecoupment hearing. He did not respond.
By decision dated May 7, 2009, the Office finalized its preliminary determination of a
$20,475.00 overpayment of compensation. It found that appellant was not at fault in the creation
of the overpayment. The Office further found that the overpayment was not subject to waiver as
appellant did not contest the overpayment or provide financial information indicating eligibility
for waiver. It directed appellant to repay the overpayment by a lump-sum payment or to contact
the Office to make other arrangements.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act2 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.3 The Act, 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 for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.4 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.5
The fifth edition of the A.M.A., Guides, regarding carpal tunnel syndrome, provides that,
if, after an optimal recovery time following surgical decompression, an individual continues to
complain of pain, paresthesias and/or difficulties in performing certain activities, three possible
scenarios can be present: (1) positive clinical findings of median nerve dysfunction and
electrical conduction delay(s), the impairment due to residual CTS is rated according to the
sensory and/or motor deficits; (2) normal sensibility and opposition strength with abnormal
sensory and/or motor latencies or abnormal EMG testing of the thenar muscles, a residual CTS is
still present and an impairment rating not to exceed five percent of the upper extremity may be
justified; and (3) normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies, in which case there is
no objective basis for an impairment rating.6
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8107.

4

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

5

20 C.F.R. § 10.404.

6

Silvester DeLuca, 53 ECAB 500 (2002). A.M.A., Guides 495.

4

itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.7 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral tendinitis and bilateral carpal tunnel
syndrome. Appellant underwent left carpal tunnel release surgery in January 2006.
As noted above, the A.M.A., Guides provide three scenarios for determining the
permanent impairment due to carpal tunnel syndrome after an optimal recovery time following
surgical decompression.8 Utilizing these scenarios, the Board finds that the medical evidence
does not establish that appellant was entitled to receive more than five percent impairment of the
left upper extremity, for which he received a schedule award.
In support of his claim for a schedule award, appellant submitted a November 27, 2007
report from his treating physician, Dr. Drapkin, who diagnosed status post carpal tunnel
syndrome. Dr. Drapkin noted that appellant complained of numbness in all four fingers and had
some difficulty making a fist. He opined that appellant was entitled to receive a 20 percent
impairment of the hand or an 18 percent impairment of the left arm according to “Table 15” for
his carpal tunnel syndrome. Although, Dr. Drapkin indicated that he had utilized the A.M.A,
Guides, the Board is unclear how he arrived at this determination. For example it is unclear to
which Table 15 he was referring or how he arrived at this conclusion as he did not refer to
specific provisions or grading schemes in the A.M.A., Guides. Furthermore, Dr. Drapkin did not
provide any objective findings to justify his conclusion or explain how this determination
comported with the A.M.A., Guides.9 He also did not indicate that appellant’s accepted
tendinitis was ongoing or that it caused any impairment. Thus, the Board finds that this report is
insufficient to establish entitlement to a schedule award.
Likewise, the April 2, 2008 report from the Office medical adviser, based on a review of
Dr. Drapkin’s report, provides insufficient support for a greater degree of impairment. While he
calculated 11 percent impairment, his report was equivocal as he acknowledged that it was
unclear how Dr. Drapkin rated impairment noting that the information was limited and that no
detailed sensory examination was made. The Office medical adviser indicated that he was
speculating as to which tables Dr. Drapkin was referring when he attempted to calculate
impairment and questioned whether 11 percent impairment was correct. The Board has held that

7

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
8

See supra note 5.

9

See I.F., 60 ECAB ___ (Docket No. 08-2321, issued May 21, 2009) (an opinion which is not based upon the
standards adopted by the Office 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).

5

speculative and equivocal medical opinions regarding causal relationship have limited probative
value.10
In a January 7, 2009 report, Dr. Berdia examined appellant and provided examination
specific findings that included normal palmar abduction and two-point discrimination of five
millimeters in his median and ulnar distribution, and the ability to passively get his finger tips to
his palm. He explained that appellant’s distal motor latency on the left side improved from a 7.2
to 5.5. After considering examination findings and a review of the record, Dr. Berdia advised
that appellant still had residuals of carpal tunnel syndrome after carpal tunnel release. Using the
criteria for rating carpal tunnel syndrome set forth on page 495 of the A.M.A., Guides, he
concluded that appellant fell under the second scenario and had five percent impairment.
Dr. Berdia explained this finding noting that appellant had normal sensibility and opposition
strength but with abnormal sensory and motor latencies. In a February 7, 2009 report, an Office
medical adviser reviewed Dr. Berdia’s report, noted findings and concurred with his impairment
assessment.
Both Dr. Berdia and the Office medical adviser referred to page 495 of the A.M.A.,
Guides, the section on carpal tunnel syndrome. The Board notes that this provision provides for
three possible scenarios after optimum recovery time following surgical decompression in carpal
tunnel cases. As noted, the second scenario allows for up to five percent impairment of the arm
where residual carpal tunnel syndrome is present and there is normal sensibility and opposition
strength with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar
muscles. The physicians concluded that appellant had residual carpal tunnel syndrome,
explained the findings that supported the rating under the second scenario and opined that
appellant would be entitled to an impairment rating of five percent of the left upper extremity.
They found that appellant reached maximum medical improvement on January 25, 2007, one
year after his carpal tunnel release.
The Board finds that the weight of the medical evidence, as represented by the opinions
of Dr. Berdia and the Office medical adviser, establishes that appellant has no more than five
percent impairment of the left arm. There is no other medical evidence of record, based upon a
correct application of the A.M.A., Guides, to establish that appellant has more than five percent
permanent impairment of the left arm for which he received a schedule award.
On appeal, appellant alleged that he felt he was entitled to greater than the five percent
permanent impairment of the left upper extremity. He alleged that he was being punished
because Dr. Drapkin did not correctly apply the A.M.A., Guides. However, the evidence
currently in the record does not support a greater impairment.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his duty.11
10

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal).
11

5 U.S.C. § 8102(a).

6

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.12
If a claimant receives a schedule award and the medical evidence does not support the
degree of permanent impairment awarded, an overpayment of compensation may be created.13
ANALYSIS -- ISSUE 2
Appellant received a schedule award for 11 percent impairment of the left upper
extremity. The medical evidence, as discussed, only supports total impairment of five percent.
Appellant therefore erroneously received compensation for six percent impairment of his left
upper extremity to which he was not entitled. This additional amount represents an overpayment
of compensation. The Board notes that appellant initially received a payment of $37,408.75 for
11 percent impairment of the left upper extremity. The Office subsequently determined that he
was only entitled to receive an impairment of five percent to the left upper extremity, for which
he was entitled to receive a payment of $16,933.75. It subtracted the amount appellant should
have received from the amount he received ($37,408.75 - $16,933.75) and determined that he
received an overpayment in the amount $20,475.00. The Board finds that the Office properly
determined the fact and amount of overpayment. Therefore, the Board will affirm the Office’s
determination as to fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of the Act14 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. The Office must then exercise its discretion to determine whether
recovery of the overpayment would defeat the purpose of the Act or would be against equity and
good conscience.15
Section 10.436 of the implementing federal regulations16 provide that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to “defeat the purpose of the Act.”

12

Id. at § 8129(a).

13

See Michael Reed, Docket No. 04-734 (issued October 5, 2004).

14

5 U.S.C. § 8129.

15

Wade Baker, 54 ECAB 198 (2002).

16

20 C.F.R. § 10.436.

7

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.17
Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by the
Office, as this information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of the Act or be against equity and good conscience.18 This
information would also be used to determine the repayment schedule, if necessary. Section
10.438(b) provides that failure to submit the requested information within 30 days of the request
shall result in denial of waiver.19
ANALYSIS -- ISSUE 3
In its April 7, 2009 preliminary overpayment determination, the Office informed
appellant of actions available if he believed that he should receive a waiver. It advised appellant
to submit a completed overpayment recovery questionnaire as well as information and evidence
regarding his income and expenses. Appellant did not respond to the preliminary notice or
provide financial documentation.
Appellant did not submit a completed overpayment recovery questionnaire form nor did
he submit financial information outlining his income and expenses. As a result, there was no
evidence before the Office establishing that recovery of the overpayment would defeat the
purpose of the Act or would be against equity and good conscience.20 As appellant failed to
submit the requested information, as required by section 10.438 of its regulations, he was not
entitled to a waiver.21 The Board finds that the Office properly denied waiver of recovery of the
overpayment of compensation.
CONCLUSION
The Board finds that appellant did not sustain greater than a five percent impairment of
his left upper extremity for which he received a schedule award. The Board also finds that the
Office properly determined that appellant received an overpayment in the amount of $20,275.00
and determined that the overpayment was not subject to waiver.

17

Id. at § 10.437.

18

Id. at § 10.438(a).

19

Id. at § 10.438(b).

20

See 20 C.F.R. § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).
21

See T.S., 60 ECAB ___ (Docket No. 08-1604, issued March 13, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT decisions of the Office of Workers’ Compensation
Programs dated May 7 and April 7, 2009 are affirmed.
Issued: June 1, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD, Milford, MA, Employer
__________________________________________

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

Docket No. 08-1476
Issued: December 17, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 24, 2008 appellant filed a timely appeal from a February 1, 2008 merit decision
of the Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
overpayment decision.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $4,925.70 for the period June 12 through August 4, 2007; and (2) whether the Office
properly found that appellant was at fault in creating the overpayment, thus precluding waiver of
the recovery.
FACTUAL HISTORY
On August 22, 2006 appellant, then a 39-year-old surface maintenance mechanic, filed a
traumatic injury claim alleging that he crushed his right index finger while in the performance of
duty. On October 11, 2006 the Office accepted the claim for right closed fracture of the middle

or proximal phalanx and paid appropriate compensation. In its October 11, 2006 letter accepting
the claim, the Office advised appellant:
“Once you return to work, or obtain new employment, notify this Office
immediately. Full compensation is payable only while you are unable to perform
the duties of your regular job because of your accepted employment-related
condition. If you receive a compensation check which includes payment for a
period you have worked, return it to us immediately to prevent an overpayment of
compensation.”
Appellant stopped work on August 22, 2006. He underwent closed reduction and internal
fixation of a right middle phalanx comminuted fracture on August 30, 2006 and corrective
osteotomy of the right index middle phalanx on March 29, 2007. Appellant returned to full-time
modified duty with restrictions on June 12, 2007. On August 6, 2007 he called the Office to
advise that he had returned to work and to stop his compensation payments. However, appellant
was paid on the periodic compensation rolls through August 4, 2007 at the rate of $2,462.81
every 28 days.
On November 28, 2007 the Office made a preliminary determination that appellant
received an overpayment in the amount of $4,749.70 from June 12 through August 4, 2007
because he received wage-loss compensation during a period after he returned to work.
Appellant was found at fault in the creation of the overpayment because he knew or should have
known that he was not entitled to wage-loss compensation after he returned to full-time work.
An overpayment worksheet noted that he received $2,462.81 every 28 days and had received a
total of $4,925.62 during the June 10 through July 7 and July 8 through August 10, 2007
payment cycles. As appellant was entitled to $175.92 from June 10 through 11, 2007, the Office
subtracted that amount from the total $4,925.62 to find an overpayment amount of $4,749.70
from June 12 through August 4, 2007. He was advised that he could request a telephone
conference, a final decision based on the written evidence only or a hearing within 30 days if he
disagreed that the overpayment occurred, with the amount of the overpayment or if he believed
that recovery of the overpayment should be waived. The Office requested that appellant
complete an accompanying overpayment recovery questionnaire (Form OWCP-20) and submit
financial documents in support thereof within 30 days.
On January 2, 2008 appellant called the Office to contest the overpayment. He was
advised to complete the Form OWCP-20 and submit information. The Office received no further
evidence from appellant.
By decision dated February 1, 2008, the Office finalized the overpayment determination.
Appellant was at fault in the creation of the overpayment in the amount of $4,749.70.1

1

Following the February 1, 2008 decision, the Office received additional evidence. This included a completed
Form OWCP-20 from appellant dated January 2, 2008 and a check in the amount of $2,462.81. The Office also
issued a letter dated March 25, 2008, which advised that appellant had an overpayment in the amount of $2,286.89,
which he had agreed to pay during the March 25, 2008 telephone call. A copy of a Debt Amortization Schedule and
a Repayment Agreement were attached.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act2 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty.3 Section
8116 of the Act defines the limitations on the right to receive compensation benefits. This
section of the Act provides that, while an employee is receiving compensation, he or she may not
receive salary, pay, or remuneration of any type from the United States, except in limited
circumstances.4
Section 10.500 of the Office regulations provides that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $4,749.70. The record supports that he returned to full-time work on June 12, 2007, but
received wage-loss compensation until August 4, 2007. As appellant was not entitled to
compensation for any period after he returned to work, the amount of compensation that he
received from June 12 through August 4, 2007 represents an overpayment.6 The record reflects
that he received compensation at the rate of $2,462.81 every 28 days and received a total of
$4,925.62 from June 10 through August 4, 2007. Appellant was only entitled to compensation of
$175.92 for June 10 and 11, 2007. The Office subtracted this amount from $4,925.62, to find an
overpayment of $4,749.70 for the period June 12 through August 4, 2007. There is no contrary
evidence regarding the fact and the amount of the overpayment. The Board finds that an
overpayment occurred in the amount of $4,749.70 as appellant returned to work but received
wage-loss compensation from June 12 to August 4, 2007.
LEGAL PRECEDENT -- ISSUE 2
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
receives from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events which may affect entitlement to, or the amount of, benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (1) Made an incorrect statement as to a material fact which he or she knew or
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

4

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

5

20 C.F.R. § 10.500.

6

W.F., 57 ECAB 705 (2006).

3

should have known to be incorrect; or (2) Failed to provide information which he or she knew or
should have known to be material; or (3) Accepted a payment which he or she knew or should
have known to be incorrect (this provision applies only to the overpaid individual).7
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.8
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. It found that he accepted payments which he knew or should have known to
be incorrect following his return to full-time employment. Even if the overpayment resulted
from negligence on the part of the Office, this does not excuse the employee from accepting
payment which he knew or should have known to be incorrect.9
Appellant received an overpayment of compensation in the amount of $4,749.70 by direct
deposit. This occurred in two payments of $2,462.81 for the period June 10 through July 7 and
July 8 through August 4, 2007. The Office found that appellant should have known that he
received an incorrect payment for total temporary disability because he had been advised to
return any money he received after returning to work. The Board has found a claimant to be at
fault in cases where he or she is receiving compensation checks through direct deposit which
involve a series of payments over several months with clear knowledge that the payments were
incorrect.10 It is not appropriate, however, to make a finding that a claimant has accepted an
overpayment by direct deposit until such time as a reasonable person would have been aware that
an overpayment had occurred.
This awareness could be established either through
documentation such as a bank statement or notification from the Office or where a reasonable
period of time has passed during which a claimant could have reviewed independent
confirmation of the incorrect payment.11
Since Office regulations define fault by what the claimant knew or should have known at
the time of acceptance, one of the consequences of electronic fund transfers is that in many cases
the claimant will not be at fault for accepting the first incorrect payment because the requisite
knowledge is lacking at the time of deposit.12 Appellant had no reason to suspect at the time the
first overpayment of $2,462.81 was deposited into his checking account that the Office had
7

20 C.F.R. § 10.433(a).

8

Id. at § 10.433(b).

9

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

10

See Karen K. Dixon, 56 ECAB 145 (2004).

11

See K.H., Docket No. 06-191 (issued October 30, 2006).

12

See Karen K. Dixon, supra note 10.

4

issued an incorrect payment, given that this was the first incorrect payment made by the Office.13
As the funds were deposited directly into his bank account, he was not in a position to
immediately decline acceptance of the amount paid by the Office. The Board finds that appellant
was not at fault in accepting the first payment of $2,462.81 for the period June 10 through July 7,
2007, of which $2,286.89 was an overpayment.14 A finding of no fault, however, does not mean
he may keep the money, only that the Office must consider his eligibility for waiver for this
period. After such further development as is deemed necessary, the Office shall issue an
appropriate decision on the issue of waiver for the relevant portion of the June 10 through July 7,
2007 direct deposit payment.
With respect to the second payment of $2,462.81 for the period July 8 through August 4,
2007, the Board finds appellant was with fault in creating such overpayment. Appellant was
informed by the Office on October 11, 2006 that he was to immediately report to the Office a
return to work and return any compensation received after a return to work or otherwise an
overpayment of compensation would be created. He returned to work on June 12, 2006.
Appellant additionally reported his return to work to the Office on August 6, 2007 and asked that
compensation payments be discontinued. He therefore knew or should have known that an
overpayment would be created if he accepted compensation benefits after his return to work. For
these reasons, the Board finds that, under the circumstances of this case, the Office properly
found appellant at fault for the second overpayment of $2,462.81 for the period July 8 through
August 4, 2007.
As noted, the Office improperly found that appellant was at fault in the creation of the
overpayment in the amount of $2,286.89, for the period June 12 through July 7, 2007. As
appellant was without fault for this portion of the overpayment, recovery of the overpayment of
compensation in the amount of $2,286.89 may be considered for waiver.15 Thus, the February 1,
2008 Office decision is affirmed, as modified.16
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $4,749.70 for the period June 12 through
August 4, 2007. The Board further finds that the Office properly found that appellant was at
fault for the overpayment paid from July 8 through August 4, 2007, but reversed as to fault for
13

See Tammy Craven, 57 ECAB 689 (2006).

14

Id. Since appellant was entitled to $175.92 of the first payment of $2,462.81, the first overpayment equaled
$2,286.89.
15

The guidelines for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.434, 10.436, 10.437.
16

The Board notes that the Office instituted recovery procedures on the overpayment amount of $2,286.89.
However, with respect to the disposition of this case, such recovery procedures are premature. Furthermore, it is
noted that repayment of the overpayment is not an issue in this case as appellant is not in receipt of continuing total
disability payments. With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those
cases where the Office seeks recovery from continuing compensation benefits under the Act. 20 C.F.R. § 10.441(a);
see also Joan Ross, 57 ECAB 694 (2006); Bob R. Gilley, 51 ECAB 377 (2000).

5

the portion of the overpayment paid from June 12 to July 7, 2007. The case is remanded for
determination of waiver on the portion of the overpayment for which appellant was found to be
at fault.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed in part, as modified, and remanded for further
proceedings consistent with this opinion.
Issued: December 17, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
SOCIAL SECURITY ADMINSTRATION,
OFFICE OF MANAGEMENT & BUDGET,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 12-1234
Issued: November 9, 2012

Case Submitted on the Record

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

JURISDICTION
On May 15, 2012 appellant, through her attorney, filed a timely appeal of the
December 13, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) which
affirmed a decision denying her claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty.

1
2

5 U.S.C. §§ 8101-8193.

Following issuance of the December 13, 2011 decision, appellant submitted new evidence to OWCP. The
Board may not consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On January 26, 2011 appellant, then a 54-year-old contact representative, filed a
traumatic injury claim, alleging that, on the same date at 8:30 a.m., she slipped on pavement in
front of her office building and fell hitting her knee and twisting her hip. She stopped work on
January 26, 2011 and returned to work on April 20, 2011. Appellant’s supervisor noted on the
Form CA-1 that appellant’s tour of duty was 8:00 a.m. to 4:30 p.m. and that the injury occurred
in the performance of duty.
Appellant submitted a February 24, 2011 return to work slip from Dr. John D.
MacGillivray, a Board-certified orthopedic surgeon, who noted that appellant had right knee
surgery on February 15, 2011 and needed aggressive physical therapy. Dr. MacGillivray opined
that she was totally disabled. In a March 23, 2011 attending physician’s report, he noted that
appellant complained of right knee pain for one year. Dr. MacGillivray diagnosed right lateral
meniscus tear and arthritis and checked a box “yes” that her condition was aggravated by the
January 26, 2011 fall. He performed a right knee scope, meniscectomy and chondroplasty and
advised that appellant was totally disabled.3 In a March 28, 2011 duty status report,
Dr. MacGillivray noted that she was totally disabled.
On April 13, 2011 OWCP advised appellant of the type of evidence needed to establish
her claim. It particularly requested that she submit a physician’s reasoned opinion addressing the
relationship of her claimed condition and specific work factors.
Appellant submitted an April 6, 2011 duty status report from Dr. MacGillivray, who
noted clinical findings of a meniscal tear and opined that she could return to restricted duty on
April 18, 2011. In an April 15, 2011 return to work slip, Dr. MacGillivray advised that she was
status post right knee surgery and could return to restricted duty on April 18, 2011. He
recommended aggressive physical therapy for eight weeks.
On June 2, 2011 OWCP denied appellant’s claim on the grounds that the medical
evidence was insufficient to establish that a medical condition was related to the established
work-related events.
On June 21, 2011 appellant requested an oral hearing which was held on
October 11, 2011. She submitted a January 6, 2011 report from Dr. MacGillivray, who treated
her for pain and swelling in her right knee commencing one year earlier. Dr. MacGillivray noted
the physical examination revealed a moderate to large effusion, posterior medial joint line
tenderness and positive lateral joint line tenderness. On February 3, 2011 he diagnosed torn
lateral meniscus and chondromalacia in the medial femoral condyle and recommended a partial
lateral meniscectomy. In reports dated February 24 to April 6, 2011, Dr. MacGillivray noted that
appellant was status post one month from surgery and had pain and swelling with a moderate
effusion. He noted that x-rays showed grade 4 chondromalacia and he recommended steroid
injections. In a September 22, 2011 report, Dr. MacGillivray noted initially seeing appellant on
January 6, 2011 for right knee pain which existed for one year. He noted objective findings of a
large effusion with tenderness over the midline and lateral joint line. Dr. MacGillivray
3

The operative report is not in the case record.

2

diagnosed right lateral medial meniscus tear and performed a lateral meniscectomy and
chondroplasty. In addressing causal relationship, he noted that appellant fell at work. Other
reports from Dr. MacGillivray, dated February 24 to April 15, 2011, were previously of record.
A January 6, 2011 x-ray of the right knee revealed tricompartmental degenerative arthrosis with
joint line osteophytes and a small effusion. A magnetic resonance imaging (MRI) scan of the
right knee dated January 26, 2011 revealed a grade 4 chondral loss on the weightbearing medial
femoral condyle with small medial joint line osteophytes, tear of the anterior horn and body of
the lateral meniscus, grade 2 to 4 chondral loss on the lateral tibial plateau with subchondral
marrow edema and lateral joint line osteophytes, joint effusion with popliteal cyst and
chondromalacia patella.
By decision dated December 13, 2011, OWCP’s hearing representative affirmed the
decision dated June 2, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether an employee actually sustained an 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.5 The second component of fact of
injury is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.6
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
4

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

5

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

6

Id.

3

by the claimant.7 The weight of medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.8
ANALYSIS
In the instant case, it is not disputed that appellant worked as a contact representative and
that on January 26, 2011 she slipped and fell at work. It is also not disputed that she was
diagnosed with a right lateral meniscal tear and chondromalacia. However, appellant has not
submitted sufficient medical evidence to establish that her right lateral meniscal tear and
chondromalacia was causally related to the January 26, 2011 fall. On April 13, 2011 OWCP
advised her of the type of medical evidence needed to establish her claim. Appellant did not
submit a rationalized medical report from a physician sufficiently explaining how the January 26,
2011 fall caused or aggravated a diagnosed medical condition.
Appellant submitted several reports from Dr. MacGillivray. In a September 22, 2011
report, Dr. MacGillivray noted initially seeing her on January 6, 2011 for right knee pain which
existed for one year. He diagnosed a meniscus tear and, in addressing causal relationship, stated
that appellant fell at work. While Dr. MacGillivray supported causal relationship, he did not
provide medical rationale explaining the basis of his conclusion.9 The need for medical
reasoning is particularly important where appellant had a prior right knee condition for which he
was treating her. In a March 23, 2011 attending physician’s report, Dr. MacGillivray checked a
box “yes” that appellant’s condition was aggravated by her January 26, 2011 fall. The Board has
held that an opinion on causal relationship which consists only of a physician checking “yes” to a
medical form report question on whether the claimant’s condition was related to the history
given is of little probative value. Without any explanation or rationale for the conclusion
reached, such report is insufficient to establish causal relationship.10 Other reports from
Dr. MacGillivray either predated the claimed work injury or did not specifically address how the
January 26, 2011 fall caused or aggravated her medical condition.11
Other medical reports submitted by appellant, such as reports of diagnostic testing
including the January 6, 2011 x-ray of the right knee and January 26, 2011 MRI scan of the right
knee are insufficient to establish the claim as these reports did not provide an opinion on the
causal relationship between her job and her diagnosed medial meniscus tear.
For these reasons, OWCP properly found that appellant did not meet her burden of proof
in establishing her claim.
7

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

8

Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
9

Id.

10

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

11

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

4

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 her
claimed conditions were causally related to her employment.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, U.S. PENITENTIARY CANAAN,
Waymart, PA, Employer
__________________________________________

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

Docket Nos. 10-1196
Issued: March 4, 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 March 26, 2010 appellant, through his attorney, filed a timely appeal of the March 8,
2010 merit decision of the Office of Workers’ Compensation Programs affirming the denial of
his claim for leave buy back. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant was entitled to leave buy back for 240 hours from
January 23 to April 2, 2006 due to his accepted employment injury.
On appeal, counsel contends that the Office hearing representative’s decision is contrary
to fact and law.

FACTUAL HISTORY
The Office accepted that on September 26, 2005 appellant, then a 31-year-old correction
officer, sustained a right ankle strain in the performance of duty.1 Appellant stopped work on
January 22, 2006. On February 2, 2006 Dr. Guido LaPorta, a podiatrist, performed arthroscopic
surgery with percutaneous distraction and applied an external fixation device to treat appellant’s
traumatic right ankle arthritis. He noted a history of trauma that occurred many years prior to the
right ankle with arthritis spurring to the anterior distal tibia and the dorsal aspect of the talar
dome of the right ankle. On March 9, 2006 Dr. LaPorta performed surgery to remove the
external fixation device from appellant’s right lower extremity.
On March 20, 2006 Dr. Elaine A. O’Donnell, an attending podiatrist, released appellant
to return to light-duty work on March 30, 2006.2
By decision dated April 21, 2006, the Office denied appellant’s request for authorization
of his February 2 and March 9, 2006 right ankle surgeries on the grounds that there was
insufficient medical evidence addressing how the surgeries were causally related to the accepted
September 26, 2005 employment injury.
On May 15, 2006 appellant filed a claim to buy back 240 hours of sick leave he used
from January 23 to April 2, 2006.
In treatment notes dated March 15 to May 26, 2006, Dr. O’Donnell listed findings on
physical and x-ray examination. She advised that appellant was status post severe right ankle
arthritis. Appellant was also status post arthroscopic surgery and removal of the external fixator
of the right foot/ankle secondary to ankle distraction.
In a June 6, 2006 report, Amy Brill, a physical therapist, addressed the treatment of
appellant’s right ankle.
By letters dated June 20, 2006, the Office advised appellant about the deficiencies in his
claim. It requested that he provide additional factual and medical evidence to support his
disability for the claimed period.
Reports from Ms. Brill addressed the treatment of appellant’s right ankle from March 20
to August 8, 2006.
In treatment notes dated June 29 and August 27, 2006, Dr. O’Donnell listed findings on
physical and x-ray examination. She advised that appellant had post-traumatic arthritis
secondary to trauma to the right ankle. Appellant also had pain. Dr. O’Donnell released him to
return to full-duty work as of July 11, 2006.

1

The record reflects that appellant rolled over on his right ankle while conducting a fence security check.

2

The record indicates that appellant was scheduled to return to light-duty work at the employing establishment on
April 3, 2006.

2

In an undated letter, the employing establishment stated that appellant performed lightduty work from April 3 to July 11, 2006 until he was released to full-duty work by an attending
physician. Appellant was unable to perform light-duty work from January 23 to April 2, 2006
due to his employment-related right ankle injury as it required that his leg be placed in traction.
On September 20, 2006 Dr. Arnold T. Berman, an Office medical adviser, reviewed the
medical record. He noted that appellant had preexisting arthritic changes of the ankle joint with
flattening of the talar dome at the time of the September 26, 2005 employment injury.
Dr. Berman also noted that appellant sustained a right ankle fracture in 2001, but did not know if
the ankle fracture was work related. He advised that the appropriate treatment for the accepted
condition should have been a brace or cast immobilization followed by a period of rehabilitation
for two months. There was no evidence of record to establish that the employment-related right
ankle sprain aggravated appellant’s preexisting ankle osteoarthritis. Dr. Berman recommended
that the February 2 and March 9, 2006 right ankle surgeries not be authorized as employment
related.
In a February 3, 2006 x-ray report of appellant’s right ankle, Dr. Frank A. Piro, a Boardcertified radiologist, advised that arthritic changes were seen at the ankle and subtalar joints.
The ankle joint appeared slightly widened. Spurs were found at both joints. No subluxation or
dislocation was found. Dr. Piro stated that an external metallic skeletal traction device that he
placed across the right ankle obscured some of the bones of the hindfoot and midfoot which
could have reduced the examination’s sensitivity. In an October 21, 2006 x-ray report of
appellant’s left ankle, he found, among other things, a fixation screw in relation to the fourth and
fifth proximal metatarsals.
In a December 8, 2006 x-ray report of appellant’s left ankle, Dr. Jose L. Gonzalez, a
Board-certified radiologist, advised that the operative screw which was at the base of the fourth
and fifth metatarsals had been surgically removed.
In a November 29, 2007 form report, Dr. O’Donnell provided a history of the
September 26, 2005 employment injury. She advised that appellant had arthritic changes and
flattening of the talar dome which caused pain in his right ankle. Dr. O’Donnell indicated with
an affirmative mark that the condition was caused or aggravated by the September 26, 2005
employment injury. She advised that appellant could perform his usual job duties with no
restrictions as of March 2, 2007.
On August 31, 2009 Dr. Morley Slutsky, an Office medical adviser, reviewed the medical
record. He concurred with Dr. Berman’s opinion that the February 2 and March 9, 2006 right
ankle surgeries should not be authorized as they were not causally related to the September 26,
2005 employment injury. Dr. Slutsky advised that the medical evidence of record did not
establish that the accepted employment injury aggravated, accelerated or exacerbated appellant’s
preexisting ankle condition.
3

3

Dr. Slutsky reviewed the medical record because the Office determined that it appeared Dr. Berman was not
provided with a statement of accepted facts based on his recommendation that appellant undergo an orthopedic
examination. Also, it was unclear as to whether Dr. Berman reviewed the entire medical record.

3

By decision dated September 2, 2009, the Office denied appellant’s claim for leave buy
back on the grounds that the medical evidence did not establish that he was totally disabled from
January 23 to April 2, 2006 due to the September 26, 2005 employment injury.
On September 5, 2009 appellant, through counsel, requested a telephone hearing with an
Office hearing representative. In a January 21, 2006 treatment note, Dr. O’Donnell provided a
history that he was running when he twisted his right ankle. Appellant experienced increased
pain since this incident. Dr. O’Donnell listed findings on physical and x-ray examination which
included arthritic changes within the right ankle joint, flattening of the talar dome and
questionable multiple fractures. She advised that appellant was a candidate for reconstructive
surgery, scoping and possible reconstruction of the lateral right ankle ligaments. In an undated
addendum to January 21, 2006 treatment note, Dr. O’Donnell advised that surgery was
performed due to his right ankle injury. In an undated form report, she indicated with an
affirmative mark that appellant’s peroneal tendon damage was caused by the twisting of his
ankle as he walked. Dr. O’Donnell advised that he could return to work with restrictions. She
also advised that appellant sustained permanent disability and further surgeries were necessary.
In an undated work capacity evaluation (Form OWCP-5c), Dr. O’Donnell advised that he was
unable to perform his usual job. Appellant could work eight hours a day with permanent
restrictions. In a September 4, 2009 report, Dr. O’Donnell provided a history that appellant
twisted his lateral ankle while walking at work. She stated that he sustained a partially torn
peroneal tendon fracture of the fifth metatarsal and post-traumatic arthritis of the right ankle.
Future surgery would be necessary.
In a September 27, 2005 medical record, the employing establishment’s health unit
provided a history that on September 26, 2005 appellant sustained a right ankle injury while
walking on a sidewalk during a fence check.
In a March 9, 2006 x-ray report of appellant’s right ankle, Dr. David Sabbar, Boardcertified in nuclear medicine, found evidence of bony absorption involving the tip of the right
lateral malleolus with osteoporosis and soft tissue swelling. An inflammatory process in this
region could not be excluded. Dr. Sabbar suggested comparisons with a magnetic resonance
imaging scan of the right ankle.
In a March 8, 2010 decision, an Office hearing representative affirmed the September 2,
2009 decision, finding that the medical evidence did not support disability for the period
January 23 to April 2, 2006 due to the September 26, 2005 employment injury.
LEGAL PRECEDENT
Appellant has the burden of proving by the preponderance of the reliable, probative and
substantial evidence that he was disabled for work as the result of an employment injury.4
Monetary compensation benefits are payable to an employee who has sustained wage loss due to
disability for employment resulting from the employment injury.5 Whether a particular
4

David H. Goss, 32 ECAB 24 (1980).

5

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

4

employment injury causes disability for employment and the duration of that disability are
medical issues which must be proved by a preponderance of reliable, probative and substantial
medical evidence.6
In situations where compensation is claimed for periods where leave was used, the Office
has the authority to determine whether the employee was disabled during the period for which
compensation is claimed.7 It determines whether the medical evidence establishes that an
employee is disabled by an employment-related condition during the period claimed for leave
buy back, after which the employing establishment will determine whether it will allow the
employee to buy back the leave used.8
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between his claimed injury and his
employment.9 To establish a causal relationship, appellant must submit a physician’s report in
which the physician reviews the employment factors identified by appellant as causing his
condition and, taking these factors into consideration, as well as findings upon physical
examination of appellant and his medical history, state whether the employment factors caused
or aggravated appellant’s diagnosed conditions and present medical rationale in support of his or
her opinion.10
ANALYSIS
The Office accepted that appellant sustained a right ankle strain while conducting a fence
security check in the performance of duty on September 26, 2005. Appellant subsequently filed
a claim for leave buy back for 240 hours of disability from January 23 to April 2, 2006, a period
of disability related to his right ankle surgeries. The Board finds, however, that the medical
evidence does not support that his accepted ankle stress caused or contributed to the need for
surgery.
Dr. O’Donnell’s treatment notes found that appellant had post-traumatic right ankle
arthritis for which he underwent surgeries and was secondary to trauma to the right ankle. She
opined that the surgeries were performed as a result of a right ankle injury. To the extent that
Dr. O’Donnell attributed the arthritic right ankle condition and resultant surgeries to the
September 26, 2005 employment injury, the arthritic condition is not an accepted condition. She
did not adequately explain how the September 26, 2005 sprain accepted by the Office would
cause or contribute to appellant’s preexisting right ankle arthritis or need for surgery.
Dr. O’Donnell did not provide full history of appellant’s treatment for his right ankle with
6

Edward H. Horten, 41 ECAB 301 (1989).

7

Laurie S. Swanson, 53 ECAB 517 (2002); see also 20 C.F.R. § 10.425, which provides: “The employee may
claim compensation for periods of annual and sick leave which are restorable in accordance with the rules of the
employing [establishment]. Forms CA-7 and CA-7b are used for this purpose.”
8

Laurie S. Swanson, supra note 7.

9

Donald W. Long, 41 ECAB 142 (1989).

10

Id.

5

reference to the fracture noted in 2001.11 In forms reports, Dr. O’Donnell checked a box marked
yes to indicate that appellant’s arthritic pain and peroneal tendon damage were caused or
aggravated by the September 26, 2006 employment injury. It is well established that reports
which only address causal relationship with a check mark without more by way of medical
rationale do not explain adequately how the incident caused the injury. This evidence is
insufficient to establish causal relationship and is of diminished probative value.12
Dr. O’Donnell did not explain how the diagnosed arthritic degeneration or tendon damage were
caused or contributed to by the September 26, 2005 sprain.13 The Board notes that pain is
generally considered a symptom, not a firm medical diagnosis.14 Dr. O’Donnell found that
appellant could return to work with restrictions, but she did not provide sufficient opinion
explaining how his disability during the claimed period was causally related to the accepted
employment condition.15 She also failed to provide an opinion on the causal relationship
between appellant’s disability during the claimed period and the accepted employment injury in
a Form OWCP-5c which addressed his ability to work full time with restrictions and
September 4, 2009 report which found that he had a partially torn peroneal tendon fracture of the
fifth metatarsal and post-traumatic arthritis of the right ankle that required surgery.16 The Board
finds that Dr. O’Donnell’s reports are insufficient to support his claim of employment-related
disability for the hours claimed.
The reports of Ms. Brill, a physical therapist, are of no probative value in establishing
appellant’s claim. A physical therapist is not a “physician” as defined under the Federal
Employees’ Compensation Act.17
The diagnostic test results of Dr. Piro, Dr. Gonzalez and Dr. Sabbar are insufficient to
establish appellant’s claim as the physicians did not address the issue of causal relation.18

11

See Charlene R. Herrera, 44 ECAB 361, 370 (1993) (finding that appellant has the burden of proof in
establishing that a condition not accepted by the Office is causally related to employment factors).
12

See Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M. Jones, 34 ECAB 379 (1982).

13

See Gloria J. McPherson, 51 ECAB 441 (2000) (the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant).
14

C.F., 60 ECAB ___ (Docket No. 08-1102, issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

15

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

16

Id.

17

See 5 U.S.C. § 8101(2); A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

18

See cases cited, supra note 15.

6

The employing establishment’s health unit note did not provide an opinion addressing the
causal relation of appellant’s disability for the claimed period to the September 26, 2006
employment injury.19
The Board finds that appellant failed to provide sufficient medical evidence to establish
that his claimed disability from November 6, 2004 to March 10, 2006 was causally related to his
accepted September 26, 2005 employment injury. Appellant did not meet his burden of proof.
On August 31, 2009 Dr. Slutsky reviewed the medical evidence and found that the
February 2 and March 9, 2006 right ankle surgeries were not medically necessary. He explained
that there was insufficient evidence of record to establish that the September 26, 2005
employment injury had aggravated, accelerated or exacerbated appellant’s preexisting right ankle
arthritis or talar dome flattening. Dr. Slutsky provided medical rationale to support his opinion
that the February 2 and March 9, 2006 right ankle surgeries were not medically necessitated due
to the accepted condition. The Board finds that his report is sufficient to establish that any
disability from work due to the right ankle surgeries was not work related.
On appeal, appellant contends that the Office’s decision is contrary to fact and law. For
reasons previously stated, the Board finds that appellant did not submit sufficient medical
evidence in support of his claim.
CONCLUSION
The Board finds that appellant failed to establish that he was disabled for 240 hours from
January 23 to April 2, 2006 due to his accepted employment injury.

19

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 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

8