United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, Fort Belvoir, VA,
Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1731
Issued: January 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On August 9, 2012 appellant, through her representative, filed a timely appeal from the
February 22, 2012 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 OWCP properly terminated appellant’s compensation benefits.
FACTUAL HISTORY
On May 11, 2008 appellant, a 41-year-old materials handler, sustained a traumatic injury
in the performance of duty when she slipped on a gravel walkway and fell forward onto her left

1

5 U.S.C. § 8101 et seq.

knee and right hand. OWCP accepted her claim for left knee contusion and lumbar sprain/strain.
Appellant received compensation for wage loss.
A conflict arose on the extent of appellant’s disability. Dr. Jay J. Cho, the attending
Board-certified physiatrist, found that appellant was totally disabled for work indefinitely.
Dr. Nicholas G. Sotereanos, a Board-certified orthopedic surgeon and OWCP second opinion
physician, found that appellant was able to return to work with restrictions. He found no
objective evidence of a serious orthopedic problem.
To resolve this conflict, OWCP referred appellant, together with the case record and a
statement of accepted facts, to Dr. David C. Baker, a Board-certified orthopedic surgeon. On
July 21, 2011 Dr. Baker related her history and symptoms. He described his findings on physical
examination and reviewed appellant’s diagnostic studies.
Dr. Baker opined that, based on the pain disability questionnaire and a positive Waddell’s
test, appellant significantly exaggerated her symptoms. He explained that she sustained a left
knee contusion. There was no evidence in the record that appellant sustained anything more
serious than that. Dr. Baker found that appellant had recovered from the contusion. With
respect to appellant’s description of locking in the left knee over the past six months, he would
not consider any meniscal tear to be related to the May 11, 2008 work injury. Dr. Baker also
found that appellant probably sustained a small herniation/protrusion at the L5-S1 level, but this
was reported as quite small. It was possible that this mildly irritated the L5 nerve root,
accounting for her leg pain, but currently she had no fixed neurologic deficits other than
subjective complaints of pain that were primarily not isolated to the L5 nerve root distribution.
Noting that appellant still had subjective symptoms, Dr. Baker asked to see what her symptoms
and treatment were prior to the date of injury. Appellant stated that she was treated by Dr. Cho
prior to May 2008. Dr. Baker wanted to see Dr. Cho’s records to compare appellant’s current
and preinjury symptoms. He also asked for an electromyogram (EMG) performed by a Boardcertified neurologist. Irrespective of whether appellant had fully recovered, Dr. Baker believed
that she was capable of performing light duty.
OWCP asked for Dr. Cho’s records prior to September 2008 so that Dr. Baker could
review and complete his examination. It also authorized an EMG.
Dr. Baker reviewed the newly obtained EMG, as well as a recent magnetic resonance
imaging scan. He reviewed Dr. Cho’s records dating from December 2006. Of these, Dr. Baker
regarded the May 6, 2008 record -- only five days before appellant’s injury -- as the most
important. Therein Dr. Cho found that appellant suffered with low back pain, permanent S1 left
leg radiculopathy and chronic left shoulder tendonopathy. On her next visit to Dr. Cho on July 8,
2008 appellant had the same symptoms with a flare up of her left shoulder pain. Dr. Cho stated
“appears tendonopathy and possible supraspinatus tendon partial tear.”
Dr. Baker observed that Dr. Cho did not mention a knee problem in this visit. Also, his
neurologic examination was improved from May 2008. The recent EMG was negative for lower
extremity radiculopathy. Appellant had subjective leg pain in the L5 and S1 distributions, but
there were no fixed neurologic complaints and no measurable neurologic deficits, such as
atrophy or motor weakness or positive straight leg raise.

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As a result, Dr. Baker considered appellant’s back and left leg pain to be chronic, with
her leg pain unexplained and unchanged by the May 11, 2008 work incident. Based on the
records in his possession, he agreed with Dr. Sotereanos that the May 11, 2008 work incident
probably involved a herniated disc at L5-S1 with mild radiculopathy. It did not appear from the
record that anything happened on May 11, 2008 to change the natural history of appellant’s
chronic left leg pain in the S1 nerve distribution, which was symptomatic before the work
incident with no new symptoms or findings reported in July 2008. Dr. Baker concluded that
appellant was capable of working her usual job with no restrictions stemming from her May 11,
2008 employment injury.
In a February 22, 2012 decision, OWCP terminated appellant’s compensation benefits. It
found that Dr. Baker’s opinion carried special weight and established that appellant no longer
had a medical condition or disability causally related to the May 11, 2008 work injury.
LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.2 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.3 After
it has determined that an employee has disability causally related to federal employment, OWCP
may not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.4
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.5 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.6
ANALYSIS
When a conflict arose between Dr. Cho, the attending physiatrist, and Dr. Nicholas G.
Sotereanos, the second opinion physician, on the extent of appellant’s disability, OWCP properly
referred appellant to Dr. Baker, a Board-certified orthopedic surgeon, for an impartial medical
examination. OWCP provided Dr. Baker with appellant’s case record and a statement of
accepted facts so he could base his opinion on a proper medical and factual background.
2

5 U.S.C. § 8102(a).

3

Harold S. McGough, 36 ECAB 332 (1984).

4

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).
5

5 U.S.C. § 8123(a).

6

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

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Dr. Baker reviewed appellant’s medical record, including recent imaging studies and
Dr. Cho’s examinations both before and after the May 11, 2008 work injury. He found that
appellant’s left knee contusion had resolved; Dr. Cho mentioned no knee problem in July 2008.
Dr. Baker also found that appellant’s back pain was a chronic and preexisting condition, as
complaints and examination findings prior to the work injury showed. He speculated that the
work incident probably involved a herniated disc at L5-S1 with mild radiculopathy, but it did not
appear that anything happened on May 11, 2008 to change the natural history of appellant’s
chronic left leg pain. There were currently no fixed neurologic complaints and no measurable
neurologic deficits. Dr. Baker concluded that appellant was capable of working her usual job
with no restrictions stemming from her May 11, 2008 injury.
Dr. Baker’s opinion was unequivocal, thoughtful and supported by relevant findings from
the medical record. His reasoning and conclusion appear sound and logical. The Board finds
that Dr. Baker’s opinion is sufficiently well rationalized that it must be accorded special weight
in resolving the extent of any disability or need for continuing medical attention resulting from
her accepted employment injuries. The Board therefore finds that OWCP has met its burden to
terminate appellant’s compensation benefits. The Board will affirm OWCP’s February 22, 2012
decision.
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 properly terminated appellant’s compensation.

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ORDER
IT IS HEREBY ORDERED THAT the February 22, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 22, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARMENT OF THE AIR FORCE, HILL AIR
FORCE BASE, UT, Employer
__________________________________________

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Appearances:
David J. Holdsworth, Esq., for the appellant
No appearance, for the Director

Docket No. 09-453
Issued: June 12, 2009

Oral Argument April 9, 2009

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

JURISDICTION
On December 4, 2008 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ merit decision dated November 7, 2008. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
compensation and medical benefits effective July 9, 2005; and (2) whether appellant has met his
burden of proof in establishing any continuing disability or medical residuals on or after
July 9, 2005.
FACTUAL HISTORY
On January 4, 1995 appellant, then a 35-year-old electronics worker, filed an
occupational disease claim on January 4, 1995, which the Office accepted for bilateral carpal

tunnel syndrome with surgical releases on November 14 and December 29, 1995.1 He filed a
notice of recurrence of disability on October 1, 1996. The Office denied this claim on
January 10, 1997 but found that appellant had established his recurrence of disability by decision
dated July 3, 1997. Appellant was entered on the periodic rolls on November 14, 1997.2 The
Office granted appellant a schedule award for 10 percent impairment of each upper extremity on
January 10, 1997.
On March 4, 1999 appellant filed a notice of occupational disease alleging that he
developed trigger finger in his left hand. The Office accepted this claim for left third trigger
finger on June 21, 1999. On April 5, 2000 appellant filed a notice of occupational disease
attributing trigger finger in his right hand to factors of his federal employment. The Office
accepted his claim for right trigger finger on April 8, 2002. Appellant underwent right thumb,
index and middle finger trigger release on September 6, 2002. He underwent right ring and little
finger trigger release on January 27, 2003. Appellant’s attending physician, Dr. Allisyn Okawa,
a plastic surgeon, performed a tenosynovectomy at the wrist level.
Dr. Okawa examined appellant on March 30, 2004 and diagnosed tendinitis and lateral
epicondylitis on the right. She recommended surgery to reconstruct the lateral epicondyle.
Dr. Okawa also found arthritis in the right ring finger, which could require surgery in the future.
On April 29, 2004 she diagnosed de Quervain’s of the right wrist as well as arthritis in the right
ring finger.
The Office referred appellant for a second opinion evaluation with Dr. Michael E.
Callahan, a Board-certified orthopedic surgeon, on April 19, 2004. In a report dated May 14,
2004, Dr. Callahan noted appellant’s history of injury and medical treatment and listed findings
on physical examination. He diagnosed chronic cervical and lumbar spine pain, chronic bilateral
hand and forearm pain and de Quervain’s synovitis of the right wrist. Dr. Callahan found that
appellant had no objective or electrodiagnostic evidence of carpal tunnel syndrome. He
concluded that appellant was not capable of returning to his date-of-injury position. Dr. Callahan
did not recommend further surgical treatment.
The Office found a conflict of medical opinion evidence between Drs. Callahan and
Okawa on the issue of whether there were objective findings of the accepted conditions of
bilateral carpal tunnel syndrome or bilateral trigger finger and whether appellant’s current
condition and disability was due to his accepted employment injuries. It referred appellant for an
impartial medical examination.
Dr. Robert H. Horne, a Board-certified orthopedic surgeon selected as the impartial
medical examiner, completed a report on July 15, 2004. He diagnosed de Quervain’s synovitis
and recommended surgery for this condition. Dr. Horne stated that this was a continuation of the
1

On February 16, 1993 appellant, then a 33-year-old electronics worker, filed a traumatic injury alleging that he
developed a back injury when he slipped on ice in the performance of duty. The Office accepted this claim for
strains of the back, neck and right shoulder. Appellant filed a notice of occupational disease on April 11, 2000
alleging that he developed left elbow tendinitis. The Office denied this claim on October 5, 2000 and denied
modification on July 7, 2001.
2

Appellant has not worked since 1996.

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stenosing tenosynovitis and therefore employment related. He was unable to determine the
etiology of appellant’s current conditions noting that an overuse syndrome usually resolves when
the workload is altered and the symptoms disappear while his symptoms had condition despite
his work stoppage. Dr. Horne completed a work capacity evaluation and stated that appellant
could not work eight hours a day due to his chronic pain syndrome and fibromyalgia-like
symptoms.
The Office medical adviser reviewed Dr. Horne’s report on February 4, 2005 and
recommended additional development before authorizing surgery for appellant’s right
de Quervain’s synovitis. The Office requested a supplemental report from Dr. Horne on
February 7, 2005. On June 2, 2005 Dr. Horne stated that he could not find a cause of the
continued deterioration of connective tissue disease of stenosing tenosynovitis of multiple
tendons where there is no employment activity. He could only attribute appellant’s deterioration
to aging or an underlying connective tissue disease. Dr. Horne stated that he did not believe that
appellant’s stenosing tenosynovitis was work related, but that as the Office had accepted other
conditions as work related then his current condition would have resulted from the same cause.
He stated, “I agree that a rheumatologist could be petitioned to evaluate this case, but with a
positive ANA test and elevated sedentation rate, to conclude that they are related to work when
there was no work is not medically reasonable.”
In letter dated June 6, 2005, the Office proposed to terminate appellant’s compensation
benefits on the grounds that his current condition was not caused by his employment and that he
had no continuing disability resulting from his work injuries. By decision dated July 8, 2005, it
finalized the termination decision effective July 10, 2005.
Appellant disagreed with the Office’s termination contending that Dr. Horne’s report
supported continued treatment. He requested a review of the written record. In a report dated
June 30, 2005, Dr. Okawa noted appellant’s history of injury and diagnosed right de Quervain’s
tenosynovitis, lateral epicondylitis and radial neuritis. She opined that these conditions were
work related.
By decision dated January 11, 2006, an Office hearing representative affirmed the July 8,
2005 decision, finding that Dr. Horne’s reports were entitled to the weight of the medical
evidence.
Appellant requested reconsideration on February 6, 2006 and disputed the findings and
conclusions in Dr. Horne’s reports. By decision dated May 12, 2006, the Office denied
modification of the January 11, 2006 termination decision.
Appellant, through his attorney, requested reconsideration on May 30, 2006. By decision
dated July 17, 2006, the Office declined to reopen appellant’s claim for consideration of the
merits on the grounds that he failed to submit relevant new evidence.
Appellant, through his attorney, again requested reconsideration on November 10, 2006.
He submitted reports dated May 19 and October 26, 2006 from Dr. Okawa opining that
appellant’s de Quervain’s disease was caused by the repetitive nature of his heavy work at the
employing establishment. Dr. Okawa stated that appellant reported wrist pain while still

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working at the employing establishment, but felt that this condition was overlooked due to his
carpal tunnel syndrome and trigger finger. By decision dated February 16, 2007, the Office
denied modification of its prior decisions.
In a report dated April 19, 2007, Dr. Okawa opined that appellant’s de Quervain’s
syndrome was due to heavy lifting in the performance of duty rather than a connective tissue
disease as a connective tissue disease would cause systemic symptoms rather than merely in one
extremity. Appellant again requested reconsideration on May 18, 2007. In a note dated
April 16, 2007, Dr. Marco Anderson, a family practitioner, opined that appellant’s de Quervain’s
syndrome was due to overuse at work and stated that he did not believe that appellant had a
connective tissue disorder. Dr. Okawa reported on May 11, 2007 that the results of testing
confirmed that appellant did not have a connective tissue disorder causing his multiple problems.
She opined that overuse of appellant’s hands and arms at work “significantly exacerbated his
previous problems.”
By decision dated August 23, 2007, the Office again denied modification of its prior
decisions.
Appellant requested reconsideration on August 12, 2008. In support of this request, he
submitted a January 9, 2008 report from Dr. Horne. Based on appellant’s test results, appellant
probably did not have a connective tissue disease. However, he stated that he could not offer a
definite opinion on the cause of appellant’s current condition as he had not worked for 10 years.
In a report dated March 7, 2008, Dr. Anderson noted appellant’s employment history and
accepted diagnosis of carpal tunnel syndrome. He diagnosed de Quervain’s tenosynovitis and
opined that this condition was related to appellant’s federal employment. Dr. Anderson stated
that this condition “was part of the initial problem that was only partially corrected by having
carpal tunnel surgery done.” In a report dated September 3, 2008, Dr. Horne opined that as the
Office had accepted additional conditions arising after appellant’s employment ended, logically
his currently diagnosed de Quervain’s synovitis should also be accepted.
By decision dated November 7, 2008, the Office denied modification of its prior
decisions. It found that Dr. Horne based his conclusions on the results of diagnostic testing the
reports, of which were not available for review by Dr. Horne or by the Office. The Office also
noted that Dr. Horne’s conclusions were not based on recent physical examination or diagnostic
testing.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted 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 Office’s burden of
proof in terminating compensation includes the necessity of furnishing rationalized medical

3

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

4

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

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opinion evidence based on a proper factual and medical background.5 The right to medical
benefits for an accepted condition is not limited to the period of entitlement of disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition, which require further medical treatment.6
In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
The Board finds that the Office properly found that there was a conflict of medical
opinion in this case between appellant’s attending physician, Dr. Okawa, a plastic surgeon, and
the Office second opinion physician, Dr. Callahan, a Board-certified orthopedic surgeon,
regarding the continuing nature and extent of appellant’s employment-related conditions. The
Office referred appellant to Dr. Horne to resolve this conflict.
Dr. Horne relied on the statement of accepted facts and listed his findings on
examination. He diagnosed de Quervain’s synovitis and recommended surgery for this
condition. Dr. Horne stated that he was unable to determine the etiology of appellant’s current
conditions, but did not attribute these conditions to overwork as appellant had not performed
repetitive work activities in over eight years. In a supplemental report, Dr. Horne stated that he
could not find a cause of appellant’s continued deterioration of connective tissue resulting in
stenosing tenosynovitis of multiple tendons when there was no employment activity. He
attributed appellant’s current condition to age or an underlying connective tissue disease finding
that it was not medically reasonable to attribute these conditions to his previous employment
activities.
The Board finds that Dr. Horne’s reports are sufficiently detailed and well reasoned to
constitute the special weight of the medical evidence. His reports were based on an accurate
history of injury and included findings on physical examination. Dr. Horne also provided
medical reasoning for his conclusions that appellant’s current diagnosed conditions were not due
to his employment, noting that he had not worked for several years and that conditions arising
from overuse abate after the repetitive activity ceases. Therefore, the Board finds that the Office
met its burden of proof to terminate appellant’s compensation benefits on the grounds that he had
no continuing disability or medical residuals resulting from his accepted employment injuries of
bilateral carpal tunnel syndrome and trigger fingers bilaterally.

5

Gewin C. Hawkins, 52 ECAB 242, 243 (2001).

6

Mary A. Lowe, supra, note 4.

7

J.J., 60 ECAB ___ (Docket No. 09-27, issued February 10, 2009).

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LEGAL PRECEDENT -- ISSUE 2
Once the Office has met its burden of proof in terminating compensation benefits, the
burden of proof shifts to appellant to establish that he remains entitled to compensation benefits
after the date of termination. To establish causal relationship between the claimed disability and
the employment injury, appellant must submit rationalized medical opinion evidence based on a
complete factual and medical background to support such a causal relationship.8
ANALYSIS -- ISSUE 2
Following the Office’s termination of his compensation benefits effective July 10, 2005,
appellant submitted additional medical evidence in support of his claim for continuing disability
and medical residuals as a result of his accepted employment injuries. Dr. Okawa advised that
appellant’s conditions were work related due to the repetitive nature of his work and suggested
that his de Quervain’s synovitis had been overlooked due to the carpal tunnel syndrome. The
Board finds that these reports are not sufficient to meet appellant’s burden of proof in
establishing continuing disability. Dr. Okawa did not provide medical reasoning explaining why
and how appellant’s employment activities could have continued to impact his condition long
after the repetitive motions ceased. She also failed to offer an explanation of why she and others
would have failed to diagnose de Quervain’s synovitis until April 29, 2004 and instead merely
repeated appellant’s allegations that this condition was overlooked. For these reasons,
Dr. Okawa’s reports did not meet appellant’s burden of proof and did not overcome the special
weight accorded Dr. Horne as the impartial medical examiner. However, as she was on one side
of the conflict that Dr. Horne resolved the additional reports from Dr. Okawa are insufficient to
overcome the weight accorded Dr. Horne as the impartial medical examiner or to create a new
conflict.9
Appellant also solicited additional reports from Dr. Horne dated January 9 and
September 3, 2008 agreeing that, based on the information provided him, appellant did not
appear to have a connective tissue disorder. However, Dr. Horne did not opine that appellant’s
current conditions were due to his accepted employment injuries or activities. Rather, he again
noted that the etiology of appellant’s condition was unclear. Dr. Horne suggested that as the
Office had accepted appellant’s bilateral trigger finger conditions, the de Quervain’s synovitis
arose from the same etiology, which he considered unknown and logically the Office should
accept this condition as well. While based on Dr. Horne’s conclusions, the Office may have
improperly accepted the trigger finger conditions as employment related, this suggested error
does not require that the Office accept additional conditions without supporting medical
reasoning. As Dr. Horne repeatedly opined that appellant’s current condition was not due to his
employment activity. These reports are not sufficient to meet his burden of proof or to suggest
that the original reports were in error on the finding that he had no employment-related residuals
or disability. The Board further notes that the test results reported by Dr. Okawa are not
included in the record and there is no evidence that Dr. Horne reviewed the actual results rather
8

Manuel Gill, 52 ECAB 282, 287 (2001).

9

Jaja K Asaramo, 55 ECAB 200, 205 (2004).

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than reported findings. Moreover, there is no evidence in the record that Dr. Horne examined
appellant following his 2005 reports.
CONCLUSION
The Board finds that the Office met its burden or proof to terminate appellant’s
compensation and medical benefits. The Board further finds that appellant has not established
entitlement to any continuing compensation or medical benefits on or after July 10, 2005.
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Absecon, NJ, Employer
__________________________________________

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

Docket No. 20-1496
Issued: July 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 10, 2020 appellant filed a timely appeal from a June 25, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $1,387.89 for the period July 6, 2019 through
April 25, 2020, for which she was not at fault, because OWCP failed to deduct postretirement basic
1
The Board notes that following the June 25, 2020 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.
2

5 U.S.C. § 8101 et seq.

life insurance (PRBLI) premiums from her wage-loss compensation; (2) whether OWCP properly
denied waiver of recovery of the overpayment; and (3) whether OWCP properly required recovery
of the overpayment by deducting $731.84 every 28 days from appellant’s continuing compensation
payments.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On January 24, 2010 appellant, then a 44-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed an emotional condition due to factors of
her federal employment, including extreme workplace harassment. On January 20, 2011 OWCP
accepted her claim for major depressive disorder (single episode, severe) and adjustment disorder
(mixed anxiety and depressed mood).
On February 15, 2011 appellant filed a Form CA-2 alleging that she developed an
emotional condition due to retaliation for her prior claim. OWCP denied her claim. Appellant
appealed to the Board and on November 21, 2014,4 the Board found that she had not substantiated
additional factors of employment. By decision dated August 17, 2016, OWCP denied
modification of its prior decisions.
On April 27, 2017 appellant filed a Form CA-2, emotional condition claim, and alleged
overwork. OWCP accepted her claim for aggravation of major depressive disorder, single episode,
and aggravation of PTSD on June 15, 2018.
On June 28, 2017 appellant filed a Form CA-2 alleging that she developed an emotional
condition due to factors of her federal employment. She stopped work on June 11, 2018. OWCP
accepted this claim for aggravation of PTSD, aggravation of major depressive disorder, and
aggravation of adjustment disorder with mixed anxiety and depressed mood on
November 18, 2019.
On August 5, 2017 appellant filed a Form CA-2 for an emotional condition due to
harassment. On July 12, 2019 OWCP accepted her claim for aggravation of major depressive
disorder, recurrent severe without psychotic features, aggravation of adjustment disorder with
mixed anxiety and depressed mood, and aggravation of PTSD.
By decision dated October 10, 2019, OWCP paid appellant wage-loss compensation for
the period February 15, 2011 through February 16, 2012 due to her January 24, 2010 employment
injury.

3

Docket No. 14-1423 (issued November 21, 2014), petition for recon. denied, Docket No. 14-1423 (issued
April 22, 2015); Docket No. 16-1868 (issued March 13, 2017).
4

Id.

2

On April 16, 2020 the Office of Personnel Management (OPM) informed OWCP that
appellant, as a compensationer, was eligible to receive continued life insurance coverage under the
Federal Employees’ Group Life Insurance (FEGLI) program. It notified OWCP that she had
elected PRBLI with no reduction. OPM indicated that the effective date of appellant’s
postretirement deductions was July 6, 2019 and that her final base salary was $64,413.00. OPM
enclosed a FEGLI continuation of life insurance coverage form signed by appellant on January 21,
2020 electing PRBLI basic with no reduction.
On May 15, 2020 OWCP notified appellant of its preliminary determination, that she had
received an overpayment of compensation in the amount of $1,387.89 because it had failed to
deduct PRBLI premiums from her wage-loss compensation for the period July 6, 2019 through
April 25, 2020. It advised that it had not deducted premiums for PRBLI of $142.71 per month or
$1,712.52 per year, resulting in an overpayment of $131.73 every 28 days from July 6, 2019
through April 25, 2020 for a total of 295 days or 10.53 periods. OWCP multiplied $131.73 by
10.53 to reach $1,387.89. It further informed appellant of its preliminary determination that she
was without fault in the creation of the overpayment. OWCP requested that she complete the
enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documents. Additionally, it provided an overpayment action request form and notified appellant
that, within 30 days of the date of the letter, she could request a telephonic conference, a final
decision based on the written evidence, or a prerecoupment hearing.
On May 28, 2020 appellant requested waiver of recovery of the overpayment. She did not
complete the Form OWCP-20. Appellant provided a mortgage, credit union, and insurance
statement and a cable, internet, and utility bill.
On June 2, 2020 OWCP again requested that appellant complete Form OWCP-20. It
afforded her 15 days to respond. Appellant did not respond.
By decision dated June 25, 2020, OWCP finalized its preliminary determination finding
that appellant had received an overpayment of wage-loss compensation in the amount of $1,387.89
for the period July 6, 2019 through April 25, 2020. It found that she was without fault in the
creation of the overpayment, but denied waiver of recovery of the overpayment as there was no
evidence to substantiate that recovery of the overpayment would defeat the purpose of FECA or
be against equity and good conscience. OWCP found that it would recover the overpayment by
deducting $731.84 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA5 provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of his or her
duty.6 When an overpayment has been made to an individual because of an error of fact or law,

5

Supra note 2.

6

5 U.S.C. § 8102(a).

3

adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.7
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in basic life insurance and one or more of the options. 8 The coverage for basic life
insurance is effective unless waived,9 and premiums for basic and optional life coverage are
withheld from the employee’s pay.10 Upon retirement or upon separation from the employing
establishment or being placed on the periodic FECA compensation rolls, an employee may choose
to continue basic and optional life insurance coverage, in which case the schedule of deductions
made will be used to withhold premiums from his or her annuity or compensation payments. 11
Basic insurance coverage shall be continued without cost to an employee who retired or began
receiving compensation on or before December 31, 1989;12 however, the employee is responsible
for payment of premiums for optional life insurance coverage, which is accomplished by
authorizing withholdings from his compensation.13
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).14
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier

7

Id. at § 8129(a).

8

Id. at § 8702(a).

9

Id. at § 8702(b).

10

Id. at § 8707.

11

Id. at § 8706.

12

Id. at § 8707(b)(2).

13
Id. at § 8706(b)(3)(B). See Edward J. Shea, 43 ECAB 1022 (1992) (the Board found that the claimant received
an overpayment of compensation where he elected PRBLI with no reduction and no premiums had been deducted
from his compensation from January 3, 1988 to May 6, 1989). See also Glen B. Cox, 42 ECAB 703 (1991) (the Board
found that an overpayment was created due to no deduction of premiums for optional life insurance for the periods
July 1983 through November 1989).
14

See C.A., Docket No. 18-1284 (issued April 15, 2019); V.H., Docket No. 18-1124 (issued January 16, 2019).

4

employment, he or she filed an election or waiver that remains in effect. 15 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and does
not have that type of optional insurance.16
OWCP’s procedures, regarding PRBLI, provide:
“PRBLI prevents a life insurance benefit reduction at age 65. The default reduction is a
reduction of 75 [percent], but the claimant can elect either ‘No Reduction’ or ‘50 [percent]
Reduction.’ Claimants must elect this coverage when separated or retired form Federal
employment. The coverage is effective immediately, and the premiums continue until
death. Prior to age 65, the claimant must pay for both BLI and PRBLI if it has been
elected.”17
When an under withholding of life insurance premiums occurs, the entire amount is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error.18
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $1,387.89 because OWCP had failed to deduct
PRBLI premiums from her wage-loss compensation for the period July 6, 2019 through
April 25, 2020.
On April 16, 2020 OPM notified OWCP that appellant had elected PRBLI at no reduction.
It enclosed an election form signed by her on January 21, 2020. Based solely on this information,
OWCP found that appellant had received an overpayment of compensation as it failed to deduct
premiums for PRBLI from July 6, 2019 through April 25, 2020.
While in compensationer status, appellant is responsible for all insurance premiums,
including for PRBLI at whatever option selected.19 The Board finds, however, that OWCP failed
to adequately support its determination that she received an overpayment of compensation from
July 6, 2019 through April 25, 2020. OPM failed to provide documentation establishing the date
that appellant had elected PRBLI at no reduction. It enclosed an election form signed by her on
January 21, 2020 electing PRBLI with no reduction. The form does not specify the date of the
effective election. The date that appellant signed the election form, January 21, 2020, is after
15

5 C.F.R. § 870.504(a)(1).

16

Id. at § 504(b).

17

Federal (FECA) Procedure Manual, Part 2, Claims, Compensation Claims, Chapter 2.901.15(c)(3)
(February 2013).
18

5 U.S.C. § 8707(d); D.H., Docket No. 19-0384 (issued August 12, 2019).

19

J.L., Docket No. 14-1094 (issued June 25, 2015).

5

July 6, 2019, the starting date of the overpayment found by OWCP in this case and the date that
OPM indicated that she had elected coverage.
The Board has held that OWCP must document when a claimant elected life insurance
coverage after separation from federal service or retirement in order to establish the fact of
overpayment of compensation.20 In N.J.,21 the Board remanded the case to OWCP for further
development because the evidence was unclear why PRBLI premiums had been deducted as of a
certain date. As OWCP has not factually established that appellant elected PRBLI beginning
July 6, 2019, it has not met its burden of proof to establish that she received an overpayment of
compensation from July 6, 2019 through April 25, 2020 due to its failure to deduct premiums for
PRBLI.22
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $1,387.89 because OWCP had failed to deduct
PRBLI premiums from her wage-loss compensation for the period July 6, 2019 through
April 25, 2020.

20

See generally P.K., Docket No. 18-0913 (issued March 5, 2020); C.P., Docket No. 19-0317 (issued July 1, 2019).

21

Docket No. 13-2164 (issued April 18, 2014).

22
D.P., Docket No. 20-0546 (issued November 19, 2020); P.K., Docket No. 18-0913 (issued March 5, 2020); C.P.,
supra note 20.

6

ORDER
IT IS HEREBY ORDERED THAT the June 25, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: July 14, 2021
Washington, DC

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

Janice B. Askin, 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
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1394
Issued: January 13, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 6, 2009 appellant filed a timely appeal of a March 26, 2009 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration without a
merit review. Because more than one year has elapsed from the last merit decision dated
February 22, 2008 to the filing of this appeal, the Board lacks jurisdiction over the merits of this
case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration
without further merit review.
FACTUAL HISTORY
On December 20, 2007 appellant, then a 43-year-old window/distribution clerk, filed an
occupational disease claim alleging that she developed bilateral carpal tunnel syndrome from her
employment activities. She stopped work on June 20, 2006 for a back condition unrelated to the

present claim and retired on medical disability on August 13, 2007.
establishment controverted the claim.

The employing

On January 9, 2008 the Office advised appellant of the factual and medical evidence
necessary to establish her claim. It allowed her 30 days to submit such evidence.
In a February 4, 2008 statement, appellant indicated that she worked at the employing
establishment from 1986 to June 20, 2006. Her entire career at the employing establishment
required repetitive hand motion. Appellant noted that her window clerk duties consisted of
repetitive opening and closing a cash drawer, reaching to push buttons on window terminals and
typing. She stated that her treating physician diagnosed carpal tunnel syndrome.
In a November 30, 2007 report, Dr. Louis Talbert, a Board-certified internist, noted
appellant’s complaint of bilateral shoulder and wrist pain and numbness in all fingers. He
diagnosed bilateral carpal tunnel syndrome. On December 17, 2007 Dr. Talbert noted that an
electromyogram (EMG) confirmed mild bilateral carpal tunnel syndrome. A December 7, 2007
EMG report from Dr. Mark Cunningham, a Board-certified physiatrist, revealed mild bilateral
carpal tunnel syndrome and no evidence of peripheral neuropathy or ulnar nerve compression
across the elbow in either upper extremity. In a February 5, 2008 report, Dr. Mark Jobe, a
Board-certified orthopedic surgeon, noted appellant’s complaint of bilateral intermittent
numbness in both hands and pain when using her hands. He diagnosed bilateral carpal tunnel
syndrome and left index retinacular ganglion cyst.
In a February 22, 2008 decision, the Office denied appellant’s claim finding that she did
not establish that the claimed carpal tunnel condition was related to her work-related activities.
On February 11, 2009 appellant, through her representative, requested reconsideration
asserting that the Office’s decision should be vacated based on appellant’s statement and the
EMG test results.
In an undated statement, appellant indicated that in April 2006 she informed a coworker
that her hands and arms hurt from pulling a cash drawer open. In May 2006, the Office approved
her back surgery related to an injury claimed three years prior. Appellant stated that her last day
of work was on June 20, 2006 and she underwent back surgery on June 21, 2006. She did not
return to work following surgery and retired on medical disability on August 13, 2007.
However, after stopping work, appellant’s hand pain increased. She advised that Dr. Talbert
diagnosed carpal tunnel syndrome but could not definitively say it was work related. Appellant
further advised that Dr. Jobe did not address whether her carpal tunnel syndrome was work
related. In another undated statement, she reiterated that she informed a coworker of her hand
and arm pain from opening and closing drawers at work. Appellant described her work duties as
a window clerk. She reiterated that she left work on June 20, 2006 for back surgery and did not
return.
In a March 26, 2009 decision, the Office denied appellant’s reconsideration request
without a merit review finding that she did not submit relevant evidence or argument to the issue
of causal relationship.

2

LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a), the Office
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by the Office; or (3) constitute relevant and pertinent new
evidence not previously considered by the Office.1 Section 10.608(b) of the Office regulations
provides that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for
reconsideration without reopening the case for a review on the merits.2
ANALYSIS
In support of her reconsideration request, appellant submitted two statements that
described her job duties as a window clerk and how they contributed to her bilateral carpal tunnel
syndrome. She noted undergoing back surgery for an unrelated claim, which prohibited her from
returning to work. While these statements note aspects of appellant’s work and medical history,
she did not submit any new medical evidence on reconsideration. This is particularly important
as the underlying issue is medical in nature regarding the causal relationship of her employment
duties and whether they caused or aggravated her diagnosed bilateral carpal tunnel syndrome.
Appellant’s statements are not relevant to the underlying medical issue and do not constitute
relevant or pertinent new evidence not previously considered by the Office.3
Although appellant’s attorney asserted that her reconsideration request was based on the
EMG test results, appellant, as noted did not submit any new medical evidence in support of this
assertion. The Board notes that the Office previously considered the EMG report as it was in the
record prior to the February 22, 2008 merit decision.4 Appellant did not show that the Office
erroneously applied or interpreted a point of law nor did she advance a new and relevant legal
argument.
For these reasons, the Office properly denied appellant’s reconsideration request without
a merit review.

1

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

2

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

3

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (where the Board held that new evidence
submitted upon a reconsideration request that does not address the pertinent issue is not relevant evidence); Freddie
Mosley, 54 ECAB 255 (2002).
4

See C.N., 60 ECAB ___ (Docket No. 08-1569, issued December 9, 2008) (evidence or argument that repeats or
duplicates evidence previously of record has no evidentiary value and does not constitute a basis for reopening a
case).

3

CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated March 26, 2009 is affirmed.
Issued: January 13, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southbury, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Katherine Smith, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-353
Issued: June 7, 2007

Case Submitted on the Record

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

JURISDICTION
On November 17, 2006 appellant filed a timely appeal from a November 18, 2005 merit
decision of the Office of Workers’ Compensation Programs that denied her request for surgery.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit decision.
ISSUE
The issue is whether the Office properly refused to authorize appellant’s request for
surgery.
FACTUAL HISTORY
On September 21, 1999 appellant, then a 41-year-old rural mail carrier, sustained injury
to her left back and hip area when she tripped and fell over a pile of mail. She stopped work on
September 22, 1999, briefly returned to work and stopped again on November 3, 1999. The
Office accepted appellant’s claim for left hip contusion and a lumbar disc herniation and paid
appropriate benefits.

Appellant initially sought treatment from Dr. Christopher J. Cassels, a Board-certified
orthopedic surgeon, who diagnosed contusion to the lateral aspect left hip and possible articular
injury. Dr. Cassels referred appellant to Dr. David S. Kloth, a Board-certified anesthesiologist
with a subspecialty certification in pain management. In a March 31, 2000 report, Dr. Kloth
stated that appellant would be a good candidate for an intradiscal treatment. He noted that a
February 2, 2000 discogram revealed mild herniation and an annular tear at L4-5. Dr. Kloth
concluded: “Clearly, her symptoms are related to the degenerative disc disease at L4-5 and this
annular tear. The herniation, although present and perhaps encroaching upon the left L4 root, is
not particularly sizeable and, therefore, if surgery could be avoided, it would probably be in her
best interest.” Appellant underwent intradiscal electrothermal therapy (IDET) treatment at the
L4-5 level on June 2, 2000. In an August 2, 2000 report following the IDET procedure,
Dr. Kloth indicated that appellant continued to have symptoms. He recommended trigger point
injections.
Appellant reported no relief or improvement in symptoms following the IDET procedure.
In a September 6, 2000 report, Dr. Cassels recommended that she consider “surgical intervention
in the form of a lumbar fusion.” He referred appellant to Dr. F. Scott Gray, a Board-certified
orthopedic surgeon.
Dr. Gray examined appellant on September 27, 2000. He noted that diagnostic testing
revealed “degenerative L4-5 disc with annular leaking and bulging to the left side.” Dr. Gray
indicated that appellant’s disc bulge is “still not significant and although it may butt up against
the L5 nerve root, it does n[o]t appear remarkable enough to require surgery in my opinion just
yet.” He recommended epidural treatment. Dr. Gray also noted that appellant’s “surgical option
would include a far lateral discectomy and/or a discectomy and fusion.” Dr. Kloth performed a
second epidural injection. In a November 14, 2000 follow-up report, he indicated that appellant
had not experienced significant relief from the epidural injection and accordingly he was “not
convinced that the current residual symptoms are related to this disc herniation.”
In a November 15, 2000 report, Dr. Gray recommended that appellant continue to
undergo conservative treatment. He indicated that appellant’s situation did not require surgery,
as she had “no new disc herniation, has scar tissue around the left S1 nerve root and has some
very mild annular bulging at L4-5 all of which I do n[o]t believe are minimal to surgical
treatment.” Dr. Gray concluded that, if appellant considered surgery in the future, “it would
have to be some sort of a discectomy and fusion, but I probably would want to try
immobilization on her first. I am not willing to discuss it at this point because I do n[o]t think
she is a good candidate.” In a December 13, 2000 report, Dr. Gray reiterated his opinion that
appellant was not a surgical candidate “based on her lack of size of the disc herniations.”
By letter dated December 18, 2000, the Office informed appellant that she would be
referred for evaluation by a specialist. Dr. Robert J. Orlandi, a Board-certified orthopedic
surgeon, performed a second opinion examination on January 5, 2001. He noted that appellant
had a prior history of sciatica affecting the left leg that was associated with two pregnancies.
Dr. Orlandi concluded that his examination of appellant “did not document the presence of a
disability or the need for additional treatment, including surgery.”

2

In a March 20, 2001 report, Dr. Gray indicated that appellant underwent a magnetic
resonance imaging (MRI) scan, which revealed no significant change in her condition. In a
March 27, 2001 report, Dr. Kloth stated that appellant may require “greater debulking of the
foraminal herniation via a percutaneous laser endoscopic discectomy. We do not perform that
procedure and that would need to be explored elsewhere.” In an April 24, 2001 follow-up report,
Dr. Kloth noted that he had performed a discogram and that he was “not convinced that this
small disc herniation at L4-5 is really the cause of her symptoms and the original provocative
discogram really did not reproduce her symptoms in that regard.”
In a May 22, 2001 report, Dr. Gray stated that appellant’s diagnostic testing results were
not “consistent with anything that I can offer her surgically” and referred her to Dr. Michael J.
Murphy, a Board-certified orthopedic surgeon. In a June 13, 2001 report, Dr. Murphy stated
that, “if all other sources can be ruled out as pain generators, I do not feel that it would be
unreasonable to consider L4-5 disc excision.” On July 27, 2001 Dr. Gray noted Dr. Murphy’s
opinion and stated that appellant had undergone sacroiliac joint treatments to no avail. He
opined that appellant was now a candidate for a percutaneous discectomy trial.
On August 28, 2001 the Office approved appellant’s request for a percutaneous
discectomy. The Office medical adviser reviewed the evidence and concurred that a
percutaneous discectomy was warranted. However, the record reflects that appellant did not
undergo the authorized procedure as she contracted Lyme disease and accordingly postponed her
surgery.
On November 18, 2002 Dr. Gray noted that appellant continued with persistent low back
pain and that it was “possible she may have to consider a discectomy infusion, however, with her
workers’ compensation status, the percentage of success may be less.” In a January 28, 2003
MRI scan report, Dr. Scott Berger, a Board-certified radiologist, diagnosed “stable/persistent left
far lateral/foraminal focal protrusion at L4-5 via an annular tear with mild mass effect upon the
left L4 root on this basis.” On February 11, 2003 Dr. Gray found appellant to be disabled and
recommended surgery. He noted that diagnostic testing results were “consistent with prior MRI
[scan] findings of the extra foraminal borderline foraminal disc herniation to the left sided L4-5.
There is some pressure on the L4 nerve root. This would be consistent with her thigh
discomfort.” Dr. Gray concluded that it was “finally reasonable for her to consider a
microdiscectomy at the L4-5 level. We can either do a partial facet resection or go extra
foraminal, however, nevertheless it is reasonable to try.” Dr. Gray requested that the Office
provide an updated surgical authorization.
On May 27, 2003 the Office referred appellant to Dr. John Mazella, a Board-certified
orthopedic surgeon, for a second opinion examination. In a June 10, 2003 report, Dr. Mazella
indicated that his physical examination of appellant was unremarkable. Upon review of the
January 2003 MRI scan results, he did not see a disc herniation nor did he find impingement or
nerve root deformity. Dr. Mazella characterized the MRI scan as “underwhelming.” He noted
that appellant appeared to have a trigger point, “which is a nonsurgical condition,” in her left
buttock. Dr. Mazella concluded that appellant was not a surgical candidate and able to perform
her full work without restrictions.

3

On July 9, 2003 appellant contended that Drs. Gray, Kloth and Murphy had supported
surgery and she had tried trigger point injections, as Dr. Mazella recommended. In a July 1,
2003 report, Dr. Kloth noted that he had performed trigger point injections in the past and that
appellant was now ready for discectomy surgery. He stated that appellant was no longer seeing
Dr. Gray and that the prior surgery was delayed when she contracted Lyme disease. Dr. Kloth
recommended that appellant undergo the percutaneous discectomy to relieve her L4-5 disc
herniation and a second IDET treatment to relieve her annular tear, at which point she would
have exhausted her treatment options and reached maximum medical improvement. He noted
that appellant had consulted Dr. David L. Kramer, a Board-certified orthopedic surgeon. In a
June 26, 2003 report, Dr. Kramer concluded that, “based on my review of the radiographic data
available, I see no indication to proceed with a microdiscectomy. [Appellant] has minimal disc
protrusion at this level and no L5 nerve root signature on her exam[ination]. I do not believe that
the discectomy procedure would allow her to return to work.” He informed appellant that “given
my opinion that no surgery is indicated, she should prepare herself to return to work.”
In a September 29, 2003 report, the Office medical adviser concurred with Dr. Mazella’s
assessment that surgery was not necessary. The medical adviser stated: “I would not approve
surgery as proposed as there is insufficient evidence to include a disc herniation at L4-5 as the
cause of the claimant’s symptoms. The medical record contains evidence of other pain sites
which may be more consistent with a myofascial pain syndrome unrelated to her [September]
1999 injury.”
By letter dated October 10, 2003, the Office referred appellant for a second opinion
evaluation with Dr. David Bomar, a Board-certified orthopedic surgeon. In an October 28, 2003
report, Dr. Bomar noted examining appellant and diagnosed degenerative disc disease of the
lumbar spine with a bulging L4-5 disc. Regarding whether an L4-5 discectomy was warranted
he stated:
“She has had numerous opinions regarding … surgery on her lower back. In my
opinion, her symptoms and findings do not indicate that her pain is coming from
the L4-5 bulging and lateral herniation, which was seen on her MRI scan. In my
opinion, there is insufficient evidence that this is causing her pain to recommend
surgery directed at the L4-5 disc.”
Dr. Bomar also noted that there was some evidence that appellant’s groin and low back pain
arose several years before the accepted 1999 employment injury. He opined: “Further,
treatment of any type is not indicated. She has had no improvement with any type of treatment
in the past and I think further treatment is unlikely to be of any benefit.”
By decision dated January 30, 2004, the Office denied appellant’s request for surgery
authorization, finding that the weight of the medical evidence rested with Dr. Bomar’s opinion.
On February 11 2004 appellant requested an oral hearing. A hearing was held on
August 30, 2004. In a June 16, 2005 decision, a hearing representative affirmed the denial of the
surgery authorization request.

4

On August 17, 2005 appellant requested reconsideration. She submitted a February 20,
2004 report from Dr. Kloth, noting Dr. Bomar’s findings. Dr. Kloth stated that he disagreed with
Dr. Bomar’s conclusion that the discogram did not demonstrate that appellant’s L4-5 disc
herniation was the cause of her symptoms. He noted that the discogram in question was
“performed many years ago,” and recommended that another discogram be conducted for
diagnostic purposes.
By decision dated November 18, 2005, the Office denied modification of the June 16,
2005 decision.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides for the furnishing
of “services, appliances and supplies prescribed or recommended by a qualified physician”
which the Office, under authority delegated by the Secretary, “considers likely to cure, give
relief, reduce the degree or the period of disability or aid in lessening the amount of monthly
compensation.”1 In interpreting section 8103(a), the Board has recognized that the Office has
broad discretion in approving services provided under the Act to ensure that an employee
recovers from his or her injury to the fullest extent possible in the shortest amount of time.2 The
Office has administrative discretion in choosing the means to achieve this goal and the only
limitation on the Office’s authority is that of reasonableness.3
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.4 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. Proof of causal relationship in a case such as this
must include supporting rationalized medical evidence.5 Therefore, in order to prove that the
surgical procedure is warranted, appellant must submit evidence to show that the procedure was
for a condition causally related to the employment injury and that the surgery was medically
warranted. Both of these criteria must be met in order for the Office to authorize payment.6

1

5 U.S.C. § 8103(a).

2

Dale E. Jones, 48 ECAB 648, 649 (1997).

3

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by the Office is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
4

Debra S. King, 44 ECAB 203, 209 (1992).

5

See id.; Bertha L. Arnold, 38 ECAB 282 (1986).

6

Cathy B. Millin, 51 ECAB 331, 333 (2000).

5

Section 8123(a), in pertinent part, provides: “If there is a 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.”7
ANALYSIS
The Board finds that the case is not in posture for a decision as there is a conflict in the
medical evidence with regard to whether the recommended surgery should be authorized.
The record reflects that appellant’s treating physician, Dr. Gray, previously requested
approval for surgery and that the Office, on August 28, 2001, approved appellant’s request for a
percutaneous discectomy at the L4-5 level. However, appellant contracted Lyme disease and
surgery was not performed. Thereafter, her condition remained symptomatic and she renewed
her request for surgery in 2003. On February 11, 2003 Dr. Gray again recommended surgery
and requested that the Office provide an updated surgical authorization.
Drs. Mazella and Bomar, Office referral physicians, examined appellant and found that
the requested surgery was not medically warranted. In a June 10, 2003 report, Dr. Mazella stated
that his review of diagnostic testing did not reveal a disc herniation. He opined that the proposed
surgery would not aid appellant in returning to work and that she could perform work full duty.
In an October 28, 2003 report, Dr. Bomar concluded that surgery was not appropriate as there
was insufficient evidence to determine that the disc herniation and bulging were, in fact, the
cause of her symptoms.
The Board finds that there is a conflict in the medical evidence between Dr. Gray, for
appellant, and Drs. Mazella and Bomar, for the Office, regarding whether appellant’s request for
surgery should be authorized. Due to the unresolved conflict of the medical opinion, the Office
should refer appellant to an appropriate Board-certified specialist to resolve this issue. After this
and such other development as the Office deems necessary, the Office should issue an
appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision, due to a conflict in the
medical evidence, with regard to whether appellant’s proposed surgery is medically necessary.

7

5 U.S.C. § 8123(a).

6

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2005 decision is set aside and
the case is remanded to the Office of Workers’ Compensation Programs for further action
consistent with this opinion.
Issued: June 7, 2007
Washington, DC
Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
HUDSON POSTAL STATION, Modesto, CA,
Employer
__________________________________________

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

Docket No. 13-1300
Issued: November 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 7, 2013 appellant filed an appeal of a December 4, 2012 decision of the Office
of Workers’ Compensation Programs (OWCP) denying his claim and a February 4, 2013
decision denying his request for a hearing as untimely. 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 the claim.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s traumatic injury claim on
the grounds that fact of injury was not established; and, (2) whether it properly denied his request
for a hearing as untimely.
On appeal, appellant asserts that he was injured in the performance of duty on August 31,
2012 although he was initially confused about the date. He alleged that a supervisor tried to
1

5 U.S.C. § 8101 et seq.

prevent him from receiving state unemployment benefits after removing him for attendance
issues related to the injury.
FACTUAL HISTORY
On September 28, 2012 appellant, then a 40-year-old distribution clerk, filed a claim for
traumatic injury (Form CA-1) asserting that he sustained a left shoulder injury on “Aug not sure
2012” when the pallet jack he was operating malfunctioned. He filed a second Form CA-1 on
October 19, 2012, asserting that the injury occurred on August 31, 2012. The employing
establishment controverted the claim, contending that appellant could not recall the date of injury
and did not report it until September 24, 2012.
Supervisor M.M. submitted a September 28, 2012 statement noting that on an unspecified
date, appellant asked for another pallet jack as one had broken under an overweight load.
Appellant called in sick on August 30, 2012 asserting that, while swimming after work, he
aggravated a prior shoulder injury sustained in a motorcycle accident. Supervisor C.A.
submitted a September 28, 2012 statement noting that on an unspecified date appellant informed
her that he hurt his shoulder while dropping papers and that a pallet jack had broken.
In a September 27, 2012 statement, appellant stated that the incident with the pallet jack
occurred “several weeks ago” and that he told Supervisor C.A. on September 26, 2012 that he
intended to seek medical treatment.
Dr. Alexis Dasig, an attending physician specializing in occupational medicine, provided
a September 28, 2012 report relating appellant’s account of an August 28, 2012 injury that
occurred when the floor of the pallet jack he was operating dropped unexpectedly, jerking his left
shoulder. He diagnosed a frozen left shoulder and probably torn left rotator cuff.
In a September 28, 2012 letter, appellant stated that he “can’t remember the date” of the
incident, but that it occurred when a pallet jack malfunctioned while his team was offloading a
truck. He asserted that he informed Supervisor C.A. of the injury when it occurred.
By October 30, 2012 letter, OWCP advised appellant of the evidence needed to establish
his claim, including factual evidence corroborating the claimed incident and a statement from his
physician supporting that the incident would cause the claimed left shoulder injury. In response,
appellant submitted reports from Dr. Dasig dated from October 1 to November 9, 2012,
repeating appellant’s account of an August 28, 2012 workplace incident in which he injured his
left shoulder when a pallet jack dropped unexpectedly.
In a November 20, 2012 statement, appellant recalled that on September 28, 2012 he told
Dr. Dasig about an accident occurring “around the end of August … around August 28.” After
further reflection, he believed that the incident occurred on August 31, 2012. Appellant asserted
that he told supervisor C.A. of the left shoulder injury at the time of the incident and four weeks
later when he sought medical treatment. He noted that he injured his right hand in a June 2012
motorcycle accident but did not sustain a left shoulder injury at that time.
By decision dated December 4, 2012, OWCP denied the claim finding that the factual
evidence did not support that the claimed August 2012 incident occurred at the time, place and in
2

the manner alleged. It noted that the factual evidence contained several conflicting dates and
accounts of the mechanism of injury. OWCP cautioned that even if appellant were to establish
the claimed incident as factual, the medical evidence did not explain why that incident would
cause the claimed left shoulder injury.
In a January 4, 2013 letter, appellant requested a telephonic oral hearing. He submitted
June 14, 2012 hospital records regarding abrasions and a right scaphoid fracture caused by a
motorbike accident. Appellant also submitted a December 31, 2012 report and an undated note
from Dr. Dasig diagnosing a frozen left shoulder.
By decision dated February 4, 2013, OWCP denied appellant’s January 4, 20132 request
for a hearing on the grounds that it was not timely filed within 30 days of the December 4, 2012
decision. It exercised its discretion by performing a limited review of the evidence and further
denied his request as the issue in the case could be addressed equally well pursuant to a valid
request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.6
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.7

2

OWCP noted that as it did not retain the postmark from appellant’s request for hearing, it would utilize
January 4, 2013, the date appellant signed his hearing request.
3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

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

3

ANALYSIS -- ISSUE 1
Appellant claimed that he sustained a left shoulder injury at work when a pallet jack
malfunctioned. However, he provided several conflicting dates for the claimed incident.
Appellant noted in a September 27, 2012 statement that the injury occurred “several weeks ago”
but that he informed his supervisor on the unspecified date of injury. In his September 28, 2012
claim form, he stated that he injured his left shoulder on “Aug not sure 2012.” Similarly,
appellant noted in a September 28, 2012 letter that he could not remember the date of the
incident. His October 19, 2012 claim form lists August 31, 2012 as the date of injury. Appellant
affirmed the August 31, 2012 date in a November 20, 2012 statement.
The employing establishment contended that appellant did not report a left shoulder
injury until September 24, 2012. Supervisor M.M. noted that appellant reported a broken pallet
jack but not a left shoulder injury. Instead, appellant called in sick on August 30, 2012 asserting
that he injured his shoulder while swimming, aggravating a prior injury sustained in a
motorcycle accident. Supervisor C.A. noted that appellant informed her that he hurt his shoulder
while dropping papers and that a pallet jack had broken, but did not recall the date of this
conversation. Both supervisory statements differ significantly from appellant’s account of
events.
The Board notes that OWCP advised appellant by October 30, 2012 letter of the evidence
needed to establish his claim, including factual corroboration identifying the date of the claimed
incident. However, appellant did not submit such evidence. The Board finds that, due to the
conflicting evidence regarding the time, place and manner in which the alleged incident
occurred, he has not established his claim.8 Therefore, OWCP’s December 4, 2012 decision was
appropriate under the law and facts of the case.
The Board notes that Dr. Dasig, an attending physician specializing in occupational
medicine, provided several repots relating appellant’s account of an August 28, 2012 workplace
injury. However, as appellant failed to establish the threshold issue of fact of injury, it is
premature to address the secondary issue of causal relationship by reviewing the medical
evidence in this case.
On appeal, appellant asserts that he was injured in the performance of duty on August 31,
2012 although he was initially confused about the date. He alleged that a supervisor tried to
prevent him from receiving state unemployment benefits after removing him for attendance
issues related to the injury. As stated above, the factual inconsistencies in appellant’s versions of
events and the lack of contemporaneous evidence cast significant doubt on the validity of the
claim. The Board notes that it has no jurisdiction over state unemployment benefits.
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.

8

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

4

LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of OWCP. Section 8124 (b)(1) provides as follows: “Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary
under subsection (a) of this section is entitled, on request made within 30 days after the date of
issuance of the decision, to a hearing on his claim before a representative of the Secretary.”
A claimant is not entitled to a hearing if the request is not made within 30 days of the
date of issuance of the decision as determined by the postmark or other carrier’s date marking of
the request.9 OWCP has discretion, however, to grant or deny a request that is made after this
30-day period.10 In such a case, it will determine whether to grant a discretionary hearing and, if
not, will so advise the claimant with reasons.11
ANALYSIS -- ISSUE 2
OWCP denied appellant’s traumatic injury claim by decision issued December 4, 2012.
Appellant’s letter requesting a hearing was dated January 4, 2013, more than 30 days after
issuance of the December 4, 2012 decision.12 Thus, OWCP properly found that his request for
an oral hearing was not timely filed under section 8124(b)(1) of FECA and that he was not
entitled to a hearing as a matter of right.
OWCP then exercised its discretion and denied appellant’s request for a hearing on the
additional grounds that he could address the fact of injury issue in his case equally well by
submitting relevant evidence accompanying a valid request for reconsideration. Because
reconsideration exists as an alternative appeal right to address the issues raised by OWCP’s
decision, the Board finds that OWCP did not abuse its discretion in denying appellant’s untimely
request for an oral hearing.13
CONCLUSION
The Board finds that appellant has not established that he sustained a left shoulder injury
in the performance of duty due to inconsistencies in the evidence regarding the occurrence of the
alleged incident. The Board further finds that OWCP properly denied appellant’s request for a
hearing as untimely.

9

20 C.F.R. § 10.616(a).

10

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

11

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

12

The 30th day was Thursday, January 3, 2013.

13

See Gerard F. Workinger, 56 ECAB 259 (2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 4, 2013 and December 4, 2012 are affirmed.
Issued: November 8, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6