United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bloomfield, NJ, Employer
__________________________________________

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Docket No. 08-2140
Issued: June 2, 2009

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

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 30, 2008 appellant filed a timely appeal of the November 14, 2007 and
February 27, 2008 nonmerit decisions of the Office of Workers’ Compensation Programs, which
denied reconsideration.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board does not
have jurisdiction over the merits of appellant’s claim.2
ISSUE
The issue is whether the Office properly denied appellant’s September 18 and
December 14, 2007 requests for reconsideration under 5 U.S.C. § 8128(a).
1

Appellant’s counsel also sought to appeal a July 9, 2008 decision of the Office. However, the Office did not
issue a final decision on that date. A July 9, 2008 letter from the Office advised appellant that the November 14,
2007 nonmerit decision was not subject to further review by the Office, but instead must be appealed to the Board.
See 20 C.F.R. § 10.608(b) (2008). Accordingly, the July 9, 2008 correspondence is not a final Office decision
subject to review by the Board. See 20 C.F.R. § 10.501.2.
2

The Office issued its most recent merit decision on February 15, 2007, which is more than a year prior to the
filing of the instant appeal. As such, the Board does not have jurisdiction over the February 15, 2007 merit decision.

FACTUAL HISTORY
On March 19, 2001 appellant, then a 42-year-old mail carrier, was involved in an
employment-related motor vehicle accident. The Office accepted the claim for lumbar strain and
cervical radiculitis. Appellant received wage-loss compensation.3 By decision dated
February 15, 2007, the Office terminated appellant’s wage-loss compensation and medical
benefits effective February 20, 2007. It based its decision on the March 12, 2006 report of
Dr. David I. Rubinfeld, a Board-certified orthopedic surgeon and Office referral physician.4
On September 18, 2007 appellant’s counsel requested reconsideration, contending that
the Office’s reliance on Dr. Rubinfeld’s opinion as a basis for terminating benefits was
erroneous. The request for reconsideration was accompanied by a January 2, 2007 work capacity
evaluation (Form OWCP-5c) from Dr. Raymond Russomanno.5
In a decision dated November 14, 2007, the Office denied appellant’s request for
reconsideration.
On December 14, 2007 appellant’s counsel again requested reconsideration. He
indicated that he had enclosed a “new report of Dr. Cornelius Nicoll dated November 8, 2007.”
Counsel noted that Dr. Nicoll was the treating physician and his report should carry great weight.
The Board notes, however, that the December 14, 2007 request was not accompanied by a
November 8, 2007 report from Dr. Nicoll.6
By decision dated February 27, 2008, the Office denied appellant’s December 14, 2007
request for reconsideration. It found that the newly submitted November 8, 2007 report, which
consisted of two lines, was not relevant to the issue at hand. Therefore, further merit review was
unwarranted.

3

The Office placed her on the periodic compensation rolls effective December 2, 2001.

4

Dr. Rubinfeld saw appellant on March 9, 2006 and found her orthopedic examination to be normal. He noted
that her subjective complaints were not supported by objective findings on examination. Dr. Rubinfeld concluded
that appellant’s accepted conditions of cervical radiculitis and lumbar strain had resolved and there were no active,
current orthopedic conditions. He also indicated that appellant was able to return to her full-time mail carrier duties
without restriction. There was no need for additional orthopedic treatment. Dr. Rubinfeld previously examined
appellant at the Office’s behest on April 25, 2002. His latest findings were entirely consistent with his previous
report dated May 1, 2002.
5

This report was originally received January 17, 2007, and was referenced by the Office in its February 15, 2007
decision terminating benefits.
6

Dr. Nicoll had previously served as appellant’s treating physician through March 2004, at which time he
discharged her from his care. Appellant subsequently obtained approval from the Office to select a new treating
physician. However, there is no indication from the record that she made arrangements for alternate medical care.
After an approximate three-year hiatus, appellant returned to Dr. Nicoll for treatment. Following the February 2007
termination of benefits, the Office received treatment notes from Dr. Nicoll covering the period April 12 through
November 8, 2007. The notation for November 8, 2007 reads: “[Appellant] returns to the office today with
continued complaints of pain still. Letter in chart will describe the condition.” The Office received this latest
update on November 26, 2007.

2

On April 15, 2008 counsel faxed a copy of Dr. Nicoll’s November 8, 2007 two-page
narrative report along with a request for reconsideration of the “decision dated
November 14, 2007.”7
By letter dated July 9, 2008, the Office advised appellant that the November 14, 2007
nonmerit decision was not subject to further reconsideration. Appellant’s only recourse was to
file an appeal with the Board. The Office informed appellant that it would take no further action
with respect to the April 15, 2008 request filed by counsel.
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.8 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.9
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.10
ANALYSIS
Appellant’s September 18 and December 14, 2007 requests for reconsideration neither
alleged nor demonstrated that the Office erroneously applied or interpreted a specific point of
law. Additionally, she did not advance a relevant legal argument not previously considered by
the Office. Appellant’s representative presented factual arguments regarding previously
considered medical reports. Therefore, appellant is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under section 10.606(b)(2).11
Appellant also failed to satisfy the third requirement under section 10.606(b)(2). She did
not submit any relevant and pertinent new evidence with either her September 18 or
December 14, 2007 request for reconsideration. The record already included a copy of
Dr. Russomanno’s January 2, 2007 work capacity evaluation. The Office specifically addressed
this report in the February 15, 2007 decision terminating benefits. Submitting additional

7

While the Board acknowledges receipt of Dr. Nicoll’s November 8, 2007 narrative report, we do so only to
establish the procedural posture of the claim. The substance of the doctor’s two-page report is not subject to review
by the Board because the Office did not receive this report until after it issued the February 27, 2008 decision. See
20 C.F.R. § 10.501.2(c).
8

5 U.S.C. § 8128(a) (2006).

9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.608(b).

11

Id. at § 10.606(b)(2)(i) and (ii).

3

evidence that repeats or duplicates information already in the record does not constitute a basis
for reopening a claim.12
Regarding Dr. Nicoll’s recent treatment notes, albeit new, this evidence is essentially
duplicative of his earlier treatment notes, Dr. Nicoll’s April 12 through November 8, 2007 notes
addressed appellant’s subjective complaints of cervical and lumbar pain. These latest treatment
notes do not mention either of the two previously accepted conditions or specifically relate any
ongoing symptoms to the March 19, 2001 employment-related motor vehicle accident.
Dr. Nicoll’s April 12 through November 8, 2007 treatment notes are not relevant to the issue on
reconsideration, which is whether appellant has any ongoing employment-related residuals.
Consequently, appellant is not entitled to a review of the merits of her claim based on the third
requirement under section 10.606(b)(2).13
CONCLUSION
The Board finds that the Office properly denied appellant’s September 18 and
December 14, 2007 requests for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2008 and November 14, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 2, 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
12

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

13

20 C.F.R. § 10.606(b)(2)(iii).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

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

Docket No. 14-230
Issued: August 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 13, 2013 appellant filed a timely appeal from the October 17, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation for failure to
submit a Form EN1032, as requested.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after the October 17, 2013 decision. The Board
may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293, 295 n.1 (2008); G.G., 58
ECAB 389, 391 n.7 (2007); Donald R. Gervasi, 57 ECAB 281, 284 n.1 (2005); Rosemary A. Kayes, 54 ECAB 373,
375 n.8 (2003). Therefore, this additional evidence cannot be considered on appeal. See James C. Campbell, 5
ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On December 4, 1995 appellant, then a 44-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) alleging that she sustained right carpal tunnel syndrome
as a result of her federal employment. OWCP accepted her claim for right carpal tunnel
syndrome on February 15, 1996, and subsequently accepted the claim on December 8, 2010 for
bilateral carpal tunnel syndrome; a right foreign body left during a surgical procedure, and a
residual foreign body in her soft tissue. It paid wage-loss benefits for disability beginning
October 25, 2002, and placed her on the periodic rolls beginning September 4, 2005.
On September 3, 2013 OWCP informed appellant that federal regulations required her to
make an affidavit of any earnings or employment during the previous year and that a Form
EN1032 was enclosed for that purpose.3 It notified her that she had to fully answer all questions
on the Form EN1032 and return the statement within 30 days or her benefits would be
suspended. The letter was sent to appellant’s last known address. Appellant did not respond.
By decision dated October 17, 2013, OWCP suspended appellant’s compensation
benefits, effective December 15, 2013, for failing to submit the form as requested. It noted that,
if she completed and returned an enclosed copy of the form, her compensation benefits would be
restored retroactively to the date they were suspended.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.4
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.5 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.6
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.7

3

The Board notes that following her placement in the periodic rolls, appellant had completed and submitted prior
EN1032 forms to OWCP.
4

5 U.S.C. § 8106(b).

5

20 C.F.R. § 10.528.

6

See N.G., Docket No. 12-981 (issued December 4, 2012); Lucille A. Pettaway, 55 ECAB 228, 232 (2004);
Demetrius Beverly, 53 ECAB 305, 307 (2002).
7

Supra note 4.

2

ANALYSIS
On September 3, 2013 OWCP provided appellant with a Form EN1032 and explained
that federal regulations required her to complete it and answer all questions concerning her
employment and earnings. It properly notified her that if she did not completely answer all
questions and return the statement within 30 days, her benefits would be suspended. The
notification was properly sent to appellant’s last known address.8 Appellant did not respond
prior to the October 17, 2013 decision.
Based on the evidence of record, the Board finds that OWCP properly suspended
appellant’s compensation benefits effective December 15, 2013 pursuant to 20 C.F.R. § 10.528.9
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 OWCP properly suspended appellant’s compensation benefits for
failing to submit information on a Form EN1032, as requested.

8

J.J., Docket No. 13-1067 (issued September 20, 2013).

9

See J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189, 191 (1997).

3

ORDER
IT IS HEREBY ORDERED THAT the October 17, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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VETERANS ADMINISTRATION MEDICAL
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CENTER, Leavenworth, KS, Employer
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___________________________________________ )
C.S., Appellant

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

Docket No. 15-0676
Issued: November 19, 2015

Case Submitted on the Record

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

JURISDICTION
On February 9, 2015 appellant, through counsel, filed a timely appeal from an October 3,
2014 merit decision and a December 11, 2014 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish an injury
causally related to a May 12, 2014 employment incident; and (2) whether OWCP properly
refused to reopen appellant’s case for further review of the merits of her claim under 5 U.S.C.
§ 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 18, 2014 appellant then a 57-year-old medical administration officer, filed a
traumatic injury claim alleging that on May 12, 2014 she was checking in at the airport when she
either passed out or her legs locked causing her to fall backwards hitting her head on the floor.
She indicated that she could not walk for over 24 hours and was very confused and disoriented
after hitting her head. Appellant indicated that physicians were still running tests to determine
the cause of the incident and she was in a wheelchair until the next day.2 The employing
establishment indicated that she was in the performance of duty but controverted the claim,
noting that there were “different stories about what happened.” Appellant did not advise the
employing establishment of the incident until two days later and explained that she did not know
the circumstances and she must have passed out. The employing establishment related that she
also did not remember how she got from the airport to her hotel. It questioned how appellant
would have been placed on a plane and taken off a plane while she was unconscious. Appellant
contended that her physician had suggested a diagnosis of “transient amnesia.” She had some
previous diagnoses or medical conditions.
By letter dated August 7, 2014, OWCP informed appellant and the employing
establishment of the type of evidence needed to support her claim and requested that she submit
such evidence within 30 days.
In a letter dated August 7, 2014, Aida Hawkins-Vindiola, an employing establishment
human resources specialist, explained that appellant had been on travel status and attending
classes when she notified her supervisor of not remembering getting on the plane to go to Dallas.
She advised that when the supervisor asked how appellant had traveled to Dallas if she could not
remember it, appellant noted that the “airport attendants got her in a wheelchair and wheeled her
to the plane, sat her on the plane and wheeled her off.” Ms. Hawkins-Vindiola also noted that
appellant had claimed that on June 15, 2014 she “could not walk for 24 hours after incident” but
she nonetheless went to her training classes unhindered. She advised that there was no medical
documentation from a physician or a clear story of the events in question.
OWCP received several documents from a May 14, 2014 hospital visit to include: a
report from Dr. Matthew D. Bush, Board-certified in emergency medicine, who diagnosed
syncope and amnesia, from a diagnostic chest x-ray; a normal diagnostic brain computerized
tomography (CT) scan read by Dr. Akilan Arumugham, a Board-certified diagnostic radiologist;
a diagnostic brain magnetic resonance imaging (MRI) scan and discharge papers.
In an August 20, 2014 response, appellant indicated that she was at the Kansas City,
Missouri, airport checking in at the counter to go to Dallas, Texas, for training when she
suddenly fainted or fell backwards and landed on the floor and hit her head. She indicated that
she must have landed on her right arm as her right arm, hands and fingers also hurt. Appellant
explained that airline personnel assisted her with boarding and deplaning and she did not recall
her entire trip. She also noted that she received assistance with a wheel chair and was wheeled to
the hotel. Appellant indicated that she was very confused following the incident and has
2

The record reflects that appellant has filed numerous claims from August 8, 2000 to the present.

2

subsequently struggled with thinking straight and feeling confused with trying to accomplish
tasks.
By decision dated October 3, 2014, OWCP denied appellant’s claim as fact of injury had
not been established. It found that the claim was denied because she had not submitted any
evidence containing a medical diagnosis in connection with the incident. OWCP specifically
noted that the medical evidence only contained a diagnosis of “syncope.” It explained that
syncope was a symptom and was not a diagnosis of a medical condition and, in any event, the
medical evidence did not show that this condition was causally related to a work event.
On November 17, 2014 appellant requested reconsideration. She explained that she was
on travel status when the incident occurred. Appellant noted that her physician indicated that she
was diagnosed with syncope, which was a diagnosis, and transient global amnesia. She claimed
that the physician was willing to speak to someone on the telephone. Appellant also submitted
December 2, 2014 hospital forms pertaining to a planned January 27, 2015 knee surgery.3
By decision dated December 11, 2014, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision. It noted that appellant did not provide a copy of a letter from her physician which
contained a diagnoses of transient global amnesia and syncope.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
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

3

The forms are signed by a healthcare provider whose signature is illegible.

4

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

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

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

8

Id.

3

Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
In this case, appellant alleged that on May 12, 2014 she fell backwards while in travel
status at an airport. OWCP accepted that the claimed event occurred as alleged, but denied the
claim because the medical evidence did not demonstrate that a claimed condition was related to
this established work event.
The Board finds that appellant has not established a medical condition causally related to
the accepted employment incident. Thus, fact of injury has not been established. In a May 14,
2014 hospital report, Dr. Bush diagnosed syncope and amnesia. However, he did not indicate
that the work incident caused or aggravated a diagnosed condition. Medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.10
OWCP also received diagnostic reports to include a chest x-ray, a normal diagnostic
brain CT scan read by Dr. Arumugham and a diagnostic brain MRI scan, and discharge papers.
However, these reports are also of limited probative value as they do not address whether the
May 12, 2014 work incident caused or aggravated a diagnosed condition.
As appellant did not submit a rationalized medical opinion supporting that she sustained
an illness or an injury causally related to the accepted May 12, 2014 employment incident, she
did not meet her burden of proof to establish an employment-related traumatic injury.
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,11 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written

9

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

10

S.E., Docket No. 08-2214 (issued May 6, 2009).

11

5 U.S.C. § 8128(a).

4

application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”12
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.13
ANALYSIS -- ISSUE 2
Appellant disagreed with the October 3, 2014 decision and timely requested
reconsideration on November 17, 2014. The underlying issue on reconsideration is medical in
nature, whether appellant met her burden of proof to establish a traumatic injury causally related
to a May 12, 2014 employment incident.
Appellant explained that she was on travel status when the incident occurred. She noted
that her physician indicated that she was diagnosed with syncope, which was a diagnosis, and
transient global amnesia. Appellant indicated that the physician was willing to speak to someone
on the telephone. The Board notes that as the issue is medical in nature, appellant’s explanation
of what her physician diagnosed or explained is not relevant, as medical evidence must come
from the physician. The Board has held that the submission of evidence which does not address
the particular issue involved does not constitute a basis for reopening a case.14
The only medical evidence that appellant submitted on reconsideration are hospital form
reports from an unidentified provider. These reports are not probative or competent medical
evidence because they do not contain a legible signature of a physician.15
Appellant therefore did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or
constitute pertinent new and relevant evidence not previously considered. As she did not meet
any of the necessary regulatory requirements, she is not entitled to further merit review.
12

20 C.F.R. § 10.606(b).

13

Id. at § 10.608(b).

14

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

15

See K.W., 59 ECAB 271 (2007) (form reports that had illegible signatures did not constitute competent medical
evidence); 5 U.S.C. § 8101(2) (defines the term physician). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949)
(where the Board held that medical opinion, in general, can only be given by a qualified physician).

5

CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the December 11, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE INTERIOR, NPSNATIONAL CAPITOL PARK CENTRAL,
Washington, DC, Employer
__________________________________________

)
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)
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)
)
)
)

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

Docket No. 08-2108
Issued: February 17, 2009

Oral Argument January 6, 2009

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

JURISDICTION
On July 28, 2008 appellant filed a timely appeal from the July 17, 2007 merit decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury on April 1, 2008 in the performance of duty.
FACTUAL HISTORY
On April 8, 2008 appellant, then a 60-year-old laborer, filed a traumatic injury claim
alleging that he developed pain in his right wrist and elbow while in the performance of duty on
April 1, 2008. He attributed his symptoms to repetitive use of a trash grabber and flipping metal
trash cans during trash removal. On May 9, 2008 the Office received appellant’s description of

how he injured his right wrist. In an April 10, 2008 statement, Howard Jenkins, appellant’s
supervisor, confirmed that on April 1, 2008 appellant was picking up trash with a paper grabber
and complained of pain in his right hand.
By letter dated June 9, 2008, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested a comprehensive medical report from a
treating physician which provided a reasoned explanation as to how the specific incident
identified by appellant had contributed to his claimed injury.
In a June 11, 2008 statement, appellant stated that the pain in his hand on April 1, 2008
was constant and aggravated by lifting, flipping and emptying trash cans and water buckets.
In a May 13, 2008 duty status report, Dr. Angus Worthing, a Board-certified internist
specializing in rheumatology, noted that appellant was working on April 1, 2008 using a green
color paper picker and experienced pain in his right arm. He opined that appellant’s
epicondylitis condition was due to the April 1, 2008 incident. In a May 30, 2008 report,
Dr. Worthing advised that appellant had tendinitis of the right wrist, shoulder and around the
elbow (triceps or epicondyle). This was an ongoing condition and appellant was unable to
perform any work-related services involving repetitive use of his right arm. Dr. Worthing
recommended that appellant not work in any capacity until further treatment was provided. He
noted that appellant also had degenerative arthritis of the lower back and knees.
In an April 29, 2008 progress note, the rheumatology outpatient clinic recorded a history
of injury as right arm pain starting approximately one month prior, which coincided with
increased activity at work. Appellant used a paper picker, which required hand squeezing
motion, and lifted/dumped trash cans with his right arm. Copies of Dr. Worthing’s May 13 and
30, 2008 progress notes were provided.
In a May 29, 2008 progress note, Dr. Addie Dissick, a rheumatology fellow, provided an
assessment of right rotator cuff tendinitis with right triceps tendinitis versus medial epicondylitis
versus joint abnormality. He noted that the event “happened while working” and appellant had
been symptomatic since with no improvement following naproxen/ice or from being on leave
from work.
By decision dated July 17, 2008, the Office denied the claim, finding that the medical
evidence was not sufficient to establish that appellant sustained right arm conditions caused or
aggravated by the April 1, 2008 work incident.1

1

The Board notes that the record contains additional evidence after the Office rendered its July 17, 2008 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c); Dennis E. Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36
n.2 (1952). Therefore, this new evidence cannot be considered by the Board on appeal. Appellant may submit this
evidence to the Office, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R. § 10.606(b)(2).

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.3 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether fact of injury is established. First, an employee has the
burden of demonstrating the occurrence of an incident at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.8 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9

2

5 U.S.C. §§ 8101-8193.

3

Anthony P. Silva, 55 ECAB 179 (2003).

4

See Ellen L. Noble, 55 ECAB 530 (2004).

5

Delphyne L. Glover, 51 ECAB 146 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

9

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

3

ANALYSIS
It is not in dispute that on April 1, 2008 appellant was using a trash grabber and flipping
metal trash cans in the performance of duty. The issue is whether the medical evidence
establishes that this employment activity caused an injury to his right arm.
Dr. Worthing indicated that appellant’s right arm pain commenced April 1, 2008 while
using a paper picker. On May 13, 2008 he opined that appellant’s epicondylitis condition was
due to the April 1, 2008 injury. However, Dr. Worthing failed to explain how appellant’s
employment activities that day caused or contributed to his diagnosed condition. He did not
address the process by which grabbing trash or lifting trash cans would cause epicondylitis.
Lacking through medical rationale on the issue of causal relationship, his opinion is not
sufficient to establish that appellant sustained an injury on April 1, 2008.10 On May 30, 2008
Dr. Worthing diagnosed tendinitis of the right wrist, shoulder and around the elbow. However,
he did not specifically address whether the April 1, 2008 employment incident caused or
contributed to these conditions.11 Dr. Worthing stated that appellant’s tendinitis was an ongoing
condition and recommended that he avoid any work involving repetitive use of his right arm. He
did not explain how appellant’s work activities on April 1, 2008 would cause or aggravate the
diagnosed tendinitis. Dr. Worthing’s reports are not sufficient to establish that appellant
sustained a work-related injury on April 1, 2008.
The progress notes from rheumatology outpatient are also insufficient to establish
appellant’s claim. Neither Dr. Worthing nor Dr. Dissick offer any opinion regarding the cause of
appellant’s diagnosed condition. 12 Although they note a proper history of injury, neither
physician addresses how appellant’s work activities on April 1, 2008 caused or contributed to his
right arm conditions. These progress notes are insufficient to establish appellant’s claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the mere 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. 13 Causal relationships must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence and the Office
therefore properly denied his claim for compensation.

10

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
11

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

Id.

13

Dennis M. Mascarenas, supra note 9.

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained an injury causally related to his April 1, 2008 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the July 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 17, 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

5


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

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

Docket No. 11-128
Issued: July 26, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 21, 2010 appellant timely appealed the May 17, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which found that he received an
overpayment of compensation. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of $2,576.88 for the
period March 12 to April 10, 2010; and (2) whether OWCP properly denied waiver of recovery
of the overpayment.
FACTUAL HISTORY
Appellant, a 50-year-old letter carrier, has an accepted claim for thoracic sprain, which
occurred on October 27, 2006. OWCP paid wage-loss compensation and placed appellant on the
1

5 U.S.C. §§ 8101-8193.

periodic compensation rolls effective June 8, 2008. By decision dated March 11, 2010, it
terminated appellant’s compensation and medical benefits effective that day. On March 13,
2010 OWCP disbursed a periodic rolls payment for the 28-day period of February 14 to
March 13, 2010. The following month, it mistakenly paid wage-loss compensation for the 28day period March 14 to April 10, 2010.
On April 14, 2010 OWCP issued a preliminary overpayment determination finding that it
overpaid appellant $2,576.88 for the period March 12 to April 10, 2010. Despite the termination
of monetary compensation benefits effective March 11, 2010, payment for total disability
continued through April 10, 2010. Appellant was not found at fault in the creation of the
overpayment. OWCP explained appellant’s available options should she wish to challenge the
preliminary determination and/or request waiver of recovery of the overpayment. Additionally,
it provided an overpayment recovery questionnaire (Form OWCP-20). Appellant did not
respond within the allotted 30-day timeframe.
In a decision dated May 17, 2010, OWCP finalized that appellant received a $2,576.88
overpayment. It denied waiver of recovery of the overpayment, noting that appellant had not
submitted an OWCP-20 with supporting financial documentation as required.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation as specified for disability
or death of an employee resulting from personal injury sustained while in the performance of
duty.2 An overpayment exists where OWCP continues to pay wage-loss compensation following
termination of benefits.3
ANALYSIS -- ISSUE 1
OWCP terminated appellant’s compensation and medical benefits effective
March 11, 2010.4 However, it continued to pay appellant wage-loss compensation for total
disability through April 10, 2010. The record reflects that OWCP paid appellant $2,576.88 for
the period March 12 to April 10, 2010. As he was not entitled to receive wage-loss
compensation after March 11, 2010, OWCP properly found that appellant had been overpaid in
the amount of $2,576.88. Accordingly, the Board finds that the fact and amount of overpayment
are established. OWCP found that appellant was without fault.

2

5 U.S.C. § 8102(a).

3

D.R., 59 ECAB 148 (2007).

4

The propriety of OWCP’s decision to terminate compensation and medical benefits is not currently before the
Board. Appellant filed the instant appeal more that 180 days after OWCP issued its March 11, 2010 decision
terminating benefits. See 20 C.F.R. § 501.3(e) (2010). He has since requested reconsideration before OWCP, which
was denied by decision dated March 25, 2011.

2

LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of FECA or would be against equity and good conscience.5 Recovery of an overpayment will
defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
his current income, including compensation benefits, to meet current ordinary and necessary
living expenses, and the beneficiary’s assets do not exceed a specified amount as determined by
OWCP.6 Additionally, recovery of an overpayment is considered to be against equity and good
conscience when any individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when any individual, in reliance on such payment or
on notice that such payments would be made, relinquished a valuable right or changed his
position for the worse.7
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by OWCP.8 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.9 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver.10
ANALYSIS -- ISSUE 2
OWCP found that appellant was not entitled to consideration of waiver of recovery
because he had not submitted an overpayment recovery questionnaire (OWCP-20) with
supporting financial documentation. Although appellant received ample opportunity to submit
the requisite financial information, he did not comply with OWCP’s April 14, 2010 request. As
noted, a failure to submit the requested information within 30 days of the request shall result in
denial of waiver.11 The Board finds that OWCP properly denied waiver of recovery of the
$2,576.88 overpayment in conformance with the implementing federal regulations.

5

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

6

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).
7

20 C.F.R. § 10.437(a), (b).

8

Id. at § 10.438(a).

9

The information will also be used to determine an appropriate repayment schedule, if necessary. Id.

10

20 C.F.R. § 10.438(b).

11

Id.

3

CONCLUSION
Appellant received an overpayment of $2,576.88 for the period March 12 to
April 10, 2010. Although he was without fault in creating the overpayment, appellant is not
entitled to waiver of recovery.
ORDER
IT IS HEREBY ORDERED THAT the May 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2011
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 13-1631
Issued: January 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 1, 2013 appellant filed a timely appeal from a June 21, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) regarding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment of compensation in the amount of $1,807.88 for the period November 29 to
December 15, 2012; and (2) whether it properly found her at fault in creation of the
overpayment, thereby precluding waiver of recovery.
On appeal, appellant contends that she did not return to work on November 29, 2012 as
OWCP had found. She asserts that she cannot repay the overpaid compensation due to severe
financial hardship.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision issued January 13, 2006,2
the Board found that appellant did not establish that she was totally disabled for work from
November 9 to 19, 2002 due to accepted bilateral carpal and cubital tunnel syndromes. The
history of the case as set forth in the Board’s prior decision is incorporated herein by reference.
By decision dated August 30, 2007, OWCP granted appellant a schedule award for a 10
percent permanent impairment of the left upper extremity.3 On November 18, 2008 it accepted a
recurrence of disability beginning December 6, 2007.4 Following a return to light-duty work,
appellant stopped work on March 13, 2009. She received wage-loss compensation on the
supplemental rolls beginning March 27, 2009 and on the periodic rolls beginning
August 1, 2009.
In an August 19, 2009 letter, OWCP advised appellant that, when she returned to work,
she must return any payment to OWCP if she worked for any portion of the payment period.
Appellant accepted a November 20, 2012 job offer for a light-duty position with no loss
of wages. In a December 11, 2002 letter, the employing establishment confirmed that she
returned to work as of December 1, 2012.
OWCP calculated that, for the period November 18 to December 15, 2012, appellant was
paid $2,977.68 in net wage-loss compensation. From November 18 to 29, 2012, appellant
received $1,169.90. For the period November 30 to December 15, 2012 after she returned to
work, she received $1,807.88. OWCP found that the amount of $1,807.88 constituted an
overpayment of compensation as she received wage-loss compensation for total disability while
working with no loss of wages.
By notice dated March 14, 2013, OWCP advised appellant of its preliminary
determination that she was overpaid $1,807.88 in compensation from November 29 to
December 15, 2012. It found that she was at fault in creating the overpayment. OWCP afforded
appellant 30 days to submit financial information and to request a prerecoupment hearing.
Appellant responded by March 20, 2013 letter, asserting that she reported for duty at 9:00 p.m.
on November 30, 2012, whereas OWCP found that she returned to work on November 29, 2012.
She explained that she supported her adult daughter and four grandchildren, supported her aged
father and paid burial expenses for two indigent relatives. Appellant listed $30.00 in assets,
$2,906.00 in monthly household income and $2,930.00 in monthly expenses. She provided
supporting documentation.5

2

Docket No. 05-1822 (issued January 13, 2006).

3

OWCP initially denied the schedule award by decision issued February 22, 2006, vacated on May 4, 2007.

4

OWCP initially denied the recurrence claim on March 20, 2008, reversed by decision issued October 24, 2008.

5

Appellant requested a telephonic hearing but sent her request to an incorrect address.

2

By decision dated and finalized June 21, 2013, OWCP finalized the fact and amount of
the overpayment and the finding of fault. It directed recovery by submitting a check for the full
amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA6 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.7 Section 8129(a) of FECA provides in pertinent part, that when
“an overpayment has been made to an individual under this subchapter because of an error of
fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”8
FECA places limitations on the right to receive compensation. While an employee is
receiving compensation, he or she may not receive salary, pay or remuneration of any type from
the United States, with certain exceptions.9 It is well established that an employee is not entitled
to compensation for temporary total disability after returning to work at full salary.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral
cubital tunnel syndrome in the performance of duty. Appellant received compensation for total
disability on the periodic rolls beginning on August 1, 2009. She returned to work with no wage
loss on November 30, 2012. However, appellant received $1,807.88 in wage-loss compensation
for the period November 30 to December 15, 2012, after she had returned to work. As she was
not entitled to receive compensation while working, the $1,807.88 constitutes an overpayment of
compensation. The Board finds that OWCP’s calculations are accurate. Therefore, the June 21,
2013 decision properly determined the fact and amount of overpayment.
On appeal, appellant did not contest the fact of overpayment. However, she asserted that
the period and amount of the overpayment were incorrect, as OWCP found she returned to work
on November 29, 2012 but she did not report for duty until November 30, 2012. In its
calculations, OWCP properly determined November 30, 2012 as the start date in computing the
$1,807.88 overpayment. In its preliminary notice of overpayment and final decision, it
incorrectly stated that it used November 29, 2012 as the first day of the overpayment period.
The amount of the overpayment remained the same. Therefore, OWCP’s use of the
November 29, 2012 date in the preliminary and final notices of overpayment was a harmless
clerical error.
6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8102(a).

8

Id. at § 8129(a).

9

Id. at § 8116(a).

10

J.S., Docket No. 13-909 (issued August 7, 2013).

3

LEGAL PRECEDENT -- ISSUE 2
An individual who is found at fault in either accepting or creating an overpayment is not
eligible for a waiver of recovery of overpayment.11 A benefits recipient will be at fault if the
individual: (1) made an incorrect statement as to a material fact which he or she knew or should
have known to be incorrect; (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.12 No waiver of an overpayment is possible if the claimant is at fault in
creating the overpayment.13
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.14
Section 10.430(a) of OWCP’s regulations advise that OWCP includes on each periodic
check a clear indication of the period for which payment is being made. A form is sent to the
recipient with each supplemental check which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, OWCP puts the recipient on notice that a
payment was made and the amount of the payment.15
ANALYSIS -- ISSUE 2
OWCP applied the third standard in this case, finding that appellant accepted a
compensation payment on December 15, 2013 that she knew or should have known was
incorrect. Appellant accepted a compensation payment for the period November 18 to
December 15, 2012, encompassing the period November 30 to December 15, 2012 after she
returned to work with no wage loss.
OWCP advised appellant by August 19, 2009 letter of her obligation to return any
compensation payments that covered a period after she returned to work. This establishes that
she knew or should have known that she was not entitled to accepted compensation for total
disability after she returned to full-time work at her regular salary. As appellant did not return
the December 15, 2012 payment as instructed, OWCP properly found her at fault in creation of

11

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.423(a) and 10.434.

12

20 C.F.R. § 10.433(a).

13

Gregg B. Manston, 45 ECAB 344 (1994).

14

20 C.F.R. § 10.433(b).

15

R.W., Docket No. 13-1285 (issued November 13, 2013); 20 C.F.R. § 10.430.

4

the overpayment. As she was at fault under the third fault standard as set forth above, recovery
of the $1,807.88 overpayment of compensation may not be waived.16 On appeal, appellant
asserted that she could not repay the overpayment due to severe financial hardship, but she is not
entitled to a waiver of recovery.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $1,807.88 for the period November 30 to December 15, 2012.
The Board further finds that it correctly determined that appellant was at fault in creation of the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 21, 2013 is affirmed.
Issued: January 15, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

16

As OWCP did not direct recovery of the overpayment from continuing compensation, the Board has no
jurisdiction to review the issue of recovery. See Albert Pineiro, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51
ECAB 295 (2000).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Panorama, CA, Employer
__________________________________________

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

Docket No. 10-2118
Issued: June 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 17, 2010 appellant, through her representative, filed a timely appeal from the
June 9, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
found that she did not establish the alleged injury. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a low back injury in the performance of duty on
May 13, 2009.
FACTUAL HISTORY
On May 14, 2009 appellant, a 54-year-old recruiting assistant, filed a claim for
compensation benefits alleging that she injured her low back in the performance of duty two
1

5 U.S.C. § 8101 et seq.

days earlier: “While testing and helping applicants to complete their packets for employment I
walked from applicant to applicant when suddenly a pain from my back traveled down my right
leg and I could not stand up.” Statements from two of the three applicants she was testing
confirmed that she felt a sharp pain in her right hip and leg on May 12, 2009, which made it
impossible for her to walk. They helped appellant sit down, helped her put her boxes into her
vehicle and took her to the hospital.
Appellant provided the following history to her orthopedic surgeon, Dr. Jalil Rashti, on
May 19, 2009: “[Appellant] was helping applicants at work put packets together when [she] felt
sudden sharp pain in her back with sharp pain into right leg into ankle.” In a revised narrative
report that, date, Dr. Rashti provided an extra detail:
“[Patient] states that on May 12, 2009 she was helping applicants put their packets
together, which consisted of walking and she felt sudden pain in her back which
traveled to her stomach and lateral down her right leg. The [pain] became
excruciating and went from her leg down to her ankle. An applicant helped the
patient sit in a chair and she reported the injury to her office [manager,] Elizabeth
on 05/12/09.”
Appellant advised that her past medical history included a herniated disc. Dr. Rashti
noted that she had injured her back in a 1999 automobile accident, which required treatment for
five months and injured her back at work in 2005, “which lasted several years.” He also noted
that, prior to the recent incident, appellant exercised five days a week for three hours. Dr. Rashti
diagnosed lumbar radiculopathy, rule out lumbar spine displacement and lumbar spine muscle
spasm.
A June 12, 2009 magnetic resonance imaging scan showed L4-5 left-sided spondylolysis
and L5-S1 bilateral spondylolysis, together with broad-based posterior disc bulging and mild
bilateral foraminal and central canal narrowing at both levels.
In a July 31, 2009 decision, OWCP denied appellant’s claim for compensation benefits.
It found that the medical evidence did not establish that the claimed low back condition was
related to the established work-related event.
Appellant requested a hearing before OWCP’s hearing representative and stated:
“I wanted to make it clear that I put all of my supplies in a crate which I carried in
and out of the places I gave the test. Along with the crate I carried in boxes of
forms used by the applicants applying for the jobs. The crate and boxes were the
items I carried in and out of the venues. Which cause me to experience the pain
in my back and the electrical shocks down my right leg.”
On September 13, 2009 Dr. Rashti opined that appellant had an insidious exacerbation of
her lumbar spine condition. Addressing the mechanism of injury, he noted that she was helping
applicants put their packets together at work and picking up crates weighing approximately 30
pounds, which contained testing material, forms, pens and pencils. Dr. Rashti stated that the
mechanism of injury was reasonable and credible to cause appellant’s multiple lumbar disc
herniations and current symptomatology.
2

In a telephone conference on March 22, 2010, appellant’s representative noted the
seeming inconsistency in the medical history and asked appellant to explain. Appellant
recounted what happened on May 12, 2009:
“On May 12 I was scheduled to test individuals at the Lancaster Employment
Office in Lancaster, California and I arrived there maybe about 9:00. And what
happened is I kept all of my booklets, the test booklets, the answer sheets, all the
paperwork related to recruiting someone for a job with the census in a crate. And
I would lift the crate and bring it into wherever I would be testing. Well, on that
day I brought the crate in and I brought it in, set it down on the table. I think I
had two crates that day. And I set them down on the table and I commenced to
test and I was -- as I lift crates from one table to the other to get ready for the test
set up. You know, I had everything set up. I knew how many people were going
to be there to test. I arranged everything for them and I think in the lifting of the
crate is when I started to feel -- I felt a little something in my back, but it wasn’t
nothing much. So I commenced sort of like to ignore it, but then as I set everyone
up and they were testing I started to walk around the room. And then
immediately the actual pain as if I had just, you know, got injured hit me and I
was actually about to fall down until one of the testers held me.”
Asked why her claim for benefits did not mention lifting crates, appellant testified that
she did not know. She recalled that, when a gentleman from the employing establishment came
to collect her work, he stated it was no wonder: “If you have a back problem you shouldn’t be
lifting this crate because even though it seemed like, you know, just papers and pencils and you
know, booklets and it seemed like it wouldn’t weigh that much, but I imagine that it did. It
weighed too much for me to lift.” Appellant added that she arrived at about 9:00 a.m.: “because
I like to test at 10:00.” She set up the room. Appellant estimated that she felt the big jolt of pain
close to 11:20 or 11:30 a.m., because she was at the hospital by noon.
In a decision dated June 9, 2010, OWCP’s hearing representative affirmed the denial of
appellant’s claim for benefits. He found that Dr. Rashti did not base his opinion on an accurate
history of what happened on May 12, 2009 because the pain did not occur when she lifted crates
but while she was walking in the testing room one and a half hours later. He noted that
Dr. Rashti did not account for the delay or make clear whether the events that day precipitated
appellant’s diagnosed condition or aggravated a prior back condition.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of her claim. When an employee
claims that she sustained an injury in the performance of duty, she must submit sufficient
evidence to establish that she experienced a specific event, incident or exposure occurring at the

2

5 U.S.C. § 8102(a).

3

time, place and in the manner alleged. She must also establish that such event, incident or
exposure caused an injury.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,5 must be one of reasonable medical certainty6
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.7
Medical conclusions based on inaccurate or incomplete histories are of little probative
value.8 Medical conclusions unsupported by rationale are also of little probative value.9
The mere fact that a condition manifests itself or worsens during a period of federal
employment raises no inference of causal relationship between the two.10
ANALYSIS
On May 12, 2009 at about 9:00 a.m. appellant arrived at the employment office to test
three applicants. She brought in a crate of test booklets, answer sheets, all the paperwork and
supplies related to recruiting individuals for a job with the employing establishment.11 Appellant
set the crate down on a table and set up for the test, which began at 10:00 a.m. Sometime around
11:20 or 11:30 a.m., while she walked from applicant to applicant, she experienced pain from her
back down her right leg and could no longer stand up.
Appellant could not explain why she did not mention the crate when she described what
happened on her claim for compensation benefits. There is no reason to doubt that she carried a
crate into the venue when she tested applicants. The Board finds that appellant has established
3

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

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
9

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

10

Steven R. Piper, 39 ECAB 312 (1987).

11

Appellant testified that she might have brought in two crates, but she earlier explained with more certainty that
she had brought in one crate along with boxes of forms used by the applicants.

4

that she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged.12 The question is whether the incident of May 12, 2009 caused or aggravated
her diagnosed low back condition.
Dr. Rashti, the attending orthopedic surgeon, concluded that there was a causal
relationship. He did not demonstrate an adequate understanding of what happened on
May 12, 2009. Dr. Rashti indicated that appellant sustained multiple herniated lumbar discs
lifting 30-pound crates. It appears to have been a single crate of uncertain weight containing
paperwork and supplies sufficient to test at least three applicants. Appellant did not experience
sudden pain while lifting the crate. It was an hour and a half later, while appellant was walking
from applicant to applicant during the test that the pain suddenly struck her.
The value of Dr. Rashti’s opinion is diminished because he did not accurately address all
the relevant facts. He did not explain how lifting a crate around 9:00 a.m. would cause a sudden
onset of pain an hour and a half later while appellant was walking from applicant to applicant.
Dr. Rashti did not incorporate into his discussion of causal relationship her significant prior
medical history of back injury or the fact that prior to May 12, 2009 she was exercising five days
a week for three hours. A well-reasoned medical opinion attempting to relate appellant’s sudden
onset of pain to her employment activities on May 12, 2009 must accurately address those
activities and account for her medical and social history. Dr. Rashti did not provide a sound
medical explanation for attributing her low back condition to the course of her employment that
day. Further, he did not address whether appellant’s employment activities that day caused
multiple disc herniations or simply aggravated a preexisting condition, either temporarily or
permanently. Sound medical rationale is crucial to establishing causal relationship.
Because the medical opinion evidence does not establish the critical element of causal
relationship, the Board finds that appellant has not met her burden of proof. The Board will
therefore affirm OWCP’s June 9, 2010 decision affirming the denial of her claim for
compensation benefits.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
injured her low back in the performance of duty on May 12, 2009.

12

Appellant testified that she thought she started to feel a little something in her back when she lifted the crate,
“but it wasn’t nothing much” so she ignored it. The uncertainty and lateness of this detail does not make it credible
enough to include as an established fact.

5

ORDER
IT IS HEREBY ORDERED THAT the June 9, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 9, 2011
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Burlington, VT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-469
Issued: May 4, 2015

Case Submitted on the Record

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

JURISDICTION
On December 29, 2014 appellant, through counsel, timely appealed the October 23, 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 the claim.
ISSUE
The issue is whether appellant established that his claimed lumbar condition was causally
related to his November 16, 2013 employment exposure.
FACTUAL HISTORY
Appellant, a 46-year-old city letter carrier, filed a traumatic claim alleging that he injured
his lower back on November 16, 2013 when he lifted a tray of mail from a hamper and placed it
into his postal vehicle (LLV). He had sustained a prior work-related lumber work-related lumbar

1

5 U.S.C. §§ 8101-8193 (2006).

injury on or about June 15, 2013 claim number xxxxxx713.2 Appellant was on a light-duty
assignment at the time of the November 16, 2013 employment incident. His limitations included
an eight-hour workday, five to six hours walking, and a 35-pound lifting restriction.3 The
employing establishment claimed that appellant worked outside his restrictions on November 16,
2013, noting that one of the trays he loaded into his LLV weighed 51 pounds.
A coworker, Scott R. Empie, provided a statement that he helped appellant by loading
mail trays into the LLV on the morning of November 16, 2013. He stated that he observed
appellant in what appeared to be a lot of pain. Appellant told Mr. Empie that his back was going
into a spasm.
In a December 15, 2013 supplemental statement, appellant indicated that he did not know
if he had lifted above his 35-pound restriction. He stated that he had approximately four to five
mail trays in total and they were not weighed for him, nor did he have a scale to weigh them
himself. Appellant questioned his supervisor’s allegation that he lifted a tray weighing 51
pounds, noting that Mr. Empie helped load his mail trays into the LLV on November 16, 2013.
OWCP received prior treatment records covering the period September 4 through
October 10, 2013. Dr. Flimlin first examined appellant on September 4, 2013 for complaints of
low back pain and bilateral hip pain, right greater than left. Her preliminary diagnoses included
hip osteoarthritis, lumbar degenerative disc disease, and low back pain radiating to both legs. At
the time, Dr. Flimlin recommended obtaining a lumbar magnetic resonance imaging (MRI) scan.
When appellant returned for follow up on September 18, 2013, Dr. Flimlin diagnosed
lumbar degenerative disc disease, L5-S1 disc herniation, and lumbar spinal stenosis -congenitally small canal. She imposed a six-hour workday, a 25-pound lifting restriction, and
precluded repetitive twisting from the waist. Dr. Flimlin indicated that repetitive twisting with
lifting mail had certainly worsened and exacerbated appellant’s condition. She advised him to
continue with chiropractic treatment and to follow up with her in four weeks.
Dr. Flimlin next saw appellant on October 10, 2013. She noted that he had been working
with restrictions and continued to experience back pain radiating into the right hip. Appellant
also continued to receive weekly chiropractic treatment. Dr. Flimlin indicated that his lumbar
MRI scan was consistent with central disc herniation at L5-S1 and lumbar spondylosis with
congenitally small canal. The MRI scan also showed moderate central stenosis and severe
bilateral/lateral recess stenosis. Dr. Flimlin noted that appellant had done well with chiropractic
adjustments and work restrictions. At that time, she amended his work restrictions to allow for
an eight-hour workday and a 35-pound lifting restriction. Dr. Flimlin advised appellant to follow
up with her in eight weeks.
Appellant returned to see Dr. Flimlin on November 20, 2013. She described him as
having known degenerative changes in the spine with L5-S1 disc herniation, moderate central
2

The hearing representative’s October 23, 2014 decision noted that appellant’s prior claim was accepted for
L5-S1 disc herniation and bilateral lumbar radiculopathy. Although appellant’s counsel asked the hearing
representative to consolidate (double) the two lumbar injury claims, the complete record regarding appellant’s
June 15, 2013 occupational disease claim number xxxxxx713 is currently unavailable for review by the Board.
3

Dr. Mary T. Flimlin, a Board-certified physiatrist, provided the above noted work restrictions.

2

stenosis, and severe bilateral/lateral recess stenosis. Dr. Flimlin noted that four days earlier
appellant had lifted a mail hamper onto a truck and experienced severe axial back pain. She also
noted that he continued to experience some episodic right leg pain radiating along the lateral
aspect of the thigh, but the reinjury four days ago was 100 percent back. Since then, appellant
had been seen by a chiropractor who provided electrostimulation and back adjustments, which he
had found helpful. Dr. Flimlin stated that the work incident four days ago with “bending, lifting,
and twisting,” caused a “recurrence of back pain.” She prescribed Gabapentin and recommended
an epidural steroid injection at L5-S1. Dr. Flimlin also recommended lower extremity
electrodiagnostic studies to rule out L4-5 radiculopathy. As far as work limitations, she
indicated that appellant could perform in a sedentary capacity with a 10-pound lifting restriction.
Dr. Flimlin also precluded bending, twisting, and repetitive lifting. She advised appellant to
follow-up in four to six weeks.
Dr. Mark Bradley, a chiropractor, examined appellant on November 25, 2013. He noted
that he had been seeing appellant for his low back since September 11, 2013, but did not provide
a specific diagnosis. Dr. Bradley reviewed a November 25, 2013 light-duty job offer and
expressed his opinion that the offered position was inconsistent with Dr. Flimlin’s work
restrictions.
In a December 4, 2013 report, Dr. Flimlin advised that appellant could return to light duty
with an eight-hour workday. She imposed a 35-pound lifting restriction. Dr. Flimlin also
indicated that appellant was able to drive and could walk five to six hours per day.4
Dr. Michael T. Borrello, a Board-certified anesthesiologist with a subspecialty in pain
medicine, examined appellant on December 9, 2013. Appellant reported having developed some
low back pain approximately 6 months ago, which had since worsened. He also reported a
significant aggravation on November 16, 2013 when lifting approximately 30 pounds at work.
Dr. Borrello noted that appellant worked as a letter carrier and had been under a 30-pound lifting
restriction. The November 16, 2013 lifting incident reportedly involved a rotational component
which, according to appellant, exacerbated his low back pain with radiation into his right lower
extremity down to the calf. Appellant also reported occasional numbness and tingling.
Dr. Borrello diagnosed lumbar spondylosis and later administered an epidural steroid injection at
L5-S1.
On December 11, 2013 Dr. Flimlin advised that appellant was temporarily totally
disabled pending the results of an upcoming functional capacity evaluation.
In a January 10, 2014 decision, OWCP denied appellant’s traumatic injury claim.
Although he established fact of injury, OWCP found the medical evidence insufficient to
establish a causal relationship between his diagnosed lower back conditions and the
November 16, 2013 employment incident.
Appellant requested an oral hearing, which was held on August 6, 2014.

4

These are the same limitations that were in place at the time of the November 16, 2013 employment incident.

3

OWCP received additional medical evidence, which included January 2, 2014 treatment
notes from Dr. Borrello, who administered an epidural steroid injection at L5-S1. Dr. Borrello
continued to diagnose lumbar spondylosis.
On January 24, 2014 Dr. Flimlin advised that appellant could immediately resume work
in a part-time (four hours), light-duty capacity.
In a January 30, 2014 report, Dr. Flimlin stated that she saw appellant on November 20,
2013, four days after he reinjured his lower back while lifting a “mail hamper onto a truck” at
work. She explained that he had degenerative changes in the lumbar spine, but that with the
lifting incident worsened the symptoms that were related to a work-related injury. Dr. Flimlin
further stated that she believed with medical certainty that the lifting incident caused a recurrence
of appellant’s low back pain with radicular symptoms into the right leg. She also indicated that
his chiropractic treatment provided symptomatic relief and was helpful for axial unloading of the
spine. In closing, Dr. Flimlin noted that the November 16, 2013 recurrence of symptoms was a
reinjury of appellant’s original injury.
Bang To, a certified physician assistant, treated appellant on March 6, 2014 for injuries to
his head, left shoulder/elbow, and lower back. Appellant had recently fallen on ice and hit the
back of his head. With respect to appellant’s lumbar region, Mr. To noted that he had landed flat
on his back and it was a bit sore. Mr. To also noted a prior history of two herniated lumbar discs,
with constant lower back pain. He further noted that appellant was currently on work restriction.
Mr. To’s diagnoses included head injury, headache, left elbow pain, and lumbar spine pain, all of
which he attributed to work activities. Additionally, he advised that appellant could return to
regular work without restrictions.5
In July 10, 2014 follow-up treatment notes, Dr. Flimlin indicated that appellant was
injured on November 16, 2013 and reinjured on January 13, 2014. She noted that since his last
visit, he had been working eight-hour days, five days a week. Dr. Flimlin further noted that
appellant periodically experienced some soreness in his low back radiating to the hip. Appellant
currently denied any numbness or tingling into the legs, and there was no leg pain. Dr. Flimlin
also reported improved strength and increased range of motion in the hip and lumbosacral spine.
She noted a history of disc herniation with radiculopathy, which had improved significantly such
that appellant no longer experienced radicular symptoms. Accordingly, Dr. Flimlin advised that
he could permanently return to a nine-hour workday, five days per week. She also indicated that
no follow up was necessary.
In an October 23, 2014 decision, the Branch of Hearings & Review affirmed OWCP’s
January 10, 2014 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,

5

Mr. To identified appellant as a postal service employee, but did not otherwise describe his duties.

4

including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.6
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component is whether the employee actually experienced the employment incident that
allegedly occurred.7 The second component is whether the employment incident caused a
personal injury.8 An employee may establish that an injury occurred in the performance of duty
as alleged, but fail to establish that the disability or specific condition for which compensation is
being claimed is causally related to the injury.9
ANALYSIS
Appellant attributed his current low back condition to the November 16, 2013 lifting
incident. He had previously injured his lower back on or about June 15, 2013. According to the
hearing representative, OWCP accepted appellant’s prior disease claim number xxxxxx713 for
L5-S1 disc herniation and bilateral lumbar radiculopathy. At the time of the November 16, 2013
incident, appellant was working in a light-duty capacity as a result of his preexisting lumbar
condition. His treating physician, Dr. Flimlin, provided various lumbar-related diagnoses, which
included degenerative disc disease, L5-S1 disc herniation, spondylosis with congenitally small
canal, moderate central stenosis, and severe bilateral/lateral recess stenosis. Dr. Borrello also
diagnosed lumbar spondylosis. As the hearing representative correctly noted, the issue is
whether appellant’s current lumbar conditions are causally related to the November 16, 2013
employment incident. As noted, causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue.10
Although appellant’s chiropractor noted that he had been treating appellant for his low
back since September 2013, Dr. Bradley did not provide a specific lumbar-related diagnosis in
his November 25, 2013 report.
Dr. Borrello initially examined appellant on December 9, 2013 and diagnosed lumbar
spondylosis. His report referenced a “significant aggravation” on November 16, 2013 when
lifting approximately 30 pounds at work. However, Dr. Borrello did not specifically comment
6

20 C.F.R. § 10.115(e), (f) (2014); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

7

Elaine Pendleton, 40 ECAB 1143 (1989).

8

John J. Carlone, 41 ECAB 354 (1989). Causal relationship is a medical question that generally requires
rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A
physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated
employment factor(s) must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB
345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of
medical certainty, and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and appellant’s specific employment factor(s). Id.
9

Shirley A. Temple, 48 ECAB 404, 407 (1997).

10

Robert G. Morris, supra note 8.

5

on whether appellant’s letter carrier duties either caused or contributed to his diagnosed lumbar
degenerative osteoarthritis. He merely reported appellant’s description of what occurred on
November 16, 2013. Accordingly, Dr. Borrello’s treatment notes are insufficient to establish a
causal relationship between appellant’s lumbar spondylosis and the November 16, 2013
employment incident.
Mr. To, a physician assistant, treated appellant for an unrelated fall on March 6, 2014.
He noted a prior history of lumbar herniated disc, but did not comment on or even mention
appellant’s November 16, 2013 lifting incident. Certain healthcare providers such as physician
assistants, nurse practitioners, physical therapists and social workers are not considered
“physician[s]” as defined under FECA.11 As such, their opinions will not suffice for purposes of
establishing entitlement to FECA benefits.12 A report from a physician assistant or certified
nurse practitioner will be considered medical evidence if countersigned by a qualified
physician.13
In her November 20, 2013 report, Dr. Flimlin indicated that four days prior appellant
lifted a mail hamper onto a truck and experienced severe axial back pain. She characterized the
November 16, 2013 work incident as involving “bending, lifting, and twisting,” which caused a
“recurrence of back pain.” In her January 30, 2014 report, Dr. Flimlin stated that appellant
reinjured his lower back while lifting a “mail hamper onto a truck.” She noted that he had
degenerative changes in the lumbar spine, and explained that the November 16, 2013 lifting
incident “[reinjured] the symptoms that were related to a work-related injury on [January 13,
2014].” Dr. Flimlin believed with medical certainty that the lifting incident caused a recurrence
of appellant’s low back pain with radicular symptoms into the right leg. In closing, she reiterated
that the November 16, 2013 recurrence of symptoms was a reinjury of appellant’s original injury.
Dr. Flimlin’s above-noted reports are insufficient to establish causal relationship for
several reasons. First, her reported history of injury is inaccurate. Appellant did not lift a “mail
hamper onto a truck.” He lifted a mail tray from a hamper and placed the mail tray into his LLV.
Second, on at least two occasions Dr. Flimlin referenced a January 13, 2014 work-related injury,
which is not otherwise supported in the record. A physician’s opinion on causal relationship
must be based on a complete factual and medical background.14 Lastly, Dr. Flimlin did not
provide a specific diagnosis related to the November 16, 2013 employment incident. She
variously characterized the November 16, 2013 incident as causing a recurrence of low back pain
and/or a reinjury of symptoms. Back pain is a symptom, not a medical diagnosis. Subjective
complaints of pain are not sufficient, in and of themselves, to support compensation benefits
under FECA.15

11

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

12

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013).

14

Victor J. Woodhams, supra note 8.

15

20 C.F.R. § 10.501(a)(3).

6

The mere fact that a condition manifests itself during a period of employment is not
sufficient to establish causal relationship.16 Temporal relationship alone will not suffice.17
Furthermore, appellant’s personal belief that his employment activities either caused or
contributed to his condition is insufficient, by itself, to establish causal relationship.18 The Board
finds that the medical evidence of record fails to establish that his current lumbar condition is
causally related to his accepted November 16, 2013 employment exposure. Accordingly, OWCP
properly denied appellant’s traumatic injury claim.
CONCLUSION
Appellant failed to establish that his current lumbar condition is causally related to the
November 16, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the October 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.19
Issued: May 4, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

Id. at § 10.115(e).

17

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

18

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

19

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within
one year of this merit decision. 5 U.S.C. § 8128(a); 20 C.F.R. §§ 10.605-10.607.

7