United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 08-1131
Issued: October 24, 2008

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 March 10, 2008 appellant filed a timely appeal of the October 9, 2007 decision of the
Office of Workers’ Compensation Programs denying her claim for a recurrence of disability.
Under 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 sustained a recurrence of disability on November 7, 2006
causally related to her accepted injury of August 23, 2003.
FACTUAL HISTORY
On August 28, 2003 appellant, then a 45-year-old mail handler, broke out into hives as a
result of exposure to wax used on the workroom floor. On April 26, 2004 the Office accepted
appellant’s claim for a temporary aggravation of idiopathic urticaria. Appropriate medical and
compensation benefits were paid. Appellant returned to full-time work duties.
In an attending physician’s report dated October 14, 2006, Dr. Michael P. Curriston, a
Board-certified emergency room physician, indicated that appellant had edema of the right lower

lip which he diagnosed as an acute allergic reaction “possibly” related to her work. He noted no
period of disability. In a duty status report of the same date, Dr. Curriston noted that appellant
was able to perform her regular duty with the only limitation that she avoid exposure to industrial
strength floor wax and fumes.
On July 9, 2007 appellant filed a claim alleging a recurrence of disability due to the
August 20, 2003 injury as of November 7, 2006. In an accompanying statement, she noted that
she was off work from November 7 to 21, 2006 as she was having problems with her feet.
Appellant noted that she smelled wax on the workroom floor following which she experienced
swelling in her lip, hands and feet. In an attending physician’s report dated November 16, 2006,
a nurse practitioner indicated that appellant’s current condition of urticaria was not related to
work and that she had been off work for about one month when the symptoms occurred.
In a November 17, 2006 report, Dr. Theodore Slater, a Board-certified emergency room
physician, diagnosed urticaria -- idiopathic. He noted that appellant indicated that she had an
onset of hives at home and had prior similar reactions when exposed to wax at the employing
establishment. The patient history noted that appellant was currently off work and had not
worked for approximately a month due to the death of a parent and a foot condition.
In a “Certification by the Employee’s Health Care Provider,” it was noted that appellant
had a permanent allergy to wax on the floor. It noted that appellant reacts to the wax with hives,
a rash, swelling of both feet and swelling of both hands, throat swells and she has difficulty
breathing. This document is not signed nor dated and it appears that it is missing pages.
In a disability slip dated November 22, 2006, Dorothy Jones, L.C., indicated that
appellant was under her care from November 7 to 22, 2006 and was able to return to work on
November 24, 2006. Appellant also submitted information sheets from The Cardinal Orthopedic
Institute about posterior tibial tendon dysfunction and plantar fasciitis.
By letter dated July 24, 2007, the Office asked appellant to submit further information in
support of her claim. In a medical report dated June 11, 2007, Dr. Jonathan B. Feibel, an
orthopedic surgeon, indicated that appellant had plantar fasciitis and left posterior tibial
tendinitis. She also submitted a copy of the floor waxing schedule at work. Appellant submitted
a statement regarding treatment she sought on November 7, 2006 for a heel spur. She noted that
her job required her to stand for 8 to 12 hours a day during her light-duty assignment.
By decision dated October 9, 2007, the Office denied appellant’s recurrence of disability
claim, finding that the medical evidence was not sufficient to establish that her current condition
was due to the accepted work injury.
LEGAL PRECEDENT
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”1 A person who claims a recurrence of disability due to an accepted
1

R. S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007); 20 C.F.R. § 10.5 (x).

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employment-related injury has the burden of establishing by the weight of the substantial, reliable,
and probative evidence that the disability for which she claims compensation is causally related to
the accepted injury. This burden of proof requires that an employee furnish medical evidence from
a physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical reasoning.2 Where no such rationale is present, medical evidence
is of diminished probative value.3
ANALYSIS
The Office accepted appellant’s claim for temporary aggravation of idiopathic urticaria.
Appellant returned to full-time work duties. She alleged a recurrence of disability on
November 7, 2006. However, appellant has not provided sufficient medical evidence to support
a recurrence.
The Board notes that appellant submitted an attending physician’s report signed by a
nurse practitioner, an unsigned Certification of Employee’s Health Care Provider form and a
disability slip signed by Dorothy Jones, LC. These documents were not signed by a physician
and do not constitute competent medical evidence. The Board notes that a nurse or a physician’s
assistant is not a physician as defined under the Act.4
Dr. Curriston saw appellant on October 14, 2006, three weeks prior to the alleged
recurrence of November 7, 2006. Therefore, this report is not relevant to the period of claimed
disability. Dr. Curriston noted only that appellant’s condition was “possibly” related to her work
and did not find any period of disability. The Board has held that medical opinions which are
speculative or equivocal in character have little probative value.5 Dr. Slater treated appellant in
the emergency room on November 17, 2006 and diagnosed idiopathic urticaria. However he
obtained a history of an onset of hives at home. The patient history advised that appellant had
not worked for a month prior to onset. This opinion is not sufficient to establish that appellant’s
condition on or after November 7, 2006 was related to her accepted injury. Dr. Feibel noted that
appellant had plantar fasciitis and left posterior tibial tendinitis on June 11, 2007. This report is
not relevant to any recurrence on November 7, 2006 due to the accepted skin condition.
Furthermore, Dr. Feibel does not relate this condition to appellant’s accepted injury. Similarly,
the information sheets from the Cardinal Orthopedic Institute regarding posterior tibial tendon
dysfunction and plantar fasciitis are of no probative value to the relevant issue in this claim.

2

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

4

5 U.S.C. § 8102(2).

5

See Kathy A. Kelley, 55 ECAB 2006 (2004) (where the Board found a physician’s statement that appellant’s
work duties may be aggravating his knee condition to be speculative and of diminished probative value); Jennifer
Beville, 33 ECAB 1970 (1982) (where the Board found a physician’s statement that appellant’s complaints could
have been related to an employment incident to be speculative and of limited probative value).

3

An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.6 Causal relationship must be established by
rationalized medical opinion evidence and appellant has failed to submit such evidence. The
Office advised appellant of the evidence required to establish her claim; however, she failed to
submit such evidence. Accordingly, the Office properly denied appellant’s recurrence claim.
CONCLUSION
The Board finds that appellant failed to establish a recurrence of disability as of
November 7, 2006 causally related to her accepted injury of August 23, 2003.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 9, 2007 is affirmed.
Issued: October 24, 2008
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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Nicole Carter, for Appellant
Office of Solicitor, for the Director

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Docket No. 11-1196
Issued: January 12, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

Appellant filed an application for review of the Office of Workers’ Compensation
Programs’ (OWCP) March 2, 2011 merit decision denying his traumatic injury claim. The
appeal was docketed as No. 11-1196. After considering the evidence of record, the Board finds
this case is not in posture for a decision.
The present appeal involves appellant’s January 6, 2011 traumatic injury claim (File No.
xxxxxx610) in which he alleged that he experienced anxiety, depression and post-traumatic
stress disorder as a result of a coworker’s verbal threat on June 10, 2009.1 Appellant stated that
he continues to be disabled by the emotional condition that was accepted under a prior claim.
The record indicates that appellant filed a July 7, 2009 traumatic injury claim (File No.
xxxxxx450), in which he alleged that he developed an emotional condition as a result of a threat
on his life made by a coworker on June 6, 2009. OWCP accepted appellant’s claim in File No.
xxxxxx450 for post-traumatic stress disorder, panic disorder and generalized anxiety disorder.
The record in the instant case, however, does not contain any evidence relating to the
development of appellant’s claim in File No. xxxxxx450.

1

Appellant’s initially filed an occupational disease claim, which OWCP treated as a claim for a traumatic injury.

In a decision dated March 2, 2011, OWCP denied appellant’s claim on the grounds that
his January 6, 2011 claim was a duplicate of File No. xxxxxx450. Noting that the instant claim
alleged a verbal threat by a coworker on June 10, 2009, rather than June 6, 2009 as alleged in
File No. xxxxxx450, OWCP stated that there was no evidence of record to indicate that appellant
had experienced a new injury.
In its March 2, 2011 decision, OWCP denied appellant’s claim in the instant case, finding
that it was a duplicate of his claim in File No. xxxxxx450. In the same decision, however, the
claims examiner acknowledged that appellant had identified a different date of injury as the
cause of his claimed condition in File No. xxxxxx610. Therefore, while the claims may be
substantially similar, they do not appear to be identical. Because it is essential for the Board to
review the evidence contained in File No. xxxxxx450 in order to render a full and fair
adjudication of the present appeal, this case will be remanded for OWCP to consolidate case files
xxxxxx450 and xxxxxx610. Reconstruction of the record will be followed by a de novo decision
on the merits of the claim, in order to protect appellant’s appeal rights.2
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 2, 2011 decision be set aside and the case remanded for further development consistent
with this order.
Issued: January 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2

On remand, OWCP should review the evidence in both case files to determine whether appellant’s claim in File
No. xxxxxx610 constitutes a claim for a new injury or a recurrence of disability under File No. xxxxxx450.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Clovis, CA, Employer
__________________________________________

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

Docket No. 09-2232
Issued: August 16, 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 September 8, 2009 appellant filed a timely appeal of an August 20, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than four percent impairment of the left leg for
which he received a schedule award.
FACTUAL HISTORY
On June 27, 2001 appellant, then a 36-year-old wild land firefighter, twisted his left knee
while clearing brush. He stopped work on August 14, 2001 when his crew was let go because no

work was available. Appellant did not return to work.1 The Office accepted his claim for left
knee strain, torn left medial meniscus and left chondromalacia of the patella.
Dr. Anthony Montana, Board-certified in family medicine, diagnosed left knee strain
with medial meniscus tear. In a January 13, 2004 report, he noted appellant’s complaint of left
knee snapping, popping, locking and giving way. Dr. Montana’s examination of the left knee
revealed a moderate degree of tenderness medially with pain, full range of motion and no gross
laxity. He referred appellant to Dr. Robert Mochizuki, a Board-certified orthopedic surgeon, for
an orthopedic and surgical evaluation.
On February 12, 2004 Dr. Mochizuki reviewed diagnostic tests of appellant’s left knee
revealing persistent horizontal cleavage tear of the posterior horn of the medial meniscus,
chondromalacia and resolved medial collateral ligament strain. He diagnosed left knee medial
meniscus tear, left knee chondromalacia of the patella and possible chondromalacia of the medial
femoral condyle. On April 12, 2004 Dr. Mochizuki performed a left knee arthroscopy with
resection of the torn portion of the medial meniscus as well as an arthroscopic synovectomy of
all three compartments of the left knee. On August 23, 2004 he noted appellant’s postsurgical
complaint of pain in the medial aspect of the left knee.
An August 31, 2004 magnetic resonance imaging (MRI) scan report of the left knee, read
by Dr. Kenneth Krone, a Board-certified diagnostic radiologist, found exacerbation in the
appearance of appellant’s left medial meniscus tear, chondromalacia of the patella and a small
joint effusion with Baker’s cyst.
On September 30, 2004 Dr. Mochizuki recommended another left knee arthroscopy with
synovectomy and resection of the torn portion of the medial meniscus. He performed surgery on
December 28, 2004. In a March 10, 2005 report, Dr. Mochizuki advised that appellant could
return to light duty on March 15, 2005. On May 5, 2005 he opined that appellant’s work injury
was permanent and stationary and that no additional treatment was recommended.
On April 3, 2008 the Office referred appellant to Dr. Alice Martinson, a Board-certified
orthopedic surgeon, for a second opinion on whether he could perform the duties of a safety
inspector, a position for which the Office provided training.
In a May 7, 2008 report, Dr. Martinson noted appellant’s complaint of pressure in the
popliteal area of the left knee that increased with intermittent swelling of the anterior part of his
knee. Appellant also reported pain with squatting and climbing stairs. Examination revealed
that left knee range of motion had 0 degrees of extension to 140 degrees of flexion, no palpable
effusion, palpable synovial clicks with active and passive flexion and extension but no frank
patellofemoral crepitus. Dr. Martinson also found a small Baker’s cyst palpable in the left
popliteal fossa, equal circumferential measurement of both knees and thighs and mild
generalized tenderness about the left knee. She diagnosed torn medial meniscus of the left knee
and status post partial arthroscopic medial meniscectomy that was performed twice.
1

Appellant worked at nonfederal governmental jobs intermittently between June 2002 and January 2003. In
January 2003, he was diagnosed with nonwork-related cellulitis and was advised to stop working by his treating
physician. Appellant subsequently began receiving wage-loss compensation from the Office.

2

Dr. Martinson opined that records and diagnostic tests established that appellant sustained a
medial meniscus tear at the time of injury but that findings on examination were minimal and
recent MRI scan findings were equivocal. She noted that his subjective factors of disability
consisted of intermittent swelling of the left knee, increased discomfort in the left knee with
squatting, climbing and intermittent giving way of the left knee. Dr. Martinson opined that there
were insufficient objective findings of left knee pathology to warrant additional surgery. She
also noted that arthroscopic exploration was a reasonable consideration if there were future
medically-documented recurrent effusions or increased symptoms. Dr. Martinson indicated that
appellant was totally disabled from his last day of work in 2001 through March 15, 2005 when
his physician recommended that he return to light duty. She also opined that he was able to
perform the duties of a safety inspector.2
On October 24, 2008 appellant filed a schedule award claim.
In a November 7, 2008 letter, the Office requested that Dr. Mochizuki provide an opinion
on appellant’s permanent impairment of his left lower extremity based on the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
In a December 18, 2008 report, Dr. Mochizuki noted examining appellant that date and
provided a detailed summary of appellant’s history of injury and treatment received. He noted
his most recent previous examination of appellant on May 5, 2005. Appellant had current
complaints of throbbing and aching left knee pain. Dr. Mochizuki indicated that x-rays taken
that day and from May 5, 2005 were normal. His examination revealed normal back range of
motion without swelling, atrophy or muscle spasm. Dr. Mochizuki indicated that appellant’s hip
had normal range of motion with no muscle atrophy or weakness. He found that appellant’s left
knee did not appear to have any significant swelling. Dr. Mochizuki noted tenderness to
palpation of the patellofemoral joint and medial joint space with slight pain laterally.
Dr. Mochizuki measured zero for right and left anterior drawer, posterior drawer, valgus
stress, effusion, patellofemoral crepitus and patellar subluxation. He also measured 120 degrees
of flexion and 0 degrees of extension for both knees. Dr. Mochizuki found that appellant’s
ankles had normal range of motion without swelling or instability and that his feet were without
swelling and atrophy. He diagnosed mild chondromalacia patella of the left knee and status post
left knee arthroscopy with partial resection of the torn portion of the medial meniscus of the left
knee. Dr. Mochizuki indicated that appellant’s subjective ratable factors of permanent disability
were “occasional minimal at rest, increasing to intermittent slight to moderate with kneeling,
squatting, crawling and climbing activities or other activities involving comparable physical
effort.” Objective factors of permanent impairment included partial tear of the posterior horn of
the medial meniscus and symmetrical knee range of motion. Dr. Mochizuki opined that
appellant’s left knee injury from June 27, 2001 was permanent and stationary on May 5, 2005 for
the purposes of ratability. He further opined that, based on Table 17-33 on page 546 of the
A.M.A., Guides, appellant had two percent left lower extremity impairment and one percent
whole person impairment for a partial tear of the medial meniscus of the left knee.
2

In an October 20, 2008 decision, the Office reduced appellant’s wage-loss compensation to zero finding that his
capacity to earn wages as a safety inspector represented his wage-earning capacity. Appellant has not appealed this
decision.

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In a February 9, 2009 report, an Office medical adviser reviewed Dr. Mochizuki’s
December 18, 2008 report and Dr. Martinson’s May 7, 2008 second opinion evaluation. Based
on Dr. Mochizuki’s subjective factors of ratable permanent impairment, he graded appellant’s
pain complaints, relative to the femoral nerve, a maximum of Grade 3, citing the grading scheme
in Tables 15-15 and 16-10 of the A.M.A., Guides. The medical adviser noted that this would be
for pain and altered sensation that may interfere with activity, equaling a maximum of 60 percent
impairment for sensory deficit. He referenced the 7 percent maximum pain impairment for the
femoral nerve, which he multiplied the 60 percent grade to total 4.2 percent impairment that he
rounded to 4 percent. The medical adviser also determined zero percent impairment for full
range of motion and absence of atrophy or weakness. He noted that Dr. Mochizuki also used the
diagnosis-based estimate for partial medial meniscectomy, citing Table 17-33, to determine two
percent left lower extremity impairment. The medical adviser noted that the impairments could
not be combined under Table 17-2. Therefore, appellant would benefit from the higher award of
four percent. The medical adviser noted that appellant reached maximum medical improvement
on December 28, 2005, one year following his second surgery.
In a March 5, 2009 decision, the Office granted appellant a schedule award for four
percent permanent impairment of the left lower extremity. The award ran for 11.52 weeks from
December 18, 2008 to March 8, 2009.
Appellant requested a telephone hearing on March 13, 2009 that was held on
June 24, 2009.
In an August 20, 2009 decision, an Office hearing representative affirmed the March 5,
2009 schedule award, finding that no medical evidence established more than four percent
impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter which
rests in the sounds discretion of the Office. For consistent results and to ensure equal justice, the
Board has authorized the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the Office for evaluating
schedule losses and the Board has concurred in such adoption.4

3

5 U.S.C. §§ 8101-8193. See 5 U.S.C. § 8107.

4

See 20 C.F.R. § 10.404; R.D., 59 ECAB ___ (Docket No. 07-379, issued October 2, 2007).

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ANALYSIS
Appellant received a schedule award for four percent impairment of the left lower
extremity due to his accepted left knee strain, torn left medial meniscus and left chondromalacia
of the patella.
In a December 18, 2008 report, Dr. Mochizuki provided a detailed summary of
appellant’s history of injury and noted appellant’s complaint of knee pain. His examination
revealed normal back, hip and ankle range of motion with no atrophy and no weakness.
Regarding the left knee, Dr. Mochizuki measured zero for anterior and posterior drawer, valgus
stress, effusion, patellofemoral crepitus and patellar subluxation. He also measured 120 degrees
of flexion and 0 degrees of extension to determine normal left knee range of motion.
Dr. Mochizuki diagnosed mild chondromalacia patella of the left knee and status post left knee
arthroscopy with partial resection of the torn portion of the medial meniscus of the left knee. He
determined appellant’s impairment based on a diagnosis-based estimate and explained that a
partial medial meniscectomy equaled two percent impairment of the left lower extremity
according to Table 17-33 on page 546 of the A.M.A., Guides.5
In a February 9, 2009 report, an Office medical adviser reviewed Dr. Mochizuki’s
impairment determination and concluded that appellant had four percent impairment of the left
knee. The medical adviser determined that the subjective factors of impairment identified by
Dr. Mochizuki -- occasional minimal at rest, increasing to intermittent slight to moderate with
kneeling, squatting, crawling and climbing activities or other activities involving comparable
physical effort -- equated to Grade 3 classification of sensory deficit or pain resulting from a
peripheral nerve disorder and assigned 60 percent sensory deficit impairment, citing Table 16-10
on page 482 of the A.M.A., Guides. The Office medical adviser indicated that the femoral nerve
had a seven percent maximum impairment for pain or dysesthesia.6 Pursuant to the procedure in
Table 16-10, he multiplied 60 percent sensory deficit grade by 7 percent femoral nerve
maximum impairment to derive 4.2 percent that he rounded to 4 percent.7 The medical adviser
determined that, as appellant had zero percent impairment for full range of motion and absence
of atrophy or weakness, he had a total of four percent impairment of the left lower extremity. He
also noted four percent impairment was the proper impairment determination as two percent
impairment for a diagnosis-based estimate, as determined by Dr. Mochizuki, would provide a
lower award. The Board finds that the Office medical adviser’s rating of pain or dysesthesia is
consistent with Dr. Mochizuki’s findings.
The Office medical adviser determined that Dr. Mochizuki’s two percent impairment
rating for partial medial meniscectomy could not be combined with the rating for pain due to a
peripheral nerve injury. Table 17-2 on page 526 of the A.M.A., Guides, however, indicates that
5

Dr. Mochizuki also determined that a partial medial meniscectomy equaled one percent whole person
impairment. However, whole person impairment is not permitted under the Act. See B.P., 60 ECAB ___ (Docket
No. 08-1457, issued February 2, 2009).
6

A.M.A., Guides 552, Table 17-37.

7

The policy of the Office is to round the calculated percentage of impairment to the nearest whole number. See
J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008).

5

peripheral nerve injury rating can be combined with a diagnosis-based estimates to determine
total lower extremity impairment. The Board will remand the case to the Office to determine
whether appellant has greater impairment of the left leg.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated August 20, 2009 is set aside. The case is remanded for further action in
conformance with this decision.
Issued: August 16, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Casa Grande, AZ, Employer
__________________________________________

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

Docket No. 16-0295
Issued: March 21, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 4, 2015 appellant filed a timely appeal from a June 18, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $1,238.43 overpayment of compensation
for the period March 1 to 7, 2015; and (2) whether OWCP abused its discretion in denying
waiver of recovery of the overpayment.
On appeal appellant contends that repayment of the overpayment would cause undue
financial hardship for him and his family as his income and resources are needed for ordinary

1

5 U.S.C. § 8101 et seq.

and necessary living expenses and severe medical expenses related to his son’s medical
conditions.
FACTUAL HISTORY
OWCP accepted that on March 10, 2014 appellant, then a 39-year-old border patrol
agent, sustained left Achilles tendinitis while conducting knee strikes during intermediate force
training. It authorized microthermal topaz debridement and repair of his left Achilles tendon
performed on October 24, 2014 and January 9, 2015, respectively. Appellant received wage-loss
compensation for total disability on the supplemental rolls.2
On March 1, 2015 appellant returned to full-time light-duty work at the employing
establishment. On March 9, 2015 he advised OWCP about his return to work, but he continued
to receive compensation payment through March 7, 2015.
By letter dated May 11, 2015, OWCP made a preliminary determination that appellant
received an overpayment of compensation in the amount of $1,238.43 from March 1 to 7, 2015
because he continued to receive disability compensation after his return to work. It explained the
calculation of the overpayment and found that he was without fault in its creation. OWCP
requested that appellant complete an overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documents to assist OWCP in its evaluation of appellant’s eligibility
for waiver. Additionally, it notified him that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing.
Appellant did not respond to the preliminary overpayment determination. In a June 18,
2015 decision, OWCP finalized the preliminary overpayment determination, finding that
appellant had received an overpayment of compensation in the amount of $1,238.43 from
March 1 to 7, 2015. It also denied waiver of recovery of the overpayment because he did not
respond to the request to submit financial information. Thus, there was no evidence that
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience. OWCP requested that appellant repay the full amount of the overpayment within 30
days.
LEGAL PRECEDENT -- ISSUE 1
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.3 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

2

The Board notes that on December 4, 2014 appellant briefly returned to work, but stopped work again.

3

5 U.S.C. § 8102(a).

2

law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.”4
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.5 OWCP regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.6
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period.7 OWCP procedures provide that an overpayment of compensation is created when
a claimant returns to work, but continues to receive wage-loss compensation.8
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $1,238.43 for the period March 1 to 7, 2015. The record supports, and appellant has not
disputed, that he returned to full-time light-duty work on March 1, 2015, but continued to receive
compensation from OWCP through March 7, 2015. For this period, he received compensation in
the amount of $1,238.43. As appellant was not entitled to compensation after his return to work,
OWCP properly found an overpayment of compensation in the amount of $1,238.43.9
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation is a matter that rests
within the discretion of OWCP pursuant to statutory guidelines.10 The statutory guidelines are
found at section 8129(b) of FECA, which provides that adjustment or recovery of an
overpayment by the United States may not be made when incorrect payment has been made to an
individual who is without fault and then adjustment and recovery would defeat the purpose of
FECA or would be against equity and good conscience.11

4

Id. at § 8129(a).

5

Id. at § 8116(a); R.H., Docket No. 09-1981 (issued June 11, 2010).

6

20 C.F.R. § 10.500.

7

See R.W., Docket No. 13-1285 (issued November 13, 2013).

8

See Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2a (May 2004).
9

Supra notes 7 and 8.

10

See E.C., Docket No. 14-826 (issued July 3, 2014).

11

5 U.S.C. § 8129(b).

3

Section 10.438 of the implementing federal regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP.12 This information is needed to determine whether recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
regulations further provide that failure to submit the requested information within 30 days of the
request shall result in the denial of waiver and no further request for waiver shall be considered
until the requested information is furnished.13
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in the creation of the overpayment
based on receipt of compensation after his return to full-time work. The fact that appellant is
without fault, however, does not mean that he is entitled to waiver of recovery of the
overpayment. OWCP advised him of the overpayment in the preliminary determination notice
sent to him on May 11, 2015. Appellant was provided the reasons for the overpayment and the
opportunity to submit financial information with regard to waiver. He did not respond to the
preliminary determination or submit any information relevant to waiver within 30 days. As
noted, the implementing regulations provide that failure to submit the requested information
within 30 days will result in the denial of waiver.14 Since appellant did not submit any financial
information or a completed OWCP-20 form as requested, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.15 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.16
On appeal appellant contends that repayment of the overpayment would cause undue
financial hardship for him and his family as his income and resources are needed for ordinary
and necessary living expenses and severe medical expenses related to his son’s medical
conditions. As discussed, however, OWCP properly denied waiver as he failed to submit the
requisite financial information.

12

20 C.F.R. § 10.438(a).

13

Id. at § 10.438(b).

14

Id.

15

Cheryl Thomas, 55 ECAB 610 (2004).

16

Id.

4

CONCLUSION
The Board finds that appellant received a $1,238.43 overpayment of compensation for the
period March 1 to 7, 2015. The Board further finds that OWCP did not abuse its discretion in
denying waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the June 18, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., claiming as widower of H.P., Appellant
and
TENNESSEE VALLEY AUTHORITY,
WESTERN AREA RADIOLOGICAL
LABORATORY, Muscle Shoals, AL, Employer
__________________________________________

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

Docket No. 10-1345
Issued: April 13, 2011

Case Submitted on the Record

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

JURISDICTION
On April 15, 2010 appellant filed an appeal of a merit decision of the Office of Workers’
Compensation Programs dated January 13, 2010 denying his claim for death benefits. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the employee’s death was causally
related to factors of her federal employment.
FACTUAL HISTORY
The employee, a radiological chemist, died November 19, 2005 at the age of 26. The
death certificate listed the cause of death as acute hemorrhage laryngotracheobronchitis due to or
1

5 U.S.C. §§ 8101-8193.

as a consequence of toxic shock syndrome and Waterhouse-Friderichsen syndrome. The
November 19, 2005 final pathology report showed nonspecific inflammatory involvement with a
very superficial infiltrate of lymphoid cells and rare plasma cells in the larmina propria.
Appellant, the employee’s husband, filed a claim for survivor’s benefits (Form CA-5) on
September 10, 2006 alleging that the employee was exposed to toxic fumes during the course of
her employment and that this caused or contributed to her death. Appellant asserted that the
employee handled a wide range of strong acids on a regular basis during the course of her work
and that she had increasing problems with respiratory infections and sore throats. He stated that
her symptoms worsened when she was at work and improved when she was away from the
laboratory.
Appellant submitted numerous test results as well as medical records from 2001 to the
time of death. In an August 29, 2006 report, Dr. J. Alan Barksdale, a Board-certified pathologist
and the examining pathologist, noted that the employee’s work history indicated exposure to a
variety of potentially toxic and known toxic fumes. He stated that since there was a postmortem
finding of erosive laryngotracheobronchitis, it must be considered that respiratory exposure to
the substances could have been a significant factor in evolution of the disease process, as contact
with some of these compounds is directly associated with laryngotracheobronchitis.
The employing establishment contested the claim. It submitted reports from Dr. Brenda
Shome,2 a Board-certified endocrinologist, Dr. Stephen S. Hawkins,3 Board-certified in
infectious disease, and Dr. Stephen Adams,4 a Board-certified pathologist, who opined that the
2

In a November 14, 2006 report, Dr. Shome noted that the employee died from a bacterial infection of the trachea
and bronchus complicated by Waterhouse-Friederichsen syndrome with adrenal insufficiency. The employee may
have had preexisting pituitary disease that led to adrenal insufficiency before hemorrhage occurred. Dr. Shome
noted that the employee died from bilateral adrenal hemorrhage that damaged her ability to produce
mineralocorticoid. This led to circulatory collapse on the day she died. This kind of hemorrhage was historically
linked to bacterial sepsis. Dr. Shome opined that there was no connection between this event and any occupational
hazard in working with chemicals. She explained if the employee was accidentally exposed to fumes, she would
have had more nasal burning symptoms, as this would have been the initial entry of the fumes. Dr. Shome noted
that the employee’s only nasal bleeding occurred during pregnancy, which is expected, and did not recur after she
gave birth.
3

In a November 13, 2006 report, Dr. Hawkins reviewed the employee’s medical records and opined that the
cause of her sepsis (toxic effects of systemic infection) appeared to be a bacterial laryngotracheobronchitis. He
stated underlying adrenal insufficiency probably played a significant role in her shock syndrome and was
compounded by the hemorrhage into the adrenal glands which occurred. Dr. Hawkins noted there were multiple
indications in the records to suggest a significant underlying endocrine disorder. He opined there was no convincing
evidence that workplace exposure to fumes led to her upper respiratory inflammation that led to her experiencing the
fatal infection. Dr. Hawkins noted the records showed an unremarkable pattern of sporadic upper respiratory
symptoms and infections. There was no evidence of any breakdown in safety procedures in the workplace.
4

In an October 30, 2006 report, Dr. Adams noted the medical record did not support ongoing chronic symptoms
during her employment, but rather implied episodic infections typical for a young adult. He noted the inflammation
evident at the time of autopsy suggested gastroesophageal reflux. Dr. Adams noted that the employee’s death was
due to infection and there was no evidence of a major exposure resulting in inhalation of acidic fumes that could
potentially lead to an entry for bacteria. He stated the examining pathologist’s narrative noted compliance with
safety procedures, specifically the use of fume hoods, with no evidence of hood malfunction. Dr. Adams further
opined there was no link between fume exposure and Waterhouse-Friderechsen syndrome. He opined the
employee’s susceptibility to life threatening infection was based on possible preexisting endocrine disease as her
medical record and autopsy contained evidence of multiple endocrine abnormalities.

2

employee’s illness and death were not related to her employment. It also stated that there was no
evidence of fume hood malfunction or of major exposure to the offending chemicals and
provided a list of hood flow measurements and dates of pyrosulfate fusions. In a September 10,
2006 statement, appellant asserted that the hoods were not set properly and that other employees
could confirm that there were hood malfunction episodes.
In a March 23, 2007 decision, the Office denied the claim on the grounds the medical
evidence did not show that the death resulted from the work factors. It noted that there was no
evidence of excessive exposure, of hood malfunction, or of safety violations.
On April 20, 2007 appellant requested an oral hearing. In a September 25, 2007 report,
Dr. Mangesh Shukla, a Board-certified gastroenterologist, noted treating the employee from
2002 until she passed away in November 2005. He stated she underwent an uneventful
colonoscopy and upper endoscopy on November 18, 2005, which showed no major
abnormalities. The employee did well after the procedure and was discharged home where she
later developed nausea and a headache. She passed out the next day and could not be revived.
Dr. Barksdale’s autopsy, performed a few hours after death, revealed acute and chronic
laryngotracheobronchitis. Dr. Shukla advised that the employee’s past medical history was
significant for episodes of pneumonia and bronchitis, which required outpatient and inpatient
treatment, and that she had frequent burning chest pain under the breast bone that was
unresponsive to standard heartburn drugs. He stated that he was made aware that her job
required her to add concentrated sulfuric acid to some samples, heat it to a high temperature and
it was very likely that she was exposed to fumes of sulfuric acid on a regular basis. Dr. Shukla
opined that the employee’s symptoms of burning chest pain and episodes of bronchitis and
pneumonia were due to sulfuric acid exposure, and the resultant injury to her trachea and
bronchial tree. He stated her occupational exposure may also explain the autopsy finding of
laryngotracheobronchitis. Dr. Shukla explained that, had the employee’s chest pain been due to
gastroesophageal reflux disease, it should have resolved upon treatment with Nexium.
In an October 16, 2007 report, Dr. Barksdale opined that the most likely causation of the
erosive acute and chronic laryngotracheobronchitis, with a superimposed acute phase leading to
demise, was exposure of the upper airway to toxic or caustic substances, such as chronic
aspiration of gastric acid, repetitive inhalant exposure of a quite irritating nature, as well as
exposure of the employee to pathogens which would have resulted in a primary effect in the
larynx and tracheobronchial tree. He opined that, with the employee’s occupational history of
exposure to toxic aerosols or fumes, such exposure was the most likely proximate cause of the
laryngotracheobronchitis since Dr. Shukla’s findings clinically ruled out a condition of reflux
disease and chronic aspiration. Dr. Barksdale stated that, with the assumption that there was
sufficient exposure of an ongoing type, he concluded that the occupational exposure was a
predominant or a primary etiologic factor.
In a September 7, 2007 decision, an Office hearing representative found the case not in
posture for a hearing and directed further medical development.
The Office prepared a statement of accepted facts and referred the employee’s record, a
list of questions and the statement of accepted facts to Dr. Nilesh Hingarh, Board-certified in
infectious disease, for a second opinion. In an October 4, 2007 report, Dr. Hingarh stated it was

3

possible that the employee’s work-related chemical exposure played a role in her death. He
noted that since the employee’s work was in compliance with hood flow and safety
requirements, it was less likely that she had any significant chemical exposure that would lead to
the underlying lung injury. Nonetheless, Dr. Hingarh opined that the employee’s pathological
changes in her lung, although nonspecific, might be related to possible toxin exposure as stated
by Dr. Barksdale. He noted it was also possible that her underlying tracheobronchitis made her
more susceptible to pulmonary infections, leading to the infection at the time of death.
Dr. Hingarh concluded that the employee’s work-related exposures “may have caused some
nonspecific chronic laryngotracheobronchitis that may have predisposed her to develop a
pulmonary infection that led to her septic shock syndrome.
Appellant’s underlying
endocrinopathies (not related to her work exposures) made it difficult for her to survive such an
infection and played a major role in her death.” In a November 1, 2007 clarification report,
Dr. Hingarh opined that the employee sustained some level of injury to her lungs from her workrelated exposures that predisposed her to develop her recurrent upper respiratory tract infections
and the pneumonia that led to her death.
In a January 8, 2008 clarification report, Dr. Hingarh stated a patient could present with
symptoms the employee had after potential chemical exposures at work. He stated that based on
pathology reports, the employee had some underlying inflammatory lung disease. Dr. Hingarh
opined that this underlying pulmonary disease may have been caused by her exposure to fumes
related to her work or other exposures not outlined in the history. He stated that, while it was
impossible to say with 100 percent confidence that her lung disease was caused by possible
work-related exposures, it needed to be considered as a possible underlying factor.
In a January 8, 2008 decision, the Office denied the claim finding that the evidence failed
to establish a causal relationship. It found there was no evidence that the employee’s work
environment was not safe, there was no contemporaneous evidence of an exposure mishap at
work, there was no evidence that the employee advised her physicians that she was or could have
been exposed to something at work, and there was no evidence of a significant exposure at work.
Appellant requested an oral hearing that was held May 21, 2008. Affidavits from
coworkers noted incidents of fume hood malfunctioning, resulting in the employee’s fume
exposure. In a June 13, 2008 letter, William L. Raines, manager, noted that, while the employee
had an acidic solution splash out onto her lab coat, she had no acid burns to her skin and there
was no radioactive contamination. He stated that the liquid spill did not present a risk of
inhalation exposure. Mr. Raines advised that lab personnel were trained to stop work and leave
the area if it was suspected that hood operation was improper.
In a July 22, 2008 decision, a hearing representative vacated the prior decision finding
that the evidence reflected that the employee had been exposed on at least one or more occasion
to gases and fumes at work. The Office was directed to further develop the factual evidence,
modify the statement of accepted facts and refer the record to another second opinion specialist.
In an October 10, 2008 statement of accepted facts, the Office noted coworker statements
about two fume exposure incidents involving the employee. It stated that there was no evidence
of safety violations or hood malfunctions. The Office referred this statement and the record to
Dr. Ann MacIntyre, Board-certified in infectious disease, for a second opinion. In an

4

October 31, 2008 report, Dr. MacIntyre concluded, “Overall, the nature of [the employee’s]
employment did not directly cause her death from acute or chronic bacterial laryngotracheal
bronchitis. One could argue that the patient could have inhaled toxic fumes that led to damage of
the tracheobronchial mucosa leading to the greater facility of bacterial to lead to invasive
infection. However, based on the evidence provided, there were no formal reports of acid or
other toxic exposure. There are two reports from coworkers of incidents occurring at unclear
times during which fumes were noted and personnel exited the work area though no formal
reports of this are provided. Additionally, there is no evidence of hood malfunctions or other
safety violations. Consequently, as there is no clear evidence of toxin exposure, I conclude there
is no clear evidence that Ms. Porter’s death was causally related to her federal employment.”
In a November 10, 2008 decision, the Office denied the claim based on Dr. MacIntyre’s
opinion.
On December 5, 2008 appellant requested an oral hearing. By decision dated March 17,
2009, an Office hearing representative vacated the November 10, 2008 decision, finding that
Dr. MacIntyre’s report was based on an inaccurate statement of accepted facts. The Office was
directed to rewrite the statement of accepted facts to state that on two occasions the fume hoods
malfunctioned while the employee was working, causing exposure to toxic fumes of brief
duration. It was then directed to request clarification from Dr. MacIntyre.
A new statement of accepted facts was prepared on March 24, 2009 and the Office
requested a clarification opinion from Dr. MacIntyre. In a May 1, 2009 report, Dr. MacIntyre
advised that her review of the March 24, 2009 statement of accepted facts did not alter her earlier
opinion of October 31, 2008. She stated that while it is now accepted as factual that the
employee was exposed to toxic fumes on two occasions between 2001 and 2004, such exposure
predated her death by at least one year and there was no evidence of chronic respiratory
complaints, as noted by several medical notes. Additionally, there was no evidence of acute
exposure to toxic fumes immediately prior to her death. Dr. MacIntyre opined that since there
was no evidence of acute toxin exposure, the employee’s death was not causally related to her
federal employment.
By decision dated May 7, 2009, the Office denied the claim for survivor benefits based
on Dr. MacIntyre’s May 1, 2009 opinion.
On June 4, 2009 appellant requested a hearing, which was held telephonically on
October 6, 2009. The Office received evidence previously of record along with a September 25,
2009 statement from appellant’s attorney.
By decision dated January 13, 2010, an Office hearing representative affirmed the May 7,
2009 decision.
LEGAL PRECEDENT
An award of compensation in a survivor’s claim may not be based on surmise, conjecture
or speculation or an appellant’s belief that the employee’s death was caused, precipitated or

5

aggravated by the employment.5 Appellant has the burden of establishing by the weight of the
reliable, probative and substantial medical evidence that the employee’s death was causally
related to an employment injury or to factors of his employment. As part of this burden, she
must submit a rationalized medical opinion, based upon a complete and accurate factual and
medical background, showing a causal relationship between the employee’s death and an
employment injury or factors of his federal employment. Causal relationship is a medical issue
and can be established only by medical evidence.6
The medical evidence required to establish causal relationship is rationalized medical
evidence. Rationalized medical evidence is medical evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between an
employee’s diagnosed conditions and the implicated 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 employee’s death and the accepted conditions or
employment factors identified by the employee.7
Section 8123(a) of the Act provides in pertinent part: 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.8 In situations
where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an impartial medical specialist 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.9
ANALYSIS
Appellant claimed that the employee’s death on November 19, 2005 was causally related
to her federal employment as her exposure to toxic fumes while working as a chemist caused or
contributed to her death. The Office relied on Dr. MacIntyre’s May 1, 2009 report in finding that
the employee’s death was not caused or contributed to by her federal employment. The
postmortem finding revealed the employee had erosive laryngotracheobronchitis and the record
supports two incidents of toxic fume exposure. The Board finds that there is a conflict in
medical opinion between Dr. MacIntyre, for the Office, and Drs. Shukla and Barksdale, for
appellant, on the issue of whether the employee’s death was causally related to her federal
employment.

5

Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

6

Mary J. Briggs, 37 ECAB 578 (1986); Umberto Guzman, 25 ECAB 362 (1974).

7

Donna L. Mims, 53 ECAB 730 (2002).

8

5 U.S.C. § 8123(a).

9

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

6

In a May 1, 2009 report, Dr. MacIntyre, Board-certified in infectious disease and an
Office referral physician, reviewed the employee’s medical record and the March 24, 2009
statement of accepted facts, which revealed two occasions the fume hoods malfunctioned and the
employee was exposed to toxic fumes of brief duration. She opined that, since there was no
evidence of acute toxin exposure, the employee’s death was not causally related to her federal
employment. Dr. MacIntyre explained that the two accepted occupational exposure to toxic
fumes predated the employee’s death by at least one year and there was no evidence of acute
exposure to toxic fumes immediately prior to her death. She further noted that the medical
record contained no evidence of chronic respiratory complaints.
Dr. Shukla, an attending Board-certified gastroenterologist, opined in his September 25,
2007 report that the employee’s occupational sulfuric acid exposure caused or contributed to her
death. He explained that the employee’s job required her to add concentrated sulfuric acid to
samples and heat it to a high temperature which exposed her to fumes of sulfuric acid on a
regular basis. Dr. Shukla opined that this led to her symptoms of burning chest pain and
episodes of bronchitis and pneumonia and the resultant injury to her trachea and bronchial tree,
which corresponded to the postmortem finding of erosive laryngotracheobronchitis. He excluded
gastroesophageal reflux disease as the proximate cause of the laryngotracheobronchitis since the
employee’s burning chest pain was not resolved with medication used to treat gastroesophageal
reflux disease. Dr. Barksdale, the examining pathologist, advised that since there was a
postmortem finding of erosive laryngotracheobronchitis, the employee’s occupational exposure
was a predominant or primary etiologic factor in the evolution of her disease process, as contact
with some of these compounds was directly associated with laryngotracheobronchitis and
Dr. Shukla’s findings ruled out a condition of reflux disease and chronic aspiration.
Due to the unresolved conflict in the medical evidence, the Board will set aside the
Office’s decision and remand the case for referral of the employee’s record to an impartial
medical specialist to resolve the conflict. After such further development of the record as it
deems necessary, the Office shall issue a de novo decision on whether the employee’s death on
November 19, 2005 was causally related to the established work-related events.
On appeal appellant argues the evidence of record supports a causal relationship between
the employee’s employment and her death. As noted, the case is remanded for referral of the
employee’s record to an impartial medical specialist to resolve the conflict in medical opinion
evidence between Dr. MacIntyre and Drs. Shukla and Barksdale regarding this matter.
CONCLUSION
The Board finds that the case is not in posture due to a conflict in medical evidence.

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 13, 2010 is set aside and the case is remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: April 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.S., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 13-438
Issued: July 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 18, 2012 appellant filed a timely appeal from a June 21, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
Whether appellant met his burden of proof to establish that he developed a lumbar injury
in the performance of duty as a district ranger.
FACTUAL HISTORY
On May 6, 2010 appellant, then a 49-year-old district ranger, filed an occupational
disease claim (Form CA-2) alleging that he developed low back pain which radiated down to his
legs as a result of employment-related traveling which required him to drive frequently and sit at
1

5 U.S.C. § 8101 et seq.

many meetings. He stated that his issues with his back occurred over the past five years and was
aggravated by long periods of sitting. Appellant also noted that in 2007, he slipped in the mud
and fell during a site visit. He first became aware of his condition and of its relationship to his
employment on May 20, 2005.
By letter dated September 30, 2010, OWCP informed appellant that the evidence of
record was insufficient to support his claim. Appellant was advised of the medical and factual
evidence needed and was directed to submit it within 30 days.
Appellant submitted narrative statements where he reiterated that frequent travel to attend
work meetings caused his back condition as he was required to sit for extended periods of time.
In support of his claim, he provided his schedule of meetings, meeting notes and agendas,
statements from coworkers and job description for a district ranger.
In a June 15, 2005 report, Dr. Dale Friar, a treating chiropractor, reported that appellant
was being treated for a spinal condition that was causing him to have severe low back and leg
pain. He recommended that appellant limit extended sitting and driving times.
In an attending physician’s report (Form CA-20) dated October 20, 2009, Dr. Friar
reported that appellant experienced severe low back pain radiating down to the leg which started
after long hours of sitting and driving. He reported that he began treating appellant on
June 7, 2005. Dr. Friar diagnosed lumbar spine dysfunction, multiple vertebral subluxations,
lumbar disc protrusion and sciatic radiculopathy. He checked the box marked “yes” when asked
if he believed the conditions were caused by appellant’s employment activity.
In an October 27, 2010 report, Dr. Friar diagnosed lumbar spine dysfunction, multiple
vertebral subluxations in cervical and lumbar spine confirmed by x-ray, lumbar disc protrusion,
sciatic neuropathy, lumbar spine pain, cervicalgia and pain in the thoracic spine. He stated that
appellant spent a great deal of time sitting at a desk and computer, as well as sitting during
meetings. Dr. Friar noted that sitting tends to exacerbate low back and leg pain which overloads
and dehydrates the discs requiring frequent unloading and movement to stay healthy. He further
stated that the physical aspects of appellant’s job involved prolonged sitting and having to
maintain his posture. This caused overloads in the discs and created pressure changes to the disc
which weakened the annular fibers and exacerbated a disc bulge, as well as deconditioned
already weakened soft tissue supportive structures.
By decision dated January 3, 2011, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that his diagnosed conditions were causally related to the
established work-related events.
On December 28, 2011 appellant requested reconsideration of OWCP’s decision. In his
narrative statement, he reported that he reviewed his calendar documenting his past schedule of
meetings and realized that he slipped and fell in the mud in late January or February 2006, not
2007 as he originally stated. Appellant further noted that in April 2006, he slipped and fell upon

2

exiting a government vehicle during a site visit. In support of his claim, he provided his monthly
calendar documenting his schedule of meetings beginning in January 2006.2
In a September 28, 2006 report, Dr. Kris B. Saadeh, a Board-certified diagnostic
radiologist, provided diagnostic findings based on a magnetic resonance imaging (MRI) scan of
the lumbar spine which revealed narrowing of the spinal canal at L2-3 to L4-5, circumferential
disc osteophyte complexes as L2-3 through L4-5 with a superimposed area of central and right
paracentral disc extrusion at L3-4 and superimposed disc protrusion verses contained disc
extrusion in the left lateral recess at L4-5.
In a November 20, 2006 medical report, Dr. Artur Pacult, a treating physician, reported
that appellant had several episodes of back pain and bilateral lower extremity pain which began
in 2005. He stated that the MRI scan of the lumbar spine revealed several disc degeneration
levels, worse being at the L4-5 and L3-4 where they were superimposed on congenital stenosis,
acquired disc bulge and focal herniation on the left at L4-5 and the midline at the L3-4.
Dr. Pacult stated that appellant did not need treatment as he was asymptomatic but could have a
possible flare up in the future which would require epidural injections.
In a December 28, 2011 addendum report, Dr. Friar stated that objective test findings
established that appellant had a disc herniation with resulting sciatic radiculopathy which were
confirmed by Dr. Saadeh’s MRI scan report. He stated that research clearly states that a disc
herniation is traumatic in nature and the direct result of an injury and not degenerative in nature.
He stated that this was the causal relationship that existed between appellant’s on-the-job injury
and his current condition and diagnosis.
By decision dated February 22, 2012, OWCP affirmed the January 3, 2011 decision
finding that the evidence of record failed to establish that appellant’s diagnosed conditions were
causally related to factors of his federal employment.
On March 2, 2012 appellant requested an oral hearing before the Branch of Hearings and
Review.
By decision dated May 9, 2012, the Branch of Hearings and Review denied appellant’s
request for an oral hearing on the grounds that he was not entitled to a hearing as a matter of
right because he had previously requested reconsideration. It exercised its discretion and further
determined that the issue in the case could equally well be addressed by requesting
reconsideration from OWCP and submitting evidence not previously considered which
established that he sustained an injury causally related to factors of his federal employment.
On April 12, 2012 appellant requested reconsideration of the February 22, 2012 OWCP
decision. He stated that he had established the initial onset of his injury as well as the
subsequent work-related falls. Appellant stated that he was submitting a medical report from
Dr. Pacult which would establish his work-related fall.

2

The Board notes that a computer query of work-related injuries filed by appellant revealed no traumatic injuries
filed in 2006.

3

In a March 19, 2012 medical report, Dr. Pacult reported that he treated appellant in 2006
for complaints of bilateral lower extremity pain that had developed in 2005 prior to his visit. He
noted that appellant was not specific about his origin of pain but apparently there was an injury
when he fell at work in February 2006, several months prior to his first visit. Appellant was
eventually diagnosed and treated conservatively for a disc herniation at L4-5 on the left side and
the midline at L3-4. Dr. Pacult stated that it was possible that appellant had a herniated disc at
the time of the falling incident but that this was not documented in his chart. He further stated
that, while the MRI scan was not 100 percent positive for a traumatic injury, appellant’s injury
could have happened at the time of trauma when he fell.
By decision dated June 21, 2012, OWCP affirmed its February 22, 2012 decision finding
that the medical evidence of record failed to establish that appellant’s diagnosed conditions were
causally related to his work-related occupational exposure.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

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

5

Elaine Pendleton, supra note 4.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

4

To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted that appellant’s federal employment duties required prolonged sitting for
travel and meetings. It denied his claim, however, on the grounds that the evidence failed to
establish a causal relationship between those activities and his lumbar injury. The Board finds
that the medical evidence of record is insufficient to establish that appellant’s lumbar conditions
are causally related to factors of his federal employment as a district ranger.
In a June 15, 2005 report, Dr. Friar reported that he was treating appellant for a spinal
condition that was causing him to have severe low back and leg pain and recommended that
appellant limit extended sitting and driving times. In an October 20, 2009 Form CA-20, he
reported that appellant experienced severe low back pain after long hours of sitting and driving.
Dr. Friar diagnosed lumbar spine dysfunction, multiple vertebral subluxations, lumbar disc
protrusion and sciatic radiculopathy and checked the box marked “yes” when asked if he
believed the conditions were caused by appellant’s employment activity.
In an October 27, 2010 report, Dr. Friar diagnosed lumbar spine dysfunction, multiple
vertebral subluxations in cervical and lumbar spine confirmed by x-ray, lumbar disc protrusion,
sciatic neuropathy, lumbar spine pain, cervicalgia and pain in the thoracic spine. He stated that
the physical aspect of appellant’s job involved sitting where he spent a great deal of time at a
desk, computer and in meetings. Dr. Friar noted that sitting tends to exacerbate low back and leg
pain which overloads and dehydrates the discs, requiring frequent unloading and movement to
stay healthy. He stated that as appellant’s job required him to maintain a prolonged sitting
posture, the discs were overloaded and pressure changes were created which weakened the
annular fibers and exacerbated a disc bulge, as well as deconditioned already weakened soft
tissue supportive structures.
In a December 28, 2011 addendum report, Dr. Friar stated that objective test findings via
an MRI scan established that appellant had a disc herniation with resulting sciatic radiculopathy.
He stated that research clearly states that a disc herniation is traumatic in nature and is the direct
result of injury. Dr. Friar indicated that a disc herniation is not degenerative in nature as are disc

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

5

bulges. He stated that this was the causal relationship that existed between appellant’s on-thejob injury and his current condition and diagnosis.
In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is considered a physician under 5 U.S.C. § 8101(2). A chiropractor is not
considered a physician under FECA unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist.9 As Dr. Friar diagnosed vertebral subluxations in the cervical
and lumbar spine confirmed by x-ray, he is considered to be a “physician” under FECA with this
specific diagnosis only.10
While Dr. Friar made other diagnoses, including disc herniation with resulting sciatic
radiculopathy, lumbar disc protrusion, sciatic neuropathy, lumbar spine pain, cervicalgia and
pain in the thoracic spine, he is limited only to the diagnosis and treatment of a spinal
subluxation. He is not considered a physician for diagnosis and treatment of the other diagnosed
conditions.11
With respect to the subluxation diagnosis, Dr. Friar’s October 20, 2009 Form CA-20
provided a diagnosis of multiple vertebral subluxations. Though he checked the box marked
“yes” when asked if he believed appellant’s condition was caused or aggravated by his
employment, the Board has held that a report that addresses causal relationship with a
checkmark, without medical rationale explaining how the work conditions caused the alleged
injury, is of diminished probative value and insufficient to establish causal relationship.12
While Dr. Friar’s October 27, 2010 report addressed causation by noting that prolonged
sitting overloads the disc and exacerbates a disc bulge, he failed to provide any opinion regarding
the cause of appellant’s spinal subluxation in relation to factors of his federal employment. He
did not provide an explanation of how appellant’s work duties of prolonged sitting would cause
his spinal subluxation. Dr. Friar failed to adequately describe appellant’s work duties, did not
specify how long he worked as a district ranger and the periods and the frequency of prolonged
sitting. The Board has held that medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.13 Thus, Dr. Friar’s reports are insufficient to meet appellant’s burden of proof.
In a November 20, 2006 medical report, Dr. Pacult reported that appellant had several
episodes of back pain and bilateral lower extremity pain which began in 2005. He stated that an
MRI scan of the lumbar spine revealed several disc degeneration levels, worse being at the L4-5
and L3-4 with acquired disc bulge. Dr. Pacult stated that appellant did not need treatment as he
9

See Kathryn Haggerty, 45 ECAB 383 (1994).

10

A chiropractor may interpret his x-rays to the same extent as any other physician. 20 C.F.R. § 10.311(c). See
Mary A. Ceglia, 55 ECAB 626 (2004).
11

K.L., Docket No. 11-955 (issued October 18, 2011).

12

See Calvin E. King, Jr., 51 ECAB 394 (2000); see also Frederick E. Howard, Jr., 41 ECAB 843 (1990).

13

S.E., Docket No. 08-2214 (issued May 6, 2009); C.B., Docket No. 09-2027 (issued May 12, 2010).

6

was asymptomatic but could have possible future flare ups. In a March 19, 2012 medical report,
he reported that he treated appellant in 2006 for complaints of bilateral lower extremity pain that
had developed in 2005. Dr. Pacult noted that appellant was not specific about his origin of pain
but apparently there was an injury when he fell at work in February 2006, several months prior to
his visit. Appellant was eventually diagnosed and treated conservatively for a disc herniation at
L4-5 on the left side and the midline at L3-4. Dr. Pacult stated that it was possible that appellant
had a herniated a disc at the time of the falling incident but that this was not documented in his
chart. He further stated that although the MRI scan was not 100 percent positive for traumatic
injury, his injury could have happened at the time of trauma when appellant fell.
The Board finds that the medical reports of Dr. Pacult are insufficiently rationalized.
While Dr. Pacult treated appellant in 2006, he had no contact with appellant until five years later
when he was asked to provide a supplemental report. His March 19, 2012 report merely
recounted a February 2006 traumatic incident as described by appellant, even noting that he had
no documentation of this incident in his chart. Moreover, Dr. Pacult stated that he was unsure if
appellant had a herniated disc at the time of his fall, making it unclear if appellant sustained a
disc herniation from a traumatic event, an occupational exposure or a preexisting condition. His
opinion is vague and speculative as he fails to provide an unequivocal opinion on the cause of
appellant’s injuries. Dr. Pacult failed to provide a detailed medical history or adequately
describe appellant’s employment duties by noting the frequency of various physical movements
and tasks. As he failed to provide any definitive opinion that the conditions were caused or
aggravated by appellant’s occupational employment duties, his medical reports fail to establish
that appellant’s injuries are a result of a work-related occupational exposure.14
On appeal appellant argues that his injuries were caused by his federal employment
duties which began in 2005. He also argues that he established the 2006 traumatic incident when
he fell and injured his back. In this instance, appellant has filed an occupational disease claim.
As he is alleging that his injuries were produced by his work environment over a period longer
than a single workday or shift, he must submit rationalized medical evidence from a physician
which describes his employment duties and provides an explanation on how these duties caused
him injury.15 As noted above, Dr. Friar is only considered a physician under FECA with respect
to the treatment and diagnosis of spinal subluxation.16 Any opinion provided by him regarding
the cause of appellant’s other conditions is of no probative value.
If appellant is alleging that his injury was produced by a specific incident having
occurred in January/February 2006 when he slipped and fell in mud, he should pursue his claim
by filing a traumatic injury claim (Form CA-1) and submitting rationalized medical evidence

14

Supra note 12.

15

Id.

16

Supra note 13.

7

from a physician which describes how the alleged traumatic incident caused him injury.17 It is
his burden to specify the nature of his claim.
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a district ranger and his diagnosed
lumbar and lower extremity conditions. Thus, appellant has failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his
lumbar and lower extremity conditions are causally related to factors of his employment as a
district ranger.
ORDER
IT IS HEREBY ORDERED THAT the June 21, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2014
Washington, DC

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

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

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

17

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).

8