United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, West Palm Beach, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 18-1197
Issued: April 30, 2020

Case Submitted on the Record

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

JURISDICTION
On May 24, 2018 appellant, through counsel, filed a timely appeal from an April 16, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

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.

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
ISSUE
The issue is whether appellant has met her burden of proof to establish modification of the
July 28, 2017 loss of wage-earning capacity (LWEC) determination.
FACTUAL HISTORY
On August 16, 2006 appellant, then a 49-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on August 9, 2006 she experienced left shoulder
and neck pain after pulling bags onto a carousel while in the performance of duty. She stopped
work on August 16, 2006 and returned to work with restrictions on June 8, 2008. OWCP accepted
the claim for left shoulder sprain, displacement of a cervical intervertebral disc without
myelopathy, bulging discs, and brachial neuritis or radiculitis.
By decision dated January 21, 2009, OWCP reduced appellant’s compensation to zero
based on its finding that her actual earnings as a modified transportation security officer, effective
June 8, 2008, fairly and reasonably represented her wage-earning capacity.
Appellant was terminated from her position at the employing establishment as medically
unable to perform the full range of functions required in her position effective March 2, 2012.
Appellant subsequently filed several claims for compensation (Form CA-7) for ongoing
disability.4
By decision dated June 25, 2012, OWCP modified the January 21, 2009 LWEC
determination as the evidence substantiated that she had sustained a recurrence of disability. It
found that the job upon which it had based its LWEC determination was not a permanent position.
In a separate letter of even date, OWCP advised appellant that it would pay her wage-loss
compensation for total disability on the periodic rolls effective March 3, 2012.
In a report dated June 10, 2013, Dr. Craig Lichtblau, a Board-certified physiatrist, opined
that appellant could work eight hours per day with restrictions of no bending repetitively at the
waist, kneeling, squatting, climbing, pushing, pulling, running, or jumping. He advised that she
should reach overhead infrequently and that she should change positions from sit-to-stand and vice

2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the April 16, 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.
4

By decision dated May 9, 2012, OWCP denied appellant’s claim for a schedule award.

2

versa frequently at will for positional comfort. Dr. Lichtblau completed a functional capacity
evaluation (FCE) report dated August 29, 2012 containing the same restrictions.
On March 11, 2013 Dr. Paul D. Seltzer, an osteopath specializing in orthopedic surgery
serving as an OWCP second opinion physician, opined that appellant had continued residuals of
her cervical disc herniation and radiculitis. He opined that she could work with restrictions
regarding lifting, pushing, and pulling. Dr. Seltzer noted that appellant was a candidate for
vocational rehabilitation services.
On September 4, 2013 OWCP referred appellant for vocational rehabilitation services.
Appellant completed training in computer skills as of April 22, 2014, with viable job goals of
customer service representative and receptionist, positions listed in the Department of Labor’s
Dictionary of Occupational Titles (DOT) bearing DOT No. #239.362-014 and No. #237.367-038,
respectively. The vocational rehabilitation counselor provided job placement assistance beginning
June 2014.5
On July 21, 2016 OWCP referred appellant to Dr. David B. Lotman, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated August 24, 2016, Dr. Lotman advised that due to appellant’s cervical and
left shoulder pathology, she was unable to return to her date-of-injury position as a transportation
security screener. In an attached work capacity evaluation (Form OWCP-5c) report, he indicated
that she had work restrictions of no reaching above the shoulder, climbing, or bending/stooping,
as well as no pushing, pulling, or lifting more than 2 hours per day of up to 20 pounds.
On February 15, 2017 the vocational rehabilitation counselor completed a job classification
(Form CA-66) for the position of customer complaint clerk. The position required occasional
reaching, handling, and fingering. In a vocational rehabilitation memorandum dated February 16,
2017, OWCP’s vocational rehabilitation specialist noted that the positions of customer complaint
clerk, appointment clerk, receptionist, and other similar full-time sedentary jobs remained both
vocationally suitable and were in sufficient numbers that they were reasonably available in her
local area.
In a letter dated June 14, 2017, OWCP notified appellant of its proposed reduction in her
wage-loss compensation pursuant to 5 U.S.C. §§ 8106 and 8115. It advised that the medical
evidence of record established that she was only partially disabled. OWCP found that the position
of customer complaint clerk was medically and vocationally consistent with her medical
limitations, skills and work experience. It determined that appellant was capable of earning wages
at the rate of $398.40 per week as a customer complaint clerk and that the position was reasonably
available within her commuting area. OWCP provided an attachment detailing the application of

5

In a letter dated August 6, 2014, OWCP requested that Dr. Lichtblau clarify whether appellant was able to perform
the duties of a customer service representative or receptionist. On August 28, 2014 Dr. Lichtblau confirmed that
appellant was able to work as a receptionist, appointment clerk, and information clerk within her medical restrictions
of performing occasional fingering/typing for eight hours a day in a sedentary position.

3

the Shadrick formula.6 It afforded appellant 30 days to submit evidence and argument if she chose
to contest the proposed action.
In a report dated June 29, 2017, Dr. Lichtblau advised that appellant could work within the
restrictions set forth in the August 29, 2012 FCE. He indicated that she could perform light-duty
employment alternating sitting and standing as needed and avoiding repetitive bending, kneeling,
squatting, crawling, climbing, running, and jumping.
By decision dated July 28, 2017, OWCP reduced appellant’s compensation effective
July 29, 2017 based on her capacity to earn wages as a customer complaint clerk at the rate of
$398.40 per week. It found that the evidence of record demonstrated that she was vocationally
and physically capable of working as a customer complaint clerk.
On August 16, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
On November 28, 2017 OWCP authorized arthroscopic left shoulder surgery. On
November 30, 2017 Dr. Ryan Simovitch, a Board-certified orthopedic surgeon, performed a left
shoulder rotator cuff repair, subacromial decompression with acromioplasty, and debridement.
The hearing was held on January 5, 2018. At the hearing, counsel argued that appellant’s
recent surgery qualified as changed circumstances warranting a modification of the LWEC
determination of July 28, 2017 while she recovered from surgery. The hearing representative
noted that there was no medical evidence of record addressing the period of disability related to
surgery. She held the case file open 30 days for submission of additional evidence.
In a report dated January 22, 2018, Dr. Simovitch advised that appellant had undergone
right shoulder surgery nine weeks earlier. He noted that she complained of continuing pain
radiating into her neck. Dr. Simovitch discussed appropriate use of a sling and the necessary
period of postoperative convalescence. Appellant also submitted operative reports and reports
prior to her surgery on November 30, 2017.
By decision dated February 7, 2018, the hearing representative affirmed the July 28, 2017
LWEC determination finding that both the medical and vocational evidence supported that
appellant had the ability to perform the position of customer complaint clerk. She noted that
counsel had contended at the hearing that modification of the LWEC determination should be
considered in view of her left shoulder surgery. The hearing representative found, however, that
the relevant issue was whether appellant had established a recurrence of disability due to her
surgery rather than modification of the LWEC determination. She instructed OWCP to develop
the issue of whether she had experienced a period of disability subsequent to her surgery.
On March 2, 2018 appellant, through counsel, requested reconsideration of the February 7,
2018 decision. With the request, she submitted surgical records related to her procedure on
November 30, 2017, including the previously-submitted operative report of that date, as well as

6

Albert C. Shadrick, 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.

4

documents relating to the ordering of surgery and authorization by OWCP that were previously of
record. Appellant also submitted numerous reports from physical therapists.
In a report dated March 12, 2018, Dr. Simovitch noted that appellant had been attending
physical therapy. On examination, he found well-healed incisions with supple range of motion.
Dr. Simovitch advised that appellant had slowly improved. He recommended that appellant return
to Dr. Lichtblau for pain management.
By decision dated April 16, 2018, OWCP denied modification of its February 7, 2018
decision finding that the records submitted on reconsideration discussed appellant’s November 30,
2017 arthroscopic surgery, and that a decision had not yet been issued regarding payment of
compensation for a recurrence of temporary total disability due to the surgery.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.7 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified. 8
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless it meets the requirements for modification. 9 OWCP
procedures at Chapter 2.1501 contain provisions regarding the modification of a formal LWEC. 10
The relevant part provides that a formal LWEC will be modified when: (1) the original rating was
in error; (2) the claimant’s medical condition has materially changed; or (3) the claimant has been
vocationally rehabilitated. 11 However, OWCP is not precluded from adjudicating a limited period
of disability following the issuance of an LWEC decision, such as where an employee has a
demonstrated need for surgery. 12

7

5 U.S.C. § 8115(a); O.H., Docket No. 17-0255 (issued January 23, 2018).

8

O.H., id.; Katherine T. Kreger, 55 ECAB 633 (2004).

9

B.G., Docket No. 17-0477 (issued September 20, 2017); Sue A. Sedgwick, 45 ECAB 211 (1993).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013). See J.M., Docket No. 18-0196 (issued July 12, 2018).
11

Id. at Chapter 2.1501.3(a).

12

Id. at Chapter 2.1501.10(b); Katherine T. Kreger, supra note 8.

5

The burden of proof is on the party attempting to show a modification of the LWEC
determination.13 There is no time limit for appellant to submit a request for modification of a
wage-earning capacity determination. 14
ANALYSIS
The Board finds that the case is not in posture for decision.
By decision dated July 28, 2017, OWCP found that appellant could perform the duties of
a customer complaint clerk, a sedentary position, and reduced her compensation to reflect her
wage-earning capacity in that job. On November 30, 2017 appellant underwent an authorized left
shoulder rotator cuff repair, subacromial decompression with acromioplasty, and debridement. In
its February 7, 2018 decision, an OWCP hearing representative affirmed the July 28, 2017
decision. She discussed counsel’s assertion at the hearing that appellant had established
modification of the LWEC determination as her condition had changed due to her left shoulder
surgery. The hearing representative found, however, that the issue of whether she had established
disability after her surgery should be adjudicated as a recurrence of disability rather than as a
request for modification of the LWEC determination. Following a request for reconsideration, on
April 16, 2018 OWCP denied modification of its February 7, 2018 decision, noting that it was
separately adjudicating the issue of whether appellant had established entitlement to a period of
temporary total disability subsequent to her surgery.
As OWCP issued a formal LWEC determination, the decision will remain in place unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated, or the original determination was
erroneous.15 Appellant has the burden of proof to show that modification of the LWEC
determination is warranted. 16
Appellant has not alleged that the original LWEC determination was in error or that she
was vocationally rehabilitated. Instead, she contended that the July 28, 2017 LWEC determination
should be modified due to a change in her injury-related condition as a result of her November 30,
2017 shoulder surgery. OWCP found that the shoulder surgery would not constitute a
circumstance warranting modification of an LWEC determination, but instead should be
considered as a recurrence of disability. The Board finds, however, that the proper issue is whether
the July 28, 2017 LWEC determination should be modified.
OWCP may accept a limited period of disability without modification of a formal LWEC
determination.17 This occurs when there is a demonstrated temporary worsening of a medical
13

C.S., Docket No. 18-1610 (issued April 25, 2019); Jennifer Atkerson, 55 ECAB 317 (2004).

14

S.S., Docket No. 18-0397 (issued January 15, 2019); W.W., Docket No. 09-1934 (issued February 24, 2010);
Gary L. Moreland, 54 ECAB 638 (2003).
15

B.S., Docket No. 19-0515 (issued July 25, 2019).

16

See L.P., Docket No. 17-1624 (issued March 9, 2018).

17

S.J., Docket No. 16-1195 (issued January 4, 2017); Katherine T. Kreger, supra note 8.

6

condition of insufficient duration and severity to warrant modification of an LWEC
determination.18 This narrow exception is only applicable for brief periods of medical disability. 19
OWCP procedures provide, “If the claimant is off work for a brief period due to his/her temporary
inability to perform the duties of the rated position, this period of medical disability can be paid
without modification of [the LWEC] determination, e.g., a brief recovery period after surgery or
an injection with a subsequent day of disability. 20 However, if a formal LWEC determination has
been issued, and the claimant requests resumption of compensation for total wage loss, OWCP
should evaluate the request according to the customary criteria for modifying a formal LWEC
determination.21
As appellant has submitted evidence that she may have sustained increased disability due
to her left shoulder surgery, in accordance with its procedures OWCP must evaluate the evidence
to determine if modification of the LWEC determination is warranted. 22 On remand OWCP should
consider the medical evidence and determine whether she has established that the July 28, 2017
LWEC determination should be modified. Following such further development of the case as
OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

18

T.G., Docket No. 18-1064 (issued April 26, 2019).

19

L.T., Docket No. 18-0797 (issued March 14, 2019).

20

Supra note 10 at Chapter 2.1501.4 (June 2013); L.T., id.

21

Id.

22

See Katherine T. Kreger, supra note 8.

7

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 30, 2020
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board
Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.A., Appellant
and
DEPARTMENT OF THE AIR FORCE, LUKE
AIR FORCE BASE, Glendale, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Steven D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-643
Issued: July 17, 2007

Case Submitted on the Record

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

JURISDICTION
On January 5, 2007 appellant filed an appeal of a March 14, 2006 decision of the Office
of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has established that he sustained a lumbar injury in the
performance of duty.
FACTUAL HISTORY
On May 6, 2004 appellant, then a 64-year-old retired quality assurance representative,
filed a traumatic injury claim (Form CA-1) alleging that on November 29, 2001 he sustained an
L1 compression fracture and pinched nerve when he fell on a concrete sidewalk while carrying a
heavy box of books. He asserted that the weight and size of the box forced him to walk
awkwardly, such that his right leg went numb and gave way, causing him to fall with the box of
books landing on his lap. Appellant obtained assistance to deliver the box of books, returned to

his office and went home. He took leave for the entire day on November 30, 2001 and sought
medical attention. Appellant returned to light duty in late December 2001 but could not perform
his duties due to lumbar pain. He took annual leave for all of January 2002 and retired from
federal employment effective February 1, 2002. Appellant then relocated to Kansas. He had
applied for retirement prior to the claimed November 29, 2001 injury.
In a June 18, 2004 letter, the Office advised appellant of the medical and factual evidence
needed to establish his claim, including witness statements or similar corroboration of the
November 29, 2001 incident. It noted that appellant had not yet submitted medical evidence
diagnosing a specific injury. The employing establishment indicated that notes made by
appellant’s supervisor were destroyed following appellant’s retirement in accordance with
retention procedures. Appellant was afforded 30 days to submit such evidence.
By decision dated July 21, 2004, the Office denied appellant’s claim on the grounds that
fact of injury was not established. It found that appellant submitted insufficient evidence to
establish that the November 29, 2001 incident occurred at the time, place and in the manner
alleged. The Office further found that appellant did not submit medical evidence diagnosing an
injury related to the claimed incident.
In a letter postmarked August 11, 2004, appellant requested an oral hearing before a
representative of the Office’s Branch of Hearings and Review. He later requested a telephonic
hearing, held March 9, 2005. Appellant reiterated that he injured his back on November 29,
2001 when he fell while carrying a box of books. He asserted that he notified his supervisor of
the injury on November 30, 2001 but did not file a claim as he was too sore to walk up three
flights of stairs to the personnel office to obtain a claim form. Appellant submitted additional
evidence after the hearing.
In a November 30, 2001 report, Dr. Shishir Shah, an attending osteopathic physician
Board-certified in family practice, noted that appellant developed back pain 12 days prior after
doing heavy lifting in his garden. On examination, he found paraspinal lumbar spasms from L1
to L5 with “some midline tenderness over the L4 area where he sustained a prior fracture.
November 30, 2001 x-rays showed an L1 compression fracture of indeterminate age and
degenerative arthritis at L5-S1. In undated forms, Dr. Shah advised appellant that x-rays
revealed an L1 compression fracture. He submitted periodic reports through December 21, 2001
noting improvement in appellant’s gait and symptoms.
Appellant submitted reports from March 19, 2002 to July 27, 2004 from Dr. Evan J.
Swanson, an attending Board-certified family practitioner, who noted that appellant sustained an
L1 compression fracture in October 1995. He listed a history of an L4 compression fracture in
November 2001 when appellant fell while carrying a box of books at the employing
establishment. Dr. Swanson obtained October 10, 2002 x-rays showing a stable L1 compression
fracture with degenerative spurring. In a November 11, 2002 report, Dr. Swanson noted that
appellant sustained an L1 compression fracture approximately one year before. He opined that
appellant aggravated his lumbar pain by driving 150 miles a day as a private-sector bank courier.

2

Appellant’s lumbar pain increased from February 2003 to July 2004 due to progressive spinal
stenosis acquired in a “fall several years ago.”1
In an October 22, 2003 report, Dr. James McAtee, an attending Board-certified
orthopedic surgeon, noted appellant’s two-year history of low back pain following an L1
compression fracture sustained at the employing establishment when he fell on a cement
sidewalk. Dr. McAtee opined that appellant’s symptoms were caused by degenerative arthritis at
L5-S1 and spinal stenosis from L3 to L5.
The employing establishment responded to the hearing transcript in an April 18, 2005
letter. It stated that leave records showed that appellant worked for two hours on November 30,
2001, contradicting his assertion that he took sick leave for the entire day. Appellant also earned
two hours of credit time on December 6 and 7, 2001, contrary to his assertion that he had
difficulty working due to severe back pain.
The employing establishment provided an August 27, 2004 email from Richard Bull, one
of appellant’s coworkers. Mr. Bull recalled watching appellant use a table saw and drill press at
his home in January 2002. Appellant then loaded the table saw into Mr. Bull’s vehicle. Mr. Bull
stated that a coworker once told him that on an unspecified date, appellant was absent from work
due to back pain. In an April 15, 2006 email, William Dunkerly, appellant’s supervisor at the
time of the claimed injury, stated that on an unspecified date, he had instructed appellant to
divide the publications for delivery into 10-pound piles to comply with appellant’s lifting
restrictions. He recalled that appellant complained on an unspecified occasion that his back hurt
when delivering publications. Mr. Dunkerly did not refer to a November 29, 2001 incident.2
By decision dated and finalized June 16, 2005, the Office hearing representative affirmed
the Office’s denial of appellant’s claim. The hearing representative found that the record
contained inconsistent, conflicting accounts of how appellant injured his lumbar spine. The
hearing representative further found that appellant submitted insufficient factual evidence to
establish that the November 29, 2001 incident occurred at the time, place and in the manner
alleged. The hearing representative noted that contemporaneous medical records were
insufficient to have put appellant’s supervisor on notice that he had sustained an occupational
injury.
In October 29 and December 19, 2005 letters, appellant requested reconsideration. He
asserted that Dr. Shah confused a 1995 lumbar fracture he sustained while gardening with the
November 29, 2001 injury. Appellant submitted additional evidence regarding the 1995 injury.
October 18 and 30, 1995 x-rays showed an L1 compression fracture of indeterminate age. He
noted that appellant fell on October 18, 1995. A December 1, 2005 chart note indicates that
appellant was in a motor vehicle accident. Appellant was followed for chronic low back pain
through December 1996.
1

A February 10, 2003 lumbar magnetic resonance imaging (MRI) scan showed degenerative disc disease
throughout the lumbar spine, an old compression deformity at L1 and disc bulges from L3 to S1.
2

In an April 26, 2005 letter, appellant asserted that Mr. Dunkerly refused to corroborate the November 29, 2001
incident as part of a pattern of overstepping his authority.

3

In a June 28, 2005 report, Dr. Swanson related appellant’s account of back pain related to
a November 30, 2001 work injury “where he was carrying a box of books and fell backward
landing on his buttocks with the box resting on his thighs,” sustaining an L4 compression
fracture. Dr. Swanson also noted a prior L1 compression fracture. Dr. Swanson diagnosed
acquired spinal stenosis and facet joint arthropathy.
By decision dated March 14, 2006, the Office denied modification on the grounds that the
evidence submitted was insufficient to warrant modification of the prior decisions. The Office
found that appellant had not submitted sufficient evidence to resolve the significant
inconsistencies as to how and when the claimed lumbar injury occurred.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.6
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.7

3

5 U.S.C. §§ 8101-8193.

4

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

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001).

7

Deborah L. Beatty, 54 ECAB 340 (2003).

4

ANALYSIS
Appellant claimed that he sustained an L1 fracture in the performance of duty on
November 29, 2001 when he fell carrying a heavy box of books. The Office denied the claim on
the grounds that appellant submitted insufficient evidence to establish that the November 29,
2001 incident occurred as alleged.
The factual evidence of record does not corroborate appellant’s account of events.
Mr. Dunkerly, appellant’s supervisor, stated in an April 15, 2006 email that appellant once
complained of back pain while delivering publications. But Mr. Dunkerly did not recall a
November 29, 2001 incident. Mr. Bull, one of appellant’s coworkers, stated in an August 27,
2004 email that he had been told that appellant was once absent from work due to back pain.
Mr. Bull did not recall a November 29, 2001 incident. He did remember that appellant was able
to load a table saw into a vehicle in January 2002. The employing establishment noted that leave
records contradicted appellant’s assertion that he was off work entirely on November 30, 2001
and did not return to work until late December 2001.
The lack of factual corroboration is compounded by a conflicting medical record.
Dr. Shah, an attending osteopathic physician Board-certified in family practice, stated in
November 30, 2001 reports that appellant sustained an L1 compression fracture 12 days before
while gardening. He did not mention a November 29, 2001 workplace incident. Dr. Shah also
diagnosed an old L4 compression fracture.
Dr. Swanson, an attending Board-certified family practitioner, initially opined that
appellant sustained an L4 compression fracture in November 2001 and an L4 fracture in 1995.
This is contrary to Dr. Shah’s findings of a November 2001 fracture at L1 and an older fracture
at L4. Dr. Swanson then changed his account to comport with that of Dr. Shah. He reiterated
appellant’s account of falling while carrying a box of books in November 2001, but did not
provide any independent corroboration of the alleged incident. Dr. Swanson noted, however,
that, in November 2002, appellant was able to drive 150 miles a day as a bank courier.
The Board finds that the record contains divergent accounts of how and when appellant
injured his back, none of which sufficiently corroborate appellant’s version of a November 29,
2001 traumatic incident. Therefore, due to the conflicting evidence regarding the time, place and
manner in which the alleged incident occurred, appellant has not established his claim.8
CONCLUSION
The Board finds that appellant has not established that he sustained a lumbar injury in the
performance of duty due to inconsistencies in the evidence regarding the occurrence of the
alleged incident.

8

See Caroline Thomas, 51 ECAB 451, 455 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 14, 2006 is affirmed.
Issued: July 17, 2007
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
A.H., claiming as widow of A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tulane, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1402
Issued: December 13, 2012

Case Submitted on the Record

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

JURISDICTION
On June 15, 2012 appellant filed a timely appeal from the February 2, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation, denying waiver of the recovery of the overpayment and setting a repayment
schedule. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment of compensation in the amount of $17,405.76; (2) whether OWCP properly denied
waiver of recovery of the overpayment; and (3) whether OWCP gave due regard to relevant
factors in setting the rate of recovery from continuing compensation.
On appeal, appellant contends that the hearing representative made errors in considering
her expenses.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 8, 1995 the employee, then a 59-year-old rural route letter carrier, filed an
occupational disease claim alleging that he suffered from coccidioidomycosis (valley fever). He
contended that he contracted the disease due to exposure to excessive dust produced while
traveling dirt roads and on the shoulders of roads. On March 27, 1996 OWCP accepted the
employee’s claim for valley fever (pulmonary coccidioidomycosis). It later accepted appellant’s
claim for amyloidosis secondary to coccidoidomycosis. The employee died on March 7, 2002.
OWCP paid appellant survivor’s benefits.
On March 14, 2011 OWCP issued a preliminary determination that appellant had
received an overpayment of compensation in the amount of $17,405.76. It noted that the
overpayment occurred due to a tardy identification of a Federal Employees’ Retirement System
(FERS)-Social Security Administration (SSA) offset in the receipt of benefits. OWCP noted that
the employee’s surviving spouse, appellant, had been receiving benefits since October 2002.
Appellant turned 60 years old on November 16, 2005. Due to improper offset of FERS-SSA
benefits, OWCP found that she received an overpayment of compensation in the amount of
$17,405.76 from November 1, 2005 through March 12, 2011, at which point OWCP corrected
the error.2 It sent appellant financial forms to complete and instructions for contesting the
overpayment finding and instructions for requesting waiver of recovery of the overpayment.
On March 24, 2011 appellant requested a prerecoupment hearing before an OWCP
hearing representative. She contended that the overpayment occurred through no fault of her
own and requested waiver.
By letter dated April 5, 2011, appellant’s attorney asked for a further explanation as to
how the overpayment was calculated. He noted that appellant kept meticulous records and was
not at fault in creating the overpayment. Counsel argued that she had little discretionary income
after paying simple living expenses and that denying waiver would cause her to seek welfare or
become homeless and would defeat the purpose of FECA. Appellant also submitted financial
documents.
2

OWCP calculated the difference between what appellant was paid for SSA with FERS and SSA without FERS
for each year. It determined that compensation was overpaid commencing November 1, 2005. OWCP indicated
that for the check appellant received using the pay rate effective December 1, 2005, appellant received SSA with
FERS in the amount of $1,001.00 but should have received $758.00. It calculated this difference as $243.00 and
noted that, when this amount was converted to the 28-day period covered by appellant’s compensation check, the
overpayment was in the amount of $240.33. Starting with the checks based on the rate commencing December 1,
2006, appellant received $1,042.00 per month SSA with FERS, but should have received $789.10 per month without
FERS. After converting these figures as previously noted, OWCP determined that appellant received an
overpayment in the amount of $3,043.14. Utilizing the pay rate effective December 1, 2007, it determined that
appellant was paid $1,101.10 for SSA with FERS, but should have been paid $833.80 per month without FERS.
After calculating the difference, converting it to 28-day payments and multiplying by the appropriate number of pay
periods, OWCP determined that appellant was overpaid in the amount of $3,143.01. For payments with the
effective date December 1, 2008, it determined that appellant was paid at the rate of $1,164.80 per month, but that
she should have received compensation in the amount of $882.10 per month. After calculating the difference and
converting the overpayment to 28-day periods, OWCP determined that appellant received an overpayment in the
amount of $10,979.28. The total of these overpayment figures equals $17,405.76, the amount that OWCP found for
the overpayment. ($240.33 + $3,043.14 + $3,143.01 + $10,979.28).

2

At the hearing held on August 12, 2011, appellant listed her liquid assets as $307.69.
She noted that she owns a recreational vehicle that does not run for which she owes about
$3,000.00. Appellant also leased a 2010 Ford Explorer. She reiterated that she was not at fault
in the creation of the overpayment.
Appellant submitted documentation with regard to her assets and liabilities. She listed
her monthly income as $2,941.54 representing $1,068.00 from SSA and $1,873.54 in workers’
compensation benefits. Appellant listed total monthly expenses of $3,727.38: $584.59 for rent;
$471.03 for utilities; $119.87 for telephone; $500.00 for food, groceries and incidentals; $686.67
for transportation; $259.07 for house maintenance; $50.00 for entertainment; $2.79 for dues,
memberships and fees; $17.00 for health/exercise shoes; $25.00 for clothing; $151.25 for pet
care; $199.78 for health care; $25.00 for hair and cosmetics; $7.49 for books; $50.00 for charity
and $42.70 for miscellaneous. She also listed minimum charge card payments of $535.14.
By decision dated February 2, 2012, OWCP’s hearing representative found that appellant
received an overpayment in the amount of $17,405.76. Appellant was found to be without fault
in the creation of the overpayment; that waiver of recovery of the overpayment was not
warranted; and that appellant was to repay the overpayment by deduction of $100.00 from each
of her continuing compensation payments until payment was made in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d)(2) of FECA provides for limitations on the right to receive compensation
and states in pertinent part:
“(d) Notwithstanding the other provisions of this section, an individual receiving
benefits for disability or death under this subchapter who is also receiving benefits
under subchapter III of chapter 84 of this title or benefits under title II of the
Social Security Act shall be entitled to all such benefits, except that--”
***
“(2) in the case of benefits received on account of age or death under title II of the
Social Security Act, compensation payable under this subchapter based on the
federal service of an employee shall be reduced by the amount of any such social
security benefits payable that are attributable to [f]ederal service of that employee
covered by chapter 84 of this title.”3

3

5 U.S.C. § 8116(d)(2); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter
2.1000.4e, 2.1000.11(a)-(b) (January 1997); FECA Bulletin No. 97-9 (issued February 3, 1997) (FECA benefits
have to be adjusted for the FERS portion of the SSA benefits, the portion of the SSA benefit earned as a federal
employee is part of the FERS retirement package and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit).

3

ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $17,405.76. Appellant received FERS benefits from November 1, 2005 through March 12,
2011 without offset for the portion of SSA benefits from the employee’s retirement
compensation. Due to her receipt of a portion of the SSA benefits the employee earned as a
federal employee as part of his FERS retirement concurrent with the receipt of benefits under
FECA, she received a prohibited dual benefit.4 An OWCP overpayment calculation worksheet
found that the FERS offset in this amount was not made against the compensation appellant
received under FECA. The Board finds that this created an overpayment of compensation. The
Board finds that appellant received an overpayment of compensation in the amount of
$17,405.76 for the period November 1, 2005 through March 12, 2011.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA5 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. Thus a
finding that appellant was without fault does not automatically result in waiver of the
overpayment.6 OWCP must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of FECA or would be against equity and good
conscience.
According to 20 C.F.R. § 10.436 recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of his
or her income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data provided by the Bureau of Labor Statistics.7 For waiver under the defeat the
purposes of FECA standard, appellant must show that she needs substantially all of her current
income to meet current ordinary and necessary living expense, and there assets do not exceed the
resource base.8
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual whose received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in

4

Id., see also C.H., Docket No. 08-2426 (issued August 14, 2009).

5

5 U.S.C. § 8129(a)-(b).

6

Bonnye Mathews, 45 ECAB 657 (1994).

7

OWCP procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (October 2004).
8

See Robert E. Wenholz, 38 ECAB 311 (1986).

4

reliance on such payments or on notice that such payments would be made, gives up a valuable
right or changes his or her position for the worse.9
ANALYSIS -- ISSUE 2
OWCP’s hearing representative found that appellant was not at fault in the creation of the
overpayment. However, the fact that appellant is without fault in creating the overpayment does
not preclude OWCP from collecting the overpayment. She is still required to repay the debt
unless: (1) recovery of the overpayment would defeat the purpose of FECA; or (2) recovery of
the overpayment would be against equity and good conscience as set forth in 20 C.F.R.
§§ 10.434 and 10.437.
There is no evidence in this case, and appellant did not allege, that she relinquished a
valuable right or changed her position for the worse in reliance on the excess compensation she
received for the period in question. Pursuant to its regulations, OWCP therefore properly found
that recovery of the overpayment would not be against equity or good conscience.10
With regard to whether recovery of the overpayment would defeat the purpose of FECA,
the Board finds that the case is not in posture for decision and will be remanded. OWCP can
waive recovery of an overpayment if a 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.11 In determining that appellant was not entitled to
waiver of recovery of the overpayment, OWCP’s hearing representative briefly reviewed
appellant’s income and expenses as set forth by her financial records. Appellant had a monthly
income of $2,941.54 and she listed expenses of $3,727.38 per month. The expenses included
$686.67 for transportation, $151.25 for pet care and minimal charge card payments of $535.14.
The hearing representative found that these expenses were inflated, and that appellant should be
able to make some adjustment to her monthly expenditures and still have money to pay $100.00
per month towards the overpayment. Accordingly, she denied waiver. On appeal, appellant
contends that her expenses for pet care, transportation and minimal charge card payments were
not inflated. The Board is unable to fully review the denial of waiver as specific factual findings
as to how much was reasonable for pet care, credit card payments and transportation were not
made. The hearing representative did not make a specific finding with regard to appellant’s
monthly expenditures.
It is well established that OWCP, as part of its adjudicatory function, must make findings
of fact and provide a statement of reasons for the decision reached.12 Accordingly, the Board
will remand this case for OWCP’s hearing representative to thoroughly discuss appellant’s
financial expenditures and determine how much appellant needs for ordinary and necessary

9

20 C.F.R. § 10.437.

10

See W.J., Docket No. 12-672 (issued August 24, 2012).

11

L.B., Docket No. 11-2076 (issued August 29, 2012).

12

See Robert N. Johnson, 51 ECAB 480 (2000); see also 20 C.F.R. § 10.126.

5

living expenses. After such further development as OWCP deems necessary, it shall issue a de
novo decision.13
CONCLUSION
The Board finds that an overpayment of compensation in the amount of $17,405.76 was
created, for which appellant was without fault. This case is not in posture for decision regarding
waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 2, 2012 is affirmed with regard to fact and amount of
the overpayment. The decision is set aside regarding waiver of recovery of the overpayment and
the case remanded for further proceedings consistent with this decision.
Issued: December 13, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

In light of the disposition of this issue, the issue as to recovery of the overpayment is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
BENEFITS CENTER -- CIVILIAN,
Fort Riley, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1980
Issued: May 7, 2020

Case Submitted on the Record

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

JURISDICTION
On September 30, 2019 appellant filed a timely appeal from an August 28, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 28, 2019 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 OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits, effective August 29, 2019, as he was no longer disabled due to his accepted
August 8, 2017 employment injury.
FACTUAL HISTORY
On August 15, 2017 appellant, then a 53-year-old contract specialist, filed a traumatic
injury claim (Form CA-1) alleging that on August 8, 2017 he injured both his knees, left front and
back of head, lower back, shoulder, and neck when he fell down stairs while in the performance
of duty. He stopped work on August 9, 2017.
Appellant was initially treated in the hospital emergency department on August 9, 2017 by
Dr. Robert S. Orosz, who specializes in emergency medicine. Dr. Orosz described that appellant
fell on stairs at work and experienced pain in both knees, back, and right shoulder. He reviewed
diagnostic imaging, provided physical examination findings, and diagnosed osteoarthritis of the
right knee, degenerative changes of the right shoulder, and spondylosis at L3-S1 and C6-7.
Dr. Orosz provided an initial impression of headache/concussion.
In a treatment noted dated September 21, 2017, Dr. Joseph W. Farina, a neurologist
specializing in headache treatment, noted that appellant presented with a headache and dizziness.
He explained that appellant had a migraine due to falling down stairs at work.
On October 25, 2017 OWCP accepted appellant’s claim for concussion without loss of
consciousness. On October 27, 2017 it subsequently expanded acceptance of his claim to include
the conditions of postconcussional syndrome and aggravation of bilateral primary osteoarthritis of
the knee. OWCP placed appellant on the periodic rolls effective January 7, 2018.
In a December 21, 2017 report, Dr. Donald Baker, a Board-certified orthopedic surgeon,
noted that appellant was seen for follow up of left knee pain. Upon examination of appellant’s left
knee, he observed a stable knee in flexion and extension. Dr. Baker reported that appellant was
doing better and, as such, allowed him to return to his regular job. He diagnosed bilateral primary
osteoarthritis of the knee and internal prosthetic device causing pain and noted appellant’s
prescriptions for various medications, including one for vascular headaches.
On August 7, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions to Dr. Eric K. Undesser, a Boardcertified neurologist, for a second-opinion evaluation regarding the status of appellant’s accepted
August 8, 2017 employment injury. In a December 4, 2018 report, Dr. Undesser noted his review
of the SOAF and the medical evidence of record. He described the August 8, 2017 employment
injury and noted appellant’s accepted conditions of postconcussional syndrome and aggravation
of bilateral knee arthritis. Dr. Undesser indicated that appellant complained of daily headaches,
difficulty with speech and finding words, trouble with depth perception and balance, and difficulty
remembering recent events. Upon examination, he observed that appellant was oriented to person,
place, time, and that coordination and dexterity were normal. Neurological examination was
normal except for cognition with no evidence of focal neurologic deficit. Dr. Undesser opined

2

that appellant had no neurologic deficits that would prevent working in any occupation. He
indicated that, while appellant’s employment position was sedentary in nature, it required
“cognitive ability to navigate the complex pathways of government contracting.” Dr. Undesser
noted that appellant had preexisting migraines that appeared to have been aggravated by the fall
and indicated that he had frequent headaches that may require accommodation for poor
performance or work absence during a headache. He recommended neuropsychological testing to
assess the extent of cognitive deficit and whether the pattern was consistent with mild concussion.
Appellant submitted medical reports dated November 19, 2018 to January 21, 2019 from
Dr. Zaineb Daud, a neurologist. Dr. Daud recounted appellant’s complaints of chronic headaches
and short-term memory problems. He discussed appellant’s history and reported that neurological
and sensory examinations were both normal. Dr. Daud diagnosed headache and postconcussional
syndrome. In a January 21, 2019 progress report, he explained that appellant was still experiencing
short-term memory problems and headaches and was unable to function properly to get to his job.
On March 18, 2019 OWCP referred appellant to Dr. Garrett W. Andrews, a Board-certified
neuropsychologist, for a second-opinion evaluation regarding the status of appellant’s accepted
August 8, 2017 employment injury. In an April 8, 2019 report, Dr. Andrews reviewed appellant’s
history. He reported that mental status examination demonstrated that appellant’s speech was
fluent, but slurred and that he was awake, alert, and oriented to all spheres. Dr. Andrews explained
that the current examination was deemed invalid as appellant failed multiple stand-alone and
embedded measures of performance validity. He assessed that appellant “possibly suffered” a
mild concussion because of a fall. Dr. Andrews related that evidence and research suggested that
recovery for concussion was typically within two weeks to three months status postinjury. He
reported that appellant’s current presentation revealed invalid neurocognitive data and elevated
symptoms, which suggested a willful attempt to underperform and exaggerate symptoms.
Dr. Andrews, however, also indicated that appellant’s subjective difficulties may also be a result
of his medications since appellant was on a number of medication that could affect cognition.
On July 17, 2019 OWCP received an addendum note by Dr. Undesser who indicated that
a neuropsychological evaluation was performed on April 8, 2019 by Dr. Andrews. Dr. Undesser
related that results of the examination were deemed invalid due to failure at multiple stand-alone
and embedded measures of performance validity suggesting a willful attempt to underperform. He
reiterated that appellant had no neurologic deficits that would prevent working in any occupation.
Dr. Undesser explained that, although neuropsychological testing did not support cognitive
deficits due to traumatic brain injury, there was the possibility of mild cognitive impairment due
to side effects of medication. He completed a work capacity evaluation (Form OWCP-5c), which
indicated that appellant could return to work “from a neurological perspective.”
On July 25, 2019 OWCP proposed to terminate appellant’s wage-loss compensation
benefits because he was no longer disabled due to his August 8, 2017 employment injury. It
afforded him 30 days to submit additional evidence or argument, in writing, if he disagreed with
the proposed termination.
In an August 21, 2019 statement, appellant asserted that both Dr. Andrews and
Dr. Undesser agreed that appellant had memory loss and that adding stress would cause problems.

3

He related that he was looking for employment opportunities at the employing establishment that
were less stressful.
By decision dated August 28, 2019, OWCP finalized the termination of appellant’s wageloss compensation benefits, effective August 29, 2019, as it found that he had no disability due to
his accepted August 8, 2017 employment injury. It found that the weight of medical evidence
rested with Dr. Baker, who indicated in a December 21, 2017 report that appellant was no longer
disabled due to his accepted orthopedic condition, and Dr. Undesser and Dr. Andrews, OWCP
second-opinion examiners, who indicated in reports dated December 4, 2018 and April 8, 2019,
that appellant could work full duty from a neurological perspective.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify
termination or modification of benefits.3 It may not terminate compensation without establishing
either that the disability has ceased or that it is no longer related to the employment.4 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.5
ANALYSIS
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective August 29, 2019.
OWCP terminated appellant’s wage-loss compensation benefits for his neurological
conditions based on the reports of Dr. Undesser and Dr. Andrews, OWCP second-opinion
examiners. In a December 4, 2018 report, Dr. Undesser noted that appellant’s claim was accepted
for postconcussional syndrome and aggravation of bilateral knee arthritis causally related to an
August 8, 2017 fall at work. He reported that neurological examination was normal aside from
cognition with no evidence of focal neurologic deficit. Dr. Undesser opined that appellant had no
neurologic deficits that would prevent working in any occupation, but that appellant had frequent
headaches that may require accommodation. He recommended neuropsychological testing to
assess the extent of cognitive deficit.
In a March 18, 2019 report, Dr. Andrews explained that his examination was deemed
invalid as appellant failed multiple stand-alone and embedded measures of performance validity.
He assessed that appellant “possibly suffered” a mild concussion because of a fall and related that
recovery for concussion was typically within two weeks to three months status postinjury.
Dr. Andrews noted that the subjective cognitive difficulties could be the result of appellant’s

3

A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197
(2005); Paul L. Stewart, 54 ECAB 824 (2003).
4

A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54
ECAB 734 (2003).
5

R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).

4

medications and noted he presented with slurred speech. He indicated that the medications could
impact cognition and could affect every day memory.
In a July 16, 2019 addendum note, Dr. Undesser related that results of the April 8, 2019
neuropsychological evaluation by Dr. Andrews were deemed invalid. He reiterated that appellant
had no neurologic deficits that would prevent working in any occupation. Dr. Undesser also
explained that, although neuropsychological testing did not support cognitive deficits due to
traumatic brain injury, there was the possibility of mild cognitive impairment due to side effects
of medication.
The Board finds that Dr. Undesser’s opinion was inconsistent and conclusory in nature and
did not contain sufficient medical reasoning to establish that appellant was no longer disabled due
to his accepted August 8, 2017 employment injury.6 In assessing medical evidence, the number
of physicians supporting one position or another is not controlling; the weight of such evidence is
determined by its reliability, its probative value, and its convincing quality.7 The factors that
determine the probative value of medical evidence include the opportunity for and thoroughness
of examination performed by the physician, the accuracy or completeness of the physician’s
knowledge of the facts and medical history, the care of analysis manifested, and the medical
rationale expressed by the physician on the issues addressed to him by OWCP.8
Although Dr. Undesser opined in his December 4, 2018 report that appellant had no
neurologic deficits that, would prevent him from working, he also noted that appellant had frequent
headaches that may require accommodation. He further indicated in his July 16, 2019 addendum
that, while neuropsychological testing did not support cognitive deficits due to traumatic brain
injury, there was the possibility of mild cognitive impairment due to side effects of medication.
The Board finds that Dr. Undesser did not definitively conclude that appellant was able to return
to work. Dr. Undesser did not provide sufficient medical reasoning or explanation for how
appellant was no longer disabled due to his accepted neurological injury, but may still require
accommodations due to mild impairment. Furthermore, he did not adequately explain how he
concluded that appellant had cognitive deficits from neuropsychological testing when
Dr. Andrews determined that his examination was invalid.
Considering the internal
inconsistencies in his report, Dr. Undesser’s report is speculative at best.9 Likewise, Dr. Andrews
also did not conclusively opine that appellant was no longer disabled due to his August 8, 2017
employment injury, but merely noted that appellant’s examination was deemed invalid and that
mild concussions typically resolve in a few weeks.10 While Dr. Andrews noted that the subjective
cognitive difficulties could be the result of appellant’s medications and noted he presented with
6

See J.W., Docket No. 19-1014 (issued October 24, 2019); S.B., Docket No. 18-0700 (issued January 9, 2019);
S.J., Docket No. 17-0543 (issued August 1, 2017).
7

D.W., Docket No. 18-0123 (issued October 4, 2018); Nicolette R. Kelstrom, 54 ECAB 570 (2003).

8

A.G., Docket No. 19-0220 (issued August 1, 2019); James T. Johnson, 39 ECAB 1252 (1988).

9

Medical opinions that are speculative or equivocal in character are of diminished probative value. D.B., Docket
No. 18-1359 (issued May 14, 2019).
10

See S.J., Docket No. 17-0543 (issued August 1, 2017).

5

slurred speech. He indicated that the medications could impact cognition and could affect
everyday memory. Because the reports of Dr. Undesser and Dr. Andrews lack probative value,
the Board finds that OWCP erred in relying on his opinion as the basis to terminate appellant’s
wage-loss compensation benefits.
The Board further finds that OWCP erred in relying on Dr. Baker’s December 21, 2017
examination note as the basis in determining that appellant was no longer disabled due to his
accepted bilateral knee injury. In a December 21, 2017 report, Dr. Baker noted that left knee
examination findings revealed a stable knee in flexion and extension. He reported that appellant
would be allowed to return to his regular job. Dr. Baker, however, did not address whether
appellant was no longer disabled from work due to his right knee osteoarthritic injury. The Board
notes that appellant’s claim was accepted for aggravation of bilateral knee osteoarthritis. Although
Dr. Baker discussed appellant’s left knee injury, he failed to provide any objective findings
regarding appellant’s right knee and did not opine on whether appellant’s disability due to his right
knee osteoarthritic injury had resolved.11 Accordingly, this report is of no probative value to
establish termination of appellant’s wage-loss compensation benefits.12
The Board therefore finds that OWCP has not met its burden of proof to terminate
appellant’s wage-loss compensation benefits, effective August 29, 2019, as the medical evidence
of record is insufficient to establish that he no longer has disability causally related to his accepted
August 8, 2017 employment injury.13
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective August 29, 2019.

11

See S.T., Docket No. 18-1144 (issued August 9, 2019).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

See D.W., Docket No. 18-0123 (issued October 4, 2018); Willa M. Frazier, 55 ECAB 379 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: May 7, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF JUSTICE, IMMIGRATION
& NATURALIZATION SERVICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas Martin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-740
Issued: October 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 25, 2010 appellant filed a timely appeal from an August 28, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying his request for
reconsideration. The most recent merit decision was issued on April 21, 2008, more than one
year prior to the appeal. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the Office’s nonmerit decision.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
On August 20, 1997 appellant, then a 44-year-old special agent, sustained a left knee
injury in the performance of duty. The Office accepted his traumatic injury claim for left knee
strain and authorized left knee arthroscopic surgery. Appellant retired from federal service on
January 1, 2003.
On October 19, 2006 appellant filed a claim for a recurrence of disability. By decision
dated June 26, 2007, the Office denied his recurrence claim finding that the evidence was
insufficient to establish that his current condition was causally related to his accepted injury.
On March 3, 2008 appellant requested reconsideration of the June 26, 2007 decision. He
submitted a November 27, 2007 report from Dr. John B. Dorsey, a Board-certified orthopedic
surgeon, who provided a history of injury and treatment. Based on examination findings and
magnetic resonance imaging scan reports, he diagnosed severe tricompartmental osteoarthritis of
the left knee and a chronic anterior cruciate ligament tear. He opined that the recurrent posterior
horn meniscal tear was actually a postsurgical change, rather than a retear. Dr. Dorsey advised
that appellant’s disability was causally related to his duties as a special agent, which required
running, jumping, climbing and other strenuous activities. He noted that these activities could
result in an arthritic knee, particularly as appellant had prior knee surgery. Additionally, the
partial removal of a meniscus leads to the development of posttraumatic osteoarthritis over a
period of years and had done so in appellant’s case. He concluded that, as appellant had been
working in a sedentary position since his 2003 retirement, it was his physical activity as a special
agent that caused the damage to his left knee.
In a decision dated June 10, 2008, the Office denied modification of its June 26, 2007
decision. It found that the medical evidence failed to establish that appellant’s current condition
was causally related to the accepted injury, as Dr. Dorsey’s opinion was speculative and his
report failed to address evidence of appellant’s preexisting osteoarthritis condition.
On June 1, 2009 appellant, through his representative, submitted a request for
reconsideration, together with a May 13, 2009 report from Dr. Dorsey. Counsel contended that
the medical evidence established that appellant’s condition resulted from work activities he
engaged in following his return to work in March 1998.
In a May 13, 2009 letter, Dr. Dorsey reiterated his opinion that appellant’s disabling
tricompartmental osteoarthritis of the left knee was causally related to his federal employment.
He explained: “it is an established fact that patients that have had an arthroscopic debridement
and who have had an injury requiring a debridement will go on to develop osteoarthritis.”
Dr. Dorsey stated that, as a result of the meniscectomy, appellant lost the cushioning effect of the
meniscus, causing a propensity to develop osteoarthritis, which had been confirmed by clinical
and physical evidence, as well as by imaging studies. He further stated: “even if the
osteoarthritis was not caused by the incident and subsequent surgery, it would have definitely
been aggravated by the surgery and the activities described.”

2

By decision dated August 28, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence presented was repetitive and cumulative and,
therefore, did not warrant merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act, the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.2 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.3 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.4
ANALYSIS
The Board finds that the Office improperly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
On reconsideration, appellant submitted a May 13, 2009 report from Dr. Dorsey that was
not previously considered by the Office. Dr. Dorsey provided an explanation as to how
appellant’s left knee osteoarthritis was causally related to accepted injury, stating that “it is an
established fact that patients that have had an arthroscopic debridement and who have had an
injury requiring a debridement will go on to develop osteoarthritis.” Dr. Dorsey advised that, as
a result of the prior meniscectomy, appellant lost the cushioning effect of the meniscus, which
caused a propensity to develop osteoarthritis. He addressed the Office’s concern regarding
appellant’s preexisting osteoarthritis, stating that even if it was not caused by the incident and
subsequent surgery, it would definitely have been aggravated by the surgeries and the activities
described.
Dr. Dorsey’s report is new to the record and relevant to the issue of causal relationship.
It is sufficient to require further review of the merits of appellant’s claim.5 The case will be
remanded for the Office to review this evidence. After such further development of the claim as
it deems necessary, it shall issue an appropriate decision.

2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.607(a).

4

Id. at § 10.608(b).

5

See R.M., 61 ECAB ___ (Docket No. 09-1231, issued July 27, 2010).

3

CONCLUSION
The Board finds that the Office abused its discretion in denying appellant’s request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action
consistent with this decision of the Board.
Issued: October 20, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Biloxi, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1564
Issued: February 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 23, 2008 appellant filed a timely appeal from a June 20, 2007 decision of the
Office of Workers’ Compensation Programs denying her claim for disability beginning
August 23, 2005 and a disc protrusion at L4-5. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s disability beginning August 23, 2005 or her L4-5 spinal
disc protrusion were causally related to her June 7, 2005 employment injury.
FACTUAL HISTORY
On June 8, 2005 appellant, then a 36-year-old practical nurse, filed a traumatic injury
claim alleging that on June 7, 2005 she sustained a head injury when the trunk lid of a van was
pulled down and struck her head as she loaded a wheelchair into the trunk. She stopped work on
June 9, 2005. A June 8, 2005 clinical note indicated that appellant had no loss of consciousness

when her head was struck by the van trunk lid but she developed a headache that evening. There
was no swelling or bruising. A computerized tomography (CT) scan report dated June 21, 2005
revealed a normal brain scan. In a June 20, 2005 disability certificate, a physician indicated that
appellant had a headache but could return to work on June 21, 2005. Continuation of pay was
provided for June 9 to August 22, 2005. She filed a compensation claim for disability beginning
August 23, 2005. The Office accepted her claim for contusions of the face, neck and scalp. On
August 12, 2005 it expanded her claim to include neck and lumbar spine sprains and strains.
On July 27, 2005 Dr. Joseph L. Faison, appellant’s attending family practitioner,
indicated that appellant was totally disabled due to post-traumatic headaches. Several clinical
notes indicated a diagnosis of post-traumatic headaches.
In an August 22, 2005 magnetic resonance imaging (MRI) scan report, Dr. Raymond E.
Tipton, a radiologist, noted that appellant had a mild annular disc protrusion and desiccation at
L4-5 that was consistent with chronic degenerative disc disease, possibly related to marked
obesity. Dr. Tipton also noted subcutaneous edema suggesting hypoproteinemia or heart failure.
MRI scans of the cervical spine and brain were normal.
An October 24, 2005 disability certificate from Dr. Faison indicated that appellant was
disabled from September 22, 2005 to January 22, 2006.1 In an October 27, 2005 report, he
diagnosed post-traumatic headaches and a myofascial injury of the cervical spine.
On November 10, 2005 the Office asked Dr. Faison for an explanation as to how
appellant’s disability beginning August 23, 2005 or her disc protrusion at L4-5 diagnosed
August 22, 2005 was causally related to her June 7, 2005 employment injury. In an undated
report received by the Office on November 14, 2005, Dr. Faison indicated that appellant was
disabled beginning September 12, 2005 due to a post-traumatic headache. He indicated by
checking “no” that the headache was not caused or aggravated by an employment activity.
By decision dated November 22, 2005, the Office denied appellant’s claim on the
grounds that the evidence did not establish that her disability beginning August 23, 2005 was
causally related to her June 7, 2005 employment injury.
On January 23, 2006 Dr. Faison changed appellant’s diagnosis to a disc protrusion in her
lumbosacral spine but did not submit a narrative report containing medical rationale on the issue
of causal relationship. In a June 25, 2006 report, he stated that he first saw appellant on July 12,
2005 for severe headaches and cervical and lumbar spine pain. On physical examination,
appellant had severe and diffuse cervical and lumbosacral muscle spasm. Straight leg rising was
positive at 23 degrees bilaterally. Dr. Faison noted that an August 22, 2005 MRI scan revealed a
disc protrusion at L4-5. He diagnosed a traumatic disc protrusion at L4-5, traumatic myofascial
injury of her cervical spine and post-traumatic headaches. Dr. Faison stated his opinion that
appellant’s disc protrusion was caused by her traumatic employment injury on June 7, 2005.

1

Dr. Faison initially stated that appellant was disabled from September 12 to 28, 2005 but subsequently changed
the disability dates to September 12, 2005 to January 22, 2006.

2

By decision dated August 23, 2006, an Office hearing representative set aside the
November 22, 2005 decision and remanded the case for further development of the medical
evidence.
The Office referred appellant, with a statement of accepted facts and a list of questions, to
Dr. Raymond R. Fletcher, a Board-certified orthopedic surgeon, for an examination and a
rationalized medical opinion on whether her June 7, 2005 employment injury caused a lumbar
disc protrusion and disabled her from work beginning August 23, 2005.
In a December 27, 2006 report, Dr. Fletcher reviewed appellant’s medical history and
provided findings on physical examination. He reported her description of being struck in the
head, neck and back when a van trunk lid came down on June 7, 2005 but he noted that an earlier
medical report indicated a history of being struck only on the head. Dr. Fletcher stated that
appellant’s subjective complaints far outweighed the objective findings and were supported by
minimal abnormal musculoskeletal findings. Appellant’s unwillingness to answer certain
questions, exaggerated pain estimate, nonphysiologic findings and low voluntary effort on
physical examination indicated secondary gain and symptom magnification. Dr. Fletcher stated
that appellant’s scalp contusion and spinal sprain injuries had healed and she could return to
full-duty work.
The Office requested additional information and provided a list of questions to
Dr. Fletcher. In a January 29, 2007 addendum report, Dr. Fletcher stated that the condition
revealed on the August 22, 2005 MRI scan, a mild protrusion/tear at L4-5, was not related to
appellant’s June 7, 2005 employment injury.
By decision dated February 20, 2007, the Office denied appellant’s claim on the grounds
that she failed to establish that her disability beginning August 23, 2005 or her L4-5 disc
protrusion was causally related to her June 7, 2005 employment-related face and scalp
contusions and neck and lumbar sprains and strains.
Appellant requested reconsideration and submitted new medical evidence. An August 6,
2003 preemployment physical examination report indicated full range of motion of her back and
normal strength. An August 6, 2003 x-ray report indicated a normal lumbar spine. Appellant’s
attorney argued that since the preemployment physical and x-ray did not reveal a back condition,
her disability beginning August 23, 2005 and her L4-5 disc protrusion must be causally related to
her June 7, 2005 employment injury. In a January 8, 2007 prescription for physical therapy,
Dr. Faison diagnosed a disc protrusion at L4-5. In a February 6, 2007 disability certificate, he
indicated that appellant was unable to work from November 9, 2005 to April 2, 2007 because of
a work-related injury to her spine. In a February 23, 2007 lumbar spine MRI scan report,
Dr. F. Alan Lovell, a Board-certified radiologist, stated that appellant had a small disc protrusion
at L4-5.

3

By decision dated June 20, 2007, the Office denied modification of its February 20, 2007
decision.2
LEGAL PRECEDENT
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of
reliable, probative and substantial medical evidence.3 Causal relationship is a medical issue and
the medical evidence generally required to establish causal relationship is rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the compensable employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment nor is her belief that her condition was aggravated by her employment sufficient to
establish causal relationship.5
ANALYSIS
The Office accepted appellant’s claim for contusions of the face, neck and scalp and
lumbar spine sprains and strains sustained on June 7, 2005 in the performance of duty. Appellant
subsequently claimed disability beginning August 23, 2005 and a disc protrusion at L4-5 as
causally related to her employment injury.
An August 6, 2003 employment physical examination report indicated full range of
motion of appellant’s back and normal strength and an x-ray report of that date indicated a
normal lumbar spine. Appellant argued that since the preemployment physical and x-ray did not
reveal a back condition, her disability beginning August 23, 2005 and her L4-5 disc protrusion
must be causally related to her June 7, 2005 employment injury. However, the Board notes that
lay individuals such as appellant and her attorney are not competent to render a medical opinion.6
Therefore, appellant’s argument regarding the medical evidence does not establish that she was
2

Subsequent to the June 20, 2007 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
3

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
5

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

6

See Robert J. Krstyen, 44 ECAB 227 (1992).

4

disabled beginning August 23, 2005 or sustained a disc protrusion causally related to her June 7,
2005 employment injury.
On July 27, 2005 Dr. Faison indicated that appellant was totally disabled due to posttraumatic headaches. However, headaches have not been accepted by the Office as causally
related to the June 7, 2005 employment injury and Dr. Faison did not provide a rationalized
explanation as to how the headaches were work related. As noted, a June 21, 2005 CT scan of
appellant’s brain was reported as normal. In an October 24, 2005 disability certificate, he
indicated that appellant was disabled from September 22, 2005 to January 22, 2006 but provided
no opinion on causal relationship. In an October 27, 2005 report, Dr. Faison diagnosed posttraumatic headaches and a myofascial injury of the cervical spine but did not provide a
rationalized explanation as to how these conditions were related to appellant’s June 7, 2005
employment injury. In an undated report received by the Office on November 14, 2005, he
indicated that appellant was disabled beginning September 12, 2005 due to post-traumatic
headaches. Dr. Faison indicated by checking “no” that the headaches were not caused or
aggravated by an employment activity which conflicts with appellant’s claim of a work-related
condition or disability beginning August 23, 2005.
On January 23, 2006 Dr. Faison changed appellant’s diagnosis to a disc protrusion of her
lumbosacral spine. However, he did not submit a narrative report containing findings on
physical examination and medical rationale on the issue of causal relationship. In a June 25,
2006 report, Dr. Faison stated that he first saw appellant on July 12, 2005 for severe headaches
and cervical and lumbar spine pain. He diagnosed a traumatic disc protrusion at L4-5, traumatic
myofascial injury of the cervical spine and post-traumatic headaches. Dr. Faison stated his
opinion that appellant’s disc protrusion was caused by the trauma to her lumbosacral spine on
June 7, 2005. However, his opinion on causal relationship is not consistent with the August 22,
2005 MRI scan report of Dr. Tipton who stated that appellant’s mild disc protrusion and
desiccation at L4-5 was consistent with chronic degenerative disc disease, possibly related to
marked obesity. Dr. Tipton’s opinion on causal relationship is based on his actual readings of
the MRI scan and therefore carries more weight. In a February 6, 2007 disability certificate,
Dr. Faison indicated that appellant was unable to work from November 9, 2005 to April 2, 2007
because of a work-related injury to appellant’s spine. However, he did not provide medical
rationale in support of his opinion. The Board finds that the reports of Dr. Faison do not provide
sufficient physical findings or medical rationale explaining how appellant’s disability beginning
August 23, 2005 or her disc protrusion at L4-5 were causally related to her June 7, 2005
employment-related contusions of the face, neck and scalp and lumbar spine sprains and strains.
In reports dated December 27, 2006 and January 29, 2007, Dr. Fletcher reviewed
appellant’s medical history and provided findings on physical examination. He reported her
description of being struck in the head, neck and back when the van trunk lid came down on
June 7, 2005 but he noted a discrepancy in the medical history. Dr. Fletcher noted that an earlier
medical report indicated that appellant was struck only on the head. He stated that appellant’s
subjective complaints far outweighed the objective findings and were supported by minimal
abnormal musculoskeletal findings. Appellant’s unwillingness to answer certain questions,
exaggerated pain estimate, nonphysiologic findings and low voluntary effort on physical
examination indicated secondary gain and symptom magnification. Dr. Fletcher stated that
appellant’s work-related injuries, including a scalp contusion and cervical and lumbar sprains,
5

had resolved and she could return to full-duty work. He stated that the condition revealed on the
August 22, 2005 MRI scan, a mild protrusion/tear at L4-5, was not causally related to her June 7,
2005 employment injury. The Board finds that the weight of the medical evidence is represented
by the thorough and well-rationalized report of Dr. Fletcher which establishes that appellant’s
disability beginning August 23, 2005 and her disc protrusion at L4-5 were not causally related to
her June 7, 2005 employment injury.
CONCLUSION
The Board finds that appellant failed to establish that her disability beginning August 23,
2005 or her disc protrusion at L4-5 were causally related to her June 7, 2005 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 20, 2007 is affirmed.
Issued: February 5, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6