United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Z., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 20-0106
Issued: July 9, 2020

Case Submitted on the Record

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

JURISDICTION
On October 14, 2019 appellant filed a timely appeal from an April 18, 2019 merit decision
and an August 21, 2019 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish a medical
condition causally related to the accepted factor of his federal employment; and (2) whether
OWCP properly denied appellant’s request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 26, 2018 appellant, then a 54-year-old director of logistics, filed a traumatic injury
claim (Form CA-1) alleging that on September 6, 2017 he suffered a major heart attack with
multiple complications while in the performance of duty. On the reverse side of the claim form,
1

5 U.S.C. § 8101 et seq.

the employing establishment controverted appellant’s claim noting that he was not injured while
in the performance of duty as he was on leave in Jordan from his deployment in Afghanistan at the
time of the incident. Appellant stopped work on September 6, 2017 and returned to full-time work
without restrictions on April 6, 2018.
In support of his claim, appellant submitted a September 27, 2017 report, wherein Dr. Janet
Lin, a Board-certified specialist in internal medicine, noted that appellant presented with syncope,
cardiac arrest, and aspiration pneumonia. Dr. Lin reported that, while on vacation in Jordan, he
suffered an episode of syncope and went into cardiac arrest. She reported that appellant’s cardiac
arrest was thought to be secondary to diabetic ketoacidosis (DKA) related to his untreated diabetes.
Dr. Lin indicated that he was also treated for acute renal failure, aspiration pneumonia, large sacral
decubitus ulcer, and methicillin-sensitive staphylococcus aureus (MSSA). She examined appellant
and diagnosed sepsis, aspiration pneumonia, diabetes mellitus with hyperglycemia, MSSA, cardiac
arrest secondary to DKA, unstable sacral decubitus ulcer, and hand paresthesia.
In a September 29, 2017 orthopedic evaluation, Dr. Alan Hibberd, a Board-certified
orthopedic surgeon, found that appellant had several, non-benign ischemic lesions on the left index
finger, buttocks, and lateral aspect of the heel.
In an October 9, 2017 report, Dr. In-Seok Park, a Board-certified specialist in internal
medicine, noted appellant’s medical history including his hospital stays in Jordan and Texas. He
examined appellant and diagnosed acute respiratory failure with hypoxia, bilateral healthcareassociated pneumonia, recent cardiac arrest, type 2 diabetes, sacral decubitus ulcer, anemia of
chronic disease, recent MSSA sepsis, and severe debility.
In an April 26, 2018 timeline, appellant noted that he was deployed to Afghanistan on
November 4, 2016. He indicated that he traveled to Jordan on April 21, 2017 and suffered a heart
attack on September 6, 2017. Appellant indicated that he was released from Istishari Hospital in
Jordan on September 16, 2017. He reported that he was treated in Al Udeid Medical Facility from
September 16 to 17, 2017, Landstuhl Regional Medical Center, Ramstein Air Base Germany from
September 18 to 23, 2017, Walter Reed Hospital from September 24 to 25, 2017, San Antonio
Medical Center from September 25 to 26, 2017, and St. Luke’s Baptist Hospital from
September 26 to October 9, 2017. Appellant then noted that he spent October 9 through April 4,
2018 with his family in San Antonio, Texas recovering from open wounds to his sacrum. He
indicated that he returned to duty at Hill Air Force Base in Utah on April 5, 2018.
In a May 1, 2018 letter, the employing establishment controverted appellant’s traumatic
injury claim based on performance of duty, noting that appellant was on vacation when the alleged
employment incident occurred.
In a May 2, 2018 report, LtCol Gabriel C. Pepper, a Board-certified physician specializing
in occupational medicine, noted that appellant suffered a cardiac arrest in Jordan on September 6,
2017 after experiencing a syncopal event. He noted that appellant was treated in Jordan and
Germany before being transferred to St. Luke’s Baptist Hospital in Texas. Dr. Pepper indicated
that appellant was treated for cardiac arrest, DKA, acute pancreatitis, acute kidney insufficiency,
MSSA, aspiration pneumonia, decubitus ulcer, multi-focal pneumonia, and bilateral hand
paresthesia. He reported that appellant’s EKG at St. Luke’s revealed mild tricuspid and mitral
regurgitation with mild pulmonary pressure. Dr. Pepper further noted that appellant’s EMG
studies showed median nerve neuropathies bilaterally. He also noted that, following his two-week
2

stay at St. Luke’s, appellant spent six months recovering and treating his open decubitus ulcer
before returning to full-duty work without restrictions on April 6, 2018. Dr. Pepper indicated that
he had been improving, but continued to experience bilateral hand pain.
A May 4, 2018 development letter from OWCP informed appellant that the evidence of
record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence.
OWCP subsequently received an October 4, 2017 operative procedure report, Dr. Charles
Duncan, a Board-certified specialist in internal medicine, which described the details of a flexible
fiber optic bronchoscopy performed as a result of appellant’s acute respiratory failure with bilateral
pulmonary infiltrates.2
On May 28, 2018 appellant responded to OWCP’s development questionnaire. He noted
that, while his normal workweek required 12-hour days, 7 days a week, during the last two months
of his tour, he worked 18-hour days, 7 days a week. Appellant reported feeling more tired and
noted that he began to experience weight loss. He alleged that the stress of his job contributed to
his diabetes and ultimately his cardiac arrest on September 6, 2017. Appellant indicated that he
had not experienced any cardiac symptoms prior to September 6, 2017 and reported that, prior to
his deployment to Afghanistan, he had no issues with blood pressure, diabetes, or artery disease.
He noted that he had never smoked tobacco products and did not drink alcohol.
Appellant submitted reports documenting pulmonary/respiratory evaluations,
computerized tomography scan results, diagnostic radiology results, magnetic resonance imaging
scan results, ultrasound results, chemistry testing, coagulation studies, hematology testing,
microbiology testing, urinalysis testing, and a list of administered medications related to his
September 26 to October 9, 2017 stay at St. Luke’s Baptist Hospital. Appellant also submitted
medical reports and diagnostic testing related to a pneumonia diagnosis.
A November 28, 2017 echocardiogram (EKG) report revealed mild mitral regurgitation,
mild tricuspid regurgitation, and mildly elevated pulmonary artery systolic pressure.
A December 19, 2017 nuclear stress test revealed normal left ventricular systolic function.
In a February 14, 2018 report, Dr. Patrick Grogan, a Board-certified neurologist,
performed a neurological examination and diagnosed hand pain, neuralgia, and meralgia
paresthetica of the left leg.
In a March 20, 2018 report, Dr. Grogan reviewed the February 21, 2018 EMG study results
and diagnosed median neuropathies, neuralgia, and meralgia paresthetica of the left leg. He noted
that appellant was improving.
In April 13, 17, and 26, 2018 work status reports, Dr. Pepper indicated that appellant could
return to full-duty work.
2

A January 26, 2011 letter, wherein Dr. Stephanie Olsen, a Board-certified specialist in internal medicine, reviewed
a January 21, 2011 myocardial perfusion stress test and reported that appellant had an excellent prognosis and should
be cleared for service without restrictions.

3

In May 10 and 29, 2018 witness statements, two of appellant’s coworkers noted that
appellant regularly worked an additional 3 to 4 hours nightly beyond his normal 12-hour, 7 days a
week work schedule. They indicated that he worked this increased schedule because of the
demands and responsibilities of his work assignment. The witnesses reported that appellant’s
energy decreased towards the end of his mission and that he looked tired and worn down from the
extra hours he was working.
By decision dated June 22, 2018, OWCP denied appellant’s traumatic injury claim, finding
that he was not injured while in the performance of duty as he was on vacation in Jordan on the
date of injury.
OWCP subsequently received a September 22, 2017 patient movement record, wherein
Dr. Daniel Golovko, a Board-certified specialist in internal medicine, noted that on September 6,
2017 appellant suffered cardiac arrest in Jordan due to DKA from previously undiagnosed diabetes
mellitus. Dr. Golovko noted that appellant’s diabetes mellitus was now under control. He
diagnosed diabetes and MSSA and recommended that appellant be transferred to Brooke Army
Medical Center.
In May 2 and June 27, 2018 work status reports, Dr. Pepper indicated that appellant could
return to full-duty work.
Appellant also submitted a June 12, 2018 medical record which consisted of medical notes
and diagnostic test results from 75th Medical Group, Brooke Army Medical Center, Landstuhl
Regional Medical Center, Ramstein Air Base, and Joint Base Andrews dated September 16, 2017
through May 2, 2018.
On July 23, 2018 appellant requested reconsideration.
In a July 12, 2018 report, Dr. Pepper diagnosed bilateral median nerve neuropathy of the
hands as well as diabetes. He found that appellant’s work hours and stress were above average
and, in combination with the environmental aspects of his deployment, they increased his
susceptibility to developing DKA. Dr. Pepper opined that, while appellant was on vacation when
he experienced cardiac arrest, it was caused by DKA which in turn was caused by undiagnosed,
untreated diabetes that was exacerbated by the physical stressors of appellant’s federal
employment. He indicated that appellant was intubated and restrained which caused nerve damage
to his hands. Dr. Pepper opined that appellant’s cardiac arrest was work related to a reasonable
degree of medical probability.
In an August 24, 2018 development letter, OWCP notified the employing establishment
that appellant and two of his coworkers had submitted statements that described employment
factors as the cause or contributing factors of appellant’s medical conditions. It requested that the
employing establishment review the statements and address what aspects of his job could be
considered stressful and note any accommodations that were made to reduce stress. OWCP
afforded the employing establishment 20 days to provide the necessary evidence. No response
was received.
By decision dated October 15, 2018, OWCP noted that it had converted appellant’s
traumatic injury claim to an occupational disease claim. It modified the June 22, 2018 decision,
finding that the evidence of record established that appellant worked extra hours on a regular basis,
which was a compensable factor of employment that occurred in the performance of duty.
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However, OWCP further found that the claim remained denied as the medical evidence of record
was insufficient to establish that appellant’s diagnosed conditions were caused or aggravated by
his accepted factor of employment.
On January 18, 2019 appellant requested reconsideration.
In a November 23, 2018 letter, appellant’s supervisor stated that appellant routinely
worked 80 hours or more each week during his deployment. He noted that there was little that
could be done to reduce the stress of the job. Appellant’s supervisor also noted that the danger of
the position also contributed to stress. He reported that the airfield would occasionally come under
rocket attack, usually late at night. Appellant’s supervisor indicated that the environmental factors
in Afghanistan made it difficult to work. He stated that temperatures regularly reached 120 degrees
Fahrenheit and that appellant sometimes needed to wear full body armor and Kevlar helmets in
these conditions. Appellant’s supervisor also noted that constant dust was a common problem that
was exacerbated by wind.
In a January 9, 2019 report, Dr. Pepper noted that heat, cold, wind, dust, increased physical
activity, working long hours, and working in a war zone were employment factors that could
contribute to stress. He noted that it was well established that physical and mental stress could
affect insulin production and unmask the symptoms of underlying diabetes. Dr. Pepper indicated
that the symptoms of diabetes could go unrecognized which could lead to the development of
DKA. He noted that the symptoms of DKA could go unrecognized, causing hypoglycemia,
hypokalemia, and cerebral edema which could lead to a syncopal event and cardiac arrest.
Dr. Pepper opined that the established employment factors could lead to the unmasking of
diabetes, which progressed to the point of DKA and then syncope and cardiac arrest. He found
that this represented a direct causal relationship, despite the fact that the cardiac arrest occurred
when appellant was on vacation, since the disease process leading to the cardiac arrest occurred
during his regular deployment duties.
By decision dated April 18, 2019, OWCP denied modification of the October 15, 2018
decision.
On July 25, 2019 appellant requested reconsideration.3
With his request, appellant submitted an e-mail thread dated June 25 through 27, 2017
showing that he was unable to receive medical treatment at Kandahar Airfield.
OWCP also received September 6 and 7, 2017 hematology reports.
In September 13 and 16, 2017 reports, Dr. Nayef Habahbeh, an internist, noted that
appellant was admitted to Istishari Hospital on September 6, 2017. He diagnosed post cardiac
arrest, severe metabolic acidosis due to DKA, acute pancreatitis, aspiration pneumonia, and sepsis.
By decision dated August 21, 2019, OWCP denied appellant’s request for reconsideration
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
3

In an accompanying July 22, 2019 memorandum, appellant noted that he submitted an amendment from
Dr. Pepper dated May 22, 2019 and a memorandum for the record dated July 1, 2019. However, these documents are
not of record.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period 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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors.8
The Board has held that, when working conditions are alleged as factors in causing a
condition or disability, OWCP, as part of its adjudicatory function, must make findings of fact
regarding which working conditions are deemed compensable factors of employment and are to
be considered by a physician when providing an opinion on causal relationship and which working
conditions are not deemed compensable factors of employment and may not be considered.9 If an
employee does implicate a factor of employment, OWCP should then determine whether the
evidence of record substantiates that factor. As a rule, allegations alone by a claimant are
insufficient to establish a factual basis for an emotional condition claim. The claim must be
supported by probative evidence.10 If a compensable factor of employment is substantiated,
OWCP must base its decision on an analysis of the medical evidence which has been submitted.11
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.12 The opinion of the physician must be based on a complete factual
and medical background of the claimant, must be one of reasonable medical certainty, and must
4

Supra note 1.

5

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
7
20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Victor J.
Woodhams, 41 ECAB 345 (1989).
9

Y.W., Docket No. 19-1877 (issued April 30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

10

L.S., Docket No. 18-1471 (issued February 26, 2020); Charles E. McAndrews, 55 ECAB 711 (2004).

11

M.A., Docket No. 19-1017 (issued December 4, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

12

L.F., Docket No. 19-1905 (issued April 10, 2020); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

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be supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment incident identified by the claimant.13
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted July 12, 2018 and January 9, 2019 reports from
Dr. Pepper which discussed causal relationship. Dr. Pepper provided a comprehensive history of
appellant’s medical conditions and found that heat, cold, wind, dust, increased physical activity,
working long hours, and working in a war zone were employment factors that could contribute to
stress. He noted that physical and mental stress could affect insulin production and unmask the
symptoms of underlying diabetes. Dr. Pepper indicated that the symptoms of diabetes and DKA
could go unrecognized, causing hypoglycemia, hypokalemia, and cerebral edema which could lead
to a syncopal event and cardiac arrest. He opined that appellant’s employment factors could lead
to diabetes, which progressed to the point of DKA and then syncope and cardiac arrest. Dr. Pepper
found that this represented a direct causal relationship despite the fact that the cardiac arrest
occurred when appellant was on vacation in Jordan. Dr. Pepper provided a proper factual and
medical history in his July 12, 2018 and January 9, 2019 reports. He opined that appellant’s
cardiac arrest was caused by undiagnosed, untreated diabetes and DKA which was caused by the
stressors of appellant’s federal employment. Dr. Pepper found that appellant’s cardiac arrest was
“work-related to a reasonable degree of medical probability” and that there was a “direct causal
relationship.” His findings were supported by the statement of appellant’s supervisor who noted
that appellant routinely worked 80 hours or more each week during his deployment, there was little
that could be done to reduce the stress of the job, and that the danger of the position also contributed
to stress. The supervisor also indicated that the airfield would occasionally come under rocket
attack, environmental factors in Afghanistan made it difficult to work, temperatures regularly
reached 120 degrees Fahrenheit and that appellant sometimes needed to wear full body armor and
Kevlar helmets in these conditions, constant dust was a common problem that was exacerbated by
wind, employees were required to manually perform employment duties outside in heat. As these
conditions were substantiated by a supervisor and were unopposed factually, they are found by the
Board to also constitute additional compensable factors.
Proceedings under FECA are not adversarial in nature, and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence to see that justice is done.14 The
Board finds that while Dr. Pepper’s opinion is not fully rationalized, it is relevant evidence in
support of appellant’s claim as it explains the physiological process by which his accepted factors
of federal employment could have affected his insulin production and caused diabetes, progressing
to DKA and ultimately syncope and cardiac arrest. Furthermore, Dr. Pepper’s opinion is based
upon a complete factual history and medical background and expresses an unequivocal opinion on
causal relationship that is supportive of the claim. Although his opinion is insufficiently
rationalized to meet appellant’s burden of proof, it raises an undisputed inference of causal

13

A.S., supra note 7; Leslie C. Moore, 52 ECAB 132 (2000).

14

R.S., Docket No. 19-1939 (issued May 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

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relationship sufficient to require further development by OWCP.15 Accordingly, the Board will
remand the case to OWCP for further development of the medical evidence based upon all
compensable employment factors.16
On remand OWCP shall refer appellant, the case record, and a statement of accepted facts
which incorporates all of the compensable employment factors to an appropriate specialist(s) for
an evaluation to obtain a rationalized medical opinion on whether the compensable employment
factors caused, contributed to, or aggravated appellant’s diabetic and cardiac conditions. If the
physician(s) disputes the opinion or findings of Dr. Pepper, the report shall provide a rationalized
explanation as to the basis for the disagreement. Following this and any other further development
as deemed necessary, OWCP shall issue a de novo decision.17
CONCLUSION
The Board finds that this case is not in posture for decision.

15

I.S., Docket No. 19-1461 (issued April 30, 2020).

16
On appeal and in his July 22, 2019 request for reconsideration, appellant referenced a May 22, 2019 amendment
from Dr. Pepper. He noted that OWCP did not address or evaluate the amendment in its August 21, 2019 decision.
However, the Board finds that this amendment cannot be considered as it is not of record.
17

In light of the Board’s disposition in issue 1, the second issue is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the August 21 and April 18, 2019 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: July 9, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., claiming as widow of W.G., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Memphis, TN, Employer
__________________________________________

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Appearances:
Gregory D. Jordan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2139
Issued: December 15, 2008

Case Submitted on the Record

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

JURISDICTION
On July 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ July 1, 2008 merit decision denying her claim for survivor’s benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that the employee’s
death on July 25, 2005 was causally related to his accepted emotional conditions.
FACTUAL HISTORY
This is the second appeal in this case. The Board issued a decision on May 13, 2008
affirming the Office’s determination that appellant had not met her burden of proof to establish
that the employee’s death on July 25, 2005 was causally related to his accepted emotional

conditions.1 The Office had accepted that by July 1971 the employee, then a 48-year-old air traffic
control specialist, sustained anxiety dissociative disease and chronic anxiety state due to his work
duties.2 It paid compensation for periods of work stoppage beginning in July 1971. The employee
retired from the employing establishment on disability retirement in June 1972. In late 1984, he
underwent heart bypass surgery but there is no indication that this surgery was necessitated by an
employment-related condition.3 On July 25, 2005 the employee died and on August 20, 2005
appellant, his widow, filed a claim for survivor’s benefits claiming that his death was related to his
accepted employment conditions.4 A certificate of death signed on July 25, 2005 by Dr. Lee N.
Vieron, an attending Board-certified cardiologist, listed the immediate cause of death as respiratory
arrest due to congestive heart failure.
In its May 13, 2008 decision, the Board considered a number of medical reports
submitted by appellant but found that they did not contain adequate medical rationale on the
issue of causal relationship between the employee’s death and his accepted emotional conditions.
For example, the Board evaluated an October 18, 2005 report in which Dr. Vieron stated that the
employee retired 30 years prior due to “severe anxiety problems” and concluded that these
problems caused hypertension and aggravated his diabetes and coronary artery disease.
Dr. Vieron suggested that employment-related anxiety contributed to the employee’s death due
to congestive heart failure and pneumonia. The Board found, however, that his opinion was of
limited probative value because it was not based on a complete medical history and he failed to
provide any discussion of the medical process of how stress could have contributed to the
coronary artery disease that ultimately caused the employee’s death in 2005. In a February 14,
2007 report, Dr. David H.S. Iansmith, an attending Board-certified cardiologist, stated that, from
the time of his retirement until his death, the employee received benefits and had continuing
difficulty in controlling his anxiety. The Board found that Dr. Iansmith’s report was of limited
probative value because it did not contain an opinion that the employee’s accepted employment
conditions contributed to his death.5 The facts and the circumstances of the case up to that point
are set forth in the Board’s prior decision and are incorporated herein by reference.

1

Docket No. 08-529 (issued May 13, 2008). The Board also affirmed an Office decision denying appellant’s
request for further merit review of her claim.
2

The employee’s claim was also accepted for temporary aggravation of Parkinsonism, but the medical records
after the early 1970s only occasionally mention Parkinsonism or Parkinson’s disease.
3

The record reveals that the employee had developed diabetes and hypertension by the mid 1980s. These
conditions have not been accepted as employment related.
4

It appears that at some point the employee elected to receive benefits from the Office rather than from the Office
of Personnel Management. He received Office benefits up until the date of his death.
5

The Board also found that some medical evidence showed that the employee’s death was not related to his
employment. Dr. Ajit B. Raisingghani, a Board-certified cardiologist serving as an Office referral physician,
concluded in a July 26, 2006 report that the employee’s employment-related conditions did not contribute to his
death. He indicated that it would be difficult to attribute the medical problems leading to the employee’s death,
which developed some time after his retirement, to the employment-related anxiety condition he sustained so many
years prior.

2

In documents received on June 13, 2008, appellant, through her attorney, requested
reconsideration of the denial of her survivor’s benefits claim.6 Appellant submitted an undated
report in which Dr. Iansmith stated that he was adding medical rationale to his February 14, 2007
report with respect to the cause of the employee’s death. Dr. Iansmith indicated that the
disability for which the employee was paid compensation was the primary cause of his death on
July 25, 2005. The employee was rendered totally disabled from all work due to experiencing
stress from his work as an air route traffic controller. Dr. Iansmith stated that the medical
records showed that the employee suffered from severe anxiety problems for more than 30 years.
He discussed an article from the International Journal of Epidemiology which posited that
coronary disease was among those conditions which might result from constitutional weaknesses
as well as workplace stresses. Medical studies detailed in the article indicated that the proportion
of deaths from coronary disease was well above average in people who worked in more
professional positions. Regarding the cause of the employee’s death, Dr. Iansmith stated:
“Over the years these anxiety problems, for which he was disabled and retired,
caused numerous problems including hypertension, aggravated his diabetes, and
caused coronary artery disease. These conditions in turn, led to his death from
congestive heart failure and an inability to overcome pneumonia at the time of his
death on July 25, 2005. The anxiety which disabled him was difficult to regulate
with medication and over time materially aggravated his coronary artery disease,
hypertension and diabetes. This anxiety precipitated, made worse and accelerated
the coronary artery disease and cerebral vascular disease from which he
ultimately expired.”
In a July 1, 2008 decision, the Office determined that appellant had not submitted
sufficient medical evidence to establish that the employee’s death on July 25, 2005 was causally
related to his accepted emotional conditions. It indicated that the medical evidence of record,
including the opinion of Dr. Iansmith, did not contain sufficient medical rationale to relate the
employee’s death to the accepted emotional conditions.
LEGAL PRECEDENT
Appellant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his employment.7 This
burden includes the necessity of furnishing rationalized medical opinion evidence showing
causal relationship between the accepted employment condition and the employee’s death.8 To
be considered rationalized medical evidence, the opinion of the physician must be based on a
complete and accurate factual and medical background of the employee, must be one of
reasonable medical certainty and must be supported by adequate medical discussion explaining
6

Appellant also submitted a December 7, 2007 letter in which her attorney argued that some of the previously
submitted medical evidence, including an October 18, 2005 report of Dr. Vieron, established her claim.
7

Carolyn P. Spiewak (Paul Spiewak), 40 ECAB 552, 560 (1989); Lorraine E. Lambert (Arthur R. Lambert), 33
ECAB 1111, 1120 (1982).
8

Martha A. Whitson (Joe E. Whitson), 43 ECAB 1176, 1180 (1992).

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the causal relationship between employment factors and the employee’s death.9 An award of
compensation may not be based on surmise, conjecture or speculation.10 The mere showing that
an employee was receiving compensation at the time of his death does not establish that his death
was causally related to conditions resulting from the employment.11
ANALYSIS
Appellant claimed that the employee’s death on July 25, 2005 was causally related to his
accepted emotional conditions, including anxiety dissociative disease and chronic anxiety state.
She submitted an undated report in which Dr. Iansmith, the employee’s Board-certified
cardiologist, stated that the employee’s employment-related anxiety problems, for which he was
disabled and retired, caused or aggravated numerous problems including his hypertension,
diabetes and coronary artery disease. Dr. Iansmith posited that these conditions in turn led to the
employee’s death from congestive heart failure and an inability to overcome pneumonia at the
time of his death on July 25, 2005. He found that the employee’s employment-related stress
precipitated, made worse and accelerated the coronary artery disease and cerebral vascular
disease from which he ultimately expired. Dr. Iansmith discussed an article from the
International Journal of Epidemiology which posited that coronary disease was among those
conditions which might result from constitutional weaknesses as well as workplace stresses.
Medical studies detailed in the article indicated that the proportion of deaths from coronary
disease was well above average in people who worked in more professional positions.
The Board finds that Dr. Iansmith’s opinion is of limited probative value regarding the
cause of the employee’s death because his opinion of causal relationship is not supported by
adequate medical rationale. Dr. Iansmith did not provide any notable description of the
particular medical conditions which had been accepted by the Office. He did not provide any
discussion of the employee’s treatment for his anxiety-related condition during the more than 30
years between his work stoppage in 1972 and his death in 2005. Therefore, Dr. Iansmith’s
opinion is not based on a complete medical history. He failed to provide any discussion of the
medical process of how stress could have contributed to the coronary artery disease that
ultimately caused the employee’s death in 2005. Such rationalized medical discussion is
particularly necessary in the present case in that, prior to the first development of the employee’s
heart condition in the mid 1980s, the employee had not been exposed to stressful employment
factors since the early 1970s. Moreover, Dr. Iansmith provided no discussion of nonwork factors
which might have explained the heart condition that lead to the employee’s death. He generally
discussed a medical article regarding the role of stress in aggravating heart disease, but the Board
has held that medical articles are of no evidentiary value in establishing the necessary causal
relationship between a claimed condition and accepted employment conditions because such
materials are of general application and are not determinative of whether the specifically claimed
condition is related to the particular accepted employment condition.12
9

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

10

Myrl Nix (Earl Nix), 15 ECAB 125, 126 (1963).

11

Leonora A. Buco (Guido Buco), 36 ECAB 588, 594 (1985).

12

William C. Bush, 40 ECAB 1064, 1075 (1989).

4

As explained by the Board in its May 13, 2008 decision, none of the previously submitted
medical evidence contained a rationalized medical opinion relating the employee’s accepted
emotional conditions to his July 25, 2005 death. For example, the October 18, 2005 report of
Dr. Vieron, an attending Board-certified cardiologist, was not based on a complete medical
history and did not contain adequate medical rationale on causal relationship. The February 14,
2007 report of Dr. Iansmith did not contain an opinion that the employee’s accepted employment
conditions contributed to his death. Moreover, Dr. Raisingghani, a Board-certified cardiologist
serving as an Office referral physician, concluded in a July 26, 2006 report that the employee’s
employment-related conditions did not contribute to his death.13 The mere fact that the
employee was receiving compensation at the time of his death does not establish that his death
was causally related to conditions resulting from the employment.14
For these reasons, the appellant did not meet her burden of proof to establish that the
employee’s death on July 25, 2005 was causally related to his accepted emotional conditions and
the Office properly denied her claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that the
employee’s death on July 25, 2005 was causally related to his accepted emotional conditions.

13

Dr. Raisingghani explained that it would be difficult to attribute the medical problems leading to the
employee’s death, which developed some time after his retirement, to the employment-related anxiety condition he
sustained so many years prior.
14

See supra note 11 and accompanying text.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 1, 2008 decision is affirmed.
Issued: December 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Spring, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-0342
Issued: March 15, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 4, 2021 appellant filed a timely appeal from a November 10, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and entitlement to a schedule award, effective April 26, 2020, because she
refused an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2); (2) whether it properly
determined that appellant received an overpayment of compensation in the amount of $3,193.12
for the period April 26 through May 23, 2020, for which she was without fault, because she
continued to receive wage-loss compensation following the termination of her compensation

1

5 U.S.C. § 8101 et seq.

pursuant to 5 U.S.C. § 8106(c)(2); and (3) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
On June 4, 2008 appellant then a 38-year-old window clerk, filed a traumatic injury claim
(Form CA-1) alleging that on May 23, 2008 she bruised her right leg, head, neck, and tailbone
when she tripped on a stool and fell while in the performance of duty. OWCP accepted her claim
for contusions of multiple sites, not elsewhere classified and subsequently expanded the
acceptance of her claim to include sprain of the back, thoracic region, contusion of buttock,
displacement of lumbar intervertebral disc without myelopathy, intervertebral disc disorder with
myelopathy, cervical region, and displacement of cervical intervertebral disc without myelopathy.
Appellant stopped work on May 24, 2008 and worked intermittently thereafter until stopping work
completely on May 3, 2017. OWCP paid appellant wage-loss compensation on the supplemental
rolls and then on the periodic rolls.
OWCP referred appellant, along with the case record and a statement of accepted facts
(SOAF), for a second opinion examination to determine her disability status. In an August 3, 2017
report, Dr. Albert Sanders, a Board-certified orthopedic surgeon, opined that appellant continued
to have residuals of the work-related injury of May 23, 2008. He noted that appellant was status
post cervical fusion at C5-6 and lumbar fusion at L5-S1, but continued to have chronic pain in the
neck and low back. Dr. Sanders advised that appellant exhausted all treatment modalities and her
prognosis was poor. He opined that appellant reached maximum medical improvement (MMI) on
September 17, 2015. Dr. Sanders indicated that appellant underwent a functional capacity
evaluation (FCE) on August 11, 2017 that found that she was capable of performing sedentary
duty, but not the usual duties of a window clerk. He reviewed the job description for a modified
passport scheduler that did not require lifting/pulling/pushing over 10 pounds and occasional
standing and walking and opined that appellant could perform these duties without restrictions. In
a work capacity evaluation (Form OWCP-5c) dated August 11, 2017, Dr. Sanders noted diagnoses
and indicated that appellant reached MMI and could return to work without restrictions.
By letter dated October 25, 2017, the employing establishment offered appellant a position
as a modified clerk. The duties included: sitting to perform customer complaint cases for two
hours a day; sitting to process parcel returns on a laptop for two hours a day; processing passports
while sitting for two hours a day; and assisting customers at the window while standing for two
hours a day. The physical requirements included: lifting, pushing, and pulling no more than 10
pounds; standing and walking for no more than two hours each; reaching above the shoulder for
no more than two hours a day; and no twisting.
On November 3, 2017 the employing establishment indicated that appellant did not show
up for work and did not respond to the job offer. On February 21, 2018 the employing
establishment confirmed that the job remained available.
By notice dated February 23, 2018, OWCP advised appellant that it had determined that
she had refused or failed to report to the offered position as a modified clerk. It informed her that
it had reviewed the offered position and found it was suitable and in accordance with the medical
restrictions provided by Dr. Sanders’ August 3, 2017 report. Pursuant to 5 U.S.C. § 8106(c)(2),

2

OWCP afforded appellant 30 days to accept the position or to provide adequate reasons for refusal.
It informed her that an employee who refuses an offer of suitable work without cause is not entitled
to wage-loss or schedule award compensation.
In a letter dated March 8, 2018, appellant rejected the job offer, asserting that the job
exceeded her restrictions and that she was in severe incapacitating pain.
Appellant submitted a March 9, 2018 report from Dr. Kenneth Lee, a Board-certified
orthopedist, who noted a history of injury and diagnosed cervicalgia, low back pain, postlaminectomy syndrome, radiculopathy in the lumbar and cervical region, obesity, intervertebral
disc displacement of the lumbar region, and spinal stenosis of the lumbar region with neurogenic
claudication. Dr. Lee reviewed a post-lumbar computerized tomography myelogram (CTM) from
October 10, 2017, which revealed most prominently L3-4 four-millimeter disc bulge with
moderate central canal stenosis with effacement about traversing nerve roots producing severe
central canal and lateral recess stenosis. He indicated that appellant remained symptomatic with
low back pain and bilateral lower extremity pain and recommended surgical intervention lumbar
decompression and discectomy at L3-4. Dr. Lee further indicated that appellant could not return
to work even in a sedentary capacity due to severe central canal stenosis associated with
radiculopathy affecting her lower extremities.
On March 22, 2018 OWCP reviewed the evidence of record and determined that the
modified clerk position was not suitable. It determined that Dr. Lee’s March 9, 2018 report
revealed that appellant’s condition may have materially worsened and she may require surgery
and, therefore, could not work.
OWCP requested an addendum report from Dr. Sanders addressing Dr. Lee’s report and
providing an opinion on whether the proposed treatment was due to the accepted conditions. On
April 2, 2018 Dr. Sanders noted that he could not comment as he had not received a copy of the
cervical CTM or Dr. Lee’s report and his evaluation was performed eight months ago and
appellant’s current condition was not clear.
On May 4, 2018 OWCP referred appellant to Dr. Sanders for a supplemental second
opinion. In a May 24, 2018 report, Dr. Sanders opined that appellant continued to have residuals
of the work-related injury. He found that the most recent CTM of the lumbar spine dated
October 9, 2017 revealed prominent spinal stenosis at L3-4, and opined that these residuals were
due to the work-related injury. Dr. Sanders disagreed with Dr. Lee’s opinion that appellant should
remain off work and indicated that the prior FCE showed that appellant was capable of performing
sedentary work with restrictions. In a Form OWCP-5c dated June 1, 2018, he noted that appellant
could return to sedentary work with permanent restrictions of walking, standing, and reaching
above shoulders no more than two hours a day, pushing, pulling, and lifting up to 10 pounds for
no more than two hours, and no twisting, bending, squatting, kneeling, climbing or stooping.
On December 31, 2018 OWCP determined that there was a conflict of medical opinion
between Dr. Lee, appellant’s treating physician who opined that appellant was totally disabled
from work, and Dr. Sanders, the second opinion physician, who opined that appellant was capable
of working in a full-time limited-duty capacity.

3

OWCP referred appellant to Dr. Gwenevere Williams, a Board-certified physiatrist, for an
impartial medical evaluation. In her January 31, 2019 report, Dr. Williams noted reviewing the
SOAF, medical history, and the medical record, including appellant’s prior medical diagnosis and
procedures. Findings on examination revealed: a well-healed spinal incision; flattening of cervical
and lumbar lordosis; restricted range of motion in the lumbar and cervical spine; tenderness to
bilateral cervical paraspinals, splenius capitus, trapezii, infraspinatus, and rhomboid; moderate
tenderness to the right acetabulum and upper gluteals; and vague sensory dysesthesia to light touch
and pinprick to the left L5 and S1 dermatomes. Dr. Williams reported that appellant was obese
and concomitant of significant deconditioned state unrelated to the May 23, 2008 work injury. She
noted that the work-related injury was affected by the preexisting medical condition of obesity that
placed excessive load on the cervical and lumbar spine causing additional symptomology.
Dr. Williams related that appellant provided inconsistent effort during her February 1, 2019 FCE.
However, based upon results documented by the FCE, Dr. Williams opined that appellant was
capable of performing modified sedentary work on a full-time basis. In a Form OWCP-5,
Dr. Williams opined that appellant was capable of walking and standing up to two hours per day,
reaching above her shoulder up to two hours per day, pushing, pulling no more than 20 pounds up
to two hours per day, lifting no more than 10 pounds up to two hours per day, and no twisting,
bending or stooping.
Appellant was treated in follow up by Dr. Andrew McKay, a Board-certified
anesthesiologist, on February 26 and June 18, 2019 for neck and low back pain. Dr. McKay noted
findings of diminished range of motion of the cervical and lumbar areas of the spine, positive
Spurling’s test, tenderness to palpation at C3-4 to C5-6 levels, weak upper and lower extremity
motor strength, and positive straight leg testing bilaterally. He diagnosed failed cervical and
lumbar spine surgery syndrome, status post lumbar and anterior cervical fusions, cervicalgia,
lumbago, chronic pain syndrome, and morbid obesity.
On July 19, 2019 the employing establishment offered appellant a modif ied distribution
window and markup clerk position. The salary for the position was the same as appellant’s current
PS 06/0 salary of $60,737.00. The job description listed that duties would be performed up to
eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds; pushing
and pulling up to 20 pounds intermittently up to two hours each; walking, standing, and reaching
above the shoulder intermittently up to two hours each; and no twisting, bending, or stooping. The
available shift was from 9:00 a.m. to 6:30 p.m., Monday through Friday, with Sundays and
Wednesdays off.
In a letter dated August 19, 2019, OWCP advised appellant that the position offered was
suitable in accordance with the medical limitations provided by Dr. Williams on
February 18, 2019. It notified her that, if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to 5 U.S.C § 8106(c)(2), her wage-loss compensation and
entitlement to a schedule award would be terminated. OWCP afforded appellant 30 day s to
respond.
On September 17, 2019 appellant responded to the August 19, 2019 letter, asserting that
she was medically unable to accept the offered position as the duties of the assignment were
inconsistent with her medical restrictions and disabilities.
4

Appellant submitted an October 8, 2019 report from Dr. McKay, who noted findings on
examination of tenderness of the cervical spinous process at C3-4 and C5-6, positive Spurling’s
test on the right, and diminished motor strength of the upper extremities diminished on the left.
With regard to the lumbar spine he noted paraspinal muscle tenderness bilaterally, tenderness to
palpation of L3-4 and L5-S1, and weak motor strength of the lower extremities. He diagnosed
failed cervical and lumbar spine surgery; status post lumbar fusion and anterior cervical fusion;
cervicalgia, lumbago, chronic pain syndrome; and obesity. Dr. McKay noted that appellant was
totally disabled.
On October 9, 2019 appellant was treated by Dr. Shahid Syed, a Board-certified internist,
for low back and neck pain. Findings on examination revealed an obese female; tenderness to
palpation of the cervical spine; paraspinal neck and trapezius; and decreased range of motion of
the paralumbar, parathoracic, and buttocks. Dr. Syed noted a problem list of chronic back pain,
cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy syndrome, sprain of
the ligaments of the cervical spine, muscle fascia and tendon at the neck, ligaments of the thoracic
spine, and muscle spasm of the back. He noted that appellant was off work for three months.
In a December 20, 2019 letter, OWCP found that the reasons appellant provided for
refusing the offered position were invalid. It afforded her 15 additional days to accept and report
to this position. OWCP noted that if appellant did not accept the position within 15 days of the
date of the letter, her wage-loss compensation and entitlement to a schedule award would be
terminated pursuant to 5 U.S.C. § 8106(c)(2). No additional response was received.
By decision dated April 13, 2020, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 26, 2020, finding that she had refused an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
In a compensation termination worksheet dated June 3, 2020, OWCP indicated that
appellant’s compensation was terminated effective April 26, 2020; however, she continued to be
paid on the periodic rolls from April 26 through May 23, 2020. The overpayment amount was
$3,193.12. 2
On June 8, 2020 OWCP issued a preliminary overpayment determination that an
overpayment of compensation had been created in the amount of $3,193.12 as appellant continued
to receive payment on the periodic rolls through May 23, 2020, after her FECA wage-loss
compensation had been terminated on April 26, 2020. It determined that she was without fault in
the creation of the overpayment. OWCP requested that appellant submit a completed overpayment
recovery questionnaire (Form OWCP-20) to determine a reasonable payment method and advised
her that she could request waiver of recovery of the overpayment. It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, and canceled checks, pay slips, and any other records, which support income and
expenses. Additionally, OWCP provided an overpayment action request form and further notified

2

The record reveals that payment was issued on May 23, 2020 via electronic funds transfer for the period April 26
through May 23, 2020.

5

appellant that, within 30 days of the date of the letter, she could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On July 6, 2020 appellant completed a Form OWCP-20 and requested that OWCP render
a decision based on the written evidence. She disagreed with the fact and amount of the
overpayment, and requested waiver of recovery of the overpayment.
On a Form OWCP-20 completed on July 6, 2020 appellant reported that her total monthly
income included $123.00 from the Social Security Administration (SSA) and miscellaneous sales
of $180.00, resulting in total monthly income of $303.00. She reported expenses totaling
$2,365.00. Appellant indicated monthly expenses of $665.00 for rent, $600.00 for food, $100.00
for clothing, $800.00 for utilities, and $200.00 for other expenses. She reported: no cash on hand;
a checking account balance of $467.32; a savings account balance of zero; and no stocks, personal
property or other assets. Appellant indicated that she had been experiencing more expenses than
normal as her car had broken down and her home had flooded due to a broken washing machine.
She indicated that she provided a written explanation as to why she could not accept the offered
position on September 17, 2019. Appellant further asserted that she was entitled to compensation
benefits because she could no longer work due to the accepted employment injuries. With regard
to whether there was a change in circumstances affecting her monthly payment, she indicated that
there was not.
On October 1, 2020 appellant attended a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. She subsequently submitted financial
documentation including a monthly benefits statement from SSA noting a payment of $1,783.00.
Appellant noted: expenses of car insurance of $132.00 a month; natural gas of $20.00; water bill
of $69.49 a month; mortgage of $662.00 a month; telephone service for two lines at $71.83 and
$77.83 a month; and electric service of $131.45 a month. She provided documentation from the
Thrift Savings Plan (TSP) reflecting a balance of $68,251.01, savings account balance of $119.68,
and checking account balance of $16.39.
By decision dated November 10, 2020, OWCP’s hearing representative finalized the
preliminary overpayment determination, finding that appellant had received an overpayment of
compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020, because
she continued to receive wage-loss compensation following the termination of her compensation.
OWCP further found that she was without fault in the creation of the overpayment, but denied
waiver of recovery because the evidence of record was insufficient to establish that recovery of
the overpayment would defeat the purpose of FECA or be against equity and good conscience. It
required recovery by payment of $100.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
termination or modification of an employee’s compensation benefits. 3 Section 8106(c)(2) of
FECA provides that a partially disabled employee who refuses or neglects to work after suitable
3

See K.S., Docket No. 19-1650 (issued April 28, 2020); J.R., Docket No. 19-0206 (issued August 14, 2019); R.P.,
Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005).

6

work is offered to, procured by, or secured for the employee is not entitled to compensation. 4 To
justify termination of compensation, OWCP must show that the work offered was suitable, that
the employee was informed of the consequences of refusal to accept such employment, and that
he or she was allowed a reasonable period to accept or reject the position or submit evidence to
provide reasons why the position is not suitable. 5 Section 8106(c) will be narrowly construed as
it serves as a penalty provision, which may bar an employee’s entitlement to compensation based
on a refusal to accept a suitable offer of employment. 6
In determining what constitutes suitable work for a particular disabled employee, OWCP
considers the employee’s current physical limitations, whether the work was available within the
employee’s demonstrated commuting area, the employee’s qualifications to perform such work,
and other relevant factors. 7 The issue of whether an employee has the physical ability to perform
a modified position offered by the employing establishment is primarily a medical question that
must be resolved by medical evidence. All impairments, whether work related or not, must be
considered in assessing the suitability of an offered position. 8
Section 8123(a) of FECA provides in pertinent part that, if there is disagreement between
the physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.9 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case. 10 When there exist opposing medical reports of
virtually equal weight and rationale and the case is referred to an impartial medical examiner (IME)
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

See R.A., Docket No. 19-0065 (issued May 14, 2019); Ronald M. Jones, 52 ECAB 190 (2000).

6

S.D., Docket No. 18-1641 (issued April 12, 2019); Joan F. Burke, 54 ECAB 406 (2003).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(c) (June 2013); see Lorraine C. Hall, 51 ECAB 477 (2000).
8

L.L., Docket No. 17-1247 (issued April 12, 2018); J.J., Docket No. 17-0410 (issued June 20, 2017); Gayle Harris,
52 ECAB 319 (2001).
9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

K.S., Docket No. 19-0082 (issued July 29, 2019).

7

OWCP properly found a conflict in the medical opinion evidence between Drs. Lee and
Sanders and referred appellant to Dr. Williams for an impartial medical examination. 12
In a January 31, 2019 report, Dr. Williams noted that appellant was obese and concomitant
of significant deconditioned state unrelated to the May 23, 2008 work injury. She noted that the
work-related injury was affected by the preexisting medical condition of obesity that placed
excessive load on the cervical and lumbar spine causing additional symptomology. Based on the
February 1, 2019 FCE, Dr. Williams opined that appellant was capable of performing sedentary
work on a full-time basis, sitting up to eight hours per day. She determined that appellant was
capable of walking and standing up to two hours per day; reaching above her shoulder up to two
hours per day; pushing and pulling no more than 20 pounds up to two hours per day ; lifting no
more than 10 pounds up to two hours per day; and no twisting, bending or stooping. The Board
finds that Dr. Williams’ opinion is entitled to the special weight of the medical evidence accorded
an IME because she based this opinion on a proper factual background, a review of the medical
record, and physical examination, and she provided a well-rationalized opinion that appellant was
capable of a sedentary level of modified-duty work.
On July 19, 2019 the employing establishment offered appellant a modified position of
distribution window and markup clerk. The job description listed that duties would be performed
up to eight hours a day and included assisting customers in the lobby that could be performed while
sitting up to eight hours. The physical requirements included: lifting up to 10 pounds, pushing
and pulling 20 pounds intermittently up to two hours each, walking, standing, and reaching above
the shoulder intermittently up to two hours each, no twisting, bending, or stooping. The Board
finds that the physical requirements of the offered position of distribution window and markup
clerk conformed to appellant’s work restrictions as provided by Dr. Williams. The special weight
of the medical evidence of record establishes that appellant was no longer totally disabled from
work and had the physical capacity to perform the duties listed in the July 19, 2019 job offer.
Thus, OWCP properly relied on Dr. Williams’ opinion in finding the distribution window and
markup clerk position suitable.
In accordance with the procedural requirements under 5 U.S.C. § 8106(c), OWCP advised
appellant on August 19, 2019 that it found the job offer of modified distribution window and
markup clerk to be suitable and afforded her an opportunity to provide reasons for refusing the
position within 30 days. Following appellant’s reply, it advised her, in a December 20, 2019 letter,
that her reasons for refusing were deficient and properly allowed 15 addition al days to accept the
offered position. The Board finds that OWCP followed the established procedures prior to the
termination of her wage-loss compensation pursuant to 5 U.S.C. § 8106(c)(2).
Subsequent to the August 19, 2019 letter from OWCP, appellant submitted an October 8,
2019 report from Dr. McKay who diagnosed failed cervical and lumbar spine surgery, status post
lumbar fusion and anterior cervical fusion, cervicalgia, lumbago, chronic pain syndrome and
morbid obesity. Dr. McKay noted that appellant was totally disabled. Similarly, on October 9,
2019 appellant was treated by Dr. Syed for low back and neck pain. He noted a problem list of
chronic back pain, cervical herniation, lumbar herniation, lumbar and cervical post-laminectomy
12

Id.

8

syndrome, sprain of the ligaments of the cervical spine, muscle fascia and tendon at the neck,
ligaments of the thoracic spine, and muscle spasm of the back and advised that appellant was off
work for three months. However, Drs. McKay and Syed’s reports are insufficient to establish that
the position offered appellant was unsuitable as the physicians did not provide a reasoned opinion
explaining how or why appellant’s diagnosed conditions prevented her from performing the
modified job duties at the time her compensation was terminated.13
The Board, therefore, finds that OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and entitlement to a schedule award based on h er refusal to accept the
offered position.
LEGAL PRECEDENT -- ISSUE 2
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty. 14 Section 8129(a) of FECA provides, in pertinent part: “When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”15
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.16 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances. 17 OWCP’s regulations provide in pertinent part that compensation for wage
loss due to disability is available only for any periods during which the employee’s work-related
medical condition prevents her from earning the wages earned before the work -related injury.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,193.12 for the period April 26 through May 23, 2020 because
she continued to receive wage-loss compensation following the termination of her compensation
payments.

13

E.H., Docket No. 19-1352 (issued December 18, 2019); E.C., Docket No. 17-1645 (issued June 11, 2018).

14

Supra note 1 at § 8102(a).

15

Id. at § 8129(a).

16

Id. at § 8102.

17

Id. at § 8116(a).

18

20 C.F.R. § 10.500.

9

OWCP terminated appellant’s wage-loss compensation and entitlement to a schedule
award, effective April 26, 2020, finding that she had refused an offer of suitable work pursuant to
5 U.S.C. § 8106(c)(2). However, appellant continued to receive wage-loss compensation on the
supplemental rolls through May 23, 2020. Since OWCP had terminated her wage-loss
compensation benefits, effective April 26, 2020, appellant was not entitled to receive
compensation benefits after that date. As she received $3,193.12 in FECA wage-loss
compensation for the period April 26 through May 23, 2020, the Board finds that an overpayment
of compensation in that amount was created.
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.19
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.20 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.21 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent.22 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits.23
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that

19

5 U.S.C. § 8129.

20

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. 20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet
current and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00.
Assets must not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a spouse
or dependent plus $1,200.00 for each additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Final Overpayment Determinations, Chapter 6.400(2), (3) (September 2020).
21

Id. at Chapter 6.400.4(a)(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
22

See id. at Chapter 6.400.4(a)(2) (September 2020).

23

Id. at Chapter 6.400.4(b)(3).

10

such payments would be made, gives up a valuable right or changes his or her position for the
worse.24
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 26 It considered
appellant’s financial information, as reported in appellant’s Form OWCP-20, to determine if
recovery of the overpayment would defeat the purpose of FECA or if recovery would be against
equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary and necessary living expenses. Based upon the
information provided on the Form OWCP-20, and evidence received after the hearing, appellant
reported income totaling $1,963.00 and expenses of $662.00 for a mortgage, $600.00 for food,
$100.00 for clothing, $76.00 for water, $20.00 for natural gas, $78.00 for telephone, 27 $131.00 for
electric, and $132.00 for car insurance. Her expenses totaled $1,799.00. Appellant noted a
checking account balance of $16.39, savings account balance of $119.68, and TSP balance of
$68,251.01. As her monthly income exceeds her monthly expenses by $164.00, appellant does
not need substantially all of her monthly income to meet current and ordinary living expenses.
The Board further finds that appellant has not established that recovery of the overpayment
would be against equity and good conscience because it has not been shown, for the reasons noted
above, that she would experience severe financial hardship in attempting to repay the debt, or that
a valuable right had been relinquished, or that a position had been changed for the worse in reliance
on the payment, which created the overpayment. 28 Therefore, OWCP properly denied waiver of
recovery of the overpayment.

24

20 C.F.R. § 10.437(a)(b).

25

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

26

5 U.S.C. § 8129.

27

One telephone line is permitted as an ordinary and necessary expense.
6.400(4)(b)(2)(a)) (September 2020).
28

Supra note 20 at Chapter

L.D., Docket No. 18-1317 (issued April 17, 2019); William J. Murphy, 41 ECAB 569, 571-72 (1989).

11

Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, the Board finds that OWCP has not
abused its discretion by denying waiver of recovery of the overpayment.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to a schedule award, effective April 26, 2020, for refusing an offer
of suitable work pursuant to 5 U.S.C. § 8106(c)(2). The Board further finds that OWCP properly
determined that appellant received an overpayment of compensation in the amount of $ 3,193.12,
for which she was without fault, because she continued to receive wage-loss compensation
following the termination of her compensation for the period April 26 through May 23, 2020. The
Board also finds that OWCP properly denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, TAMPA
PROCESSING & DISTRIBUTION CENTER,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0410
Issued: August 13, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 18, 2018 appellant, through counsel, filed a timely appeal from a
November 14, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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.

3
The Board notes that following the November 14, 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish disability for the
periods March 7 through 21, April 28 through May 12, and May 13 through June 9, 2017, causally
related to her accepted October 31, 2016 employment injuries.
FACTUAL HISTORY
On October 31, 2016 appellant, then a 50-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on that date a machine door struck her on the side of her
face while in the performance of duty. Her attending physician, Dr. Kathleen Jenkins, Boardcertified in occupational medicine, found that she was totally disabled from work for the period
November 1 through 8, 2016. Dr. Jenkins released appellant to return to light-duty work on
November 9, 2016 with a lifting restriction of 15 pounds.
On January 4, 2017 OWCP accepted appellant’s claim for head contusion, benign
paroxysmal vertigo, and cervical spine sprain. On January 19, 2017 Dr. Jenkins released appellant
to return to full-duty work. On February 17, 2017 appellant accepted a light-duty position with
restrictions of kneeling, bending, and stooping for 4 hours, twisting, pulling, pushing, and simple
grasping from 10 to 15 pounds 8 hours a day, and fine manipulation up to 15 pounds 8 hours a
day.
On March 2, 2017 Dr. Jenkins examined appellant due to headache and neck strain. She
reported that appellant had returned to work and had experienced neck spasms, headaches, and
dizziness after working 12-hour shifts 5 to 6 days a week. Dr. Jenkins found increased muscle
spasms on the right side with intermittent headaches. She also found spasms in the left flank and
lower back. Dr. Jenkins restricted appellant to lifting and carrying no more than 10 pounds
beginning March 2, 2017. In a note dated March 7, 2017, Dr. Joanna Ramirez, a Board-certified
internist, reported that appellant was experiencing acute right-sided low back pain. She found that
appellant was totally disabled from work through March 21, 2017.
On March 23, 2017 Dr. Jenkins noted appellant’s history of injury and removal from work
for two weeks due to lower back pain. She reported that appellant had returned to light-duty work,
but still experienced slight spasms in her neck. Dr. Jenkins opined that the cause of appellant’s
problems was related to work activities.
On April 5, 2017 appellant underwent a cervical magnetic resonance imaging (MRI) scan
which demonstrated disc herniations at C3-4, C4-5, C5-6, and C6-7 with diffuse canal stenosis and
moderate bilateral foraminal stenosis at the C6 nerve roots.
On April 17, 2017 appellant filed a claim for compensation (Form CA-7) for leave without
pay (LWOP) for the period March 4 through 27, 2017. The employing establishment indicated
that appellant used LWOP from March 7 through 21, 2017.
In an April 25, 2017 development letter, OWCP informed appellant that it had not received
evidence to support her claimed wage-loss for the period March 4 through 27, 2017. It advised
her of the type of evidence needed to establish her disability claim and afforded her 30 days to
submit the necessary evidence.

2

On April 17, 2017 Dr. Jenkins completed a duty status report (Form CA-17) and opined
that appellant had a lifting restriction of 10 pounds due to multiple level cervical disc herniations
and radiculopathy. In an April 17, 2017 note, she described appellant’s history of injury and
diagnosed contusion of the head, benign paroxysmal vertigo, cervical sprain, and cervical disc
disorder with radiculopathy. Dr. Jenkins attributed these conditions to appellant’s work activities
and found that she should perform restricted duty. On April 25, 2017 appellant accepted a lightduty job within Dr. Jenkins’ lifting restrictions.
On April 28, 2017 Dr. Jenkins completed a Form CA-17 and opined that appellant was
totally disabled due to cervical herniated discs. She noted that appellant was injured on
October 31, 2016 when she was hit in the face with a door.
On May 12, 2017 appellant filed a Form CA-7 and requested LWOP from April 28 through
May 12, 2017. In a May 22, 2017 development letter, OWCP informed her that it had not received
evidence to support her claimed wage loss for the period April 28 through May 12, 2017. It
advised appellant of the type of evidence needed to establish her disability claim and afforded her
30 days to submit the necessary evidence.
In an April 28, 2017 note, Dr. Jenkins provided a history of injury and repeated her
diagnoses. She attributed appellant’s conditions to her employment. Dr. Jenkins found that
appellant was totally disabled and noted that appellant felt that her condition was worsening.
On June 20, 2017 appellant filed a Form CA-7 requesting LWOP from May 13 through
June 9, 2017.4 In a June 28, 2017 development letter, OWCP informed her that it had not received
evidence to support her claimed wage loss for the period May 13 through June 9, 2017. It advised
appellant of the type of evidence needed to establish her disability claim and afforded her 30 days
to submit the necessary evidence.
On June 23, 2017 Dr. Jenkins completed a Form CA-17 and indicated that appellant could
return to work on that date lifting and carrying no more than five pounds. She provided a treatment
note of the same date finding that appellant’s neurological examination, sensation, and reflexes
were normal. Dr. Jenkins found that appellant had improved since she stopped work with fewer
muscle spasms. She repeated her diagnoses of head contusion, benign paroxysmal vertigo,
cervical sprain, and cervical disc disorder with radiculopathy. Dr. Jenkins concluded that
appellant’s conditions were work related and released her to return to restricted duty on
June 23, 2017.
By decision dated August 10, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period March 7 through 21, 2017. It found that no medical evidence was
received to establish that her claim was causally related to the accepted work-related medical
conditions.
By decision dated August 11, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period April 28 through May 12, 2017, finding that no medical evidence was

4

The Board notes that appellant subsequently filed Form CA-7s requesting wage-loss compensation for the period
January 16 through September 30, 2017 and April 28, 2018 and continuing. These periods of claimed disability,
however, are not presently before the Board.

3

received to establish that her claim was causally related to the accepted work-related medical
conditions.
On August 25, 2017 appellant requested a review of the written record from OWCP’s
Branch of Hearings and Review of the August 10 and 11, 2017 OWCP decisions.
By decision dated August 28, 2017, OWCP denied appellant’s claim for LWOP for the
period May 13 through June 9, 2017. It found no medical evidence was received to support that
her claim for LWOP was causally related to the accepted work-related medical conditions.
OWCP subsequently received an August 17, 2017 Form CA-17 from Dr. Mark A. Seldes,
a Board-certified family practitioner, who found that appellant could perform light-duty work on
August 18, 2018 lifting no more than two pounds. Dr. Seldes diagnosed cervical disc injury with
radiculopathy secondary to trauma.
On September 4, 2017 appellant accepted a light-duty mail processing clerk position at the
employing establishment.
In a report dated September 27, 2017, Dr. Seldes examined appellant due to her cervical
spine and head contusions. He diagnosed contusion of the right side of the face and head, benign
paroxysmal vertigo, cervical sprain, herniated cervical disc with radiculopathy, and cervical spinal
stenosis at C3-4, C4-5, C5-6, and C6-7.
In an October 16, 2017 development letter, OWCP noted that appellant had requested that
her claim be expanded to include additional conditions. It requested supporting medical evidence
and afforded her 30 days for a response.
In a November 6, 2017 note, Dr. Seldes described appellant’s history of injury, initial
medical treatment, and diagnoses. He explained that when she was struck by the machine door,
she was hit on the right side of her face causing her head to quickly move to the left and flex back
which caused significant pressure and injury to her cervical spine. Dr. Seldes opined that the
injuries to appellant’s cervical spine including cervical radiculopathy, cervical spine stenosis, and
right carpal tunnel syndrome were caused by the machine door striking her face and eye moving
her neck quickly laterally on October 31, 2016. In a December 14, 2017 report, he examined her
due to increased neck pain after working 60 hours a week. Dr. Seldes recommended that appellant
work only 40 hours a week.
By decision dated January 11, 2018, OWCP’s hearing representative found that appellant
had not met her burden of proof to establish wage loss for the periods March 7 through 21, 2017
and April 28 through May 12, 2017. She found that appellant had not submitted probative medical
evidence based on specific examination findings which clearly concluded that she was disabled
for the claimed periods as a result of her work-related injuries.
In a note dated January 2, 2018, Dr. Theodore P. Vlahos, a Board-certified orthopedic
surgeon, described appellant’s history of injury on October 31, 2016. He found that as a result of
this injury she sustained chronic unresolved cervical strain/sprain with disc herniations C3-4, C45, C5-6 and C6-7 resulting in cervical radiculitis. Dr. Vlahos found that the mechanism of the
blow to the head was consistent with the formation of disc herniations or the activation of disc
herniations, making previously asymptomatic degenerative conditions into symptomatic
herniations.
4

On February 12, 2018 OWCP expanded acceptance of appellant’s claim to include cervical
disc disorder with radiculopathy at C3-4, C4-5, C5-6, and C6-7.
In a February 12, 2018 note, Dr. Seldes found that appellant could continue to work full
time with restrictions. On February 28, 2018 he again found that she could continue to work full
time with restrictions.
On March 22, 2018 appellant requested reconsideration of the August 10, 11, and 28, 2017
OWCP decisions denying wage-loss compensation. She provided Dr. Seldes’ February 12 and 28,
2018 Form CA-17s which included restrictions for lifting and for using the left arm only to reach
above the shoulder up to three hours a day. Dr. Seldes noted that appellant could not work
overtime.
In a March 28, 2018 note, Dr. Seldes reported that appellant was working six days a week
and requested to be limited to five days a week. He limited her work to eight hours a day, five
days a week.
On May 1, 2018 Dr. Robert C. Nucci, a Board-certified orthopedic surgeon, examined
appellant and recommended cervical endoscopic discectomy. On May 8, 2018 he opined that she
was totally disabled until after her surgery. On May 30, 3018 Dr. Nucci performed a percutaneous
anterior cervical discectomy at C5-6.
By decision dated June 21, 2018, OWCP denied modification of its August 10, 11, and 28,
2017 decisions. It found that there was no medical evidence received to support that appellant’s
claim for LWOP was causally related to the accepted work-related medical conditions.
On August 17, 2018 appellant requested reconsideration of the June 21, 2018 OWCP
decision. In support of this request, she contended that she was totally disabled from March 7
through 31, 2017 based on Dr. Ramirez’s findings. Appellant alleged that Dr. Jenkins found that
she was totally disabled from April 28 through June 23, 2017. She also contended that Dr. Seldes
supported her disability for work from August 17 through November 17, 2017. Appellant
resubmitted Dr. Ramirez’ March 7, 2017 note, Dr. Jenkins’ April 28 and October 30, 2017 notes
as well as her April 28, 2017 Form CA-17, and Dr. Seldes’ August 17, 2017 Form CA-17.
On September 6, 2018 Dr. Nucci released appellant to light-duty work on
September 10, 2018. Appellant reported to work and the employing establishment had no work
available for her within her restrictions. On September 19, 2018 she accepted a light-duty position
at the employing establishment.
By decision dated November 14, 2018, OWCP denied modification of its June 21, 2018
decision.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for which
compensation is claimed is causally related to the employment injury.6
Under FECA, the term disability means “the incapacity, because of an employment injury,
to earn the wages the employee was receiving at the time of injury.”7 The question of whether an
employee is disabled from work is an issue that must be resolved by competent medical evidence.8
The employee is responsible for providing sufficient medical evidence to justify payment of any
compensation sought.9
For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.10 The Board
will not require OWCP to pay compensation for disability in the absence of medical evidence
directly addressing the specific dates of disability for which compensation is claimed. To do so,
would essentially allow an employee to self-certify his or her disability and entitlement to
compensation.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability for
the periods March 7 through 21, April 28 through May 12, and May 13 through June 9, 2017,
causally related to her accepted October 31, 2016 employment injuries.
On March 2, 2017 Dr. Jenkins determined that appellant could perform restricted duty of
lifting and carrying to 10 pounds. On March 7, 2017 Dr. Ramirez reported that appellant was
experiencing acute right-sided low back pain. She found that appellant was totally disabled
through March 21, 2017. On March 23, 2017 Dr. Jenkins noted appellant’s history of injury and
removal from work for two weeks due to lower back pain. These reports did not attribute
appellant’s disability for work to her accepted injuries. Instead, Drs. Jenkins and Ramirez
indicated that appellant was disabled beginning March 7, 2017 due to low back pain. The Board
has held that the mere diagnosis of “pain” does not constitute the basis for payment of

5

Supra note 2.

6
See C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton,
40 ECAB 1143 (1989).
7

20 C.F.R. § 10.5(f).

8

S.A., Docket No. 18-0399 (issued October 16, 2018); see also R.C., 59 ECAB 546, 551 (2008).

9

Id.; see T.A., Docket No. 18-0431 (issued November 7, 2018); see also Amelia S. Jefferson, 57 ECAB 183 (2005).

10

See S.M., Docket No. 17-1557 (issued September 4, 2018); William A. Archer, 55 ECAB 674, 679 (2004);
Fereidoon Kharabi, 52 ECAB 291, 293 (2001).
11

T.L., Docket No. 18-0934 (issued May 8, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

6

compensation.12 Furthermore, the Board has held that a medical report is of no probative value if
it does not provide a firm diagnosis of a particular medical condition or offer a specific opinion as
to whether the accepted employment incident caused or aggravated the claimed condition.13 These
notes do not provide a firm diagnosis or an opinion on the causal relationship between appellant’s
accepted injuries and her disability from work. Thus these notes are insufficient to establish
appellant’s claim for disability due to LWOP from March 4 through 27, 2017.
On April 28, 2017 Dr. Jenkins found that appellant was totally disabled due to cervical
herniated discs. She noted that appellant was hit in the face with a door and attributed appellant’s
current condition to her accepted employment injuries. Dr. Jenkins noted that appellant felt that
her condition was worsening. When a physician’s statements regarding an employee’s ability to
work consist only of recitation of the employee’s complaints that he or she was in too much pain
to work, without objective findings of disability being shown, the physician has not presented a
medical opinion on the issue of disability.14 A mere conclusion without the necessary rationale is
insufficient to meet a claimant’s burden of proof.15 Without medical rationale supporting
disability, Dr. Jenkins’ notes are insufficient to meet appellant’s burden of proof.16 Her reports,
therefore, do not establish that appellant was disabled from work during the claimed period due to
her accepted cervical conditions.
In support of her March 22, 2018 request for reconsideration, appellant provided
Dr. Seldes’ February 12 and 28, 2018 Form CA-17s which included restrictions for lifting and for
using the left arm only to reach above the shoulder up to three hours a day. However, these reports
are of limited probative value in addressing appellant’s claimed period of disability from March 7
through June 9, 2017 as they occur after the alleged period and do not specifically address or
attribute the period of claimed disability to the accepted conditions.17 Evidence that does not
address appellant’s accepted conditions and dates of disability is insufficient to establish her
claim.18
None of the other medical evidence of record addresses appellant’s claimed period of
intermittent total disability for work from March 7 through June 9, 2017.
As the medical evidence of record is insufficient to establish that appellant was disabled
from work for the period March 7 through June 9, 2017 due to her accepted cervical conditions,
the Board finds that appellant has not met her burden of proof.

12

T.G., Docket No. 18-1064 (issued April 26, 2019); Robert Broome, 55 ECAB 339 (2004).

13

C.R., supra note 6; J.M., Docket No. 16-0306 (issued May 5, 2016).

14

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
15

B.F., id.; E.L., Docket No. 17-1632 (issued January 3, 2018).

16

B.F., supra note 14; S.H., Docket No. l8-1398 (issued March 12, 2019).

17

R.G., Docket No. 18-0027 (issued May 13, 2019).

18

T.L., Docket No. 18-0934 (issued May 8, 2019).

7

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability for
the periods March 7 through 21, April 28 through May 12, and May 13 through June 9, 2017,
causally related to her accepted October 31, 2016 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8