United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., Appellant
and
DEPARTMENT OF THE INTERIOR,
GRAND COULEE DAM, Grand Coulee, WA,
Employer
__________________________________________

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

Docket No. 15-1587
Issued: December 23, 2015

Case Submitted on the Record

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

JURISDICTION
On July 17, 2015 appellant filed a timely appeal from a March 20, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right shoulder injury
on April 23, 2014 while in the performance of duty.
On appeal, appellant notes that he filed a prior claim alleging that he sustained a workrelated right shoulder injury under File No. xxxxxx722 and contends that he reinjured the same
shoulder at work on April 23, 2014. He contends that the instant case was closed before OWCP
received the results of an authorized magnetic resonance imaging (MRI) scan. Appellant asserts
1

5 U.S.C. § 8101 et seq.

that a September 25, 2014 report from Dr. Miguel A. Schmitz, a Board-certified orthopedic
surgeon, establishes that he sustained a work-related injury that required surgery.
FACTUAL HISTORY
On May 14, 2014 appellant, then a 63-year-old hydromechanic, filed a traumatic injury
claim (Form CA-1) alleging that on April 23, 2014 he experienced extreme pain, inflammation,
and limited range of motion in his right shoulder, and tingling and numbness in his right arm as a
result of pushing on a sling to slide a 260-pound bearing shoe onto a surface plate.
In daily notes dated May 20 to July 10, 2014, appellant’s physical therapists addressed
the treatment of his right shoulder conditions.
In duty status reports (Form CA-17) dated May 12 and 20, 2014, Shelly Gilliland, a
registered nurse practitioner, diagnosed a right shoulder strain and provided appellant with work
restrictions. On April 23, 2014 she advised him that he could perform his regular work duties.
By letter dated July 28, 2014, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional medical evidence. It also requested that the
employing establishment submit medical evidence, if appellant had been treated at its medical
facility.
In daily notes dated July 23 to 31, 2014, appellant’s physical therapists addressed the
treatment of appellant’s right shoulder conditions.
In a July 15, 2014 medical report, Dr. William W. Faloon, Jr., a Board-certified
orthopedic surgeon, provided a history of injury that in August 2013 appellant possibly
dislocated his right shoulder while pulling a 16-foot plank and placing it onto a ledge. He noted
his medical treatment, and family and social background. Dr. Faloon provided examination
findings and diagnosed right shoulder pain. He ordered additional diagnostic testing. In a
July 15, 2014 discharge summary report, Dr. Faloon ordered a magnetic resonance arthrogram
(MRA) of the right shoulder to assess the status of appellant’s labrum and rotator cuff.
On August 14, 2014 Dr. Corey D. Judd, a Board-certified radiologist, noted that appellant
had right shoulder pain and that he was being evaluated for a rotator cuff tear versus a labral tear.
He administered a successful intra-articular injection into appellant’s right shoulder for an MRA
under fluoroscopy.
By decision dated September 3, 2014, OWCP accepted that the April 23, 2014 incident
occurred as alleged. However, it denied appellant’s claim and determined that the medical
evidence did not establish a causal relationship between his right shoulder conditions and the
accepted employment incident.
In a letter dated November 9, 2014, appellant requested reconsideration. He noted that
prior to the instant claim he filed a claim under File No. xxxxxx722 alleging that he sustained a
right shoulder injury at work on August 26, 2013. Appellant’s condition was treated with antiinflammatory medication and he sufficiently recovered to resume a normal life with minimal
discomfort. He reinjured the same shoulder on April 23, 2014. Appellant’s condition was
2

treated with anti-inflammatory and pain medications and physical therapy. He also underwent
diagnostic testing. Appellant contended that the instant case was closed before OWCP received
a diagnosis from Dr. Faloon. He further contended that a September 25, 2014 report from
Dr. Schmitz established that he sustained a work-related injury that required surgery.
Appellant submitted an unsigned August 14, 2014 right upper extremity MRI scan and
right shoulder MRA which provided an impression of a small focal partial thickness articularsided tear along the anterior distal supraspinatus tendon, extensive chondromalacia throughout
the glenohumeral joint, large loose body in the axillary recess of the joint capsule with suspected
smaller loose bodies in the subscapular recess, and moderately severe hypertrophic degenerative
change of the acromioclavicular (AC) joint.
In a September 25, 2014 report, Dr. Schmitz described appellant’s work duties and
history of his two claims for a right shoulder injury sustained at work. He noted that appellant’s
prior right shoulder claim was closed. Dr. Schmitz reported physical examination findings and
reviewed the findings of x-rays and an MRI scan of the right shoulder. He assessed right
glenohumeral arthritis and closed dislocation of the right glenohumeral joint sequela with a loose
body present. Appellant also had a posterior subluxation of the shoulder, but it was likely he had
post-traumatic multidirectional instability secondary to the trauma about one year ago. His more
recent episode was likely an expression of his first injury which occurred one year ago.
Dr. Schmitz noted that there was an arthritic component to appellant’s current complaints, but
this was not an insidious onset problem. It occurred precipitously with the trauma approximately
one year ago. Dr. Schmitz summarized that the subtle osteophyte changes in appellant’s
shoulder were likely secondary to occupational disease versus traumatic disorder. The
multidirectional instability appeared to be traumatic as his examination of the right shoulder was
distinctly different from the left shoulder which was stable. Dr. Schmitz noted that appellant had
maneuvers that he brought about with the right shoulder at work that made him feel as if his
shoulder was dropping out of the joint. He recommended right shoulder arthroscopy with a
subacromial decompression and AC resection combined with glenohumeral stabilization and
loose body removal from the glenohumeral joint.
By decision dated December 17, 2014, OWCP denied modification of the September 3,
2014 decision. It found that the medical evidence was insufficient to establish a right shoulder
injury causally related to the accepted April 23, 2014 employment incident.
In a February 16, 2015 letter, appellant requested reconsideration, reiterating his prior
contention that he sustained a work-related right shoulder injury on April 23, 2014 based on
Dr. Schmitz’s September 25, 2014 report.
By letter dated January 16, 2015, Dr. Schmitz disagreed with the denial of appellant’s
claim. There were no shoulder studies that predated the April 2014 incident with the exception
of a right shoulder x-ray from August 26, 2013 which described AC joint osteoarthrosis.2
Dr. Schmitz noted that appellant’s August 2013 workers’ compensation claim was closed after
he was treated successfully with anti-inflammatory medications. He opined that current state
2

The Board notes that the August 26, 2013 right shoulder x-ray pertaining to appellant’s claim under File No.
xxxxxx722 is not contained in the instant case record.

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was related to his April 2014 shoulder injury. Since this injury, appellant’s shoulder locked up
on many occasions. Dr. Schmitz related that the second right shoulder injury seemingly was
responsible for appellant’s ongoing issues which he interpreted as an element of glenohumeral
instability. He further related that appellant had one cumulative work-related shoulder injury at
the same job site rather than two separate injuries at two different job sites. Dr. Schmitz could
have better understood OWCP’s December 17, 2014 decision denying appellant’s claim, if
appellant had been involved with avocational activities that predisposed him to shoulder
problems. Based on these considerations and conversations with appellant, he determined that it
was more probable than not that appellant sought medical treatment for his right shoulder due to
his April 2014 injury. Dr. Schmitz advised that he may have osteoarthrosis and/or loose bodies
in this shoulder, but the exact timing of the development of these conditions was unknown unless
there were other available shoulder radiographs. He ascertained from appellant that his job was
very physical as appellant was required to lift a 350-pound object at work. Dr. Schmitz noted
that he had developed osteoarthrosis on a relatively rapid basis, possibly within the last two and
one-half years, as he transitioned from a desk job to his current physical job. He concluded that
appellant’s April 2014 claim relates to his current right shoulder evaluation and management.
Although appellant had osteoarthritic changes, it was within the realm of possibilities that
osteoarthrosis in his shoulder had accelerated to the extent that it required surgical intervention.
In a March 20, 2015 decision, OWCP denied modification of the December 17, 2014
decision. It found that Dr. Schmitz’s January 16, 2015 opinion on causal relationship was
speculative in nature and indicated that appellant sustained an occupational work injury rather
than a traumatic work injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged.7

3

Supra note 1.

4

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

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

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The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury caused by the accepted April 23, 2014 employment incident.
Appellant failed to submit sufficient medical evidence to establish that he had a right shoulder
injury causally related to the accepted employment incident.
Dr. Schmitz’s September 25, 2014 report found that appellant had right glenohumeral
arthritis and closed dislocation of the right glenohumeral joint sequela with a loose body present
based on physical examination findings and a review of right shoulder x-rays and MRI scan
results. He opined that the subtle osteophyte changes in his shoulder were likely secondary to
occupational disease versus traumatic disorder.
Dr. Schmitz further opined that the
multidirectional instability appeared to be traumatic as his examination of the right shoulder was
distinctly different from the left shoulder which was stable. Medical reports without adequate
rationale on causal relationship are of diminished probative value and do not meet an employee’s
burden of proof.11 While Dr. Schmitz, in a January 16, 2015 report, opined that appellant had an
element of glenohumeral instability that was “seemingly” related to the accepted April 2014
employment incident, the Board finds that his opinion is speculative in nature. The Board has
held that speculative and equivocal medical opinions regarding causal relationship have no
probative value.12 Further, Dr. Schmitz did not adequately explain, with citation to objective
findings, whether appellant’s diagnosed right shoulder condition was in fact caused by the
April 23, 2014 employment incident. He reasoned that appellant’s diagnosed right shoulder
condition was causally related to the accepted April 23, 2014 employment incident because no xray studies predated this work incident except an August 26, 2013 x-ray which showed AC joint
osteoarthrosis that had been successfully treated and was related to appellant’s August 2013
claim. Dr. Schmitz further reasoned that appellant was not involved in avocational activities
which would have predisposed him to shoulder problems. A medical opinion, however, that a
condition is causally related to an employment injury because the employee was asymptomatic
8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

See R.C., Docket No. 15-315 (issued May 4, 2015); Ceferino L. Gonzales, 32 ECAB 1591 (1981).

12

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).

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before the injury, but symptomatic after it is insufficient, without supporting rationale, to
establish causal relationship.13 Dr. Schmitz did not explain the mechanism by which pushing on
a sling to slide a 260-pound bearing shoe onto a surface plate at work resulted in the diagnosed
condition.14 In addition, he reasoned that appellant sustained a cumulative work-related shoulder
injury and not two different injuries.
Dr. Faloon’s July 15, 2014 report found that appellant had right shoulder pain. He
provided a history that appellant possibly dislocated his right shoulder at work in August 2013.
Dr. Faloon did not provide a medical diagnosis regarding appellant’s right shoulder pain. The
Board has held that pain is a symptom, not a compensable medical diagnosis.15 Moreover,
Dr. Faloon did not relate the diagnosed right shoulder condition to the accepted April 23, 2014
employment incident. He did not address how pushing on a sling to slide a bearing shoe onto a
surface plate caused a right shoulder condition. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.16 Further, While Dr. Faloon’s remaining report dated
July 15, 2014 ordered a right shoulder MRA to assess the status of appellant’s labrum and rotator
cuff, he did not state that either condition was caused or aggravated by the accepted work
incident.17
Dr. Judd’s August 14, 2014 report found that appellant had right shoulder pain. He
administered a successful intra-articular injection into his right shoulder for an MRA under
fluoroscopy to evaluate whether appellant had a rotator cuff tear versus a labral tear. As stated,
pain is a symptom, not a compensable medical diagnosis.18 Moreover, Dr. Judd did not provide
an opinion explaining how appellant’s right shoulder pain was caused or aggravated by the
accepted April 23, 2014 employment incident.19
The May 12 and 20, 2014 Form CA-17 reports from Ms. Gilliland, a registered nurse
practitioner, noted that appellant had a right shoulder strain and that he could return to work as of
April 23, 2014 with restrictions, have no probative medical value as a registered nurse
practitioner is not a physician as defined under FECA.20
13

E.B., Docket No. 15-631 (issued May 18, 2015); Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

14

See cases cited, supra note 12.

15

K.W., Docket No. 12-1590 (issued December 18, 2012).

16

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
17

Id.

18

Supra note 17.

19

See cases cited, supra note 18.

20

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a physician includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law. 5 U.S.C. § 8101(2). 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).

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Similarly, the daily notes dated May 20 to July 31, 2014 from appellant’s physical
therapists are insufficient to establish appellant’s claim. The Board has held that treatment notes
signed by a physical therapist are not considered medical evidence as such provider is not
considered a physician under FECA.21
An unsigned August 14, 2014 right upper extremity MRI scan and right shoulder MRA
reported appellant’s right shoulder conditions. A report that is unsigned or bears an illegible
signature lacks proper identification and cannot be considered probative medical evidence as the
author cannot be identified as a physician.22
Therefore, the Board finds that there is insufficient medical evidence to establish that
appellant sustained a right shoulder injury causally related to the accepted April 23, 2014
employment incident.
On appeal, appellant contends that he sustained a right shoulder injury at work on
April 23, 2014. He asserts that the instant case was closed before OWCP received the results of
an authorized MRI scan. Appellant further asserts that Dr. Schmitz’s September 25, 2014 report
establishes that he sustained a work-related injury that required surgery. As discussed above, the
August 14, 2014 MRI scan and MRA report and Dr. Schmitz’s September 25, 2014 report are of
diminished probative value and are insufficient to represent the weight of medical opinion.
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 right
shoulder injury on April 23, 2014 while in the performance of duty.

21

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2).
22

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the March 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 23, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
La Crosse, WI, Employer
__________________________________________

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

Docket No. 19-0796
Issued: September 4, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On March 1, 2019 appellant filed a timely appeal from a September 19, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a left hand injury in
the performance of duty on March 21, 2018, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the September 19, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On July 9, 2018 appellant, then a 28-year-old city carrier assistant 2, filed a traumatic injury
claim (Form CA-1) alleging that on March 21, 2018 he sustained an infection to his left middle
finger when he scraped it open on the metal door latch while getting out of his long-life vehicle
while in the performance of duty. On the reverse side of the claim form the employing
establishment controverted the claim noting that it had not been filed within 30 days.
In an August 13, 2018 development letter, OWCP notified appellant that the information
he submitted was insufficient to support his claim. It advised him of the type of factual and medical
evidence required to establish his traumatic injury claim. OWCP requested a narrative medical
report from appellant’s physician and attached an attending physician’s report (Form CA-20) for
completion. It afforded appellant 30 days to respond.
In a hospital note dated March 26, 2018 by Thomas J. Davey, a physician assistant,
appellant reported that he injured his left finger when he scraped it on a piece of metal while getting
out of his work vehicle. He was diagnosed with a finger infection and lymphadenopathy.
Mr. Davey prescribed antibiotics and appellant was asked to follow up in two to three weeks.
By decision dated September 19, 2018, OWCP denied appellant’s traumatic injury claim
finding that he had not submitted medical evidence containing a medical diagnosis in connection
with his accepted employment incident. It concluded, therefore, that the requirements had not
been met to establish an injury as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time and place, and in the manner alleged. Second, the employee must submit evidence, in
the form of medical evidence, to establish that the employment incident caused a personal injury.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left hand injury
in the performance of duty on March 21, 2018, as alleged.
In a report dated March 26, 2018, Mr. Davey diagnosed a finger infection and
lymphadenopathy. Mr. Davey is a physician assistant and his report was not countersigned by a
physician.8 Therefore, this report is entitled to no probative weight because physician assistants
are not considered physicians as defined under FECA.9 Consequently, the medical findings and/or
opinions of a physician assistant will not suffice for purposes of establishing entitlement to
compensation benefits.10
As appellant has not submitted sufficient medical evidence to establish a medical diagnosis
in connection with the accepted employment incident, the Board finds that he has not met his
burden of proof to establish a traumatic injury in the performance of duty on March 21, 2018, as
alleged.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left hand injury
in the performance of duty on March 21, 2018, as alleged.

7

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q) (traumatic injury and occupational disease defined, respectively).
5 U.S.C. § 8101(2). Under FECA the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by the applicable state law; K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A
report from a physician assistant or certified nurse practitioner will be considered medical evidence if countersigned
by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013).
8

9

Id.

10

K.W., supra note 8.

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ORDER
IT IS HEREBY ORDERED THAT the September 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ROBLEY REX VA MEDICAL CENTER,
Louisville, KY, Employer
__________________________________________

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

Docket No. 21-0602
Issued: March 10, 2022

Case Submitted on the Record

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

JURISDICTION
On March 9, 2021 appellant, through counsel, filed a timely appeal from a February 17,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.
FACTUAL HISTORY
On October 29, 2019 appellant, then a 51-year-old health technician, filed a traumatic
injury claim (Form CA-1) alleging that on January 30, 2019 she sustained an injury to the left side
of her hip and lower back when she fell on a wet floor after exiting an elevator to walk to her
assigned clinic while in the performance of duty. She stopped work on February 1, 2019 and
returned to work on February 12, 2019. The employing establishment contended that appellant
was not injured in the performance of duty as she was en route to her workplace location, but had
not yet reported for duty.
In a development letter dated November 6, 2019, OWCP informed appellant of the
deficiencies of her claim. It advised her of the type of factual and medical evidence needed and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment regarding the circumstances
of appellant’s claimed injury. It afforded both parties 30 days to respond.
OWCP subsequently received an emergency department report dated January 30, 2019,
wherein a physician assistant diagnosed right knee contusion with possible right knee strain and
right quadriceps strain.
A magnetic resonance imaging (MRI) scan of the left hip obtained on September 4, 2019
demonstrated no internal derangement of the hips, avascular necrosis, or fracture; bilateral gluteal
tendon pathology, worse on the left, where there is gluteus minimus tear/detachment and mo derate
peritendinous inflammation with adjacent peritrochanteric fluid; and minimal inferior sacroiliac
joint subarticular marrow edema without effusion or erosion, likely arthritic. An MRI scan of the
lumbar spine obtained on the same date demonstrated multilevel degenerative disc disease and
facet arthropathy with no significant change from a previous scan obtained on May 28, 2019. An
MRI scan of the pelvis obtained on October 8, 2019 demonstrated: mild left and minimal right
anterior inferior sacroiliac joint subarticular marrow edema, predominating on the sacral side
anteriorly on the left with minimal anterior spurring; intact subchondral bone plats; no evidence of
definitive erosive arthropathy; no effusion or periarticular inflammation; suspected m inimal
subarticular sclerosis; possible osteoarthrosis with stress-related marrow change favored over a
primary inflammatory or crystal arthritis; no change in end plate marrow edema at L4 -5 and
bilateral L4-5 facet arthrosis with a moderate inflammatory component; and no change in the
pelvis and hips compared to an MRI scan obtained in September 2019.
In an October 10, 2019 report, Dr. Gary Reasor, Board-certified in anesthesiology and pain
medicine, examined appellant for complaints of low back pain, beginning seven months prior.
Appellant also told Dr. Reasor that the pain was a result of an incident at work on January 30, 2019
when she slipped and fell on her left hip due to water on the floor, and that the pain became much
worse in March and April. Dr. Reasor noted past medical history including back pain, sciatica,
degenerative disc disease, and kidney stones. He related appellant’s physical examination findings

2

and diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain. In an accompanying note of the same date,
Dr. Reasor recommended work restrictions of no standing for more than 15 minutes and no
repetitive bending or twisting of the waist.
In a letter dated October 25, 2019, Dr. Reasor noted that appellant had been seen on
October 10, 2019 on referral from her rheumatology office for severe back pain. Appellant told
Dr. Reasor that she was injured at work on January 30, 2019 when she entered the employing
establishment and slipped on a wet floor, landing on the left hip. She continued to have significant
back pain after the fall and was markedly increased after she was asked to participate in
cardiopulmonary resuscitation (CPR) training. Dr. Reasor reviewed his physical findings on
examination and MRI scan results. He opined that appellant developed significant low back pain
attributable to injury of her left sacroiliac joint as well as inflammation of the left lower lumbar
facet joints, directly related and caused by her fall at work as the history and mechanism of injury
matched her findings on examination.
In a note dated November 15, 2019, Dr. Reasor recommended work restrictions of no
lifting, bending, standing, or squatting for more than 15 minutes. In a note dated November 20,
2019, he recommended that appellant be excused from work from November 11 through 22, 2019.
On November 27, 2019 the employing establishment controverted appellant’s claim,
contending that a medical condition had not been diagnosed resulting from the claimed injury on
January 30, 2019 and that the medical evidence of record did not establish a causal relationship
between any diagnosed condition and the claimed January 30, 2019 injury.
In a letter dated December 7, 2019, Dr. Reasor diagnosed lumbar spondylosis with pain
derived from the lumbar facet joints. He opined that appellant was injured on January 30, 2019
and that the mechanism of injury was a slip and fall on a wet floor as she entered the workplace.
Dr. Reasor noted that appellant struck the floor on her left hip and has had back and hip pain since
that time. His physical examination revealed tenderness over the lumbar spine and he noted that
further examination of the lumbar facets demonstrated concordance between the facets and her
complaints of pain. Dr. Reasor stated that an MRI scan study demonstrated hypertrophy of the
lumbar facets and opined that without question, the lumbar facets were injured as a result of the
fall. He opined to a high degree of medical certainty that there was a direct cause and effect
relationship between appellant’s fall and her current back and hip pain.
By decision dated December 16, 2019, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the January 30, 2019 employment
incident occurred, as alleged. It noted that she had not provided a clear description of the events
supporting an injury at work on January 30, 2019. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined by FECA.
On December 30, 2019 appellant requested reconsideration.
By decision dated February 27, 2020, OWCP reviewed the merits of appellant’s claim and
found that the medical evidence of record was sufficient to establish that the January 30, 2019
incident occurred as alleged; however, the claim remained denied as the medical evidence of

3

record was insufficient to establish causal relationship between her diagnosed lumbar spondylosis
and the accepted employment incident.
On July 1, 2020 appellant, through counsel, requested reconsideration. Submitted with the
request was a letter from Dr. Reasor dated June 7, 2020. Dr. Reasor explained that appellant was
referred on October 10, 2019 from an advanced practice registered nurse (APRN) who saw
appellant for widespread osteoarthritis and was asked to evaluate appellant’s complaints of left
back, buttock, and leg pain. Appellant recounted that she fell at work on January 30, 2019 when
she slipped on a wet floor, causing her to fall and land on her left hip. Over the course of the next
two to three months her pain worsened, particularly when she underwent mandatory CPR training.
Dr. Reasor reviewed his physical findings on examination and MRI scan findings. He diagnosed
lumbar spondylosis without myelopathy, lumbosacral intervertebral disc degeneration, and low
back pain. Dr. Reasor described administering the lumbar medial branch nerve blocks bilaterally
at L3, L4, and L5 on November 15, 2019 and January 24, 2020. He noted that to his knowledge,
there were no imaging studies of the lumbar spine or hip antedating the January 30, 2019 fall; but,
opined that taking that into account, it remained his medical opinion to a high degree of certainty
that her fall was the cause of her continued back pain. Dr. Reasor explained that assuming
appellant developed lumbar facet arthropathy before the fall in which she slipped on a wet floor
and landed on her left hip, it would have caused, at a minimum, an aggravation of underlying facet
arthropathy. He further noted that it was unknown if she had an annular tear of the L5 -S1 disc,
but that the fall “could have easily been the cause of the annular tear in an already-desiccated disc.”
Dr. Reasor stated that the fall on the left hip, wherein appellant landed on her left buttock, was
“the most likely cause of the torn or detached left gluteus minimus tendon. The mechanism of
injury, in my opinion, is clear to see.”
In a report dated May 6, 2019, an APRN, Sheena Steele, diagnosed cervical radiculopathy,
thoracic and low back pain. An MRI scan of appellant’s lumbar spine obtained on May 28, 2019
demonstrated a small central annular tear posterior disc margin at L5-S1 that could be a source of
back pain, but with no evidence of nerve root impingement, bilateral L4-5 facet arthropathy, and
mild inflammation/edema surrounding the L4-5 facet joints that may indicate an active process.
In a report dated May 30, 2019, Ms. Steele diagnosed thoracic spine and low back pain,
cervical radiculopathy, and unspecified joint pain.
An MRI scan of appellant’s thoracic spine obtained on June 5, 2019 demonstrated: a mild
chronic compression fracture of T11, healed with mild deformity; normal thoracic cord signal
intensity, no pathologic cord enhancement, no thoracic canal stenosis, and no significant foraminal
impingement; and thoracic degenerative changes.
In a report dated June 7, 2019, Lori Weiss, an APRN, diagnosed thoracic and low back
pain, cervical radiculopathy, and current long-term use of an opiate analgesic. In a report dated
August 15, 2019, she diagnosed thoracic spine, left hip, and low back pain, cervical radiculopathy,
and long-term current use of an opiate analgesic. Appellant told the nurse that while completing
a CPR class recently, she experienced increased pain to her back and reinjured her alread y-chronic
symptoms from earlier in 2019.

4

Additional reports received from Dr. Reasor indicated that on November 15, 2019 he
performed a medial branch nerve block at L3, L4, and L5 for treatment of diagnosed lumbar
spondylosis without radiculopathy.
In a report dated December 3, 2019, Dr. Reasor followed up with appellant after her
November 15, 2019 procedure. He opined that her pain was facet-related and due to her fall. On
physical examination, Dr. Reasor observed pain with palpation of the lumbar spine with bilateral
tenderness over the lumbar facets and pain on extension. He diagnosed lumbar spondylosis
without myelopathy or radiculopathy, low back pain, and lumbosacral intervertebral disc
degeneration.
On January 24, 2020 Dr. Reasor performed another medial branch nerve block at L3, L4,
and L5 bilaterally for treatment of diagnosed lumbar spondylosis without radiculopathy. He noted
post-procedure pain reduction of 100 percent.
In a report dated February 14, 2020, Dr. Reasor followed up with appellant after her
January 24, 2020 medial branch nerve block at L3, L4, and L5. He noted post-procedure relief of
eighty percent for several hours. Appellant advised Dr. Reasor that her pain remained at 8 out of
10 at this follow-up examination. On physical examination of the lumbar spine, Dr. Reasor
observed pain with palpation of the midline and bilateral facets and pain on flexion and extension.
He diagnosed lumbar spondylosis without myelopathy or radiculopathy, lumbosacral
intervertebral disc degeneration, and low back pain.
In a report dated March 5, 2020, Dr. Reasor examined appellant for low back, buttocks,
and left lower extremity pain with tingling. He noted that the pain began seven months prior and
that it was a result of a work-related incident. Dr. Reasor observed that appellant had an antalgic
gait. On physical examination of the lumbar spine, he observed pain with palpation, marked
tenderness of the left facets, decreased range of motion, and pain on flexion, e xtension, lateral
movement, and rotation. On examination of the thoracic spine, Dr. Reasor observed pain with
palpation, marked tenderness of the left facets, and pain on rotation. He diagnosed thoracic spine
pain, lumbar spondylosis without myelopathy or radiculopathy, lumbosacral intervertebral disc
degeneration, and low back pain.
By decision dated February 17, 2021, OWCP denied modification.3
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
3

The February 17, 2021 decision was a reissuance of a decision dated September 29, 2020, wherein OWCP
reviewed the merits of appellant’s claim and denied modification of the February 27, 2020 decision. A copy of this
decision was not mailed to appellant’s counsel of record. On October 8, 2020 the employing establishment requested
that a copy of the September 29, 2020 decision be mailed to appellant’s counsel of record, as it had not yet been
annotated as being forwarded to counsel. In a letter dated October 15, 2020, counsel requested an update as to the
request for reconsideration in appellant’s case.
4

Id.

5

States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted January 30, 2019 employment incident.
In his October 25, 2019 report, Dr. Reasor opined that appellant developed significant low
back pain attributable to injury of her left sacroiliac joint as well as inflammation of the left lower
lumbar facet joints. He opined that her condition was directly related and caused by her fall at
work, as the history and mechanism of injury matched her findings on examination. In his
December 3, and 7, 2019 reports, Dr. Reasor opined that appellant was injured on January 30,
2019 and that the mechanism of injury was a slip and fall on a wet floor as she entered the
5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

workplace. He opined that without question, the lumbar facets were injured as a result of the fall.
Dr. Reasor further opined to a high degree of medical certainty that there was a direct cause and
effect relationship between appellant’s fall and her current back pain. In the June 7, 2020 report,
he opined that it remained his medical opinion to a high degree of certainty that her fall was the
cause of her continued back pain. Dr. Reasor explained that assuming appellant developed lumbar
facet arthropathy before the fall in which she slipped on a wet floor and landed on her left hip, it
would have caused, at a minimum, an aggravation of underlying facet arthropathy . He further
noted that it was unknown if she had an annular tear of the L5-S1 disc, but that the fall could have
easily caused the tear in an already-desiccated disc. The Board has found that in any case where
a preexisting condition involving the same part of the body is present and the issue of causal
relationship therefore involves aggravation, acceleration, or precipitation, the physician must
provide a rationalized medical opinion that differentiates between the effects of the work-related
injury or disease and the preexisting condition.11 While Dr. Reasor noted appellant’s past medical
history including back pain, sciatica, and degenerative disc disease. He did not specifically
differentiate between appellant’s preexisting condition(s) and the effects of the January 30, 2019
employment incident. These reports were therefore insufficient to establish causal relationship
between the diagnosed lumbar conditions and the accepted January 30, 2019 employment incident.
Regarding appellant’s left hip condition, Dr. Reasor stated that the fall on the left hip,
wherein appellant landed on her left buttock, was “the most likely cause” of her torn or detached
left gluteus minimus tendon. He opined that the mechanism of injury was clear to see. The June 7,
2020 report is insufficient to establish appellant’s claim as Dr. Reasor couched his conclusions
that the fall “could have easily been” the cause of an annular disc tear and that her detached left
gluteus minimus tendon was “most likely” caused by the fall in equivocal terms. The Board has
held that while the opinion of a physician supporting causal relationship need not be one of
absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty. 12 The Board also notes that
Dr. Reasor did not discuss the apparent inconsistency between his account of appellant’s fall onto
her left side on January 30, 2019 and the emergency department report of January 30, 2019, in
which the fall was described involving her left leg extending to the front falling hard on her right
knee and upper front right thigh. Medical opinions based on an incomplete or inaccurate history
are of diminished probative value.13 Without a discussion of the apparent inconsistency between
his account of appellant’s fall onto the left side and the January 30, 2019 emergency department
report’s account of a fall onto the right knee and right thigh, Dr. Reasor’s opinions are therefore
insufficiently rationalized to establish appellant’s claim.
Appellant submitted additional reports and notes dated October 10, November 15,
November 20, and December 7, 2019; and January 24, February 14, and March 5, 2020 from
Dr. Reasor. These reports and notes did not offer a medical opinion regarding the cause of
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013); see
L.C., supra note 6; R.D., Docket No. 18-1551 (issued March 1, 2019).
12

L.S., Docket No. 18-1494 (issued April 12, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

13

See D.B., Docket No. 19-0663 (issued August 27, 2020); D.W., Docket No. 18-0123 (issued October 4, 2018);
L.G., Docket No. 09-1692 (issued August 11, 2010).

7

appellant’s diagnosed conditions. The Board has held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship. 14 Therefore these reports are insufficient to establish appellant’s claim.15
Appellant also submitted a report dated January 30, 2019 from a physician assistant and
reports dated May 6, May 30, June 7, and August 15, 2019 from APR nurses. However, certain
healthcare providers such as physician assistants, nurse practitioners, and physical therapists are
not considered physicians as def ined under FECA. 16 Consequently, these reports will not suffice
for purposes of establishing entitlement to FECA benefits. 17
The remaining evidence consists of diagnostic reports dated May 28, June 5, September 4,
and October 8, 2019. The Board has held that diagnostic tests, standing alone, lack probative value
on the issue of causal relationship as they do not provide an opinion on the relationship between
the employment incident and a claimant’s diagnosed condition. 18
As appellant has not submitted rationalized medical evidence establishing that her
diagnosed medical conditions were causally related to the accepted employment incident of
January 30, 2019, the Board finds that she has not met her burden of proof.
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 proof to establish a medical condition
causally related to the accepted January 30, 2019 employment incident.

14

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
15

S.W., Docket No. 19-1579 (issued October 9, 2020); see L.B., id.; D.K., id.

Section 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket
No. 19-0221 (issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (finding that lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA).
16

17

See M.C., Docket No. 19-1074 (issued June 12, 2020) (nurse practitioners are not considered physicians under
FECA); R.K., Docket No. 20-0049 (issued April 10, 2020) (physician assistants are not considered physicians under
FECA).
18

See C.F., Docket No. 18-1156 (issued January 22, 2019); T.M., Docket No. 08-0975 (issued February 6, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 10, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Quantico, VA,
Employer
__________________________________________
Appearances:
Laura White, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 19-1941
Issued: February 22, 2021

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 19, 2019 appellant, through counsel, filed an appeal from a March 27, 2018
merit decision of Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 19-1941.
The Board, having duly considered the matter, notes that its jurisdiction is limited to the
review of final adverse decisions issued under FECA.1 The March 27, 2018 decision expanded
the acceptance of appellant’s claim and is therefore not a final adverse decision. The case record
as transmitted to the Board does not contain a final adverse decision of OWCP issued within 180
days from the date of docketing of the current appeal.1 As there is no final adverse decision issued
by OWCP over which the Board may properly exercise jurisdiction, the Board concludes that the
appeal docketed as No. 19-1941 must be dismissed. Accordingly,

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

IT IS HEREBY ORDERED THAT the appeal docketed as No. 19-1941 is dismissed.
Issued: February 22, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
FEDERAL JUDICIARY, U.S. PROBATION
OFFICE, Cheyenne, WY, Employer
__________________________________________

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

Docket No. 12-229
Issued: July 10, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 18, 2011 appellant filed a timely appeal from Office of Workers’
Compensation Programs’ (OWCP) decisions dated June 1 and November 3, 2011. Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a consequential spinal stenosis condition in the
performance of duty.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, then a 52-year-old deputy clerk,
filed a Form CA-2 claim for benefits under case file number xxxxxx800, alleging that he
sustained a multilevel degenerative joint disease at L4-5 and L5-S1 disc protrusion. He stated on
1

5 U.S.C. § 8101 et seq.

the form that he first became aware that he had this condition on August 8, 1988. In a
September 27, 2007 report, Dr. Gunnar B. Andersson, a Board-certified orthopedic surgeon,
stated that he began treating appellant for low back pain approximately 20 years previously; at
that time he diagnosed herniated disc. He examined appellant again on September 20, 2007 at
which time he was experiencing increasing symptoms. Dr. Andersson advised that a recently
administered magnetic resonance imaging (MRI) scan confirmed the previous diagnosis of
stenosis at L4-5 and L5-Sl with facet osteoarthritis at both levels. By decision dated October 17,
2007, OWCP denied the claim. It consolidated the instant claim, case file number xxxxxx800,
with two other claims filed by appellant: a claim for traumatic injury on May 21, 1986 under
case file number xxxxxx834; and a claim for traumatic injury on July 31, 1987 under case file
number xxxxxx690. OWCP also indicated that appellant had also filed an occupational disease
claim in 1988 under case file number xxxxxx138, which OWCP accepted for displacement of
lumbar intervertebral disc and brachial neuritis or radiculitis. Appellant requested an oral
hearing and submitted an October 31, 2007 report from Dr. Andersson, who indicated that
appellant’s diagnosed spinal stenosis and facet osteoarthritis at L4-5 and L5-S1 conditions
developed as a consequence of his prior work-related herniated lumbar disc. Regarding
appellant’s stenosis, Dr. Andersson explained that appellant now had severe degenerative
changes in the area where the herniated disc existed causing stenosis and facet osteoarthritis. He
concluded that it is common that an accelerated degenerative process occurs following the disc
herniation.
By decision dated May 14, 2008, an OWCP hearing representative set aside the
October 17, 2007 decision. He found that while Dr. Andersson’s report was not sufficient to
establish that these conditions were causally related to his prior, accepted work injuries, it did
raise an uncontroverted inference between the claimed injury or disability and these injuries.
The hearing representative therefore remanded for OWCP to further develop the evidence. He
instructed OWCP to assemble appellant’s prior case record, prepare a new statement of accepted
facts and refer appellant and all his case records to a second opinion examiner for a reasoned
medical opinion regarding whether he had a current back condition causally related to or a
consequence of his prior work-related injuries.
In an August 7, 2008 report, Dr. Andersson explained that the majority of disc herniations
heal without surgical intervention, but they could lead to accelerated degeneration of the disc itself.
He further explained: “Thus, it is typical to see an accelerated degenerative process after a disc
herniation where the disc loses height over a fairly short period of time. This leads to a
redistribution of the forces acting over the facet joints, which means that the surfaces of the facet
joints no longer are congruent. As a result, osteoarthritis of the facet joints occurs.” Dr. Andersson
also noted that it was of course possible to develop disc degeneration and facet osteoarthritis as a
result of aging and that these conditions, including stenosis occurs frequently in patients who have
never had a herniated disc.
By decisions dated July 28, 2008, March 10, 2009 and March 5, 2010, OWCP denied
appellant’s claim for a consequential lower back condition causally related to his prior accepted
low back injuries.
By order dated February 18, 2011, the Board set aside OWCP’s March 5, 2010 decision.
It found that OWCP did not include appellant’s prior accepted conditions in the June 4, 2008

2

statement of accepted facts and did not include the contemporaneous medical records pertaining
to those injuries with the instant case record, in accordance with the hearing representative’s
instructions. The Board therefore remanded for reconstruction and reconsolidation of the case
record to include the case files pertaining to claim numbers xxxxxx800, xxxxxx834 and
xxxxxx690 and followed by a de novo decision to protect appellant’s appeal rights.2 The
complete facts of this case are set forth in the Board’s February 8, 2011 decision and are herein
incorporated by reference.
In an amended statement of accepted facts dated March 10, 2011, OWCP indicated that it
had accepted claims for low back strain resulting from a traumatic injury sustained on May 21,
1986; lumbosacral strain for a traumatic injury sustained on July 31, 1987; and herniated lumbar
disc for a traumatic injury sustained on March 1, 1989.
On remand, OWCP referred appellant to Dr. Allan M. Brecher, Board-certified in
orthopedic surgery, for a second opinion examination. In a May 10, 2011 report, Dr. Brecher
found no causal relationship between appellant’s current back condition and his prior accepted
injuries. He diagnosed appellant’s spinal stenosis but found that this did not result as a
consequence of the previous, accepted low back strains he sustained during the late 1980’s.
Dr. Brecher advised that appellant did not develop spinal stenosis until much later, which
suggested that his condition resulted as a consequence of age, natural spinal degeneration and
obesity.
By decision dated June 1, 2011, OWCP denied the claim, finding that appellant failed to
establish that his current spinal stenosis condition was a consequence of his accepted
lumbosacral strain injuries. It found that Dr. Brecher’s referral opinion represented the weight of
the medical evidence.
On August 9, 2011 appellant requested reconsideration. He did not submit any new
medical evidence.3
By decision dated November 3, 2011, OWCP denied modification of the June 1, 2011
decision.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that flows
from the injury is deemed to arise out of the employment, unless it is the result of an independent
intervening cause which is attributable to the employee’s own intentional conduct.4 Regarding the
range of compensable consequences of an employment-related injury, Larson notes that, when the
question is whether compensability should be extended to a subsequent injury or aggravation
2

Docket No. 10-1226 (issued February 8, 2011).

3

The Board notes that appellant did submit Dr. Andersson’s August 7, 2008 report, which, as noted, was
considered by OWCP in a prior decision.
4

Mary Poller, 55 ECAB 483 (2004).

3

related in some way to the primary injury, the rules that come into play are essentially based upon
the concepts of direct and natural results and of claimant’s own conduct as an independent
intervening cause. The basic rule is that a subsequent injury, whether an aggravation of the
original injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury. Thus, once the work-connected character of any condition is
established, the subsequent progression of that condition remains compensable so long as the
worsening is not shown to have been produced by an independent nonindustrial cause.5
A claimant bears the burden of proof to establish a claim for a consequential injury.6 As
part of this burden, he or she must present rationalized medical opinion evidence, based in a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.7
ANALYSIS
OWCP accepted the conditions of low back strain, lumbosacral strain and herniated
lumbar disc for traumatic injuries appellant sustained in 1986, 1987 and 1988. The issue is
whether appellant sustained his current diagnosed condition, spinal stenosis, as a consequence of
these previously accepted injuries. The Board finds that he has not submitted sufficient medical
evidence to establish his claim.
In support of his claim, appellant submitted reports from Dr. Andersson. In his October 31,
2007 report, Dr. Andersson related that herniated discs could become weaker and lead to an
accelerated degenerative process, which would cause stenosis. However, he further explained in
his August 7, 2008 report, that, while it was typical to see an accelerated degenerative process after
a disc herniation, due to loss of disc height and subsequent loss of congruence, it was also possible
to develop disc degeneration, including stenosis and facet osteoarthritis as a result of aging. The
Board finds that Dr. Andersson’s reports are speculative in nature. Dr. Andersson never explained
any medical history or physical findings to support a conclusion that appellant’s degenerative
process and stenosis were causally related to his accepted herniated disc. Instead, he addressed the
issue of disc herniation and the degenerative process in general terms, nonspecific to appellant’s
medical history. Lacking necessary medical rationale, Dr. Andersson’s reports are of limited
probative value. They are insufficient to establish that appellant’s spinal stenosis, which he
diagnosed in 2007 were related to his employment injuries which occurred some 20 years prior.
OWCP referred appellant to Dr. Brecher, who diagnosed spinal stenosis but found that this
condition was not causally related to his previous, accepted low back injuries. Dr. Brecher noted
that appellant sustained these traumatic injuries 20 years prior to the time when his treating
5

A. Larson, The Law of Workers’ Compensation § 10.01.

6

William C. Thomas, 45 ECAB 591 (1994).

7

Charles W. Downey, 54 ECAB 421 (2003).

4

physician diagnosed spinal stenosis. Based on this history, he opined that appellant’s spinal
stenosis resulted from age, natural spinal degeneration and obesity and was not result as a
consequence of his accepted lumbosacral strain and herniated disc injuries. Dr. Brecher’s opinion
that appellant’s claimed spinal stenosis condition did not arise as a consequence of his 1986,
1987 and 1988 employment injuries is thorough, probative, well rationalized and based on his
examination of appellant and his medical history. OWCP properly found that Dr. Brecher’s
referral opinion represented the weight of the medical evidence.
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.8 Causal relationship must be established by rationalized medical
opinion evidence and he failed to submit such evidence.
OWCP advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which he would have developed a spinal stenosis condition
as a consequence of his 1986, 1987 and 1988 employment injuries. OWCP properly denied his
claim for compensation.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a consequential spinal stenosis condition in the performance of duty.

8

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the November 3 and June 1, 2011 decisions of the
Office of Workers’ Compensation Programs’ are affirmed.
Issued: July 10, 2012
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Port Monmouth, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Kathleen A. Sheedy, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2169
Issued: March 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 August 22, 2007 appellant, through his attorney, filed a timely appeal from a
September 13, 2006 merit decision of the Office of Workers’ Compensation Programs finding
that he forfeited his entitlement to compensation and a May 24, 2007 hearing representative’s
decision affirming the forfeiture of compensation and finalizing an overpayment of
compensation for which he was at fault in its creation. Pursuant to 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 the Office properly found that appellant forfeited his
entitlement to compensation from January 28, 2002 through September 14, 2004 because he
knowingly failed to report employment activities; (2) whether he received an overpayment of
compensation in the amount of $58,493.06 during the period of the forfeiture; (3) whether he
was at fault in the creation of the overpayment; and (4) whether the Office properly determined
that it would deduct $500.00 every four weeks from his continuing compensation to repay the
overpayment.

FACTUAL HISTORY
On November 13, 1995 appellant, then a 43-year-old clerk, filed a claim for an injury to
his lower back and left leg occurring on that date when he picked up tubs of flats. He stopped
work on November 28, 1995 and did not return. The Office accepted his claim for lumbosacral
strain and a herniated disc at L4-5.
On May 1, 1999 appellant began working 12 hours per week in private employment. On
May 27, 2001 the Office reduced his compensation effective May 1, 1999 based on his actual
earnings as a doorman.1 Appellant stopped working as a doorman in May 2001.
Appellant completed periodic EN1032 form questionnaires regarding whether he had any
earnings from employment or self-employment during the previous 15 months. The EN1032
forms advised that he must report all employment for which he received a salary, wages, income,
sales commissions, piecework or any payment of any kind, that he must report self-employment
and that he must report any such enterprise in which he worked and any volunteer work
performed. The Office advised appellant on the EN1032 forms that he was obligated to
“immediately” report any employment to the Office and that fraudulently concealing or failing to
report income could subject him to criminal prosecution. Appellant completed and signed
EN1032 forms on April 15, 2003, March 12 and September 14, 2004. On each form he indicated
that he was not engaged in either employment or self-employment and did not perform volunteer
work.
On February 25, 2005 an investigator with the employing establishment and an
investigator with the Office of the Inspector General (OIG) of the United States Department of
Labor interviewed appellant regarding his activities with Southside Florist. The investigators
witnessed him driving a van owned by Southside Florist immediately before the interview.
Appellant related that he was assisting the owners so that they could attend a funeral. He denied
that he worked for the florists or that he received compensation. Appellant related that he
worked from around 7:00 a.m. until noon on Valentine’s Day. He never received any tips and he
was not on a schedule. Appellant was uncertain why there was a schedule for Valentine’s Day.
On February 24, March 15 and 24, 2005 the investigators interviewed Barbara
Vandenberge, the proprietor of Southside Florist. Ms. Vandenberge could not remember when
appellant began working for the shop. She stated that “her workers were paid off the books and
she did not maintain timekeeping records. On busy days Ms. Vandenberge used delivery sheets.
Appellant worked alone on Sundays so that Ms. Vandenberge and her partner could take the day
off. On other days “his duties included mostly delivering flowers by van to customers, and
occasionally waiting on customers in the florist.” Ms. Vandenberge determined after reviewing
sales slips that appellant began working at the florist shop on January 28, 2002.
In a statement dated March 24, 2005, Ms. Vandenberge related that she opened Southside
Florist in September 2001. Her family and friends assisted her to make the shop a success and to
1

The Office terminated appellant’s compensation in March 1997 for refusing suitable work under 5 U.S.C.
§ 8106(c). By decision dated December 23, 1999, it vacated its March 6, 1997 termination decision and found that
he was entitled to compensation for total disability after March 16, 1997.

2

help revitalize the surrounding area. Appellant assisted depending on his physical condition.
Ms. Vandenberge stated:
“He would help us make flower deliveries, drive the delivery van, help us keep
the shop tidy, answer the phone or take an order if we were busy. The extent of
his help varied depending upon our need and his physical ability to assist.
“We never had the need to keep formal records of [appellant’s] help. Our
schedule for Valentine’s Day week was used more as an organizational tool than a
payroll record since so much of the help we received from friends that week was
done without pay. Likewise our delivery sheets were a back up in case a
customer questioned whether a delivery was made. We have none of the records
specified in the subpoena since we did not consider [appellant] to be an
employee.”
Ms. Vandenberge related that appellant provided most of his assistance on Sundays
working in the shop for four hours. She stated, “During that time [he] would frequently open the
shop, answer the phone, take orders and wait on the occasional customer. Without his help, we
would have had to work seven days per week or close on Sundays completely.” Appellant
initially helped out on January 28, 2002 and last worked on February 24, 2005.
Ms. Vandenberge stated:
“[Appellant] has never asked for payment for his help and has refused payment on
those occasions when we have tried to pay him. We have tried to reciprocate for
his kindness and support with small kindnesses of our own such as providing him
with free flowers if he needed them for a funeral or other occasions, treating him
to lunch periodically when he was in the shop or giving him money for gas when
it seemed he was having a hard time and could [not] afford to put gas in his car.
These things were done for him as our friend.”
The record contains a Valentine’s week time sheet listing the hours worked by appellant
and records of delivery and sales slips.
In a March 30, 2005 investigative memorandum, an investigator with the employing
establishment related that the inspection service conducted surveillance on appellant on various
dates from June 17, 2004 until February 17, 2005. On 16 different occasions investigators
observed him loading flowers into a delivery van and delivering the flowers. On October 6,
2004 appellant received a $5.00 tip following a delivery. On November 3, 2004 undercover
inspectors asked him whether he had any jobs and he indicated that he did not believe that he
was allowed to work and receive workers’ compensation. Appellant related that he understood
the requirement to report earnings and employment to the Office.
On September 13, 2006 the Office determined that appellant forfeited entitlement to
compensation for the period January 28, 2002 through September 14, 2004. It found that he
knowingly failed to report employment on EN1032 forms covering this period. On
September 13, 2006 the Office also notified appellant of its preliminary determination that he
received a $58,493.06 overpayment of compensation for the period January 28, 2002 through

3

September 14, 2004 based on his forfeiture of compensation. It further advised appellant of its
preliminary determination that he was at fault in the creation of the overpayment. The Office
requested that he complete the enclosed overpayment recovery questionnaire and submit
supporting financial documents. Additionally, it notified appellant that, within 30 days of the
date of the letter, he could request a telephone conference, a final decision based on the written
evidence or a prerecoupment hearing.
On October 4, 2006 appellant, through his attorney, requested an oral hearing on the
forfeiture determination and a prerecoupment hearing. He submitted a completed overpayment
recovery questionnaire and challenged the finding that he was at fault in creating the
overpayment. Appellant listed income of $1,715.16 per month and expenses of $1,205.00 per
month.
At the telephonic hearing, held on March 1, 2007, appellant’s attorney contended that he
was not employed by Southside Florist. While visiting his friend, Lorna Becker, an employee of
the florist, he ran a few errands and answered the telephone but did not receive any earnings.
Appellant received free flowers, gasoline money and lunch as gifts from a friend and not
payment for services. At the hearing, Ms. Vandenberge related that she knew appellant socially
and each occasionally treated the other to lunch. She denied that he worked for the florist shop.
Ms. Vandenberge related that appellant helped out answering the telephone and running errands
because he was a friend. She indicated that she guessed when she provided a start date of
January 28, 2002 for appellant and denied giving the employing establishment’s investigators an
exact date that he began helping at the shop. Ms. Vandenberge related that the delivery sheets
were sometimes handwritten by persons other than the one making the delivery. She noted that
appellant might have watched the store approximately five Sundays but asserted that he did not
have duties. On Valentine’s Day appellant was listed on a schedule and did assist in making
deliveries. Ms. Vandenberge indicated that appellant made deliveries during a six-month period
in 2004. She provided occasional free flowers, money for gasoline and meals as a friend and not
as remuneration. Appellant related that he considered his activities at the florist as helping
friends rather than volunteer work or employment. He indicated that he received one $5.00 tip.
Appellant also received occasional money for gasoline, free flowers and meals as help from a
friend. He was aware that he should report volunteer work on the EN1032 forms but did not
consider what he was doing volunteer work. Appellant did not remember whether he assisted in
the florist shop in 2002. He denied working at the florist shop in 2003. He spent time in the
florist shop in 2004 and drove a vehicle on Valentine’s Day in 2005. Appellant related that he
now paid $500.00 in rent, spent $200.00 per month on food, paid car insurance of $1,100.00 per
year and made payments on a loan of $1,700.00. The hearing representative held the record
open 30 days for him to submit further information regarding his financial situation.
On March 26, 2007 an inspector with the employing establishment asserted that
Ms. Vandenberge and Ms. Becker minimized appellant’s activities at the florist shop. The
inspector stated, “Although they did not call it work, the duties he performed at the florist
constitute work.” She further noted that Ms. Vandenberge reviewed sales slips in determining
that appellant began working on January 28, 2002.
By decision dated May 24, 2007, the hearing representative affirmed the September 13,
2006 forfeiture determination and finalized the finding that appellant received an overpayment of

4

$58,493.06 for the period of the forfeiture. She further finalized the finding that appellant was at
fault in creating the overpayment and found that the overpayment would be recovered by
deducting $500.00 from continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of the Federal Employees’ Compensation Act provides that an employee
who “fails to make an affidavit or report when required or knowingly omits or understates any
part of his earnings, forfeits his right to compensation with respect to any period for which the
affidavit or report was required.”2
The Board has held that it is not enough merely to establish that there were unreported
earnings or unemployment. A claimant can be subjected to the forfeiture provisions of 5 U.S.C.
§ 8106(b) only if he “knowingly” failed to report employment or earnings.3 The term
“knowingly” as defined in the Office’s implementing regulation, means “with knowledge,
consciously, willfully or intentionally.”4
Section 10.5(g) of the Office’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack or profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”5
ANALYSIS -- ISSUE 1
The Office found that appellant forfeited his right to compensation for the period
January 28, 2002 through September 14, 2004 because he knowingly failed to report his earnings
and employment on EN1032 forms covering this period. Appellant signed EN1032 forms on
April 15, 2003, March 12 and September 14, 2004 covering the period January 28, 2002 through
September 14, 2004. On the forms, he indicated that he was not employed and did not engage in
self-employment. Appellant further denied performing volunteer work. Inspectors with the
employing establishment, however, conducted surveillance of him on multiple occasions
between June 17, 2004 and February 17, 2005. The inspectors observed appellant loading
2

5 U.S.C. § 8106(b).

3

Barbara L. Kanter, 46 ECAB 165 (1994).

4

20 C.F.R. § 10.5(n).

5

20 C.F.R. § 10.5(g); see also J.S., 58 ECAB ___ (Docket No. 06-2113, issued May 10, 2007).

5

flowers into a delivery van for Southside Florist and delivering flowers to customers. On
October 6, 2004 appellant received a $5.00 tip following a delivery. In a statement dated
March 24, 2005, Ms. Vandenberge, the proprietor of Southside Florist, related that appellant
delivered flowers in the van, tidied the shop, answered the telephones and sometimes helped
customers in the store. On Sundays appellant worked in the store for four hours. He began
helping at the florist shop on January 28, 2002. Ms. Vandenberge related that she did not pay
appellant and that he had refused offered payment. She provided free flowers for a funeral,
treated him to lunch or provided money for gasoline occasionally as she was his friend. At the
hearing, Ms. Vandenberge disputed that appellant performed work for the florist shop and also
contended that she was unable to determine when he began helping at the shop.
The Board finds that the evidence establishes that appellant failed to report earnings from
employment. The Office’s regulation defines earnings to include a “reasonable estimate of the
cost to have someone else perform the duties of an individual who accepts no remuneration.
Neither lack of profits, nor the characterization of the duties as a hobby, removes an
unremunerated individual’s responsibility to report the estimated cost to have someone else
perform his or her duties.”6 Appellant clearly performed duties for Southside Florist which the
owners would have had to pay an individual to perform. He answered the telephone, delivered
flowers and tended to the shop by himself on certain Sundays. At the hearing, appellant
maintained that he did not help in the florist shop in 2003 and was unsure whether he helped
there in 2002. In a March 24, 2005 signed statement, Ms. Vandenberge asserted that he first
assisted in the shop on January 28, 2002 and last assisted on February 24, 2005. While she later
testified that she was unable to determine the exact dates that he began assisting in the florist
shop, her March 24, 2005 written statement to the investigators that he assisted in the shop
beginning January 28, 2002 and ending February 24, 2005 is more credible as it is more
contemporaneous and as it was made to law enforcement personnel.
Appellant can be subject to the forfeiture provision of section 8106(b) only if he
“knowingly” failed to report a reasonable estimate of the cost to have someone else perform the
duties he performed. The Office has the burden of proof to establish that a claimant did, either
with knowledge, consciously, willfully, or intentionally, fail to report earnings from
employment.7 Appellant completed EN1032 forms which advised him that he must report both
all employment and all earnings from employment and self-employment. The EN1032 forms
also required him to report all volunteer work. The EN1032 forms clearly stated that he could be
subject to criminal prosecution for false or evasive answers or omissions. The factual
circumstances of record, including appellant’s signing of strongly worded certification clauses on
the EN1032 forms, provide persuasive evidence that he “knowingly” understated his earnings
and employment information.8 The Office, therefore, properly found that he forfeited his
entitlement to compensation from January 28, 2002 through September 14, 2004.

6

Id.

7

20 C.F.R. § 10.5(n).

8

See generally Robert C. Gilliam, 50 ECAB 334 (1998).

6

LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of the Office’s implementing regulation provides as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, [the Office] shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C.
[§] 8129 [recovery of overpayments] and other relevant statues.”9
ANALYSIS -- ISSUE 2
The Office’s regulations provide that the Office may declare an overpayment of
compensation for the period of a given forfeiture of compensation. If a claimant has any
earnings during a period covered by a Form EN1032 which he knowingly fails to report, he is
not entitled to any compensation for any portion of the period covered by the report, even though
he or she may not have had earnings during a portion of that period.10 The Office paid appellant
compensation in the amount of $58,493.06 for the period January 28, 2002 through
September 14, 2004. The Office properly found that appellant forfeited his entitlement to
compensation during this time because he failed to report earnings from employment on EN1032
forms; consequently, there exists an overpayment of compensation in the amount of $58,493.06.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(b) of the Act11 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations12
provides that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(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
9

20 C.F.R. § 10.529.

10

Louis P. McKenna, Jr., 46 ECAB 328 (1994).

11

5 U.S.C. § 8129(b).

12

20 C.F.R. § 10.433.

7

“(3) Accepted a payment which he or she knew or should have known to be
incorrect.”
ANALYSIS -- ISSUE 3
The Office properly determined that appellant was at fault in the creation of the
overpayment because he failed to provide information which he knew or should have known to
be material on EN1032 forms covering the period January 28, 2002 through September 14, 2004.
He had earnings as defined by section 10.5(g) of the Office’s regulations from working in a
florist shop during this period. Appellant did not report employment and earnings on EN1032
forms covering January 28, 2002 through September 14, 2004 and did not report any volunteer
work; thus, he failed to furnish material information to the Office. Appellant signed certification
clauses on EN1032 forms which advised him in explicit language that he might be subject to
civil, administrative or criminal penalties if he knowingly made a false statement or
misrepresentation or concealed a fact to obtain compensation. Consequently, by signing the
form, appellant is deemed to have acknowledged his duty to fill out the form properly, including
the duty to report any employment or self-employment activities and income. Appellant,
therefore, failed to furnish information which he knew or should have known to be material to
the Office. As he is not without fault in creating the overpayment, it is not subject to waiver.13
LEGAL PRECEDENT -- ISSUE 4
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where the Office seeks recovery from continuing compensation under the Act.14 Section
10.441(a) of the regulation provides:
“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
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 compensation, the financial circumstances of the individual, and any other
relevant factors, so as to minimize any hardship.”15
ANALYSIS -- ISSUE 4
Appellant did not provide detailed, documented information about his current financial
circumstances. It is his responsibility to provide information about income, expenses and
assets.16 Based on his testimony at the hearing, the hearing representative determined that
13

See Dale Mackelprang, 55 ECAB 174 (2003) (waiver of an overpayment is not permitted unless the claimant is
without fault in creating the overpayment).
14

Lorenzo Rodriguez, 51 ECAB 295 (2000).

15

20 C.F.R. § 10.441(a).

16

20 C.F.R. § 10.438; Steven R. Cofrancesco, 57 ECAB 662 (2007).

8

appellant earned $1,715.00 per month and had expenses of $898.33 per month. She found that
repaying $500.00 per month from continuing compensation would not create a hardship. The
hearing representative properly gave due regard to the relevant factors set forth in section
10.441(a) based on the information provided so as to minimize hardship in recovering the
overpayment.
CONCLUSION
The Board finds that the Office properly determined that appellant forfeited his
entitlement to compensation from January 28, 2002 through September 14, 2004 because he
knowingly failed to report employment activities. The Board further finds that he received an
overpayment of $58,493.06 during the period of the forfeiture and that he was at fault in the
creation of the overpayment. The Board also finds that the Office properly determined that it
would deduct $500.00 every four weeks from his continuing compensation to repay the
overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 24, 2007 and September 13, 2006 are affirmed.
Issued: March 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

9