United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wilkes-Barre, PA, Employer
__________________________________________

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

Docket No. 18-1746
Issued: April 9, 2019

Case Submitted on the Record

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

JURISDICTION
On September 17, 2018 appellant filed a timely appeal from an August 14, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP has abused its discretion by denying authorization for physical
therapy after June 30, 2018.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 14, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 1, 2003 appellant, then a 54-year-old sales and service associate, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a low back injury when he picked up a package
and placed it in a bin, while in the performance of duty. By decision dated May 7, 2003, OWCP
accepted appellant’s claim for a lumbosacral strain. Appellant received intermittent wage-loss
compensation on the supplemental rolls commencing May 17, 2003. By decision dated July 27,
2007, OWCP additionally accepted appellant’s claim for exacerbation of underlying degenerative
disc disease of the lumbar spine.
On November 30, 2017 OWCP referred appellant to Dr. Peter A. Feinstein, Board-certified
in orthopedic surgery, for a second opinion evaluation, to determine the extent of appellant’s
current disability and need for ongoing medical treatment of his accepted conditions.
In a report dated October 20, 2017, Dr. Paul Horchos, Board-certified in physical medicine
and rehabilitation, indicated that he had examined appellant due to complaints of low back pain.
He related that appellant had increased pain in his lumbar spinal region and increased pain
particularly with hyperextension, which was consistent with a lumbar facet joint problem.
Dr. Horchos diagnosed low back pain.
In a report dated January 8, 2018, Dr. Feinstein indicated that he reviewed appellant’s
medical history and a statement of accepted facts. Upon physical examination, he related that
appellant’s subjective findings included a limp, positive straight leg raising, and limitation of
forward flexion of the lumbar spine. Dr. Feinstein also noted that his objective findings included
a muscle spasm in the lumbar spine. He indicated that appellant’s diagnostic testing was consistent
with degenerative disc disease, spinal stenosis, and chronic low back syndrome. Dr. Feinstein
diagnosed exacerbation of underlying degenerative disc disease. He noted that the employmentrelated condition of myofascial sprain/strain had resolved, but that appellant still sustained ongoing
conditions of exacerbation or irritation of underlying preexisting degenerative disc disease and
degenerative joint disease in the lumbar spine. Dr. Feinstein indicated that appellant had been at
maximum medical improvement for some time. He related that appellant did not need continued
lumbar injections, physical therapy, or chiropractic treatment because they were palliative and
would not provide any curative input. Dr. Feinstein concluded that more than adequate physical
therapy and chiropractic treatment had been provided.
In a report dated April 9, 2018, Dr. Horchos reported impressions of lumbar spondylosis,
lumbar radiculopathy, and lumbar intervertebral disc degeneration. He recommended that
appellant participate in aquatic-based physical therapy including flexibility training and spinal
stability training.
In a letter to Dr. Horchos dated June 5, 2018, OWCP authorized aquatic physical therapy
for the period May 31 to June 30, 2018. It noted that if physical therapy was medically necessary
after that time, authorization would be contingent upon receipt of additional medical information.
In a letter dated July 11, 2018, OWCP responded to a July 10, 2018 voicemail requesting
authorization for physical therapy. It related that it had not received the medical documentation
requested in the June 5, 2018 letter for continued authorization of physical therapy.

2

In a report dated June 11, 2018, Dr. Horchos indicated that he examined appellant and
diagnosed spondylosis without myelopathy or radiculopathy in the lumbosacral region, lumbar
radiculopathy, lumbosacral intervertebral disc degeneration, low back pain, and lumbosacral
spondylosis with radiculopathy. He related that appellant’s lumbar pain levels had significantly
improved with aquatic therapy, as had his tolerance and activity of movement.
On July 19 and 24, 2018 appellant requested authorization for additional physical therapy
treatments.
In a July 24, 2018 report, Dr. Horchos related that appellant was seen in follow-up
regarding his low back discomfort. He related that appellant’s aquatic therapeutic program had
strengthened his overall mobility functions in the water. Dr. Horchos concluded that appellant had
a poor exercise tolerance on land, but on water he did better, therefore, continued water therapy
was warranted.
By decision dated August 14, 2018, OWCP denied authorization for aquatic physical
therapy because the evidence of record did not support that it was medically necessary to address
the effects of appellant’s employment-related condition. It found that Dr. Feinstein’s second
opinion evaluation dated January 8, 2018 carried the weight of the medical evidence.
LEGAL PRECEDENT
Section 8103 of FECA3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree of the period of disability, or aid in lessening the amount of monthly compensation.4 In
interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under section 8103, with the only limitation on its authority being
that of reasonableness.5 Abuse of discretion is generally shown through proof of manifest error,
clearly unreasonable exercise of judgment or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.6 In order to be entitled to
reimbursement for medical expenses, a claimant must establish that the expenditures were incurred
for treatment of the effects of an employment-related injury.7

3

Supra note 1.

4
5 U.S.C. § 8103; C.W., Docket No. 17-1636 (issued April 25, 2018); see also Thomas W. Stevens, 50 ECAB
288 (1999).
5

C.W., id.; Joseph P. Hofmann, 57 ECAB 456 (2006).

6

B.J., Docket No. 17-1825 (issued February 23, 2018); Claudia L. Yantis, 48 ECAB 495 (1997).

7

Cathy B. Mullin, 51 ECAB 331 (2000).

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OWCP procedures provide:
“For most orthopedic injuries, PT [physical therapy] services within the first 120
days after a traumatic injury are allowed without any prior authorization required,
and it is also customary to automatically authorize PT postoperatively for
orthopedic surgeries, usually for a period of 60 days postsurgery. If a request for
therapy beyond these time frames is received, OWCP needs to review the file to
determine whether further services should be authorized.”8
To determine whether a claimant requires physical therapy beyond the initial authorization
period, OWCP reviews the record to determine whether the need for PT is due to the accepted
work injury and whether the additional therapy is expected to yield functional improvement.
Additionally, its procedures provide, “To authorize additional physical therapy for pain or to
maintain function, OWCP should ensure that the pain is associated with measurable objective
findings such as muscle spasm, atrophy and/or radiologic changes in joints, muscles, or bones, or
that pain has placed measurable limitations upon the claimant’s physical activities.”9
While OWCP is obligated to pay for treatment of employment-related conditions, the
employee has the burden of proof to establish that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.10
ANALYSIS
The Board finds that OWCP has not abused its discretion in denying appellant’s request
for aquatic physical therapy after June 30, 2018.
In his January 8, 2018 examination, Dr. Feinstein, serving as the second opinion physician,
diagnosed an exacerbation of underlying degenerative disc disease in appellant’s lumbar spine.
However, he related that appellant did not require continued lumbar injections, physical therapy,
or chiropractic treatment because they were palliative and would not provide any curative input.
Dr. Feinstein noted that he had received more than adequate physical therapy and chiropractic
treatment. Dr. Feinstein’s opinion, which is detailed and well rationalized, represents the weight
of the evidence and establishes that OWCP has not abused its discretion in denying appellant’s
request for additional physical therapy.11
In a report dated April 9, 2018, Dr. Horchos reported impressions of lumbar spondylosis,
lumbar radiculopathy, lumbar intervertebral disc degeneration, and recommended that appellant
participate in aquatic physical therapy. He did not, however, explain how aquatic physical therapy

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Physical Therapy, Chapter 2.810.19 (September 2010).

9

Id.

10

See J.L, Docket No. 18-0990 (issued March 5, 2019); see also J.G., Docket No. 15-1784 (issued October 2,
2015); Kennett O. Collins, Jr., 55 ECAB 648 (2004).
11

See D.D., Docket No. 09-1603 (issued April 8, 2010).

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would cure, provide relief, or reduce appellant’s disability as a result of his accepted conditions.12
As discussed above, OWCP accepted lumbosacral strain and exacerbation of underlying
degenerative disc disease of the lumbar spine, and appellant has not demonstrated that he sustained
additional conditions as a result of the April 1, 2003 employment injury.
There is no other rationalized medical evidence supporting physical therapy as necessary
to address the effects of appellant’s employment-related condition. In a letter dated June 5, 2018,
OWCP authorized physical therapy from May 31 to June 30, 2018, but noted that if physical
therapy was medically necessary after that time, authorization would be contingent upon receipt
of additional medical information. In his June 11, 2018 report and subsequent July 19 and 24,
2018 physical therapy authorization requests, Dr. Horchos merely concluded that appellant had
significant improvement in mobility, in the water, with the use of aquatic therapy. He did not
relate any specific objective findings which noted that appellant’s accepted condition had
improved or would improve in the future due to continued aquatic therapy. Also, Dr. Horchos did
not address the specific functional goals of additional therapy or find the therapy necessary due to
the accepted employment injury.13
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and probable
deductions from established facts. It is not enough to merely show that the evidence could be
construed so as to produce a contrary factual conclusion.14 The Board finds that OWCP properly
relied upon the opinion of Dr. Feinstein, who provided a well-rationalized opinion that appellant
did not require additional physical therapy.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has not abused its discretion in denying appellant’s request
for physical therapy after June 30, 2018.

12

See C.W., supra note 4; see also R.A., Docket No. 09-1169 (issued January 14, 2010).

13

See supra note 8.

14

J.G., supra note 10; see also Daniel J. Perea, 42 ECAB 214 (1990).

15

See S.S., Docket No. 15-1880 (issued June 16, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the August 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 9, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
HANSCOM AIR FORCE BASE, MA, Employer
__________________________________________

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

Docket No. 12-63
Issued: July 5, 2012

Case Submitted on the Record

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

JURISDICTION
On October 5, 2011 appellant filed a timely appeal of a September 7, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment in the amount of $12,483.98 from November 1, 2008 through January 15, 2011,
because she concurrently received FECA and Social Security Administration (SSA) benefits
without an appropriate retirement benefit offset; (2) whether OWCP properly denied waiver of
the recovery of the overpayment; and (3) whether OWCP properly determined that appellant
should repay the debt at the rate of $300.00 per month.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant alleged that both OWCP and SSA overpaid her during the same
period, the debt should be waived or she should be allowed to repay at the rate of $50.00 a
month.
FACTUAL HISTORY
On May 17, 1995 appellant, then a 48-year-old management analyst filed a traumatic
injury claim alleging that she fell on May 10, 1995 dislocating and fracturing her shoulder.
OWCP accepted her claim for right shoulder dislocation, left thigh strain and right shoulder
acromioplasty. It entered appellant on the periodic rolls. OWCP also accepted her claim for
herniated disc at L5-S1 with surgery, foot bursitis, spurs and exostectomy of both feet.
Appellant returned to work. On July 3, 2002 she filed a claim for recurrence of disability.
OWCP accepted this claim on July 17, 2002. It entered appellant on the periodic rolls on
September 24, 2002. By decision dated June 8, 2004, OWCP reduced her compensation benefits
to zero for the failure to cooperate with vocational rehabilitation efforts. An OWCP hearing
representative reversed this decision on January 26, 2005 and benefits were reinstated.
On October 10, 2008 OWCP requested that appellant supply financial information. A
Form EN1032 completed on October 22, 2008 directed appellant to “Report any benefits
received from [SSA], which you receive as part of an annuity under the Federal Employees’
Retirement System (FERS). DO NOT report any benefits received from [SSA] on account of
employment in the private sector.” Appellant responded that she did not receive any benefits
from SSA under FERS.
She completed similar forms on October 20, 2009 and
October 11, 2010.
SSA completed a FERS SSA Benefits Calculation on January 3, 2011. Effective
November 2008 appellant received SSA benefits with FERS of $1,345.80 and without FERS was
entitled to a rate of $901.00. On and after December 2008, these rates increased respectively to
$1,423.90 and $953.10. The document stated, “[Appellant] received [d]isability benefits until
the effective date above, (November 2008) when her benefit became a reduced retirement
benefit.”
In a letter dated January 10, 2011, OWCP informed appellant that she had been receiving
dual benefits from SSA and OWCP. The letter noted, “The portion of … SSA benefits earned as
a [f]ederal employee is part of the FERS retirement package and the receipt of FECA benefits
and [f]ederal retirement benefits concurrently is a prohibited dual benefit.” OWCP informed
appellant that her regular payments of compensation would be $4,762.10 every 28 days. The
record reveals that her compensation benefits from OWCP were $5,028.08 in 2010.
In a letter dated February 1, 2011, OWCP made a preliminary determination that
appellant had received an overpayment in the amount of $12,483.98 as she had received dual
benefits from SSA and OWCP from November 1, 2008 through January 15, 2011. It found that
she was at fault in the creation of the overpayment as she failed to provide information which she
knew or should have known to be material to the receipt of compensation. OWCP calculated the
amount of the overpayment from December 1, 2008 to January 15, 2011 by noting that the 76
days were paid with an excess of $434.58 from November 1 to 30, 2008, 30 days were paid at an
excess amount of $410.58 The sum total of the overpayment was $12,483.98.

2

Appellant requested an oral hearing before an OWCP hearing representative on
February 18, 2011 and alleged that she was not at fault in the creation of the overpayment. She
assumed that her SSA benefits were the result of her 24-year history of work in the private
sector. Appellant signed an Election of Benefits Form on June 10, 2007 electing FECA benefits
in preference to FERS benefits. On an overpayment recovery questionnaire, she listed her
monthly income as $8,720.00 based on her OWCP benefits and SSA benefits with dependents.
Appellant indicated that her housing expense was $500.00, that she spent $1,800.00 on food and
$400.00 on clothing. Other expenses included $951.00 in utilities and $2,560.00 in
miscellaneous expenses, including insurance, medical and dental insurance and charity.
Appellant owed $67,200.00 in an Equity Line of credit and paid $1,000.00 a month and had
credit card debt of $5,000.00 paying $1,261.00 for monthly expenses of $8,472.00. She listed
her assets as $200.00, cash, $2,400.00 checking account balance, $20,000.00 savings account
balance, stocks and bonds of $8,100.00 and other funds of $5,000.00 for total assets of
$35,700.00. Appellant submitted an attachment listing total monthly expenses for the period
November 2008 to April 2009 as between $6,450.00 and $9,681.00 and total monthly income
between $7,781.00 and $9,413.00. She alleged average expenses of $300.00 more than her
income.
Appellant testified at the June 10, 2011 oral hearing. She alleged that she was not at fault
in the creation of the overpayment and did not understand how she could have received an
overpayment when she elected OWCP benefits rather than FERS benefits. Appellant testified
that repaying the overpayment would be a financial hardship. She stated that her home was paid
for and that she owed $500.00 in taxes. Appellant also received notification from SSA that she
had been overpaid. She indicated that she would provide the supporting documentation
requested by the hearing representative.
On June 29, 2011 appellant alleged that over a six-month period on average she spent
more than her monthly income. She stated that SSA informed her that she had been overpaid
$37,671.00. Appellant corrected her testimony to report stock with a value of $7,000.00. She
provided a second analysis of her expenses and income for the six-month period from
August 2010 to January 2011. This analysis listed monthly income between $9,413.00 and
$16,360.00 for a six-month average of $11,606.00. Appellant listed monthly expenses ranging
between $8,467.00 and $12,519.00 or average expenses of $10,618.00.
By decision dated September 7, 2011, the hearing representative found that appellant
received an overpayment in the amount of $12,483.98 from November 1, 2008 through
January 15, 2011, due to the failure of OWCP to offset SSA benefits. She found that appellant
was without fault in the creation of the overpayment. The hearing representative found that
appellant had average monthly expenses of $10,618.00 and average income of $11,606.00. She
noted that appellant had an overpayment with SSA of $37,671.00 with a pending hearing. The
hearing representative found that appellant paid far more than the minimum on her credit card
debt and included food expenses of $1,900.00 and clothing expenses of $577.00 per month. She
determined that these expenses were unreasonable for a family of three. The hearing
representative found that appellant had assets of $35,700.00. She determined that appellant had
not established financial hardship and that waiver could not be considered as appellant had
$1,000.00 in discretionary income. The hearing representative determined that the overpayment

3

could be recovered through payments of $300.00 deducted every 28 days from appellant’s
continuing compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits attributable to his or her federal service.2
OWCP’s procedures provide that, while SSA benefits are payable concurrently with
FECA benefits, the following restrictions apply. In disability cases, FECA benefits will be
reduced by SSA benefits paid on the basis of age and attributable to the employee’s federal
service.3 The offset of FECA benefits by SSA benefits attributable to employment under FERS
is calculated as follows: Where a claimant has received SSA benefits, OWCP will obtain
information from SSA on the amount of the claimant’s benefits beginning with the date of
eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by
the claimant/beneficiary. SSA will also provide a hypothetical SSA benefit computed without
the FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual
benefit to determine the amount of benefits which are attributable to federal service and that
amount will be deducted from FECA benefit to obtain the amount of compensation payable.4
ANALYSIS -- ISSUE 1
The record establishes that appellant was placed on the periodic rolls on September 24,
2002 and receives compensation benefits under FECA. SSA provided information establishing
that she received SSA benefits beginning November 1, 2008 through January 3, 2011, when
OWCP began to offset her FECA benefits by the amount of her SSA benefits attributable to her
federal employment under FERS. SSA provided the offset calculations from this period that
yielded an overpayment of compensation in the amount of $12,483.98. As appellant is not
entitled to receive both FECA benefits with that portion of her SSA benefits attributable to her
federal employment, OWCP properly determined that an overpayment of compensation was
created in the amount of $12,483.98. The Board finds that the evidence from SSA establishes an
overpayment in this case. The case will be affirmed as to fact and amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that when an overpayment of compensation occurs
“because of an error of fact of law,” adjustment or recovery shall be made by decreasing later
2

5 U.S.C. § 8116(d); G.B., Docket No. 11-1568 (issued February 15, 2012); see Janet K. George (Angelos
George) 54 ECAB 201 (2002).
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(3) (January 1997);
Chapter 2.1000.l11(a)(b) (February 1995); see also R.C., Docket No. 09-2131 (issued April 2, 2010).
4

FECA Bulletin 97-09 (issued February 3, 1997); see R.C., id.

4

payment to which the individual is entitled.5 The only exception to this requirement that an
overpayment must be recovered is set forth in section 8129(b):
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against
equity and good conscience.”
A finding that the claimant was without fault is not sufficient, in and of itself, for OWCP
to waive the overpayment. OWCP must exercise its discretion to determine whether recovery of
the overpayment would “defeat the purpose of [FECA] or would be against equity and good
conscience,” pursuant to the guidelines provided in the implementing federal regulations.
Section 10.436 of the implementing regulations6 provide that recovery of an overpayment
will defeat the purpose of FECA if recovery would cause hardship by depriving a presently or
formerly entitled beneficiary of income and resources needed for ordinary and necessary living
expenses and outlines the specific financial circumstances under which recovery may be
considered to defeat the purpose of FECA. Recovery will defeat the purpose of FECA if both:
(a) the individual from whom recovery is sought needs substantially all of his current income
(including periodic benefits under FECA) to meet current ordinary and necessary living
expenses; and (b) the individual’s assets do not exceed the resource base (including but not
limited to cash, the value of stocks, bonds, savings accounts, mutual funds) of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each
additional dependent. The first $4,800.00 or more, depending on the number of claimant’s
dependents, is also exempted from recoupment as a necessary emergency resource. If an
individual has current income or assets in excess of the allowable amount, a reasonable
repayment schedule can be established over a reasonable, specified period of time. It is the
individual’s burden to submit evidence to show that recovery of the overpayment would cause
the degree of financial hardship sufficient to justify waiver.7 An individual is deemed to need
substantially all of his or her income to meet current ordinary and necessary living expenses if
monthly income does not exceed monthly expenses by more than $50.00.8
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt and when an individual, in 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
5

5 U.S.C. § 8129(a).

6

20 C.F.R. § 10.436.

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200(6)(a) (June 2009). See Miguel A. Muniz, 54 ECAB 217 (2002); 20 C.F.R. §§ 10.436 and 10.437.
8

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

9

20 C.F.R. § 10.437.

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Section 10.438(a) provides that the individual who received the overpayment is
responsible for providing information about income, expenses and assets as specified by OWCP,
as this information is needed to determine whether or not recovery of an overpayment would
defeat the purpose of FECA or be against equity and good conscience.10 This information would
also be used to determine the repayment schedule, if necessary.
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in creating the overpayment.
Because she is without fault, it may recover the overpayment only if recovery would not defeat
the purpose of FECA or be against equity and good conscience.
Appellant requested waiver of recovery of the overpayment and provided an
overpayment recovery questionnaire and a summary of her monthly income and expenses from
August 2010 through January 2011. Based on her reports of expenses and income, her income
exceeds her expenses by an average of $988.00 per month. Appellant also reported assets of
$35,700.00. As her income exceeds her expenses by more than $50.00 and her assets exceed the
resource base of $8,960.00 ($8,000.00 plus $960.00), the Board finds that she is not entitled to
waiver.11
There is no evidence and appellant did not allege that she relinquished a valuable right or
changed her position detrimentally due to the excess compensation she received from
November 2008 through January 2011. Pursuant to its regulations, OWCP properly found that
recovery of the overpayment would not be against equity or good conscience.
As the evidence in this case fails to support that recovery of the overpayment would
defeat the purpose of FECA or be against equity and good conscience, the Board finds that
OWCP did not abuse its discretion in denying a waiver of recovery of the overpayment of
$12,483.98.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA. Section
10.441(a) of the regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the

10

20 C.F.R. § 10.438(a).

11

See E.M., Docket No. 07-785 (issued August 17, 2007); 20 C.F.R. § 10.436.

6

financial circumstances of the individual and any other relevant factors, so as to
minimize any hardship.”12
ANALYSIS -- ISSUE 3
Appellant submitted financial evidence of her income and expenses June 2010
through January 2011. She indicated that her monthly income was $16,360.00 and $9,413.00 for
a six month average of $11,606.00. Appellant listed monthly expenses ranging between
$12,519.00 and $8,467.00 for average expenses of $10,618.00. The hearing representative found
that her income exceeded her expenses by approximately $1,000.00 per month and that she could
repay the overpayment at a rate of $300.00 every 28 days. Based on the evidence of record,
OWCP gave due regard to the relevant factors noted above and did not abuse its discretion in
setting the rate of recovery.13 The Board finds that it properly determined that the overpayment
could be recovered by deducting $300.00 from appellant’s continuing compensation payments.
On appeal, appellant alleged that recovery should be waived or that she should be
allowed to repay the overpayment at the rate of $50.00 every 28 days. The Board has addressed
these issues and found that OWCP properly denied waiver and properly determined the rate of
repayment.
CONCLUSION
Appellant received an overpayment of $12,483.98 during the period November 1, 2008
through January 15, 2011, because she concurrently received FECA and SSA benefits without an
appropriate retirement benefit offset. Although she is without fault in the creation of the
overpayment, she is not entitled to waiver of recovery. The Board further finds that OWCP
reasonably imposed a repayment schedule of $300.00 every 28 days to be withheld from
appellant’s continuing compensation benefits.

12

20 C.F.R. § 10.441.

13

See Howard R. Nahikian, 53 ECAB 406 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the September 7, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

Michael E. Groom, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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and
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DEPARTMENT OF AGRICULTURE, FOREST )
SERVICE, Lee Vining, CA, Employer
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___________________________________________ )
V.W., Appellant

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

Docket No. 16-0524
Issued: May 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 27, 2016 appellant filed a timely appeal of a November 9, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on July 27, 2013.
FACTUAL HISTORY
On July 28, 2013 appellant, then a 61-year-old recreation technician, filed a traumatic
injury claim (Form CA-1) alleging that on July 27, 2013 she sustained an injury to her right leg
and back while moving a log, shoveling and cleaning ash and fire rings in the campground in the
1

5 U.S.C. § 8101 et seq.

performance of duty. She stopped work on July 27, 2013. The employing establishment
checked a box marked “yes” in response to whether appellant was injured in the performance of
duty. It also indicated that appellant was a volunteer and received reimbursement but no wages.
A July 28, 2013 first report of occupational injury or illness from an individual with an
illegible signature, contained a diagnosis of sciatica. The report revealed that appellant
campground host, was performing routine cleanup of a campsite and felt pain in the low back
radiating to the right leg.
By letter dated September 9, 2013, OWCP informed appellant of the type of evidence
needed to support her claim and requested that she submit such evidence within 30 days.
OWCP received a July 28, 2013 radiology report of the lumbar spine, read by Dr. Yuri
Parisky, a Board-certified diagnostic radiologist, who found no acute process.
In July 28, 2013 reports, Dr. Richard Shedd, Board-certified in emergency medicine,
noted that appellant was performing her normal routine work, which included cleaning fire pits,
when she began to have spasm in her lower back, radiating down the right leg. He indicated that
the mechanism of injury occurred on July 27, 2013 at 1500 hours. Dr. Shedd diagnosed back
pain with sciatica.
By decision dated October 16, 2013, OWCP denied appellant’s claim finding that she had
not established an injury causally related to established work-related events.
On November 16, 2013 appellant requested reconsideration. In an August 2, 2013 report,
Dr. Dennis Crunk, a Board-certified family practitioner, noted that appellant was seen on a
“work comp complaint” and that approximately five days ago she injured her back while bending
over at work as a hostess. He advised that the pain was severe and she was taken to the hospital
emergency and administered/prescribed medication. Dr. Crunk related that appellant was now
80 percent better but continued to be sore in the right back and had pain radiating to the right
groin, which seemed to be related to the back pain. He indicated that appellant noted that the
pain radiating down into the leg had since resolved. Dr. Crunk also indicated that she denied
having prior problems. He assessed lower back pain. Dr. Crunk prescribed restrictions to
include no lifting, pulling or pushing greater than 25 pounds. In an August 13, 2013 disability
certificate, he restricted appellant to no lifting, pulling or pushing greater than 25 pounds for the
next seven days. OWCP also received nurses’ notes, a prehospital care report, and copies of
previously submitted reports.
By decision dated February 24, 2014, OWCP denied modification of the prior decision.
In a June 23, 2014 letter to Dr. Shedd, appellant requested that he provide a supplemental
opinion on causal relationship. In a June 24, 2014 statement, Dr. Shedd advised that appellant
was in the process of cleaning when she injured her back. He indicated that she would need
physical therapy and should follow up with her physician for further evaluation.
On July 2, 2014 appellant again requested reconsideration.
By decision dated November 4, 2014, OWCP denied modification of its prior decision.
2

On August 4, 2015 appellant again requested reconsideration. She advised that she
recently seen Dr. Crunk who diagnosed sciatica, the same diagnosis Dr. Shedd provided on
July 28, 2013 from the emergency room. Appellant explained that her duties as a campground
hostess over 19 years, included volunteering for the last 10 years. She noted that she was
responsible for cleaning 52 camping sites, including the fire pits. Appellant explained that she
had to lift unburned rounds of wood, and move tree trunks, large rocks and boulders out of the
fire pits. She advised that this was necessary to clean them and that she sustained her injury in
the course of these duties. Appellant requested that her bills be paid as they would not have
happened but for her on-the-job injury.
In a June 22, 2015 report, Dr. Crunk noted that two years ago appellant had a low back
strain and had not received treatment since. However, appellant continued to have low back
discomfort. Dr. Crunk advised that the pain radiated down the right leg for a few days at a time.
He examined appellant and found that the spine was nontender. Dr. Crunk also determined that
appellant had obvious para lumbar muscle spasm, greater on the left and tender across the
metatarsals. He recommended health education counseling and diagnosed sciatica and
metatarsalgia in the right leg, which was chronic and recurring with muscle spasm.
By decision dated November 9, 2015, OWCP denied modification of its prior decision.
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 timely filed within the applicable time
limitation period of FECA2 and that an injury was sustained in the performance of duty.3 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.5 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.6

2

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

3

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

4

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

5

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

6

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

3

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
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS
In this case, appellant alleged that on July 27, 2013 she sustained an injury to her right
leg and back in the performance of duty. The evidence supports that the claimed event occurred
as alleged. Therefore, the Board finds that the first component of fact of injury is established.
The claimed incident -- that appellant was moving logs and rocks while shoveling and cleaning
campsites occurred at work as alleged.
However, the medical evidence of record is insufficiently rationalized to establish the
second component of fact of injury, that the employment incident caused an injury. The medical
evidence contains no reasoned explanation of how the specific employment incident on July 27,
2013 caused or aggravated an injury.9
In July 28, 2013 reports, Dr. Shedd noted that appellant was performing her normal
routine work, which included cleaning fire pits at work, when she began to have spasm in her
lower back, radiating down the right leg. He indicated that the mechanism of injury occurred on
July 27, 2013 at 1500 hours and diagnosed back pain with sciatica. The Board notes that, while
he described appellant’s activities, he did not offer any opinion on causal relationship. Thus
Dr. Shedd’s reports are of little probative value.10 Likewise, in a June 24, 2014 statement, he
advised that appellant was in the process of cleaning when she injured her back. Dr. Shedd
indicated that she would need physical therapy and should follow up with her physician for
further evaluation. However, he did not provide an opinion on the relationship between her
activities at work and the diagnosed condition. Dr. Shedd did not provide rationale explaining
how appellant’s work activities caused or aggravated a diagnosed medical condition. Therefore,
his reports are of little probative value.
In an August 2, 2013 report, Dr. Crunk noted that appellant was seen on a “work[ers’]
comp[ensation] complaint” and that approximately five days ago she injured her back bending
over at work as a hostess. He indicated that the pain radiating down her leg had since resolved
7

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

8

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

9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not fortified
by medical rationale is of little probative value).
10

Linda I. Sprague, 48 ECAB 386 (1997) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).

4

and that she denied having prior problems. Dr. Crunk diagnosed lower back pain and prescribed
restrictions to include no lifting, pulling, or pushing greater than 25 pounds. In an August 13,
2013 disability certificate, he repeated his restrictions. On June 22, 2015 Dr. Crunk noted that
two years earlier appellant had a low back strain and had not received treatment since but she
continued to have low back discomfort. He diagnosed sciatica, and metatarsalgia in the right leg.
However, Dr. Crunk did not provide an opinion on causal relationship. These reports are of
limited probative value on the relevant issue of the present case in that they do not contain a clear
opinion on causal relationship.11
OWCP also received diagnostic reports to include a July 28, 2013 radiology report of the
lumbar spine, read by Dr. Parisky. However, reports of diagnostic testing are insufficient to
establish the claim as they do not address how employment factors contributed to a diagnosed
medical condition.12
OWCP also received nurses’ notes. However, nurses are not considered physicians under
FECA and are therefore not competent to render a medical opinion.13
Because the medical reports submitted by appellant do not address how the July 27, 2013
activities at work caused or aggravated a right leg or back condition, these reports are of limited
probative value and are insufficient to establish that the July 27, 2013 employment incident
caused or aggravated a specific injury.
On appeal, appellant argues that her duties included moving tree trunks, large rocks and
boulders out of the fire pits. She further argues that OWCP minimized her activities. The Board
notes that appellant’s work activities are not contested. The claim is denied as the medical
evidence of record was insufficient to establish causal relationship. Appellant also requested that
her medical bills be paid. However, as the claim has not been accepted, her bills cannot be paid.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a traumatic injury in the performance of duty on July 27, 2013.

11

See id.; Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

Id.

13

G.G., 58 ECAB 389 (2007).

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ORDER
IT IS HEREBY ORDERED THAT the November 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1335
Issued: January 5, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 1, 2017 appellant, through counsel, filed a timely appeal from a December 9,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 28, 2016.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
Appellant filed an occupational disease claim (Form CA-2) on December 12, 2008
alleging injury as a result of repetitive activity in her federal employment as a mail processing
clerk. OWCP accepted the claim for bilateral flexor tenosynovitis, right tunnel radial
neuropathy, right ulnar neuropathy, right carpal tunnel median neuropathy, left upper extremity
overuse syndrome, and cervical strain. Appellant received intermittent wage-loss benefits on the
supplemental rolls commencing February 14, 2009.
As of October 1, 2009 appellant was working four hours per day. The record indicates
that on September 4, 2010 she was offered and she accepted a full-time, light-duty position. As
of October 25, 2010 appellant began intermittently working less than eight hours per day and
claimed compensation for the remaining hours.4 OWCP paid her compensation for wage loss for
the claimed hours.
Appellant stopped work on December 6, 2012. OWCP referred appellant for a second
opinion examination by Dr. Robert Smith, a Board-certified orthopedic surgeon. In a report
dated February 21, 2014, Dr. Smith, provided a history of injury and results on physical
examination. He reported that appellant had a relatively benign orthopedic examination, with no
specific adverse soft tissue abnormalities or specific and focal neurological deficits. Dr. Smith
opined that she was certainly capable of returning to full-time employment. He further wrote
that there was no requirement for any future medical treatment related to this claim such as
physical therapy, acupuncture, surgery, or injections.
The record indicates that on February 10, 2014, the employing establishment offered
appellant a light-duty job as a sales solution team member. The position was a full-time
sedentary position that involved light data entry and telephone duties. The effective date of the
offer was March 13, 2014.

3

Docket No. 08-1136 (issued May 20, 2009) (the Board set aside October 1 and March 7, 2007 decisions denying
appellant’s claim for a schedule award, and remanded the case for further development on the issue of permanent
impairment); Docket No. 11-0287 (issued August 19, 2011) (the Board affirmed the denial of appellant’s claim for a
recurrence of disability commencing September 23, 2009); Docket No. 13-0882 (issued August 23, 2013) (the
Board set aside a November 6, 2012 decision and remanded the case for further development to determine whether
OWCP had properly found an overpayment of compensation based upon appellant’s pay rate).
4
The compensation claimed generally was 1.5 hours per day, although appellant’s work hours varied and
intermittently she worked eight hours and did not claim compensation.

2

In a report dated March 10, 2014, Dr. Scott Fried, an osteopath, provided results on
examination. He indicated that appellant still had employment-related residuals. Dr. Fried wrote
that appellant would like to try the modified job, but he would prefer that it begin as a part-time
position.
Appellant returned to full-time, light-duty work on March 12, 2014. She continued to
receive wage-loss compensation for partial disability on the supplemental rolls based upon an
informal loss of wage-earning determination.
By letter dated April 3, 2014, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits. It indicated that Dr. Smith had opined that
employment-related residuals had ceased, and this represented the weight of the medical
evidence. OWCP afforded appellant 30 days to submit additional evidence or argument.
On April 16, 2014 counsel submitted a letter arguing that the proposed termination was
inappropriate. He asserted that there was a conflict in the medical evidence between Dr. Fried
and Dr. Smith.
OWCP determined that there was a conflict in the medical evidence as to whether
appellant continued to have residuals of an employment-related condition. Appellant was
referred to Dr. Andrew Sattel, a Board-certified orthopedic surgeon. In a report dated July 8,
2015, Dr. Sattel opined that appellant was best suited for light-duty work. He wrote that no
additional diagnostic workup or physical therapy was indicated. Dr. Sattel noted mild findings
for carpal tunnel, but no surgery was warranted.
By decision dated September 17, 2015, OWCP denied authorization for a nerve block for
the right upper extremity. It found the weight of the evidence did not support the proposed
treatment as necessary. On September 28, 2015 appellant, through counsel, requested a hearing
before an OWCP hearing representative.
By letter dated September 18, 2015, OWCP advised appellant that it proposed to
terminate authorization for physical therapy. It found the medical evidence of record did not
establish the need for continuing physical therapy.
Appellant no longer received wage-loss compensation benefits on the supplemental rolls
as of October 9, 2015. OWCP noted that appellant no longer had a loss of wage-earning
capacity as she had earnings as a caregiver in addition to her federal employment earnings.
In a decision dated October 19, 2015, OWCP terminated authorization for physical
therapy. It found the weight of the medical evidence rested with Dr. Sattel.
On October 22, 2015 appellant, through counsel, requested a hearing before an OWCP
hearing representative. A hearing was held on January 19, 2016, with respect to both the denial
of authorization for a medical procedure, as well as termination of authorization for physical
therapy.
By decision dated March 31, 2016, the hearing representative set aside the September 17
and October 19, 2015 decisions. She found there was inadequate evidence of record to establish
3

that Dr. Sattel had been properly selected as a referee physician to resolve the conflict of medical
opinion. The case was remanded to OWCP.
On remand OWCP selected Dr. Noubar Didizian, a Board-certified orthopedic surgeon,
as a referee physician. In a report dated June 14, 2016, Dr. Didizian reviewed the statement of
accepted facts, provided a history and results on examination. He also reviewed medical records.
Dr. Didizian reported that wrist examination revealed no evidence of flexor or extensor
tenosynovitis, and Tinel’s test was negative. He found there was no evidence of right radial
neuropathy, or cervical strain. As to carpal tunnel syndrome, Dr. Didizian opined the
examination was normal, and appellant’s right carpal tunnel median neuropathy had resolved.
He further opined that a diagnosis of left upper extremity overuse syndrome had resolved, and
there was no evidence of right ulnar neuropathy or brachial plexopathy. Dr. Didizian opined that
appellant was capable of returning to full-time work with no restrictions.
By decision dated June 28, 2016, OWCP terminated appellant’s wage-loss compensation
and medical benefits. It found that the special weight of the medical evidence was represented
by Dr. Didizian.
On July 11, 2016 counsel requested a hearing before an OWCP hearing representative. A
hearing was held on October 13, 2016. Counsel argued that OWCP should have issued a
pretermination notice prior to terminating compensation on June 28, 2016.
By decision dated December 9, 2016, OWCP’s hearing representative affirmed the
June 28, 2016 termination decision. She found that OWCP did not have to issue a new
pretermination notice, and Dr. Didizian represented the special weight of the medical evidence.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his or her employment, OWCP may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.5
When there are opposing reports of virtually equal weight and rationale, the case will be
referred to an impartial medical specialist pursuant to section 8123(a) of FECA which provides
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination and resolve the conflict of medical evidence.6 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.7

5

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

6

5 U.S.C. § 8123; M.S., 58 ECAB 328 (2007); B.C., 58 ECAB 111 (2006).

7

R.C., 58 ECAB 238 (2006).

4

In situations where there are 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 on a proper
factual background, must be given special weight.8
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits on June 28, 2016. Appellant’s 2008 occupational disease
claim was accepted for bilateral flexor tenosynovitis, right tunnel radial neuropathy, right ulnar
neuropathy, right carpel tunnel median neuropathy, left upper extremity overuse syndrome, and
cervical strain.
On February 21, 2014 appellant was seen by Dr. Smith, an OWCP second opinion
physician. He reported that appellant had no specific soft tissue or neurological deficits and
could return to full-time work. Thereafter on February 10, 2014 the employing establishment
offered appellant a full-time, light-duty position. Appellant accepted this position and returned
to work on March 12, 2014. Her treating physician, Dr. Fried opined, however, that appellant
should begin work on a part-time basis.
OWCP initially issued a notice of proposed termination of appellant’s wage-loss
compensation and medical benefits on April 3, 2014. However, based upon counsel’s argument
that a conflict existed in the medical opinion evidence between Dr. Smith and Dr. Fried, OWCP
referred appellant to Dr. Sattel for an impartial medical evaluation. After OWCP denied
authorization for a right upper extremity nerve block and terminated authorization for physical
therapy, appellant requested a hearing before an OWCP hearing representative on
October 22 2015. OWCP’s hearing representative, however, found on March 31, 2016 that
Dr. Sattel had not been properly selected as a referee physician to resolve the conflict of medical
opinion. The case was remanded for a new impartial medical evaluation. OWCP referred
appellant, a SOAF, and a list of specific questions to Dr. Didizian to resolve the conflict of
medical opinion evidence.
In a report dated June 14, 2016, Dr. Didizian reviewed appellant’s history of injury. He
performed a physical examination and determined examination of appellant’s wrists revealed no
evidence of flexor or extensor tenosynovitis. Dr. Didizian also found no objective evidence of
right radial neuropathy, or cervical strain. Appellant’s Tinel’s test was negative, and the
remainder of his examination for carpal tunnel syndrome and median neuropathy was within
normal limits. Dr. Didizian also noted that appellant’s left upper extremity overuse syndrome
had resolved. He, therefore, concluded that all of appellant’s accepted conditions had resolved.
The Board finds that his report was based on a proper factual background, included
detailed findings on physical examination, and offered a clear opinion that appellant’s
employment-related residuals and disability had resolved. Dr. Didizian’s report was well
reasoned and is entitled the special weight accorded to an impartial medical examiner and
8

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

5

constitutes the special weight of the medical evidence. Therefore, OWCP met its burden of
proof to terminate appellant’s wage-loss compensation and medical benefits.9
On appeal counsel argues that OWCP should have issued another notice of proposed
termination prior to terminating benefits on June 28, 2016.
In this case OWCP had previously issued a pre-termination notice dated April 3, 2014.
The hearing representative, in affirming the June 28, 2016 decision, found that OWCP did not
have to issue a new pretermination notice, citing OWCP’s procedures. The procedure manual
section cited by the hearing representative discusses the situation where a pretermination notice
has been issued, but further development of the evidence is subsequently undertaken.10 It notes
that a claims examiner should write a letter explaining to appellant the additional development,
and an explanation that such development may result in termination of benefits. The hearing
representative found that “should” is discretionary, and since “no second notice of proposed
action” is required under the procedure manual or regulations, OWCP properly followed its
procedures.11
OWCP regulations at 10.541(b) provides that, if additional development of the evidence
is undertaken following a notice of proposed termination of compensation, it does not provide
another notice of proposed action. It “will either continue payment or issue a decision consistent
with its prior notice.”12 The Board, therefore, finds that OWCP properly terminated appellant’s
wage-loss compensation and medical benefits, effective June 28, 2016.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective June 28, 2016.

9

See M.P., Docket No. 17-0459 (issued July 12, 2017).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.7(e)(4) (February 2013).

Id. provides: “An explanation should be provided that development may result in final termination of benefits
with no second notice of proposed action,” citing 20 C.F.R. § 10.541(b).
11

12

20 C.F.R. § 10.541(b).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 9, 2016 is affirmed.
Issued: January 5, 2018
Washington, DC

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

Patricia H. Fitzgerald, 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
__________________________________________
E.S., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Gulfport, MS, Employer
__________________________________________

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

Docket No. 14-1376
Issued: November 4, 2014

Case Submitted on the Record

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

JURISDICTION
On May 30, 2014 appellant filed a timely appeal from a January 23, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a low
back injury due to a September 17, 2013 incident.
FACTUAL HISTORY
On December 12, 2013 appellant, then a 54-year-old general warehouse leader, filed a
traumatic injury claim alleging that on September 17, 2013 he sustained a back injury while

1

5 U.S.C. § 8101 et seq.

packing materials into a container for shipment. He stopped work on September 19, 2013.
Appellant returned to work on September 25, 2013 but missed intermittent time thereafter.
In an October 9, 2013 supervisory mishap report, appellant noted that he injured his
lower back while packing materials for a shipment. He informed his supervisor of his injury on
two different occasions that day. In an October 9, 2013 statement, Paul Darden, appellant’s
supervisor, noted that appellant did not inform him that an accident occurred; only that he had
back pain and needed medical attention.
In a December 20, 2013 letter, OWCP notified appellant that the evidence was
insufficient to establish his claim. Appellant was instructed to submit a medical report from his
attending physician including a diagnosis, history of the injury and a physician’s opinion
regarding causal relationship supported by medical rationale.
In a September 17, 2013 statement, Gerold Griffin, appellant’s co-worker, advised that he
witnessed appellant rubbing his back. Appellant told him that his back hurt. Mr. Griffin advised
that appellant was still in pain after he returned to work. In a September 18, 2013 statement,
George Scherff, appellant’s coworker, advised that on the day of the incident, appellant asked
him to take over his duties because he hurt his back.
In September 23 and October 10, 2013 treatment records, a nurse practitioner noted that
appellant complained of back pain and a neck spasm. She diagnosed muscle spasm of the neck,
referred appellant for physical therapy and released him without limitations.
In a November 20, 2013 report, Dr. John Highsmith, Board-certified in family medicine,
advised that appellant experienced back pain for the past two months with no improvement.2
Appellant informed Dr. Highsmith that he felt that something was inside his back, especially
upon bending. Dr. Highsmith diagnosed lower back pain, requested magnetic resonance imaging
(MRI) scan and released appellant without limitation. In a December 6, 2013 lumbar MRI scan
report, Dr. Shane Diekman, a Board-certified diagnostic radiologist, noted that appellant
experienced back pain for the past two months. Testing revealed mild multilevel spondylosis.
In a December 16, 2013 disability report, Dr. Highsmith advised that appellant was
unable to lift over 20 pounds, climb, squat or bend until completion of an evaluation by a
specialist. An accompanying December 16, 2013 treatment note diagnosed lower back pain and
advised that appellant was referred for a neurology consultation.
In a January 7, 2014 report, Dr. Highsmith advised that appellant visited his office for
low back and hand pain. Appellant stated that the low back pain began after packing heavy
items at work but without trauma. Dr. Highsmith advised that an MRI scan revealed spondylosis
with no impingement and no evidence of trauma. In his opinion, back pain and strains were
common conditions and that there was no medical evidence that appellant’s back pain was
caused by any specific trauma at work. Dr. Highsmith further advised that a definitive diagnosis
by a neurologist was pending.
2

Dr. Highsmith also stated that appellant presented with complaints of pain in his hands that started three days
earlier.

2

In a January 14, 2014 statement, appellant alleged that he felt a twinge in his lower back
that radiated to his buttocks and lower left leg as he was packing a container for shipment. He
also stated that there was a delay in filing his claim because his supervisor did not ask if he
wanted to file a workers’ compensation claim until December 11, 2013. In a December 11, 2013
e-mail, Mr. Darden advised appellant to refrain from heavy lifting, bending, squatting, climbing,
or forklift operation on bumpy terrain until he was cleared by his physician.
By decision dated January 23, 2014, OWCP denied appellant’s claim. It found that the
medical evidence was not sufficient to establish that his low back condition was causally related
to the September 17, 2013 incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged. Second, the employee must submit
medical evidence to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
OWCP accepted that appellant was packing items into a container on September 17, 2013
as alleged. The evidence includes statements of coworkers and supports that the claimed work

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

T.H., 59 ECAB 388 (2008).

7

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

3

incident occurred. The Board finds that the medical evidence is insufficient to establish that the
employment incident of September 17, 2013 caused appellant’s lower back injury.
The only medical evidence to address causal relationship is Dr. Highsmith’s January 7,
2014 report. Dr. Highsmith advised that an MRI scan of the lumbar spine revealed spondylosis
without impingement. He noted that appellant related his condition to packing heavy items at
work.8 However, Dr. Highsmith stated that, in his opinion, back pain and strains were common
conditions and that there is no medical evidence that appellant’s back pain was caused by any
specific trauma at work. This report fails to discharge appellant’s burden of proof because
Dr. Highsmith did not find a causal relationship between the accepted incident and his back
condition.
Other reports and treatment records from Dr. Highsmith do not support that appellant’s
low back condition was caused or aggravated by work factors on September 17, 2013. The
December 6, 2013 MRI scan report does not address causal relationship between a diagnosed
medical condition and work events on September 17, 2013. The Board has held that medical
records that do not state an opinion on causal relationship are of little probative value.9
In September 23 and October 10, 2013 treatment records, a nurse practitioner noted
appellant’s condition. However, records from a nurse practitioner do not constitute competent
medical opinion in support of a claim. A nurse practitioner is not considered a physician as
defined under FECA.10 Thus, these records are of no probative medical value.
On appeal, appellant argues that the medical evidence contains a medical diagnosis. The
Board notes he was diagnosed with lumbar spondylosis. However, the claim is deficient because
appellant did not submit medical evidence addressing how the September 17, 2013 incident
caused or contributed to this diagnosed medical condition. As noted, causal relationship is a
medical question that must be established by probative medical opinion from a physician.11 The
physician must accurately describe appellant’s work duties and medically explain the
pathophysiological process by which these duties would have caused or aggravated his
condition.12 Appellant has not provided such medical opinion evidence in this case. He failed to
meet his burden of proof.

8

The Board notes that Dr. Highsmith’s report did not list the date of the incident accepted in this case.

9

Jaja K. Asaramo, 55 ECAB 200 (2004).

10

A.C., Docket No. 08-1453 (issued November 18, 2008). Under FECA, a “physician” includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope
of their practice as defined by State law. 5 U.S.C. § 8101(2).
11

See supra note 6.

12

Solomon Polen, 51 ECAB 341 (2000) (rationalized medical evidence must relate specific employment factors
identified by the claimant to the claimant’s condition, with stated reasons by a physician). See also S.T., Docket No.
11-237 (issued September 9, 2011).

4

Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.13
CONCLUSION
The Board finds that appellant did not establish that he sustained a traumatic injury in the
performance of duty on September 17, 2013.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

13

Appellant submitted new evidence after issuance of the January 23, 2014 decision. However, the Board lacks
jurisdiction to review evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Ventura, CA Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Raquell Krueger-Denio, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1197
Issued: February 1, 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 April 2, 2009 appellant timely appealed a February 10, 2009 merit decision of the
Office of Workers’ Compensation Programs regarding the termination of her compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this claim.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation benefits as
of March 17, 2008 due to her February 3, 1995 and April 22, 2003 employment injuries.
FACTUAL HISTORY
On April 22, 2003 appellant, then a 41-year-old letter carrier, sustained injury to her low
back as a result of pulling a parking brake on a two-ton truck. She stopped work on May 15,
2003 and returned to modified duty on June 1, 2004.1 The Office assigned the claim file number
1

Appellant stopped work again on June 5, 2004 and thereafter began working intermittently in the acting and
entertainment field. The Office paid wage-loss compensation through June 1, 2004.

xxxxxx198 and accepted a lumbar strain. It paid appropriate benefits. Appellant has other
claims associated with her file. Under file number xxxxxx238, the Office accepted a lumbar
strain as a result of her tripping while delivering mail on February 3, 1995. In a May 15, 1997
decision, it denied that appellant’s degenerative disc disease condition was causally related to her
1995 work injury. Under file number xxxxxx278, the Office accepted a lumbar sprain as a result
of her bending over to pick up a letter on August 1, 2006 and consolidated the claims under this
file number. In a March 4, 2008 decision, an Office hearing representative affirmed the Office’s
May 3, 2007 decision terminating entitlement to compensation benefits effective May 3, 2007 on
the basis appellant no longer suffered from residuals or disability causally related to her
August 1, 2006 work injury. Determinative weight was accorded to the December 13, 2006
opinion of Dr. Joseph P. Conaty, a Board-certified orthopedic surgeon and Office referral
physician, who found that the lumbar strain sustained as a result of the August 1, 2006 work
injury had resolved and no residuals from that injury remained.
Under file number xxxxxx238, Dr. Alan M. Gross, a Board-certified orthopedic surgeon,
diagnosed appellant with lumbar radiculopathy with disc protrusions at L3-4 and L5-S1 based on
magnetic resonance imaging (MRI) scan studies in a May 4, 2004 report.
The record reflects that, following the April 22, 2003 injury, appellant was seen for a
second opinion evaluation by Dr. Richard Pollis, a Board-certified orthopedic surgeon. In a
February 9, 2004 report, Dr. Pollis diagnosed increased low back pain due to sprain injury and
cumulative trauma with discogenic disease at multiple levels. He opined that appellant’s 1995
back injury was aggravated as a result of cumulative and repetitive trauma as a result of
repetitive lifting of up to 25 pounds in her permanent modified job and by the trauma she
sustained on April 22, 2003. Dr. Pollis stated that her clinical condition worsened since April 22,
2003, noting that prior to that date she was able to perform her modified-job duties. He opined
that both the accepted work injuries and appellant’s cumulative duties had caused a change in her
underlying degenerative disc disease condition as her degenerative disc disease had progressed
since 1995 based upon MRI scan reports. However, Dr. Pollis noted that her condition was
improving, that she should pursue work hardening and that she likely could return to modified
duty within six to eight weeks.
In a February 28, 2007 report, Dr. Daniel Capen, a Board-certified orthopedic surgeon
and appellant’s attending physician, diagnosed lumbar discopathy, lumbar spondylolisthesis at
L4 on L5 and lumbar disc protrusions at L3-4, L4-5 and L5-S1. He opined that she reached
maximum medical improvement. Dr. Capen stated, “there is no basis whatsoever to assume that
[appellant’s] problem is due to anything other than the work-related injury of April 22, 2003.
There is no apportionment.” In an April 4, 2007 report, he diagnosed spondylolisthesis and
degenerative discopathy and opined that appellant was permanently disabled from the employing
establishment.
The Office referred appellant for a second opinion evaluation by Dr. G.B. Ha’Eri, a
Board-certified orthopedic surgeon, to determine whether she had residuals of her accepted
lumbar strains arising from the February 3, 1995 injury and April 23, 2003 the parking brake
incident. Dr. Ha’Eri was provided a statement of accepted facts, which noted each of appellant’s
claims, a list of questions and her medical record. In a June 13, 2007 report, he noted physical
examination of the spine was essentially normal with the exception of limited range of extension

2

in the lumbar spine. Dr. Ha’Eri diagnosed lumbar strain and multilevel degenerative discs/facet
arthrosis/minimal disc protrusion at L3-4, L4-5 and L5-S1 per MRI scan studies. He opined that
appellant no longer had residuals of the lumbar strains sustained in the two work-related injuries
of 1995 and 2003. Dr. Ha’Eri noted that she had medical care with sufficient length for each
episode. He stated that appellant’s residual symptoms were due to multilevel degenerative
changes of the lumbar spine, which was nonindustrial and degenerative in nature, as objectively
shown by MRI scan studies. Dr. Ha’Eri opined that the pulling of parking brakes on April 23,
2003 did not affect appellant’s preexisting degenerative disc disease. He further opined that she
was capable of continuing her modified-duty letter carrier position and the restrictions provided
were only for her nonindustrial degenerative conditions of the lumbar spine.
In an August 23, 2007 letter, the Office proposed termination of appellant’s
compensation benefits for the accepted lumbar sprains due to the February 3, 1995 and April 22,
2003 work injuries based on the second opinion evaluation of Dr. Ha’Eri. It also found the
medical evidence insufficient to establish a causal relationship between appellant’s preexisting
degenerative disc conditions and her 1995 and 2003 work injuries. Appellant was provided
30 days to submit additional evidence. She did not respond.
By decision dated March 17, 2008, the Office terminated appellant’s compensation
benefits effective March 17, 2008 on the basis that the weight of the medical evidence, as
represented by Dr. Ha’Eri’s second opinion report, demonstrated that the work-related injures
had resolved without residuals.
On March 25, 2008 appellant requested an oral hearing before an Office representative,
but subsequently requested a review of the written record. In an October 7, 2008 brief,
appellant’s representative argued the Office had not met its burden of proof to terminate
appellant’s compensation. She stated that Dr. Capen, appellant’s treating physician, opined that
appellant had ongoing degenerative conditions which were worsened by her accepted back
injuries. Appellant’s representative contended that Dr. Ha’Eri had not presented sufficient
medical reasoning to explain why appellant’s degenerative disc disease was not work related.
She further contended that he had a deficient statement of accepted facts; he was asked a leading
question; and he only received a partial case file for review. Appellant’s representative also
contended that under the April 2003 injury claim, second opinion examiner Dr. Pollis provided a
well-rationalized opinion that appellant’s degenerative disc condition was caused by and
permanently aggravated by factors of her employment. She argued that Dr. Pollis’ report should
have been added to the case record and the accepted conditions expanded.
Additional medical reports from Dr. Capen were submitted. He advised that appellant
had a continuing medical condition due to all three injuries. In an August 26, 2008 report,
Dr. Capen noted the history of the work injuries, his review of the medical records and presented
his findings on examination. He diagnosed L5-S1 discopathy and indicated that the x-rays
showed progression. Dr. Capen advised that appellant had a progression and there clearly were
two separate and distinct industrial injuries both of which have progressed to a point of sufficient
worsening as to preclude her return to usual and customary work. In an October 1, 2008 report,
Dr. Capen indicated that Dr. Ha’Eri was incorrect in his conclusion. He opined that appellant’s
work-related injury caused damage to the lumbar discs disc protrusions and listhesis. Dr. Capen

3

also advised that appellant is a candidate for surgical intervention and perhaps injection blocks,
medication and therapy.
Appellant also submitted a November 27, 2007 statement noting the history of her
condition and her belief that her back condition had been worsened by her employment.
By decision dated February 10, 2009, an Office hearing representative affirmed the
March 17, 2008 decision.2
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.4 The right to medical
benefits is not limited to the period of entitlement to disability. To terminate authorization for
medical treatment, the Office must establish that appellant no longer has residuals of an
employment-related condition that requires further medical treatment.5
For conditions not accepted by the Office, the claimant bears the burden of proof to
establish that the condition is causally related to the employment injury through the submission
of rationalized medical evidence.6 Causal relationship is a medical issue and the medical
evidence generally required to establish causal relationship is rationalized medical opinion
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.7
ANALYSIS
The record reflects that appellant sustained work-related lumbar strains on February 3,
1995, April 22, 2003 and August 1, 2006. It is noted that under the master case file, an Office
2

In a separate letter of February 10, 2009, the Office noted that the hearing request for file number xxxxxx198
was erroneously docketed under the master claim file xxxxxx278. It advised a decision had been issued under the
correct file number xxxxxx198.
3

Jorge E. Sotomayor, 52 ECAB 105, 106 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

Frederick Justiniano, 45 ECAB 491 (1994).

6

See T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

7

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

4

hearing representative affirmed on March 4, 2008 an Office decision terminating compensation
benefits arising from the August 1, 2006 work injury. Under the current case, which includes the
case files for the February 3, 1995 and April 22, 2003 work injuries, the Office terminated
appellant’s compensation benefits effective March 17, 2008 based on the opinion of Dr. Ha’Eri,
a Board-certified orthopedic surgeon and Office referral physician, who found that she did not
have residuals of her accepted lumbar strains. On February 10, 2009 an Office hearing
representative affirmed the termination of appellant’s compensation benefits.
In a June 13, 2007 report, Dr. Ha’Eri provided a history of injury, reviewed medical
records and conducted a physical examination. He provided an unequivocal opinion that the
effects of appellant’s February 3, 1995 and April 22, 2003 lumbar strains had resolved and the
changes in her lumbar spine were nonindustrial and degenerative in nature. Dr. Ha’Eri noted
that appellant had sufficient medical care for each injury. He opined that she could return to
work with no restrictions and her continuing and residuals symptoms were a consequence of her
underlying degenerative process, which were nonindustrial and not effected by her work-related
injuries by direct cause, aggravation, precipitation or acceleration. Dr. Ha’Hri found no basis on
which to attribute any continuing residuals to the accepted employment injuries.
The medical evidence submitted by appellant’s attending physicians do not address the
accepted lumbar sprain condition. Rather they addressed her degenerative disc disease, a
nonaccepted condition. As the Office did not accept appellant’s degenerative disc disease of the
lumbar spine as an employment-related condition, it is her burden of proof to establish that such
condition is causally related to the accepted lumbar strains of 1995 and 2003.8
Under file number xxxxxx238, Dr. Gross stated in a May 4, 2004 report that the MRI
scan confirmed that appellant had lumbar radiculopathy with disc protrusions, but he did not
address the issue of causal relationship. Therefore, his opinion has little if any probative value to
establish her claim. Additionally, it is noted that the Office had denied a causal relationship
between appellant’s degenerative disc disease and her 1995 work injury in a May 15, 1997
decision. There is no recent medical evidence supporting that the 1995 work injury caused a
degenerative condition.
On February 28, 2007 Dr. Capen noted that appellant reached maximum medical
improvement in regard to her lumbar discopathy, lumbar spondylolisthesis and lumbar disc
protrusions. Although he opined that her conditions were due to the April 22, 2003 work injury,
he provides no explanation or medical reasoning as to how the work-related injuries affected her
preexisting degenerative disc disease.9 Although Dr. Capen opined in his April 4, 2007 report
that appellant was permanently disabled due to her spondylolisthesis and degenerative
discopathy, he did not address the issue of causal relationship. In his April 26, 2008 report, he
opined that her degenerative disc disease had progressed as a result of her work-related injuries;
however, he provided no explanation or medical reasoning as to how the work-related injuries

8

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

5

affected her preexisting degenerative disc disease.10 Dr. Capen did not explain the process by
which the February 3, 1995 stair-tripping incident or the April 23, 2003 parking break pulling
incident would cause or aggravate any preexisting degenerative condition of the lumbar spine or
how this resulted in appellant’s current spine conditions. Additionally, Dr. Capen provided no
reasoning in his October 1, 2008 report for disagreeing with Dr. Ha’Eri’s opinion that she no
longer had residuals of her work injuries. For these reasons, the Board finds that the medical
evidence from Dr. Capen is insufficient to establish appellant’s claim for any new employmentrelated conditions and his report is of limited probative value with regard to whether accepted
lumbar strains resolved.
Appellant’s representative argued that Dr. Pollis February 9, 2004 second opinion report
supported that the April 22, 2003 injury caused or aggravated appellant’s degenerative disc
condition. Dr. Pollis advised that there were residuals of the accepted lumbar strain and an
aggravation of appellant’s underlying degenerative disc disease condition. He stated that her
degenerative disc disease had progressed since 1995 based upon MRI scan reports. Dr. Pollis,
however, did not provide a rationalized medical opinion on causal relationship between
appellant’s underlying degenerative disc disease condition and her accepted work injuries. He
indicated that work duties over time likely aggravated the degenerative condition but he did not
explain specifically how her traumatic pulling of a parking brake on April 22, 2003 would have
aggravated her underlying degenerative disc disease.11 Additionally, Dr. Pollis did not clearly
explain why appellant’s condition at that time was not merely a natural progression of the
degenerative process, rather than a result of the April 22, 2003 work injury. Therefore, his
opinion on causal relation is of little probative value.12 Furthermore, Dr. Pollis’ opinion predated
the medical development that led to the termination of benefits. As such, his opinion did not
address whether appellant had employment-related residuals of the accepted conditions on or
after March 17, 2008.
Appellant expressed her belief that her alleged back condition resulted from her letter
carrier duties. However, the Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.13 Neither the fact that the condition became apparent during a period of
employment, nor the belief that the condition was caused or aggravated by employment factors
or incidents, is sufficient to establish causal relationship.14 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit.

10

Franklin D. Haislah, id.

11

The record does not indicate that appellant filed a claim for an occupational disease. See 20 C.F.R. § 10.5(q)
(defines the term occupational disease or illness); § 10.6(ee) (defines the term traumatic injury).
12

See supra note 9.

13

See Joe T. Williams, 44 ECAB 518, 521 (1993).

14

Id.

6

Appellant’s representative contendeds that the opinion of Dr. Ha’Eri is deficient and
insufficient to carry the weight of the medical opinion evidence. However, the Board finds that
Dr. Ha’Eri provided a rationalized medical opinion that the accepted lumbar strains resulting
from the February 3, 1995 and April 22, 2003 work incidents have resolved.15 Dr. Ha’Eri’s
opinion is based on a proper factual and medical history in that he had the benefit of an accurate
and up-to-date statement of accepted facts, provided a thorough factual and medical history and
accurately summarized the relevant medical evidence. He also provided medical rationale for his
opinion. There is no medical evidence showing any continuing residuals or disability due to
appellant’s accepted lumbar strains. The Office met its burden of proof to terminate her benefits
as the weight of the medical evidence indicates that residuals of the employment-related
conditions had ceased effective March 17, 2008.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation benefits
effective March 17, 2008.

15

Michael S. Mina, 57 ECAB 379 (2006) (in assessing medical evidence, the weight of such evidence is
determined by its reliability, its probative value and its convincing quality; the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s opinion are facts, which
determine the weight to be given to each individual report).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated February 10, 2009 is affirmed.
Issued: February 1, 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

8