United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 15-0407
Issued: March 24, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 11, 2014 appellant, through counsel, filed a timely appeal from a
November 4, 2014 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 the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established permanent impairment of a scheduled
member, warranting a schedule award.
FACTUAL HISTORY
On September 25, 2004 appellant, then a 34-year-old security screener injured her left
arm and shoulder when lifting bags at work. OWCP accepted her claim for left arm pain, left
shoulder tendinitis, adhesive capsulitis of the left shoulder, and left carpal tunnel syndrome.3 It
authorized a left carpal tunnel release performed on January 20, 2005 and left shoulder
arthroscopic surgery performed on September 28, 2006.
Appellant stopped work on
September 26, 2004, but returned to work on March 8, 2005 and worked intermittently
thereafter. On September 13, 2008 she stopped work completely.
Appellant was treated by Dr. Alfonso Mejia, a Board-certified orthopedic surgeon, from
October 21 to December 2, 2004 for left arm pain and numbness after a work-related lifting
incident. On January 20, 2005 Dr. Mejia performed a left carpal tunnel release and diagnosed
left carpal tunnel syndrome. On September 28, 2006 he performed a left shoulder arthroscopic
acromioplasty, and diagnosed left shoulder impingement. A magnetic resonance imaging scan of
the left shoulder dated February 18, 2006 revealed rotator cuff tendinitis. Appellant was treated
by Dr. Herbert Engelhard, III, a Board-certified orthopedist, for neck and bilateral arm pain since
her work injury in 2004. Dr. Engelhard noted that conservative treatment had failed. On
April 29, 2009 he performed anterior cervical discectomies at C4-5 and C5-6, anterior cervical
arthrodesis at C4-5 and C5-6, and diagnosed cervical radiculopathy. On January 26, 2012
Dr. Engelhard performed an anterior cervical discectomy at C6-7 and arthrodesis from C6-7.4
An electromyogram (EMG) dated March 8, 2011 showed evidence of a chronic cervical
polyradiculopathy on the left, involving the C7-T1 dermatomes.
Thereafter, in the course of developing the claim, OWCP referred appellant to several
second opinion physicians and to an impartial medical adviser with regard to whether she had
ongoing residuals of the accepted conditions. The referee physician, Dr. Jaroslaw B. Dzwinyk, a
Board-certified orthopedist, in a report dated July 26, 2012, noted that examination of both
shoulders revealed no swelling, no atrophy, active elevation was full to 180 degrees bilaterally,
internal rotation to the T8 spinous process bilaterally, passive range of motion (ROM) of both
shoulders was unrestricted, and the impingement sign was positive bilaterally. He opined that
appellant did not have residuals of the September 1 and 25, 2004 work injuries and could return
to her regular work duties.
On August 15, 2012 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits based on the referee physician’s report. In an October 22, 2012 decision, it
3

Appellant filed a claim for injuries sustained on or about September 1, 2004, which was accepted for right
carpal tunnel syndrome and right shoulder sprain, File No. xxxxxx915. This claim was consolidated with the
current claim before the Board.
4

OWCP did not authorize the cervical surgeries.

2

terminated her wage-loss compensation and medical benefits, effective that date, finding that the
medical evidence of record established that she had no continuing residuals of her accepted
conditions. Appellant requested a hearing. On April 30, 2013 an OWCP hearing representative
affirmed the October 22, 2012 decision.
Appellant continued to be treated by Dr. Engelhard from October 3, 2012 to March 8,
2013 for cervical and lumbar radiculopathy. On March 8, 2013 Dr. Engelhard opined that she
reached maximum medical improvement and was stabilized.
On August 5, 2013 appellant filed a claim for a schedule award (Form CA-7).
In an August 7, 2013 letter, OWCP requested that appellant’s treating physician evaluate
the extent of her permanent impairment of the arms under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides).5
Appellant submitted an October 30, 2013 report from Dr. Neil Allen, a Board-certified
neurologist and internist, based on an August 15, 2013 examination. Dr. Allen reviewed the
history of injury and treatment. On right shoulder examination he found a mild/moderate global
tenderness, negative for anterior and posterior instability, neurovascular examination was intact
over the shoulder, and muscle strength was normal. For the left shoulder, there was severe
global tenderness. Appellant was negative for anterior and posterior instability. Neurovascular
examination was intact over the shoulder joint. Muscle strength was normal in the deltoid,
triceps, biceps, and internal rotators. It was 4/5 in the external rotators. The right wrist had no
atrophy. Soft touch and sharp/dull discrimination intact over the entire hand and radial pulses
were intact bilaterally. Muscle strength was normal except grip strength rated at 3/5. The
Phalen’s and Tinel’s sign at the carpal tunnel was negative. For the left wrist and hand,
Dr. Allen noted no atrophy, moderate global tenderness, and intact soft touch and sharp/dull
discrimination over the palmar surface of the hand. Radial pulses were intact bilaterally. Muscle
strength was 3/5 for flexion and extension as well as grip strength, while it was normal for radial
and ulnar deviation. Phalen’s and Tinel’s sign at the carpal tunnel was negative.
Dr. Allen used the ROM methodology to rate shoulder impairment.6 He noted 110
degrees of right arm flexion was three percent impairment, 50 degrees of extension was no
impairment, 105 degrees of abduction was three percent impairment, 40 degrees of adduction
was no impairment, 50 degrees of internal rotation was two percent impairment, and 70 degrees
of external rotation was no impairment. These totaled eight percent right arm permanent
impairment. For the left shoulder, 105 degrees of flexion was three percent impairment, 60
degrees of extension was no impairment, 105 degrees of abduction was three percent
impairment, 40 degrees of adduction was no impairment, 65 degrees of internal rotation was two
percent impairment, and 75 degrees of external rotation was no impairment. These totaled eight
percent left arm permanent impairment.

5

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

6

Id. at 475, Table 15-34.

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Dr. Allen noted the diagnosis-based impairment (DBI) methodology was used to rate
right and left wrist impairment. He referenced the Wrist Regional Grid at Table 15-4, page 399
of the A.M.A., Guides. Dr. Allen noted “the DBI is a class one impairment with a default value
of one percent upper extremity impairment.” He assigned a functional history adjustment of two
based on a QuickDASH score of 80, appellant’s reports of pain with less-than-normal activity,
and being able to perform self-care activities with modification but unassisted. The physical
examination adjustment7 was a grade modifier one (moderate palpatory findings, consistently
documented, without observed abnormalities, motion mildly reduced in wrist flexion, negative
for atrophy). The clinical studies adjustment8 was not used as these were not available for
review. Dr. Allen concluded that appellant had nine percent permanent impairment of each arm
based on eight percent impairment of the shoulder region and one percent impairment of the
wrist region. He asserted that the ROM method was the most accurate way to assess impairment
in the shoulder region. Dr. Allen noted that he used the DBI method for the wrists, instead
attempting to rate carpal tunnel syndrome as appellant’s medical records lacked evidence of
clinical diagnostic testing for carpal tunnel syndrome.
In a December 9, 2013 report, an OWCP medical adviser disagreed with Dr. Allen’s
impairment determination based on the motion measurements recorded. The medical adviser
noted that on January 20, 2005 appellant underwent a left carpal tunnel release and in
September 2006, she had a subacromial decompression on the left shoulder. He further noted
that she subsequently had two cervical spine surgeries that were not work related. The medical
adviser noted that, because there was DBI for shoulder tendinitis, the ROM method should not
be used by Dr. Allen. He further noted that the impartial examination by Dr. Dzwinyk noted
normal ROM for both shoulders and wrists without any significant neurological findings. The
medical adviser noted the EMG completed March 8, 2011 identified no evidence of carpal tunnel
syndrome, but instead showed electrophysiological evidence of a chronic cervical
polyradiculopathy on the left involving the C7-Tl dermatomes. He found no objective evidence
for any upper extremity impairment due to the shoulder or wrist conditions.
In a decision dated February 6, 2014, OWCP denied appellant’s claim for a schedule
award.
On February 10, 2014 appellant requested an oral hearing which was held on
August 18, 2014.
By decision dated November 4, 2014, an OWCP hearing representative affirmed the
February 6, 2014 decision.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has

7

Id. at Table 15-8, p. 408.

8

Id. at Table 15-9, p. 410.

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vested the authority to implement the FECA program with the Director of OWCP.9 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.10 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.11
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).12 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.13
ANALYSIS
The issue on appeal is whether OWCP properly denied appellant’s request for a schedule
award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.14
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal

9

See 20 C.F.R. §§ 1.1-1.4.

10

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
11

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

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
13

Isidoro Rivera, 12 ECAB 348 (1961).

14

T.H., Docket No. 14-0943 (issued November 25, 2016).

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justice under the law to all claimants.15 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.16
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the November 4, 2014
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

15

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

16

Supra note 14.

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ORDER
IT IS HEREBY ORDERED THAT the November 4, 2014 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.17
Issued: March 24, 2017
Washington, DC

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

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

17

James A. Haynes, Alternate Judge, participated in the original decision, but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE ARMY, BLUEGRAS
ARMY DEPOT, Richmond, KY, Employer
__________________________________________

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

Docket No. 14-1762
Issued: December 23, 2014

Case Submitted on the Record

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

JURISDICTION
On August 8, 2014 appellant, through his attorney, filed a timely appeal from the
March 6, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 9, 2014 as he had no residuals of the accepted conditions.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new evidence on appeal. However, the Board lacks jurisdiction to review evidence for the
first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On March 24, 2005 appellant, then a 67-year-old security officer filed a traumatic injury
claim alleging that on March 18, 2005 he sustained a knee injury. He alleged that as he kneeled
down on a mat during handcuff training, a screw inside the mat punctured his right knee.
Appellant stopped work on March 18, 2005 and returned to work on March 22, 2005.
In a March 18, 2005 report, Dr. Thomas Cervoni, a Board-certified orthopedic surgeon,
advised that appellant had a right knee anterior puncture that likely penetrated the prepatellar
bursa. On March 28, 2005 he noted that the right knee anterior puncture wound was stable with
no signs infection. Dr. Cervoni advised that appellant had returned to full function of the right
knee. He also diagnosed left knee medial collateral ligament sprain and medial meniscal tear,
advising that, when appellant injured his right knee, he likely had twisting injury to his left knee.
Dr. Cervoni noted that appellant was experiencing left knee pain and palpitation over the medial
collateral ligaments. In an April 25, 2005 magnetic resonance imaging (MRI) scan report,
Dr. Steven Goldstein, a Board-certified radiologist, advised that left knee imaging revealed
degenerative changes involving the posterior horn of the medial meniscus. In a May 6, 2005
report, he stated that appellant had no persistent symptoms or recurrent pain, swelling or
mechanical symptoms in the left knee. Dr. Goldstein advised that the puncture wound on the
anterior aspect of the knee was well-healed with no swelling or infection. Dr. Cervoni diagnosed
improved left knee meniscal tear and stable right knee anterior puncture wound. He released
appellant to regular duty.
By decision dated December 5, 2005, OWCP accepted appellant’s claim for right knee
puncture wound, strain/sprain of the left knee, and left knee tear of the medial meniscus.
Appellant did not seek further treatment for his knees until 2012. In a June 18, 2012
report, Dr. Mark Secor, an orthopedic surgeon, diagnosed medial compartment degenerative
joint disease of the right knee. He advised that appellant injured his right knee several years
earlier when a screw punctured it and that he had been having difficulty ever since. Dr. Secor
opined that it may represent degenerative changes from 2005 which may or may not have been
accelerated by the screw incident.
In an August 16, 2012 report, Dr. Secor noted that appellant sustained a right knee
puncture wound on March 18, 2005. He advised that questions remained as to whether the
degenerative change was preexisting or whether it was accelerated or caused by the work injury
appellant sustained.
In a November 18, 2012 notice of recurrence (Form CA-2a), appellant alleged that his
knee pain was present since his original injury. He advised that he was limited in his
performance after returning to work because he was unable to pass a physical agility test. The
employing establishment indicated that appellant was currently working light duty for another
injury3 and advised that a reduction in force had recently been announced at his work site.

3

The record indicates that matters pertaining to a left shoulder condition have been developed by OWCP in a
separate claim that is not presently before the Board.

2

By letter dated December 10, 2012, OWCP advised appellant that there was no need to
adjudicate his recurrence claim because no wage-loss compensation or payment for expenses
was being claimed. Appellant subsequently indicated that he sought payment of medical
expenses.
On February 8, 2013 OWCP referred appellant to Dr. Stanley Collis, a Board-certified
orthopedic surgeon, for a second opinion examination regarding whether appellant had residuals
of his accepted conditions. It provided Dr. Collis with the medical record, a statement of
accepted facts, and a list of questions to be answered.
In a February 26, 2013 report, Dr. Collis noted the history of injury, advising that on
March 18, 2005 appellant injured his prepatellar bursa when a screw punctured his right knee.
He advised that appellant related a lot of right knee pain with weight bearing which required him
to use a cane at times. Dr. Collis noted that currently the knee had some puffiness, stiffness,
minimal effusion, and weakness of the quadriceps. Appellant had full right knee extension and
could flex the knee to about 60 degrees. Ligaments were stable and intact. Dr. Collis advised
that an x-ray of the right knee revealed advanced degenerative arthritis on the medial side of his
joint. He diagnosed advanced degenerative arthritis in the medial compartment of the right knee.
Dr. Collis opined that appellant’s condition was due to age and was not a residual effect of the
injury. With respect to the accepted condition of punctured right knee, he advised that the skin
healed well, there was no point tenderness in the area of the puncture, and that the prepatellar
bursa seemed to be intact. Dr. Collis explained that he found no evidence of inflammation or
point tenderness in the area of the stab injury. He concluded that, based on examination, record
review, and x-rays, there was no evidence of an ongoing work-related injury.
By letter dated April 29, 2013, OWCP asked Dr. Collis for clarification because his
report only addressed the right knee. The letter also advised him to address whether the accepted
work injury aggravated or accelerated appellant’s arthritis. Dr. Collis responded on May 2, 2013
that appellant had not complained of any work-related left knee problems. He stated that the
right knee aggravation was only temporary and was fully resolved. Dr. Collis also reiterated that
appellant’s right knee arthritis was developmental due to his genes and was not work related.
OWCP subsequently sought further evaluation from Dr. Collis. In an August 6, 2013
report, Dr. Collis noted examining appellant on that date and related the history of the left knee
injury. He advised that appellant related to him that he twisted his left knee during the March 18,
2005 work incident. Appellant related that the right knee was his main problem although he
stated that he continued to have some left knee pain. Dr. Collis noted that upon physical
examination the left knee had normal configuration and that it looked normal in appearance. He
further noted that appellant had full flexion and full extension with no apparent pain. No
instability of the left knee was noted. Dr. Collis advised that a left knee x-ray revealed some
decrease of space of the medial compartment of the knee joint. He diagnosed minimal arthritis
of the medial compartment of the left knee. Dr. Collis opined that this condition was not work
related. He attributed any left knee discomfort to his minimal left knee arthritis, his weight, and
the fact that he was using his left knee more frequently because of the developmental arthritis of
the right knee. Dr. Collis explained that his examination of the left knee was unremarkable for a
75-year-old man of his weight. He concluded that appellant did not have any work-related
problems with either the left or right knee.

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By letter dated December 11, 2013, OWCP notified appellant that it proposed to
terminate his medical benefits based on the reports of Dr. Collis. Appellant was advised that he
had 30 days to submit any medical evidence to dispute termination.
By decision dated March 6, 2014, OWCP terminated appellant’s medical benefits,
effective March 9, 2014.
LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation and medical benefits,4 which includes furnishing rationalized
medical opinion evidence based on a proper factual and medical background.5 Having
determined that an employee has a disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability ceased or was no
longer related to the employment.6 The right to medical benefits for an accepted condition, on
the other hand, is not limited to the period of entitlement to disability compensation. To
terminate authorization for medical treatment, OWCP must establish that an employee no longer
has residuals of an employment-related condition, which would require further medical
treatment.7
ANALYSIS
OWCP accepted appellant’s claim for right knee puncture wound, strain/sprain of the left
knee, and left knee tear of the medial meniscus. Appellant was released from treatment on
May 6, 2005 and did not seek treatment for his knees until seven years later in 2012. The Board
finds that OWCP met its burden of proof to terminate appellant’s medical benefits for the
accepted conditions.
In both his June 18 and August 16, 2012 reports, Dr. Secor diagnosed medial
compartment degenerative joint disease of the right knee. In these reports, he stated that he was
unsure as to whether appellant’s current condition was preexisting or whether it was accelerated
or caused by the work injury appellant sustained. The Board has held that medical opinions
which are speculative or equivocal are of diminished probative value.8 Dr. Secor did not provide
any unequivocal support that appellant had an ongoing employment-related knee condition.

4

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

5

D.C., Docket No. 09-1070 (issued November 12, 2009); Larry Warner, 43 ECAB 1027 (1992).

6

I.J., supra note 4.

7

L.G., Docket No. 09-1692 (issued August 11, 2010); Furman G. Peake, 41 ECAB 361, 364 (1990).

8

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).

4

In view of Dr. Secor’s equivocal opinion, OWCP referred appellant to Dr. Collis for a
second opinion. In his February 26, 2013 report, Dr. Collis noted right knee examination
findings and diagnosed advanced degenerative arthritis on the medial part of his right knee joint.
He advised that appellant’s condition was not related to any residual effects of the work incident
and that it was developmental and brought about because of age. Dr. Collis further stated that
the right puncture wound of the right knee was well healed and that the condition was fully
resolved. After OWCP asked him to address appellant’s left knee, Dr. Collis, in a May 2, 2013
report, stated that appellant did not complain of any work-related left knee problems. Dr. Collis
stated that the right knee aggravation was only temporary and was fully resolved. He also
reiterated that appellant’s right knee arthritis was developmental due to his genes and was not
work related. OWCP subsequently asked Dr. Collis to examine appellant again and, in his
August 6, 2013 report, Dr. Collis diagnosed minimal arthritis of the medial compartment of the
left knee. Dr. Collis noted detailed left knee findings and opined that the left knee condition was
not work related. He opined that appellant’s left knee discomfort was aggravated by his weight
and the fact that he was using his left knee more frequently because of the developmental
arthritis of the right knee. Dr. Collis found no basis on which to attribute any condition in either
knee to appellant’s employment.
The Board finds that Dr. Collis provided a comprehensive, well-rationalized opinion in
which he clearly advised that appellant did not have residuals of the accepted conditions. The
Board finds that his opinion represents the weight of the medical evidence. As noted, the reports
from Dr. Secor provided, at best, equivocal support for causal relationship while Dr. Collis
examined appellant twice, reviewed the medical record, and concluded that appellant currently
had no condition in either knee that was caused or aggravated by his employment. As a result,
OWCP properly terminated appellant’s medical benefits for the accepted condition effective
March 9, 2014.
On appeal, appellant argued that OWCP solely based its decision on Dr. Collis’ report
and did not consider differing opinions from a Veterans hospital where he received treatment.
The Board notes that it reviewed all evidence of record at the time of its March 6, 2014 decision.
As explained, the weight of this evidence supports that appellant no longer has residuals of his
accepted work injuries.
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 OWCP met its burden of proof to terminate appellant’s
compensation benefits effective March 9, 2014.

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ORDER
IT IS HEREBY ORDERED THAT the March 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
T.E., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
NATIONAL GUARD -- CALIFORNIA,
Sacramento, CA, Employer
__________________________________________

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

Docket No. 08-1955
Issued: March 5, 2009

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 July 7, 2008 appellant filed a timely appeal from a June 12, 2008 merit decision of the
Office of Workers’ Compensation Programs denying his emotional condition claim. Under
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 sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
On August 3, 2005 appellant, then a 36-year-old human resource assistant, filed an
occupational disease claim alleging that he sustained an emotional condition as a result of his
employment duties. He stated that he first realized a causal relationship between his condition
and his employment on May 18, 2004. Appellant alleged that it was stressful developing
relationships and friendships with military personnel whom he was assisting and then putting

them in harm’s way. He noted losing acquaintances in the war and alleged that it was stressful
working in his environment during wartime. Appellant noted that he had been in the military for
a long time and had seen so much. He stated that he had to wear a military uniform which
reopened some traumatic experiences. Appellant stated that it was stressful wearing a military
uniform in his neighborhood, which was anti-military, poverty stricken and filled with gangs.
He stated that he was robbed twice and his home was “broken into.” Appellant also alleged that
it was stressful having to constantly speak to military personnel on the telephone. He was
terminated April 1, 2005.
By letter dated August 24, 2005, the Office requested additional information from
appellant. It asked him to provide details regarding employment-related conditions or incidents
he believed contributed to his condition, as well as a comprehensive medical report containing a
diagnosis and an opinion, with medical reasons, explaining how employment conditions
contributed to the diagnosed condition.
In an undated letter, received by the Office on September 12, 2005, appellant stated that
every time he would receive a battle roster list, he would pull the folder for people being
deployed to Iraq. He stated that the realization of knowing he was attributing to activating those
people to go into a war zone was very stressful. Appellant indicated that he was part of the
Desert Storm operation and that reflecting on his past experience to the present situation
contributed to his condition. He alleged that entering the checkpoint each day was a detriment to
his health. Appellant advised that his building received bomb threats at least three times a
month. He stated that he and a coworker were required to transport military records for soldiers
being activated to Iraq. Appellant stated that it was emotionally hard for him as he had worked
with a couple of the men being deployed and the war was at its climax. He noted that he worked
part time while being treated for his emotional condition. In an undated letter received
September 19, 2005, appellant stated that he first became aware of his condition and its
relationship to his employment on August 18, 2004 and that he stopped work on April 1, 2005.
He noted experiencing loss of memory, confusion, anger, depression and physical ailments as a
result of such work conditions.
In October to November 2004 progress notes, Dr. Ronald E. Allen, a clinical
psychologist, provided an assessment of history of psychosis; history of paranoid schizophrenia;
and history of “seizure.”
In a February 1, 2006 decision, the Office denied appellant’s claim, finding that he had
failed to establish a compensable factor of employment. On February 21, 2006 appellant
requested an oral hearing, which was held on January 25, 2007.
In a January 27, 2007 letter, appellant reiterated his previous contentions. He indicated
that, when entering his building, there was a list of those who had died in active duty and that he
knew three of those who had died. Appellant stated that seeing this list everyday was stressful as
he had a hard time dealing with death and violence. He noted that he had a prior emotional
condition in 2002, when he was in the Army National Guard. Appellant stated that, although he
was on active duty, he was never deployed during Desert Strom due to his emotional condition.
He indicated that one day he had to pull over 200 folders of soldiers being activated and that it
was emotionally stressful to see that many soldiers being deployed into a terrible situation.

2

Appellant indicated that he had trouble sleeping and had feelings of severe anxiety and paranoia.
He stated that it was also stressful not knowing when it would be his time to go to Iraq.
Appellant stated that in September 2004 he had to wear his military uniform at all times and that
wearing the uniform home from work added to his depression and stress. He further stated that
the people he worked with were constantly being sent to Iraq and the possibility of them not
returning alive was hard to handle such that it was difficult to function in his job. Appellant
alleged that the work environment and ethic of how things were administered also caused or
contributed to his emotional condition. He stated that it was stressful to see the pictures of
soldiers who had died as he had to see it everyday as he walked to his workstation. Appellant
indicated that, after he was terminated, his car was repossessed and his house was “broken into.”
He indicated that he was angry and depressed because of his debts and that he could no longer
work.
In a January 26, 2007 letter, Dr. Edward L. Eaton, a Board-certified psychiatrist,
indicated that since 2004 during appellant’s national guard work and job working as a human
resource assistant, he began having difficulty in that he was pulling records of friends and
employees which caused emotional stress as he knew that they were going to be put in “harm’s
way” by being sent to Iraq. He further noted that appellant reduced his workday to part time
while he was in treatment for his emotional condition.
Progress notes from Dr. Allen from March to October 2004 contained a provisional
diagnosis of paranoid schizophrenia. Of record were also medical treatment notes from 2002
pertaining to appellant’s emotional conditions; an October 3, 2006 magnetic resonance imaging
(MRI) scan; and copies of appellant’s current medications.
By decision dated April 3, 2007, the Office hearing representative modified the
February 1, 2006 decision to reflect that appellant established two compensable work factors.
These were: (1) that appellant was required to pull about 50 personnel folders per day between
June 2004 and April 2005 for personnel being sent to active duty in Iraq; and (2) that he and a
coworker were required to transport military records for soldiers being sent to active duty in Iraq.
The hearing representative, however, affirmed the denial of appellant’s claim as the medical
evidence did not establish that his emotional condition was caused by the established work
factors.
On March 10, 2008 appellant requested reconsideration. He asserted that the medical
evidence supported his claim and that what he had submitted was proof that he was required to
wear a military uniform during employment. A duplicate copy of Dr. Eaton’s January 26, 2007
report was submitted along with an indiscernible scanned photograph.
Appellant also submitted partial copies of his Veterans’ Administration Medical Center
(VAMC) records dated January 21, 2004 through July 4, 2007. This was comprised of: a partial
report dated March 12, 2007 for a neurology consult with Dr. Harvinder Mundh, a neurologist,
for seizure disorder; a partial report dated January 24, 2007 from Dr. David B. Crawford, a
psychiatrist, diagnosing recurrent moderate major depression; a partial undated report indicating
that appellant was seen for neck pain following a motor vehicle accident; a January 22, 2004
note from Dr. Susan Sanfilippo, a clinical psychologist, providing an assessment of
schizophrenia; a January 21, 2004 note from a clinical social worker, noting that appellant

3

wanted a post-traumatic stress disorder evaluation due to his service in the Gulf War; and a
July 4, 2007 note that he was seen by an orthopedist for left knee pain.
In a February 6, 2008 medical report, Dr. Lenton Morrow, a psychiatrist, noted
appellant’s psychiatric history. He noted that appellant was working as a human resource
assistant and worked part time due to medical reasons. Dr. Morrow noted appellant’s job, in
part, consisted of pulling and organizing folders for Iraq–bound soldiers. He noted that appellant
was depressed, sad and angry about this as he felt like he was abetting their departure to Iraq and
felt guilty about potentially putting them in “harm’s way.” Dr. Morrow diagnosed psychosis
(probably schizophrenia) and adjustment disorder with depressed mood and anxiety. He
observed that appellant had historical symptoms of psychosis and currently experienced rather
hefty guilt about his role in soldiers’ lives as they went to war. Dr. Morrow advised that it was
unclear whether this represented a distortion of his reality consistent with psychosis or whether it
was a feature of depressive symptoms, although his VA records suggested the former. He stated
that it was unclear whether appellant’s job was the cause of his symptoms or if his symptoms
were from the natural history of the course of his psychotic condition and this was exacerbated
by job stresses. Dr. Morrow opined that it was the former and that this suggested appellant had
an adjustment disorder.
By decision dated June 12, 2008, the Office affirmed the April 3, 2007 decision denying
appellant’s claim.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of his work or
his fear and anxiety regarding his ability to carry out her work duties.1 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.2
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
1

Ronald J. Jablanski, 56 ECAB 616 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

2

Id.

4

factors of employment and may not be considered.3 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.4 As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim, but rather, must be corroborated by the
evidence.5 Mere perceptions and feelings of harassment will not support an award of
compensation.6
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that an emotional condition was caused or adversely affected by her
employment.7 Neither the mere fact that a disease or condition manifests itself during a period
of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish a causal relationship.8
ANALYSIS
Appellant alleged a variety of matters contributed to his emotional condition. Some of
his allegations involve administrative or personnel matters. As a general rule, such
administrative actions are not covered by workers’ compensation. There is an exception,
however, where the evidence establishes error or abuse by the employer in an administrative or
personnel matter.9 The Office found, and the record supports, that appellant observed a list of
people who had died in Iraq, three of which he knew and that he was terminated on
April 1, 2005. Appellant also alleged that he had to go through a checkpoint. He, however,
failed to provide sufficient evidence of error or abuse in management’s handling of these
matters. All employees were confronted by the same list of people when entering the work area
and were required to enter through the same checkpoint. In addition, the record fails to
substantiate any improprieties with the handing of the termination. Therefore, appellant has not
established a compensable factor of employment with regard to these administrative and
personnel matters.
While appellant alleged that he was required to wear a military uniform to and from
work, that he was required to engage in constant telephone contact with military personnel and
3

Dennis J. Balogh, 52 ECAB 232 (2001).

4

Id.

5

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).
6

Beverly R. Jones, 55 ECAB 411 (2004).

7

See Charles D. Edwards, 55 ECAB 258 (2004).

8

See Ronald K. Jablanski, 56 ECAB 616 (2005).

9

See supra note 7.

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that his building was subjected to three bomb threats, he submitted no probative evidence to
substantiate such allegations. To the extent that he is asserting this amounts to harassment or
disparate treatment, the Board has held that mere perceptions and feelings of harassment or
discrimination will not support an award of compensation.10 The claimant must substantiate
such allegations with probative and reliable evidence. Appellant’s statements are too vague to be
accepted as factual as they are lacking in detail to support that the events occurred as alleged.
For example, there is no evidence that he was required to wear his uniform while performing his
federal civilian duties or that he was required to wear it home. Appellant did not provide
sufficient detail to establish what bomb threats occurred while he worked on particular dates or
exactly what his telephone contact with military personnel entailed and to what extent. As there
is no probative evidence to substantiate such allegations, any reaction appellant may have had is
considered self-generated. Furthermore, while appellant did not provide any evidence regarding
his allegations that his house and car were “broken into,” these events would not be considered
in the performance of duty as they are not related to his everyday duties or special assignments in
his employment. Likewise, absent error or abuse, appellant’s reaction to events following the
termination of his federal employment is not a compensable factor of employment.
Appellant alleged that working in an environment during war time was stressful. He
advised that he felt he was sending the people deployed to active duty in Iraq into “harm’s way.”
However, there is no evidence that appellant was involved in the selection process or issuing
orders to activate any individuals to active duty. Thus, his perception of what may or may not
happen to these individuals, beyond his established work duties, is considered self-generated.
Furthermore, while it upset appellant to see photos of fallen soldiers on the wall he passed to get
to his workstation and upset him to work with and establish relationships with people who might
become or were activated to go to Iraq, his desire to work in a certain environment is not
considered to be a compensable factor of employment.
The Office accepted two compensable work factors: (1) that, between June 2004 and
April 2005, appellant was required to pull approximately 50 folders per day folders for personnel
being deployed to active duty in Iraq; and (2) that appellant and another coworker were required
to transport military records for soldiers being activated to go to war in Iraq. Under Cutler,11
appellant has established compensable work factors. This is not enough, however, to entitle him
to benefits. Appellant must further establish a causal connection between these compensable
factors of employment and his diagnosed medical conditions. He must establish that he
sustained an injury arising out of the employment.12
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s opinion on the issue of
10

See Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment
to give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
11

Lillian Cutler, supra note 1.

12

Beverly R. Jones, supra note 6.

6

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 compensable employment factors identified by the claimant.13
The medical evidence is insufficient to establish that appellant sustained an emotional
condition causally related to his federal employment. The medical evidence indicates that
appellant had been evaluated and treated for various psychiatric and orthopedic conditions.
However, the majority of the medical evidence does not discuss appellant’s specific work tasks
or projects which the Office accepted as compensable work factors or explain how the
compensable work factors contributed to an emotional condition.
In his February 6, 2008 report, Dr. Morrow noted appellant’s job, in part, consisted of
pulling folders for Iraq-bound soldiers and his guilt associated with that task. He diagnosed
psychosis (probably schizophrenia) and adjustment disorder with depressed mood and anxiety.
Dr. Morrow advised that it was unclear whether appellant’s guilt about his role in soldier’s lives
as they go to the Iraq war was based on his psychosis or depressive symptoms. He stated that he
believed appellant’s job was the cause of his symptoms and that he had an adjustment disorder.
However, Dr. Morrow failed to provide any reasoned explanation regarding the relationship of
appellant’s work duties to his emotional condition. His support for causal relationship is also
equivocal in nature as he also noted that it was unclear regarding whether appellant’s job caused
or aggravated his emotional condition.14 Dr. Morrow’s report is not sufficient to establish that
appellant sustained an emotional condition causally related to a compensable work factor.
The record also contains partial reports from the VAMC physicians. Thus, it is unknown
whether the diagnosis provided is based on a complete and accurate factual background as little
to no history is discernable from such reports. A physician’s opinion must be based on a
complete and accurate factual and medical background and must be supported by medical
rationale.15 Furthermore, the reports of Dr. Crawford and Dr. Sanfilippo fail to offer any opinion
regarding whether the two accepted work factors causes or aggravated appellant’s diagnosed
condition. 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.16 Thus,
these reports are insufficient to establish appellant’s claim.
In his March to October 2004 progress notes, Dr. Allen provided a provisional diagnosis
of paranoid schizophrenia. However, in addition to not providing a more definitive diagnosis, he
did not specifically address whether the compensable employment factors caused or aggravated
the diagnosed condition. In his January 26, 2007 report, Dr. Eaton indicated that appellant had
13

Gary J. Watling, 52 ECAB 278 (2001); Donna Faye Cardwell, supra note 10.

14

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions which are
speculative or equivocal in character have little probative value).
15

Roger Dingess, 47 ECAB 123 (1995).

16

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

7

emotional stress since 2004 pulling records of friends and employees who were being activated
to go to Iraq. He, however, failed to provide a diagnosed condition or explain how appellant’s
compensable work factor of pulling records caused or contributed to an emotional condition
based on appellant’s belief that such persons were going to be put in harm’s way by being
activated and sent to Iraq. As noted 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.
The remainder of the medical records, including those from VAMC, are insufficient to
establish appellant’s claim. For example, appellant submitted a January 21, 2004 note from a
social worker. However, as a social worker is not a physician as defined under the Act, the
January 21, 2004 note does not constitute competent medical evidence.17 Appellant also
submitted various other medical records that do not pertain to his claimed emotional condition.
As these reports are not relevant to his claim for an emotional condition, they are insufficient to
establish his claim.
There is no rationalized medical evidence of record, based on a complete and accurate
factual background, explaining how appellant’s diagnosed conditions of psychosis and
adjustment disorder were caused or aggravated by the two accepted employment factors.
Therefore, the Office properly denied his emotional condition claim.
CONCLUSION
The Board finds that appellant has failed to establish that his emotional condition was
causally related to a compensable factor of employment.

17

See Phillip L. Barnes, 55 ECAB 426 (2004). See 5 U.S.C. § 8101(2).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 12, 2008 is affirmed.
Issued: March 5, 2009
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
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, Vallejo, CA,
Employer
__________________________________________

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

Docket No. 08-2073
Issued: April 3, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from a May 8, 2008 decision of the
Office of Workers’ Compensation Programs that found that he received an overpayment in
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $2,334.00; (2) whether the Office properly found appellant at fault and therefore not
entitled to waiver of the overpayment; and (3) whether the Office properly required repayment of
the overpayment by deducting $194.50 every 28 days from appellant’s continuing compensation.
On appeal appellant noted that he was incarcerated for the period December 18, 2006 to
June 24, 2008 and that his brother Donail Hood took care of his business while he was
incarcerated. He stated that the checks in question were sent to 814 Almond Street where he
lived with a girl prior to his imprisonment. Appellant contended that she had stolen the checks.

FACTUAL HISTORY
This case has previously been before the Board. By decision dated June 21, 1996, the
Board affirmed an April 7, 1994 Office decision that found that the selected position of carwash
attendant fairly and reasonably represented appellant’s wage-earning capacity.1 The law and the
facts of the previous Board decision are incorporated herein by reference.
Appellant remained on the periodic rolls, and in an undated letter, received by the Office
on February 14, 2007, advised that his compensation check for January 2007 was missing. He
stated that he had moved “out of my last address” to 2428 Alemeda Street in Vallejo, California.
Appellant stated that he had informed the post office around January 1, 2007 and was now
informing the Office.2 In an April 2, 2007 letter, the Office advised him that tracers were placed
for checks dated January 20, February 17 and March 17, 2007 and replacements were authorized
for the three checks. It stated, “If any of the missing checks show up, you must return them to
this office. If you negotiate them, you will be at fault in creating an overpayment.” The record
contains copies of checks for $778.00 dated January 20, February 17 and March 17, 2007,
covering the period December 24, 2006 to March 17, 2007. Each was mailed to 320 East Tabor
Street, Apartment 31, Fairfield, California and endorsed with signatures purporting to be
appellant’s. A replacement check in the amount of $2,334.00 was mailed to appellant at 2423
Alemeda Street, Vallejo, California, on April 6, 2007 to cover the period December 24, 2006 to
March 17, 2007. By letter dated September 11, 2007, the Office provided appellant with copies
of the negotiated checks. Appellant was asked to examine them, and if the signatures were not
his, did he recognize them.
On April 9, 2008 the Office issued a preliminary determination that an overpayment of
compensation in the amount of $2,334.00 had been created because appellant was paid twice for
the period December 24, 2006 to March 17, 2007. It found appellant at fault because he was
informed on April 2, 2007 that he would be at fault if the missing checks were negotiated.
Appellant had not responded to the September 11, 2007 letter. He was provided an overpayment
questionnaire and instructed regarding the preliminary finding. Appellant was given 30 days to
respond. On May 8, 2008 the Office finalized the overpayment and requested repayment in full.
By letter dated June 18, 2008, it informed appellant that, since he had not responded to the
overpayment decision requesting repayment in full, the sum of $194.50 would be withheld from
his continuing compensation payments, effective July 5, 2008.3
1

Docket No. 94-1823 (issued June 21, 1996).

2

Appellant had moved numerous times. In December 2002, he informed the Office that he had moved from 434
Wilshire Avenue, Vallejo California to 752 Sunset Avenue #8, Suisun, California. In August 8, 2003, appellant
informed the Office that he had moved from Suisun to 1100 Farmington Drive #162, Vacaville, California, in
February 2005 from Vacaville to 433 Admiral Callaghan Lane, Vallejo, California, and in December 2005 to 320
East Tabor Street #31, Fairfield, California.
3

On June 9, 2008 the Office proposed to suspend appellant’s compensation benefits because he failed to appear
for a scheduled medical examination. On June 10, 2008 it adjusted appellant’s compensation from the 75 percent
augmented rate of 66 2/3 percent rate because he had no eligible dependents. By decision dated July 31, 2008, the
Office finalized the proposed suspension. In a letter received August 22, 2008, appellant requested reconsideration
of the July 31, 2008 decision.

2

LEGAL PRECEDENT -- ISSUE 1
Section 8102 of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of duty.5 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.6
ANALYSIS -- ISSUE 1
The Board finds that an overpayment in compensation in the amount of $2,334.00 was
created. The record reflects that the Office issued three checks for $778.00 each on January 20,
February 17 and March 17, 2007. After appellant’s report that he did not receive the
compensation checks, a replacement check in the amount of $2,334.00 was issued. By letter
dated April 2, 2007, the Office informed appellant that tracers would be put on the January,
February and March checks. If any of the missing checks showed up, he must return them to the
Office and, if negotiated, he would be at fault in creating an overpayment. Each of the January,
February and March compensation checks was endorsed with appellant’s name. By letter dated
September 11, 2007, the Office provided appellant with copies of the negotiated checks and
asked him to examine them and address whether the signatures were not his and to indicate
whether he recognized them. Appellant did not respond to this letter or to the preliminary
overpayment determination dated April 9, 2008.
On appeal appellant asserts that he was imprisoned during the period the checks were
sent and that his brother conducted his business. However, he did not adequately explain his
endorsement of the compensation checks. The Board finds that an overpayment in compensation
in the amount of $2,334.00 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office 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.”7
Section 10.433(a) of the Office’s regulation provides that the Office:
“[M]ay 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
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8102(a).

6

Id. at § 8129(a).

7

Id. at § 8129; see Joan Ross, 57 ECAB 694 (2006).

3

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 in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or 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).”8
In determining whether a claimant is at fault in creating an overpayment, the Office will
consider the circumstances surrounding the overpayment. The degree of care expected by a
recipient of compensation may vary with the complexity of the circumstances and the
individual’s capacity to realize that he or she is being overpaid.9
ANALYSIS -- ISSUE 2
The Board finds that appellant was at fault in the creation of the overpayment as he
accepted a payment which he knew or should have known was incorrect. By letter dated April 2,
2007, the Office informed appellant that he would be at fault if the missing checks were
negotiated. The record reflects that each check was endorsed with his name. As noted, appellant
did not respond to the Office’s September 11, 2007 letter in which he was provided copies of the
negotiated checks and asked to respond about the endorsing signatures. He knew or should have
known that he accepted payments by replacement check that was incorrect. Appellant’s
argument that the checks were stolen is not persuasive. The Board finds appellant was at fault in
the creation of the overpayment.10 Therefore, the overpayment may not be waived.11
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of the Office’s regulations provides that when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to the
Office the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, the Office shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate of

8

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

9

20 C.F.R. § 10.433(b); see Neill D. Dewald, 57 ECAB 451 (2006).

10

See Ricky Greenwood, 57 ECAB 462 (2006).

11

Tammy Craven, 57 ECAB 689 (2006).

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compensation, the financial circumstances of the individual and any other relevant factors, so as
to minimize hardship.12
ANALYSIS -- ISSUE 3
Appellant did not submit an overpayment recovery questionnaire or other financial
information that the Office requested prior to the final May 8, 2008 overpayment decision. The
overpaid individual is responsible for providing information about income, expenses and assets
as specified by the Office.13 When an individual fails to provide requested financial information,
the Office should follow minimum collection guidelines designed to collect the debt promptly
and in full.14 As appellant did not submit financial information as requested, the Board finds that
there is no evidence of record to show that the Office erred in directing recovery at a rate of
$194.00 each compensation period.
CONCLUSION
The Board finds that an overpayment of $2,334.00 occurred because appellant received
duplicate wage-loss compensation payments. The Board further finds that the Office properly
found appellant at fault and did not abuse its discretion in requiring repayment of the
overpayment at the rate of $194.00 each compensation period.15

12

20 C.F.R. § 10.441; see Steven R. Cofrancesco, 57 ECAB 662 (2006).

13

20 C.F.R. § 10.438.

14

Frederick Arters, 53 ECAB 397 (2002); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Chapter 6.200.4(c)(2) (September 1994).
15

The Board also notes that section 8148(b) of the Act provides that benefits of beneficiaries imprisoned as a
result of felony conviction shall be suspended as of the date of imprisonment. Danny E. Haley, 56 ECAB
393 (2005). In his appeal to the Board, appellant indicated that he was imprisoned from December 2006 to
June 2008. There is, however, no evidence of record to show whether this was a felony conviction.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2008, as modified on June 18, 2008, be affirmed.
Issued: April 3, 2009
Washington, DC

David S. Gerson, 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
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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Appearances:
Jacqueline Shanahan, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0887
Issued: November 4, 2016

Case Submitted on the Record

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

JURISDICTION
On March 25, 2016 appellant, through counsel, filed a timely appeal of a February 10,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish a lower back injury
causally related to the accepted July 1, 2014 employment incident.
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.

On appeal counsel alleges that the reports of appellant’s treating physicians establish that
his lumbar condition is causally related to the accepted employment incident.
FACTUAL HISTORY
Appellant, a 55-year-old truck driver, filed a traumatic injury claim (Form CA-1) on
August 13, 2014, alleging that he experienced severe pain in his lower back while placing a
chock block under the rear tire of his vehicle on July 1, 2014. He stopped work on July 1, 2014.3
In a disability note dated July 29 2014, Dr. William P. Docken, Board-certified in internal
medicine, advised that appellant was still disabled due to lower back pain.
By letter to appellant dated August 26, 2014, OWCP advised him that it required
additional factual and medical evidence to determine whether he was eligible for compensation
benefits. It asked him to submit a comprehensive medical report from his treating physician
describing his symptoms and an opinion as to whether his claimed condition was causally related
to his federal employment. Appellant was afforded 30 days to submit the additional evidence.
In a September 9, 2014 report, Dr. Bahige Asaker, an osteopath, related that appellant
originally felt severe pain on July 1, 2014 while putting a chock block under the wheel of his
truck at work and that he had been out of work since that time. He noted that appellant had a
history of low back pain dating back to 2012. Dr. Asaker reported that he saw appellant on
August 6, 2014 for a follow up of a magnetic resonance imaging (MRI) scan that showed a disc
protrusion at the L5-S1 level and spondylosis at the T-11 and T-12 levels with some neural
impingement. Appellant related that he still had intermittent pain and sometimes had problems
moving from a sitting to a standing position. Dr. Asaker diagnosed left-sided radiculopathy and
noted that his MRI scan also showed an L2-3 mild disc bulging and congenital narrowing of the
spinal canal, resulting in a mild central stenosis at the L3-4 levels. He reported an asymmetric
disc bulge with moderate to marked central spinal stenosis and moderate right L3 neural stenosis
and right L3 neural impingement; a moderate asymmetric disc bulge at L4-5, greater posterior on
the left, showing bilateral L4 neural impingement; a nerve root sheath arising from the thecal sac
at L5-S1; bilateral mild L5 neural foraminal stenosis, L11 and L12 spondylosis with a mild disc
bulge; and stenosis of the back with some disc spurring, joint disease and old trauma. Dr. Asaker
noted that appellant underwent x-ray testing on July 3, 2014 which showed degenerative joint
disease and old trauma. He advised that he was unable to work due to the lifting, continuous
sitting, and standing involved in his work, which aggravated his lower back condition.
By decision dated September 26, 2014, OWCP denied appellant’s claim, finding that he
failed to meet his burden of proof to establish a lower back injury causally related to the accepted
July 1, 2014 employment incident.
In a form dated and postmarked October 22, 2014, appellant, though counsel, requested
an oral hearing before an OWCP hearing representative. On February 17, 2015 appellant,
through counsel, requested review of the written record instead of an oral hearing.
3

OWCP accepted a traumatic injury claim (Form CA-1), which appellant filed on May 30, 2012 under case
number xxxxxx891. The claim was accepted for lumbar strain.

2

In a report dated July 10, 2014, received by OWCP on February 17, 2015, Dr. Asaker
noted that appellant hurt his back at work in May 2012 and had recently sustained another injury
to his lower back. He reported that appellant worked at the employing establishment and
frequently lifted boxes. Dr. Asaker advised that his back pain radiated into his left leg. He
diagnosed back strain, L3-4 disc spurring and degenerative disc disease. Dr. Asaker advised that
appellant underwent x-ray testing on July 3, 2014 which showed narrowing of the L4-5 disc with
spurring and spurring at the L3-4 levels. He opined that he had degenerative joint disease and
old trauma. Dr. Asaker noted that the 2012 back injury intermittently flared up and that
appellant was afraid that if he returned to work the employing establishment might not have light
duty available; he was concerned that he might have to return to lifting heavy boxes, which could
cause permanent injury to his back.
In a report dated November 4, 2014, Dr. Docken advised that appellant was experiencing
ongoing low back pain, which was increased by bending, stooping, and lifting. He advised that,
due to the persistence of his back pain, appellant was no longer able to perform the duties of his
job. Dr. Docken reported that his current symptoms could have an element of local, myofascial
pain, with underlying degenerative disease of the lumbar spine. He further asserted that
appellant had lumbar spinal stenosis, which was of degenerative origin and probably not related
to the 2012 injury.
In a November 17, 2014 report, received by OWCP on February 17, 2015,
Dr. Christopher M. Bono, Board-certified in orthopedic surgery, advised that appellant had left
lower back pain which began in 2012 while at work. He then returned to work and reinjured his
back in 2014, when he experienced an acute onset of severe lower back pain. Dr. Bono advised
that appellant’s pain increased when he transitioned from sitting to standing, bending, and sitting
for long or standing for too long.
In an April 28, 2015 decision, OWCP’s hearing representative affirmed the
September 26, 2014 decision as modified. She found that the reports from Drs. Docken, Asaker,
and Bono, did diagnose medical conditions, but that they were insufficient to establish causal
relationship.
On July 7, 2015 OWCP received a July 2, 2014 report, in which Dr. Docken noted that
appellant incurred acute low back pain while working on July 1, 2014. He noted that he was
experiencing persistent low back pain due to a post-traumatic low back strain syndrome and
underlying degenerative disease of the lumbar spine. Dr. Docken advised that appellant had
moderate-to-marked central canal stenosis at the L3-5 levels and right paracentral disc protrusion
at L5-S1, with contact of exiting right S1 nerve root.
In a July 2, 2015 report, Dr. Joseph S. Barr, a specialist in orthopedic surgery, advised
that he examined appellant on May 14, 2015. He related that appellant injured his back on
July 1, 2014 while working as a truck driver; appellant placed a block wedge under the wheel of
his truck when he experienced sudden, acute lower back pain. Appellant noted his history of
having a back injury in 2012 and being out of work for two and one half months, and that he had
not been able to work since July 1, 2014. Dr. Barr reported that appellant underwent an MRI
scan on August 1, 2014 that showed degenerative changes throughout the lumbar spine, with
moderate to marked spinal stenosis at L3-4 and L4-5. He advised that the radiologist who

3

performed the MRI scan considered the stenosis to be congenital. Dr. Barr opined that
appellant’s status was post-lumbar sprain, work connected. He noted preexisting lumbar spine
problems, with one episode of lumbar problems in 2012 causing him to be out of work. Dr. Barr
opined that the July 2014 work incident caused a permanent aggravation in the underlying
process, as evidenced by the MRI scan findings of lumbar stenosis.
By decision dated August 12, 2015, OWCP denied appellant’s claim, finding that he
failed to meet his burden of proof to establish a lower back injury causally related to the July 1,
2014 work incident. It found that none of the medical reports provided a sufficiently rationalized
explanation as to how the diagnosed medical conditions were related to the claimed July 1, 2014
work incident.
By letter dated and reconsidered on October 21, 2015 appellant, through counsel,
requested reconsideration of the August 12, 2015 decision.
In a September 9, 2014 report, Dr. Barr essentially reiterated his previous findings and
conclusions. He asserted that he was not implying in his July 2, 2015 report that appellant’s
spinal stenosis was traumatically induced. Dr. Barr advised that his conditions of lumbar
degenerative changes and spinal stenosis were preexisting and were permanently aggravated by
the July 1, 2014 work incident. He reported that the July 1, 2014 work incident of bending and
twisting “could cause” slight increased swelling of the disc as well as swelling in the lumbar
facet joints. Dr. Barr reiterated that there was a permanent aggravation of a preexisting
condition, which rendered appellant incapable of doing his former work pushing heavy
containers of mail.
In a decision dated February 10, 2016, OWCP denied modification of the August 12,
2014 decision. It found that none of the medical reports provided a sufficiently rationalized
explanation as to how the diagnosed medical conditions were related to the claimed August 29,
2015 work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.5 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.6

4

5 U.S.C. §§ 8101-8193.

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

6

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

4

To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.8
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.10 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS
It is uncontroverted that appellant placed a chock block under the rear tire of his vehicle
on July 1, 2014 while in the performance of duty. The question of whether an employment
incident caused a personal injury can only be established by probative medical evidence.11 The
Board finds that appellant has not submitted rationalized, probative medical evidence to establish
that the July 1, 2014 employment incident caused a personal injury.
Counsel argues that OWCP erred by making subjective conclusions regarding Dr. Barr’s
opinion and by failing to find that his opinion constituted medical evidence sufficient to establish
that appellant’s accepted, preexisting lower back condition was aggravated by his July 1, 2014
work incident. She contends that Dr. Barr asserted that, prior to the July 1, 2014 work incident,
appellant was well enough to perform his work duties despite his prior discomfort; however, he
sustained an injury to his lower back on July 1, 2014 which rendered him unable to perform his
duty, which established that he had an aggravation of his underlying condition on that date. The
Board does not accept counsel’s contention.
The Board notes that OWCP accepted a traumatic injury claim, which appellant filed on
May 30, 2012, under case number xxxxxx891. The claim was accepted for lumbar strain. The
instant claim, however, is for a separate injury which allegedly occurred on July 1, 2014.

7

John J. Carlone, 41 ECAB 354 (1989).

8

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee).

9

See Joe T. Williams, 44 ECAB 518, 521 (1993).

10

Id.

11

Supra note 7.

5

Dr. Barr submitted reports dated July 2 and September 9, 2015. In his July 2, 2015
report, he advised that appellant injured his lower back in 2012 and was out of work for two and
one-half months; he opined that appellant reinjured his lower back on July 1, 2014. Dr. Barr
noted that the results of the MRI scan he underwent on August 1, 2014 showed degenerative
changes throughout the lumbar spine, with moderate to marked spinal stenosis at L3-4 and L4-5.
He, however, advised that the radiologist who performed the MRI scan considered the stenosis to
be congenital. Dr. Barr opined that appellant’s lumbar degenerative changes and spinal stenosis
were preexisting conditions which were permanently aggravated by the July 1, 2014 work
incident. He advised that the July 1, 2014 work incident of bending and twisting could cause
slight increased swelling of the disc as well as swelling in the lumbar facet joints. Although
Dr. Barr indicated that bending and twisting “could cause” the disc and lumbar swelling
described, his opinion was not expressed in terms of a reasonable degree of medical certainty.
The Board has held that 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. The
opinion should be expressed in terms of a reasonable degree of medical certainty.12 Dr. Barr
noted that there was a permanent aggravation of a preexisting condition which rendered
appellant incapable of doing his former work pushing heavy containers of mail. His opinion
regarding causal relationship is of limited probative value because he did not explain how slight
increased swelling of the disc and lumbar facet joints would cause a permanent aggravation of
the preexisting condition. The Board has found that medical evidence is of limited probative
value if it contains a conclusion regarding causal relationship, but does not offer any rationalized
medical explanation.13
Appellant also submitted reports from Drs. Docken, Asaker, and Bono. In his July 2,
2014 report, Dr. Docken noted that appellant was experiencing persistent low back pain due to a
post-traumatic low back strain syndrome and underlying degenerative disease of the lumbar
spine. He advised that appellant had moderate to marked central canal stenosis at the L3-5 levels
and right paracentral disc protrusion at L5-S1, with contact of exiting right S1 nerve root.
Dr. Docken opined that appellant’s current symptoms could have an element of local, myofascial
pain, with underlying degenerative disease of the lumbar spine. He further asserted that
appellant had lumbar spinal stenosis, which was of degenerative origin and probably not related
to the 2012 injury. Causal relationship is a medical question that must be established by
probative medical opinion from a physician.14 Dr. Docken offered no medical explanation as to
how the accepted July 1, 2014 work incident would have caused appellant’s diagnosed
conditions. His reports therefore do not constitute rationalized medical evidence, to establish
based upon an accurate history of appellant’s preexisting medical conditions, how the incident in
question caused or exacerbated his medical condition.15 As such his opinion is of limited
probative value.16
12

See Ricky S. Storms, 52 ECAB 349 (2001).

13

See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

14

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

15

See T.C., Docket No. 16-0586 (issued August 9, 2016).

16

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

6

Dr. Asaker advised in his July 10, 2014 report that appellant hurt his back at work in
May 2012 and recently sustained another injury to his lower back. He reported that appellant
worked at the employing establishment and frequently lifted boxes. Dr. Asaker advised that his
back pain radiated into his left leg. He diagnosed back strain, L3-4 disc spurring and
degenerative disc disease. Dr. Asaker advised that appellant underwent x-ray testing on July 3,
2014 which showed narrowing of the L4-5 disc with spurring and spurring at the L3-4 levels. He
opined that he had degenerative joint disease and old trauma. Dr. Asaker reiterated in his
September 9, 2014 report that appellant had a history of low back pain dating back to 2012. He
advised that the results of an MRI scan revealed a disc protrusion at the L5-S1 level and
spondylosis at the T11 and T12 levels with some neural impingement. Dr. Asaker diagnosed
left-sided radiculopathy and noted that his MRI scan also showed an L2-3 mild disc bulging and
congenital narrowing of the spinal canal, resulting in a mild central stenosis at the L3-4 levels.
He noted that the 2012 back injury intermittently flared up and that appellant was afraid that if he
returned to work the employing establishment might not have light duty available; he was
concerned that he might have to return to lifting heavy boxes, which could cause permanent
injury to his back. While Dr. Asaker provided diagnoses of appellant’s lumbar condition, he
offered no medical explanation as to how the diagnosed conditions were caused by the accepted
employment incident. The need for detailed rationale is particularly important since appellant
had a preexisting history of lumbar injury and degenerative disc disease.17
Dr. Bono also advised in his November 17, 2014 report that appellant experienced lower
back pain in 2012 while at work and reinjured his back in 2014. The weight of medical opinion
is determined by the opportunity for and thoroughness of examination, the accuracy and
completeness of physician’s knowledge of the facts of the case, the medical history provided, the
care of analysis manifested and the medical rationale expressed in support of stated
conclusions.18 While Dr. Bono noted complaints of lower back pain, which he generally
attributed to the July 1, 2014 work incident, and diagnosed lumbar radiculopathy, bulging lumbar
discs by MRI scan, degenerative joint disease, and spinal stenosis, his report did not contain a
probative, rationalized opinion regarding whether the July 1, 2014 work incident caused a
personal injury. He did not sufficiently explain how pathophysiologically appellant would have
sustained a lower back injury while placing a chock block under the rear tire of his vehicle on
July 1, 2014.19
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Causal relationship must be established by rationalized medical
opinion evidence. Appellant did not provide a medical opinion which describes or explains the
medical process through which the July 1, 2014 work accident would have caused the diagnosed
conditions. Accordingly, he did not establish that he sustained a lower back injury in the
performance of duty. OWCP properly denied appellant’s claim for compensation.

17

See L.M., Docket No. 16-0143 (issued February 19, 2016).

18

See Anna C. Leanza, 48 ECAB 115 (1996).

19

Id.

7

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish a lower
back injury causally related to the July 1, 2014 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Kansas City, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1106
Issued: October 18, 2019

Case Submitted on the Record

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

JURISDICTION
On April 16, 2019 appellant filed a timely appeal from a January 3, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 25, 2018 appellant, then a 48-year-old file clerk, filed an occupational disease
claim (Form CA-2) alleging that she sustained severe lower back pain caused by factors of her
federal employment. She explained that, over time, bending over to file documents in boxes
caused “severe issues” in her lower back. Appellant noted that she had not filed her claim within
30 days as she was waiting for her doctor to opine whether her lower back issues were being caused
by the lifting, bending, stooping, and pushing of heavy carts she performed at work. She noted
that she first became aware of her claimed condition on March 5, 2018 and realized her condition
was caused or aggravated by factors of her federal employment on March 9, 2018. On the reverse
side of the claim form, the employing establishment noted that appellant was laid off on August 31,
2018 before accepting a different position on October 15, 2018. Appellant’s supervisor indicated
that she had no knowledge of the circumstances surrounding the claimed injury.
In a development letter dated November 5, 2018, OWCP advised appellant that it required
additional factual and medical evidence to determine whether she was eligible for FECA benefits.
It requested that she respond to its questionnaire and submit medical evidence which contained a
firm diagnosis and a physician’s opinion supported by a medical explanation as to how work
activities in her federal employment caused, contributed to, or aggravated her medical condition.
OWCP afforded appellant 30 days to respond.
In a separate development letter of even date, OWCP requested that the employing
establishment provide additional information regarding appellant’s occupational disease claim,
including comments from a knowledgeable supervisor regarding the accuracy of appellant ’s
statements, and a copy of appellant’s position description and physical requirements of her
position. It afforded the employing establishment 30 days to respond.
In a November 21, 2018 response to OWCP’s questionnaire, appellant described her duties
as constantly lifting of heavy objects, bending, stooping and pushing heavy carts, as well as
extensive standing and walking for long periods of time. She performed these duties five days a
week for seven and half hours a day. Appellant explained that she first noticed her condition in
March 2018 and that her symptoms of back pain and stiffness progressively got worse while
working with the files. She used pain medication, therapy, and massages to help her with her
condition.
By decision dated January 3, 2019, OWCP accepted that the alleged employment factors
occurred while in the performance of duty, as alleged. However, it denied appellant’s claim,
finding that she had not submitted probative medical evidence establishing a medical diagnosis
causally related to the accepted employment factors. OWCP concluded, therefore, that the
requirements had not been met to establish that she sustained an injury as defined by FECA.

2

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 filed within the applicable time
limitation,3 that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is 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 on a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant. 6
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee. 7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of her federal employment.
Appellant alleged that she developed a lower back condition due to constant lifting,
bending, stooping and pushing of heavy carts, as well as extensive standing and walking for long
periods of time. OWCP accepted that appellant’s position required the above-mentioned duties.
However, appellant did not submit medical evidence diagnosing a medical condition and which
offered an opinion regarding causal relationship. OWCP advised appellant that further medical
evidence was necessary to establish her claim. Appellant only submitted a November 27, 2018
response to OWCP’s questionnaire which is of no probative value as it does not constitute medical
evidence. She has the burden of proof to submit rationalized medical evidence establishing that a
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

S.O., Docket No. 18-1559 (issued February 21, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

K.C., Docket No. 18-1330 (issued March 11, 2019).

7

P.S., Docket No. 18-1222 (issued January 8, 2019).

3

diagnosed medical condition was causally related to the accepted employment factors.8
Accordingly, as appellant failed to submit medical evidence identifying a medical condition in
relation to the requirements of her position, she has not met her burden of proof to establish her
claim.9
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 18, 2019
Washington, DC

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

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

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

8

See R.C., Docket No. 18-1639 (issued February 26, 2019).

9

See B.G., Docket No. 18-0784 (issued November 9, 2018).

4