United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant son of J.B.
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE,
CARL ALBERT INDIAN HOSPITAL, Ada, OK,
Employer
__________________________________________

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

Docket No. 19-0700
Issued: March 16, 2021

Case Submitted on the Record

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

JURISDICTION
On February 15, 2019 appellant filed a timely appeal from a December 4, 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

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 4, 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.

ISSUES
The issues are: (1) whether OWCP properly determined that the employee received an
overpayment of compensation for which she was not at fault in the amount of $13,118.79 during
the period October 5, 1987 through June 23, 2018 because post-retirement basic life insurance
(PRBLI) premiums were not properly deducted from her FECA wage-loss compensation; and
(2) whether OWCP properly denied appellant’s request for waiver of recovery of the overpayment.
FACTUAL HISTORY
On May 14, 1982 the employee, then a 49-year-old respiratory therapist, filed an
occupational disease claim alleging that her preexisting systemic lupus erythematosus was
aggravated by factors of her federal employment.3 OWCP accepted aggravation of systemic lupus
erythematosus. The employee worked intermittently until December 20, 1985. OWCP thereafter
paid the employee on the periodic compensation rolls.
Appellant underwent an authorized liver transplant on January 4, 1999. OWCP
subsequently expanded its acceptance of the claim to include aggravation of cholangitis,
aggravation of spinal stenosis (lumbar region), osteoporosis, irritable bowel syndrome,
hypertension, and long-term use of steroids. On June 13, 2001 she underwent authorized lumbar
decompression surgery.
The employee continued to receive wage-loss compensation and medical benefits for her
accepted conditions.
On June 29, 2018 appellant, the employee’s son, notified OWCP that the employee had
passed away on June 27, 2018 and OWCP provided a form for his completion regarding the
employee’s death. On July 16, 2018 OWCP received the completed form, signed and dated by
appellant on July 11, 2018. Appellant identified himself as the administrator or executor of the
employee’s estate and named the beneficiaries. A copy of the employee’s death certificate was
attached.
OWCP subsequently received a PRBLI election form signed by the employee on
November 25, 1985 indicating her selection of PRBLI at “no reduction.” The form also indicates
that the employee selected life insurance options A and B. The record includes undated
correspondence from the Office of Personnel Management (OPM) confirming this selection.
On August 2, 2018 OWCP calculated the amount of appellant’s life insurance premiums
that should have been deducted for the period October 5, 1987 through June 23, 2018. It attached
the employee’s compensation payment history from February 24, 1985 through June 23, 2018,
which showed no deductions made for PRBLI during that period.

3

OWCP assigned File No. xxxxxx611 to the present claim. The employee also has a claim filed on December 14,
1983, assigned File No. xxxxxx911. OWCP administratively combined the two files on July 24, 1986, with File No.
xxxxxx611 serving as the master file.

2

On October 15, 2018 OWCP advised the employee’s estate of its preliminary
determination that an overpayment of compensation in the amount of $13,118.79 had been created
for the period October 5, 1987 through June 23, 2018 because it had not adjusted the employee’s
wage-loss compensation to reflect PRBLI at no reduction. It explained the calculation of the
overpayment and found the employee not at fault in the creation of the overpayment. OWCP
advised appellant that he could request a prerecoupment hearing before a representative of
OWCP’s Branch of Hearings and Review, or a final decision based on the written evidence. It
attached an overpayment action request, an overpayment recovery questionnaire (Form OWCP20), OPM’s correspondence, calculation worksheets, and documents showing the employee’s
compensation history.
In a November 6, 2018 response, appellant asserted that the employee was not aware of an
overpayment during her lifetime and requested waiver of recovery of the overpayment. He
maintained that repayment would cause undue financial hardship to the estate. Appellant
forwarded a completed Form OWCP-20, indicating that the employee had monthly income of
$2,178.00 from OWCP and $1,400.00 in Social Security Administration (SSA) benefits for a total
income of $3,578.00. He listed monthly expenses of $6,701.50 for the employee’s nursing home
fee and noted that at the time of her death she had $8,141.39 in a checking account. He submitted
a bank statement that showed a direct deposit of $2,178.90 from the Treasury Department on
May 25, 2018 and a $1,400.00 direct deposit from SSA on June 1, 2018. Automatic debits for
nursing home fees were $5,257.76 on May 24, 2018 and $6,701.50 on June 13, 2018. Debits for
medical treatment dated May 22, June 5 and 20, 2018 totaled $164.60. It also showed a
miscellaneous debit of $30.04 for cable. The bank statement showed a balance of $8,141.39 on
June 5, 2018.
By decision dated December 4, 2018, OWCP finalized its determination that an
overpayment of compensation in the amount of $13,118.79 was created because no deductions
were made for PRBLI for the period October 5, 1987 through June 23, 2018. It explained its
calculations and found the employee not at fault, but denied waiver of recovery of the
overpayment. OWCP indicated that the overpayment could not be waived because there was no
evidence to substantiate that adjustment or recovery would defeat the purpose of FECA or be
against equity and good conscience. The decision was addressed to the estate of the employee.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that the United States shall pay compensation for the disability or death of
an employee resulting from personal injury sustained while in the performance of his or her duty.4
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.5
Under the Federal Employees’ Group Life Insurance (FEGLI) program, most civilian
employees of the Federal Government are eligible to participate in basic life insurance (BLI) and
4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

3

one or more of the options.6 The coverage for BLI is effective unless waived,7 and premiums for
basic and optional life coverage are withheld from the employee’s pay.8 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.9
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. Regulations at 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).10
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
employment, he or she filed an election or waiver that remained in effect.11 An employee who
does not file a life insurance election form 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.12
When an underwithholding 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.13
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
6

Id. at § 8702(a).

7

Id. at § 8702(b).

8

Id. at § 8707.

9

Id. at § 8706.

10

See D.H., Docket No. 19-0384 (issued August 12, 2019).

11

20 C.F.R. § 870.504(a)(1).

12

Id. at § 870.504(b).

13

5 U.S.C. § 8707(d); see also D.R., (G.R.), Docket No. 19-1675 (issued October 8, 2020); D.H., supra note 10.

4

OWCP’s preliminary determination notified the employee’s estate that the employee had
received an overpayment of compensation in the amount of $13,118.79. OWCP’s procedures in
effect at the time of OWCP’s December 4, 2018 decision, provide for recovery from a deceased
debtor’s estate.14 The procedures specifically require that, if the claimant recently passed away,
OWCP should refer the debt to the financial management system (FMS) for offset of the deceased
claimant’s last federal tax refund under the Treasury’s Offset Program (TOP).15 OWCP has a
special profile with FMS under TOP for the collection of these specific estate debts. The claims
examiner should follow the referral procedures set forth in Chapter 6.500.12,16 including sending
the complete referral package to the National Office for final review and forwarding to the FMS.17
The evidence of record does not substantiate that actions OWCP has taken to recover the
overpayment debt include referral to FMS for appropriate offset under the TOP prior to taking
overpayment actions against the employee’s estate. It did not refer the debt to FMS for offset of
the deceased employee’s last federal tax refund under the TOP. Although OWCP has demanded
repayment of the overpayment in full, the Board cannot make an informed decision regarding the
amount of overpayment to be collected against the estate.18 The case shall therefore be remanded
to OWCP to follow all procedures as outlined in Chapter 6.500.15 of its procedure manual.
Following this and any other further development as deemed necessary, OWCP shall issue a
de novo decision.
For these reasons, the Board finds that OWCP improperly determined that the employee
received an overpayment of compensation for which she was not at fault in the amount of
$13,118.79 during the period October 5, 1987 through June 23, 2018.
CONCLUSION
The Board finds that this case is not in posture for decision.19

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.15
(September 2018).
15

31 C.F.R. § 285.2; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter
6.500.15(g)(1)-(7) (September 2018); see also W.J., Docket No. 18-1035 (issued July 9, 2019).
16

Id. at Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.12 (September 2018).

17

Id.

18

See W.J., Docket No. 18-1035 (issued July 9, 2019).

19

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the decision dated December 4, 2018 is set aside and
this case is remanded for further proceedings consistent with this decision of the Board.20
Issued: March 16, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

20

Christopher J. Godfrey, Deputy Chief Judge, was no longer a member of the Board after January 20, 2021.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 07-2330
Issued: March 3, 2008

Case Submitted on the Record

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

JURISDICTION
On or about August 18, 2007 appellant filed a timely appeal from the January 18 and
August 9, 2007 merit decisions of the Office of Workers’ Compensation Programs, which denied
compensation for wage loss. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant’s disability for work beginning November 15, 2001 was
causally related to his October 15, 2001 employment injury.
FACTUAL HISTORY
On October 15, 2001 appellant, then a 67-year-old temporary part-time food service
worker, sustained an injury in the performance of duty: “While unloading bags of trash

something pull or string in the low part of my back, while lifting bags.” The Office accepted his
claim for aggravation of lumbar strain.1
On October 16, 2001 appellant presented a note from a physician’s assistant indicating
light duty until October 30, 2001. His supervisor assigned light duty: “I assigned [him] to wash
soup bowls, later I assigned [him] to scrapping, while scrapping [he] is not required to lift more
than [two to three] pounds.” On November 1, 2001 another physician’s assistant wrote: “Due to
back injury [appellant] needs to have light work duties only. No lifting, bending, kneeling,
stooping over or overhead work. [Appellant] to be reevaluated after x-rays in [two] weeks.” On
November 19, 2001 Dr. Hameed Zafar, a family physician, reported that appellant could perform
modified duty: Appellant was to avoid bending, crouching, kneeling and squatting and he was
permitted occasionally to push and pull and lift 10 pounds.
On November 15, 2001 the employing establishment notified appellant that his temporary
employment was being terminated effective the close of business on December 7, 2001.
Appellant was immediately placed in a paid administrative leave status through December 7,
2001, on which date he was separated for cause.2 On December 20, 2001 the Chief of the
Nutrition and Food Service reported:
“On November 20, 2001 I received a document from [appellant] dated
November 15, [sic] 2001. The medical certificate places [him] on light duty with
no lifting, bending, kneeling, stooping over or overhead work. If [appellant] were
on duty we would have provided him with a position to accommodate his
light[-]duty requirements. Since he was in an administrative leave status, [he]
was in a paid leave status not associated with his injury claim.”
On a form report dated December 7, 2001, Dr. Alan Charnelle, a neurologist, related
appellant’s history of injury. He diagnosed lumbar spine sprain, degenerative disease, right hip
degenerative disease, rule out radiculopathy. Dr. Charnelle indicated with an affirmative mark
that his findings and diagnosis were consistent with appellant’s account of injury. He reported
that appellant was temporarily totally disabled until December 15, 2001 “estimated.”
Dr. Charnelle obtained an electromyogram and nerve conduction study on December 11, 2001,
which showed lumbar spine radiculopathy at the L3-4, L4-5 and L5-S1 levels.
On January 23, 2002 Dr. Hrair E. Darakjian, an orthopedic surgeon, diagnosed an L4-5
right-sided disc herniation with radiculitis, which he stated appeared to be an acute injury. He
extended appellant’s disability for two weeks. On a form report dated February 14, 2002
Dr. Darakjian indicated with an affirmative mark that appellant’s L4-5 herniated disc with
radiculitis was a result of employment activity. He indicated that appellant was totally disabled
for work from November 14, 2001 through the present. On May 17, 2002, however,
Dr. Darakjian indicated on another form report that appellant’s lumbar radiculitis was not the
result of employment activity.

1

Appellant injured his back in Korea in 1955 and had a service-connected disability rating of 70 percent.

2

In 2006, appellant would claim that he resigned his job on November 14, 2001.

2

Appellant filed a claim for wage-loss compensation beginning November 15, 2001.3
In a decision dated January 18, 2007, the Office denied appellant’s claim for
compensation. The Office found that appellant was not physically unable to perform light duty
due to residuals of the work injury and found no evidence that he was terminated because he was
physically unable to perform his assigned duties.
Appellant requested an oral hearing before an Office hearing representative, which was
held on May 22, 2007. He submitted a January 18, 2002 letter from the employing
establishment:
“The following information is for use in verifying income from the [employing
establishment.]
“This is to verify that [appellant] is rated ‘Permanently and Totally’ disabled due
to nonservice-connected [sic] causes. Effective December 1, 2001 and presently
he receives $583.00 monthly in [employing establishment] disability pension
benefits.”
Appellant also submitted, among other things, a January 23, 2002 form report from
Dr. Darakjian, who diagnosed L4-5 herniated nucleus pulposus and stenosis. Dr. Darakjian
indicated with an affirmative mark that appellant’s condition was caused or aggravated by
employment activity. He also indicated that appellant was totally disabled for work from
November 14 through December 31, 2001.4
In a decision dated August 9, 2007, an Office hearing representative affirmed the denial
of appellant’s claim for compensation beginning November 15, 2001.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act pays compensation for the disability of an
employee resulting from personal injury sustained while in the performance of duty.5
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.6 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in his employment, he is entitled to
compensation for any loss of wage-earning capacity resulting from such incapacity.7
3

Appellant worked four hours on November 14, 2001. November 15 and 16, 2001 were his days off. Appellant
was credited with paid administrative leave beginning November 17, 2001.
4

Dates in the report, including the date of the doctor’s signature, appear to have been rewritten or changed or
corrected without Dr. Darakjian’s signature.
5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f) (1999).

7

Bobby W. Hornbuckle, 38 ECAB 626 (1987).

3

A claimant seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim by the weight of the evidence,8 including that he sustained an
injury in the performance of duty and that any specific condition or disability for work for which
he claims compensation is causally related to that employment injury.9 This burden requires
furnishing medical evidence from a physician who, on the basis of a complete and accurate factual
and medical history, concludes that the disabling condition is causally related to the employment
injury and who supports that conclusion with sound medical reasoning.10 When a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, that opinion has
little probative value and is insufficient to establish causal relationship.11
ANALYSIS
The issue raised by appellant’s claim for wage-loss benefits is whether any disability for
work on or after November 15, 2001 was causally related to October 15, 2001, when he
unloaded bags of trash.
Appellant initially submitted reports from a physician’s assistant. However, it is well
established that a physician’s assistant is not a “physician” as defined under the Act.12 Causal
relationship is a medical issue and can be established only by the medical evidence. To support
his claim, appellant has submitted several medical form reports from a physician’s assistant but
these reports are insufficient to establish causal relationship. Moreover, the reports from
Dr. Zafar, the family physician, Dr. Charnelle, the neurologist, and Dr. Darakjian, the orthopedic
surgeon, do not provide a complete or accurate factual and medical history or demonstrate an
understanding of what happened on October 15, 2001. They do not address appellant’s duties and
physical limitations after October 15, 2001 or acknowledge that the employing establishment
placed appellant on paid administrative leave effective November 15, 2001 pending his separation
for cause on December 7, 2001. The medical evidence lacks a sound explanation of how the
October 15, 2001 aggravation of lumbar strain became totally disabling on or about
November 15, 2001, such that appellant could no longer physically perform his assigned light
duties.
The medical evidence of record is inconsistent on this issue. Dr. Zafar reported on
November 19, 2001 that appellant could perform modified duties. But Dr. Darakjian reported on
January 23 and February 15, 2002 that appellant was totally disabled as of November 14, 2001.
On May 17, 2002 he contradicted himself by indicating that appellant’s disabling lumbar
radiculitis was not the result of his employment activities.

8

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

9

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

10

See John A. Ceresoli, Sr., 40 ECAB 305 (1988). Causal relationship is medical in nature and can be established
only by medical evidence. Ausberto Guzman, 25 ECAB 362 (1974).
11

E.g., Lillian M. Jones, 34 ECAB 379 (1982).

12

See 5 U.S.C. § 8101(2). See also Allen C. Hundley, 53 ECAB 551 (2002).

4

Appellant submitted a narrative report from Dr. Darakjian dated January 23, 2002, who
stated that appellant’s L4-5 right-sided disc herniation with radiculitis appeared to be an acute
injury. Dr. Darakjian did not explain and he did not relate this disc herniation to what happened
on October 15, 2001.13 The Board finds that this report is not well reasoned and offers little if
any support for appellant’s claim for compensation.
Appellant also submitted a January 18, 2002 letter from the employing establishment
indicating that he was rated “Permanently and Totally” disabled and that he was receiving,
disability pension benefits effective December 1, 2001. His disability rating or entitlement to
disability pension benefits is not determinative of his entitlement to workers’ compensation
benefits under the Act.14 To establish entitlement to compensation benefits under the Act, the
weight of the medical evidence must establish that appellant was totally disabled for work on or
about November 15, 2001 as a result of his October 15, 2001 employment injury, not as a result of
his preexisting and significant service-related low back condition. The medical evidence submitted
does not establish the necessary causal relationship.
Because the medical evidence does not establish the critical element of causal
relationship, the Board will affirm the Office decisions denying compensation.15
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his
disability for work beginning November 15, 2001 was causally related to his October 15, 2001
employment injury.

13

The Office accepted appellant’s claim for aggravation of lumbar strain, not a herniated disc. If appellant claims
compensation as a result of a disc herniation, he bears the burden of proof to establish through well-reasoned
medical opinion evidence that any such disc herniation was causally related to what happened on October 15, 2001.
14

See Freddie Mosley, 54 ECAB 255 (2002); Raj B. Thackurdeen, 54 ECAB 396 (2003).

15

In his May 17, 2002 report, appearing at page 257 of the record, Dr. Darakjian indicated with a mark that
appellant’s lumbar radiculitis was not caused or aggravated by employment activity. On appeal, however, appellant
submitted a copy of this same report with the negative mark “whited out” and replaced with an affirmative mark.
There are other alterations. None of the alterations are signed by Dr. Darakjian.

5

ORDER
IT IS HEREBY ORDERED THAT the August 9 and January 18, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 3, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 11-918
Issued: January 19, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 22, 2011 appellant filed a timely appeal from a merit decision of the Office
of Workers’ Compensation Programs (OWCP) dated August 30, 2010. 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 established that he had disability caused by residuals of his
accepted acute stress disorder and post-traumatic stress disorder conditions following the
termination of compensation benefits on March 9, 2009.
FACTUAL HISTORY
This is the second appeal before the Board. Appellant, then a 30-year-old city carrier, was
physically assaulted by his supervisor on July 5, 1997. He filed a claim for benefits, which OWCP
1

5 U.S.C. § 8101 et seq.

accepted for acute stress disorder and post-traumatic stress disorder. Appellant has not returned to
work since the date of injury. OWCP paid compensation for temporary total disability. By
decision dated June 28, 2000, it reduced appellant’s compensation on the grounds that he was no
longer totally disabled for work due to the effects of his July 5, 1997 employment injury and that
the evidence of record showed that the position of construction painter represented his wageearning capacity. By nonmerit decision dated November 16, 2000, OWCP denied reconsideration
of the June 28, 2000 decision. In an April 10, 2002 decision,2 the Board affirmed the June 28 and
November 16, 2000 OWCP decisions. The complete facts of this case are set forth in the Board’s
April 10, 2002 decision and are herein incorporated by reference.
In order to determine appellant’s current condition and ascertain whether he still suffered
residuals from his accepted conditions, OWCP referred appellant for a second opinion
examination with Dr. Saul Z. Forman, a Board-certified psychiatrist. In a November 5, 2008
report, Dr. Forman reviewed the medical history and the statement of accepted facts and stated
findings on examination. He stated that appellant was not currently experiencing symptoms or
problems from any previously diagnosed condition; in addition, appellant told Dr. Forman that
he did not believe he needed mental health care. Appellant stated that his most recent treatments
were in 2000, that he did not currently take any medication for physical or mental health
problems, and that he had not been treated by a physician since 2001. While Dr. Forman noted a
past history of traumatic stress disorder, acute stress disorder, and character disorder, he opined
that these conditions were currently in remission and had resolved; this opinion was based on
appellant’s present behavior and his recent history of not requiring healthcare. He stated that he
was no longer disabled and had no work restrictions stemming from his date-of-injury job as a
letter carrier. Dr. Forman recommended that appellant did not need any continued care.
On December 18, 2008 OWCP issued a notice of proposed termination of compensation
to appellant. It found that the weight of the medical evidence, as represented by Dr. Forman’s
referral opinion, established that his accepted acute stress disorder and post-traumatic stress
disorder conditions had ceased and that he had no work-related residuals stemming from these
conditions.
By decision dated March 9, 2009, OWCP terminated appellant’s compensation for
medical benefits, finding that Dr. Forman’s opinion that represented the weight of the medical
evidence.
By letter dated March 25, 2009, appellant requested an oral hearing.
By decision dated June 26, 2009, OWCP’s hearing representative affirmed the March 9,
2009 termination decision.
In a letter dated June 1, 2010, appellant requested reconsideration. He contended that
OWCP erred in its March 9, 2009 decision by ignoring the findings of decisions rendered by the
Equal Employment Opportunity (EEO) Commission, dated November 3, 2003, September 19,
2005 and March 24, 2006. Appellant submitted copies of these determinations, which

2

Docket No. 01-877 (issued April 10, 2002).

2

adjudicated complaints he had filed against the employing establishment. All of these claims
were denied.
By decision dated August 30, 2010, OWCP denied modification of the March 9, 2009
and June 26, 2009 decisions.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.3 Following a
proper termination of compensation benefits, the burden of proof shifts back to claimant to
establish continuing employment-related disability.4
ANALYSIS
OWCP, in its March 9, 2009 decision, relied on the November 5, 2008 report of
Dr. Forman, OWCP’s referral examiner, to find that appellant’s accepted acute stress disorder
and post-traumatic stress disorder conditions had ceased and that he no longer had any residuals
from these conditions. The Board’s jurisdiction is limited to decisions of OWCP issued no more
than 180 days prior to notice of appeal to the Board, therefore the Board does not have
jurisdiction to review the June 26, 2009 decision affirming the termination of appellant’s
compensation benefits, as of March 9, 2009.5 The only issue before the Board is whether
appellant has established continuing disability after March 9, 2009.
Following the termination of compensation benefits, appellant did not submit any
additional medical evidence supporting that he had any continuing disability caused by residuals
of the accepted employment conditions. Thus OWCP properly found in its August 30, 2010
decision that he failed to submit evidence sufficient to establish continuing disability.6
Appellant did submit arguments and copies of EEO decisions to the record alleging that
he should be reinstated by the employing establishment, and that it had discriminated against him
by terminating his employment. These documents are not relevant to the Board’s disposition.
The EEO decisions are not medical reports. The only issue arising under FECA is whether
appellant has established, with medical evidence, that he had continuing disability after
March 9, 2009.

3

Mohamed Yunis, 42 ECAB 325, 334 (1991).

4

John F. Glynn, 53 ECAB 562 (2002).

5

20 C.F.R. § 501.3(e).

6

The Board notes that appellant submitted additional evidence to the record following the August 30, 2010
decision. The Board’s jurisdiction is limited to a review of evidence which was before OWCP at the time of its final
review. 20 C.F.R. § 501.2(c)(1).

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish continuing
disability.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 19, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L. Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

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

Docket No. 10-2170
Issued: June 10, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant, through her representative, filed a timely appeal from a
July 21, 2010 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the
Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
occupational disease in the performance of duty.
FACTUAL HISTORY
On January 6, 2010 appellant, then a 52-year-old modified mail processing clerk, filed an
occupational disease claim alleging that she sustained a herniated cervical intervertebral disc and
1

5 U.S.C. § 8101 et seq.

cervicalgia due to repetitive strain. She became aware of her condition on February 22, 2008 and
its relationship to her employment on November 30, 2009. Appellant did not stop work.2 The
employing establishment controverted her claim on the grounds that she did not furnish medical
evidence supporting a work-related injury.
In a statement dated January 4, 2010, appellant detailed that she was with the employing
establishment for almost 22 years, primarily as a mail carrier and distribution clerk. Her various
duties included casing, sorting and stamping mail, performing computer-oriented tasks and
scanning with a three-pound handheld device for 40 hours each week. As use of the scanner
bothered her neck, shoulders and arms, appellant eventually worked with restrictions. She was
diagnosed with carpal tunnel syndrome in October 2007, having experienced pain and tingling in
both hands. Appellant was later advised by her physician that these symptoms may have
emanated from a neck problem.
The Office informed appellant on January 15, 2010 that additional evidence was needed
to establish her claim. It gave her 30 days to submit medical reports describing the history of
injury, examination findings, diagnosis and course of treatment as well as offering a physician’s
reasoned opinion as to how employment factors caused or aggravated the injury.
Appellant provided medical evidence that included a January 1, 1994 work status note
from Dr. John Thompson, an internist, who excused her from work on January 3, 1994 due to
torticollis. In a November 30, 2009 treatment record, Dr. Atanase Craciun, a Board-certified
neurologist, diagnosed cervical pain, cervalgia and a herniated cervical disc. He referred
appellant for physical therapy. January 27, 2004 medical forms from Dr. Daniel A. Breitenbach,
an internist, stated that appellant sustained right and left shoulder strains on December 10, 1999
and December 9, 2003, respectively. Dr. Breitenbach also listed appellant’s work restrictions.
By decision dated February 16, 2010, the Office denied appellant’s claim, finding the
medical evidence insufficient to demonstrate that employment factors caused or contributed to
her condition.
Appellant continued submitting evidence. In a December 13, 2003 narrative statement,
she stated that she began casing mail in December 1999, which entailed repetitive reaching and
grasping laterally and above her head. This led to shoulder and neck discomfort and eventually
spasms by December 2003. Appellant also submitted additional medical evidence. In a
February 17, 1998 emergency report from Dr. Peter King, a Board-certified emergency
physician, she presented with right shoulder and posterior neck pain that was exacerbated by
mail casing. She explained that this work activity involved constant back-and-forth arm
movement. Dr. King noted her history of torticollis, trapezius and lower back pain and
radiculitis. On palpation, he observed soreness and spasms along the margin of the right
trapezius muscle and diagnosed chronic trapezius myositis.
An October 6, 2008 magnetic resonance imaging (MRI) scan report from Dr. Lisa
Majeski, a diagnostic radiologist, revealed canal stenosis of the C5-6 and C6-7 vertebrae
2

Appellant previously filed claims concerning shoulder and other injuries. These other claims are not before the
Board on the present appeal.

2

resulting from diffuse disc bulging, end plate degenerative changes and facet hypertrophy. A
January 7, 2010 MRI scan report from Dr. Manzoor Ahmed, a Board-certified diagnostic
radiologist, exhibited cervical spondylosis, moderate disc osteophyte hypertrophic change and
mild canal encroachment without gross spinal cord compression or foraminal encroachment.
In February 26 and May 10, 2010 duty status reports, Dr. Craciun remarked that appellant
sustained bilateral wrist and neck symptoms on February 22, 2009.
Appellant requested a telephonic hearing, which was held on June 1, 2010. At the
hearing, she testified that she manually stamped the contents of four to eight trays, which ranged
between 800 to 1,000 pieces of mail, each shift since October 2009. Appellant recalled that she
was stamping mail on November 30, 2009 when she was unable to move her neck due to pain.
Prior to stamping, she routinely carried 35- to 75-pound mailbags and cased mail, both of which
contributed to occasional neck problems.
Evidence submitted after the hearing included a November 30, 2009 report from
Dr. Craciun, noting that appellant complained of bilateral arm numbness and tingling since
March 2006. Appellant worked for the employing establishment for many years and experienced
issues with her right shoulder and neck. An MRI scan in 2008 indicated moderate C6 and C7
deterioration and bulging. Dr. Craciun examined appellant and observed an ill-defined pinprick
level at the C4-5 vertebrae. He diagnosed bilateral cervical radiculopathy and degenerative joint
disease.
A November 30, 2009 cervical x-ray report by Dr. George Belhobek, a Board-certified
diagnostic radiologist, showed C5-6 and C6-7 disc space narrowing with osteophyte formation, a
finding consistent with degenerative disc disease. A January 7, 2010 three-phase bone scan
report from Dr. Steve S. Huang, a Board-certified nuclear physician, exhibited likely
degenerative changes at the C5-6 junction and C2 spinous process.
In a January 15, 2010 report, Dr. Craciun noted that January 7, 2010 MRI scan and bone
scans demonstrated clear C5-6 and C6-7 degenerative changes, osteophytes and foraminal
stenosis. On physical examination, he observed a mild, ill-defined C4-5 sensory pinprick level.
Dr. Craciun assessed bilateral cervical radiculopathy and moderate cervical canal stenosis.3 He
added in a January 15, 2010 duty status report that appellant could resume restricted duty
effective January 15, 2010.
On July 21, 2010 an Office hearing representative affirmed the February 16, 2010
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Act has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of the Act, that the claim was timely filed within the applicable time
limitation period of the Act, that an injury was sustained in the performance of duty as alleged
3

Dr. Craciun subsequently restated his findings in a May 10, 2010 report.

3

and that any disabilities and/or specific conditions 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 upon a traumatic injury or an
occupational disease.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors. 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
The evidence supports that appellant regularly stamped mail in her recent position and
previously carried mailbags and cased mail. The record also contains firm medical diagnoses of
cervical radiculopathy, canal stenosis and degenerative joint disease. Nevertheless, appellant did
not submit sufficient medical evidence demonstrating that the described employment factors
caused or contributed to her neck condition.
In a November 30, 2009 report, Dr. Craciun related that appellant experienced neck
problems while working for the employing establishment. After reviewing radiological findings
and conducting a physical examination, he diagnosed bilateral cervical radiculopathy and
degenerative joint disease. Dr. Craciun, however, failed to provide any medical rationale
explaining how stamping, casing or carrying a mailbag pathophysiologically caused appellant’s
condition.9 He only mentioned that she sustained cervical injuries while she was federally
4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

Victor J. Woodhams, 41 ECAB 345 (1989).

6

See S.P., 59 ECAB 184, 188 (2007).

7

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

8

I.J., 59 ECAB 408, 415 (2008); Woodhams, supra note 5, at 352.

9

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

4

employed. A medical opinion not fortified by medical rationale is of diminished probative value.10
Moreover, while Dr. Craciun appeared to attribute appellant’s condition to her employment, he
did not specify any of the contributing work factors.11 The rest of his reports for the period
January 15 to May 10, 2010 were of diminished probative value because they did not offer any
opinion regarding the cause of injury.12
Dr. King stated in a February 17, 1998 report that appellant’s posterior neck pain was
aggravated by mail casing at work, which involved tedious arm movement. He also pointed out
appellant’s prior history of torticollis and radiculitis. Still, Dr. King did not fortify his opinion
with medical rationale describing how this activity resulted in a neck injury.13 Finally, the
various diagnostic reports and medical notes furnished by Drs. Ahmed, Belhobek, Breitenbach,
Huang, Majeski and Thompson are of limited probative weight because none provide any
opinion on causal relationship.
Appellant’s counsel contends on appeal that the July 21, 2010 decision was contrary to
fact and law. As noted, the medical evidence did not sufficiently explain how employment
factors caused or aggravated her claimed cervical conditions. In the absence of well-reasoned
medical opinion explaining this relationship, appellant failed to meet her burden.
CONCLUSION
The Board finds that appellant failed to establish that she sustained an occupational
disease in the performance of duty.

10

George Randolph Taylor, 6 ECAB 986, 988 (1954) (a medical opinion not fortified by medical rationale is of little
probative value).
11

See John W. Montoya, 54 ECAB 306, 309 (2003) (a physician’s opinion must discuss whether the employment
incident described by the claimant caused or contributed to diagnosed medical condition).
12

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009). The
Board notes that Dr. Craciun’s duty status reports indicated that appellant’s condition developed on February 22,
2009 during a single workday or shift rather than over a period of time. This reasoning is more consistent with a
claim for traumatic injury than one for occupational disease. See 20 C.F.R. § 10.5(q) and (ee).
13

The Board notes that Dr. King’s report preceded appellant’s present claim by over a decade. See Conard
Hightower, 54 ECAB 796 (2003) (contemporaneous evidence is entitled to greater probative value).

5

ORDER
IT IS HEREBY ORDERED THAT the July 21, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 10, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WEST LOS ANGELES VETERANS
ADMINISTRATION MEDICAL CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 18-0492
Issued: January 16, 2020

Case Submitted on the Record

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

JURISDICTION
On January 9, 2018 appellant filed a timely appeal from a December 22, 2017 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 has met his burden of proof to establish a lumbar condition
causally related to the accepted factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 17, 2017 appellant, then a 38-year-old lead police officer, filed an occupational
disease claim (Form CA-2) alleging that he sustained severe pain in the center of his low back
due to standing/walking and when carrying 25 pounds of gear while in the performance of duty.
He indicated that he first became aware of his condition and its relationship to his employment
on January 1, 2012. Appellant did not stop work.
In a development letter dated August 3, 2017, OWCP advised appellant that the evidence
submitted was insufficient to establish his claim. It informed him of the type of factual and
medical evidence needed to establish his claim and provided a questionnaire for his completion.
OWCP afforded appellant 30 days to submit the necessary evidence.
In an August 31, 2017 response, appellant described the employment duties he believed
caused his injury. He noted that his duties included wearing approximately 25 pounds of police
gear, as well as standing and walking while wearing this gear. Appellant explained that he had
worked performing these duties for approximately 13 years, working 12-hour shifts, as well as 8and 16-hour shifts.
OWCP received physical therapy reports dating from July 7 to August 25, 2017. In a
July 7, 2017 note, Regina McWhirter, a kinesiotherapist, advised that appellant was unable to
work due to his inability to lift over 20 pounds.
A July 17, 2017 x-ray read by Dr. Jamshid Tehranzadeh, a Board-certified diagnostic
radiologist, revealed no evidence of sacroiliitis, no evidence of sacroiliac effusion, edema,
erosion or reactive marrow change.
In an August 24, 2017 report, Dr. Farrukh Merchant, Board-certified in family practice,
advised that appellant was last seen on August 17, 2017. He indicated that appellant was
diagnosed with degenerative disc disease at L4-5, chronic low back pain, and hyperlipidemia.
Dr. Merchant noted: that appellant was placed on light duty due to his chronic low back pain;
that appellant was required to carry police gear such as a police belt with work-related
paraphernalia; and that appellant added that this appeared to aggravate his low back. He opined
that, based upon his functional capacity evaluation (FCE) performed on July 7, 2017, appellant
was unable to return to work as a police officer. Dr. Merchant explained that appellant was
unable to lift more than 20 pounds and he was unable to crouch or stoop on an occasional basis.
By decision dated November 2, 2017, OWCP denied appellant’s claim as the medical
evidence of record did not establish causal relationship between his diagnosed medical condition
and the accepted employment factors. Thus, the requirements had not been met to establish an
employment-related injury and/or a medical condition.
On December 22. 2017 appellant requested reconsideration.
In a report dated November 16, 2017, Dr. Xing Yang, Board-certified in occupational
medicine, noted appellant’s history, examined appellant and diagnosed chronic low back pain.
He opined that appellant’s condition was caused or aggravated by his employment activity and
further opined that it was more likely than not, aggravated by factors of employment such as
2

“wearing heavy vest and gun belt.” Dr. Yang based his opinion on the mechanism of injury and
appellant’s history of injury. On November 17, 2017 he completed an attending physician’s
report (Form CA-20) in which he referred to his findings in the November 16, 2017 report and
added that appellant could resume light work as of November 16, 2017.
By decision dated December 22, 2017, OWCP denied modification of the November 2,
2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.6 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.7 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).8
2

Id.

3

K.V., Docket No. 18-0947 (issued March 4, 2019); M.E., Docket No. 18-1135 (issued January 4, 2019); Kathryn
Haggerty, 45 ECAB 383, 388 (1994).
4

K.V. and M.E., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

5

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
6

M.L., Docket No. 19-0813 (issued November 26, 2019); Robert G. Morris, 48 ECAB 238 (1996).

7

M.V., Docket No. 18-0884 (issued December 28, 2018).

8

Id.; Victor J. Woodhams, supra note 5.

3

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted an August 24, 2017 report from
Dr. Merchant. Dr. Merchant noted that appellant was diagnosed with degenerative disc disease
at L4-5, chronic low back pain, and hyperlipidemia. He related that appellant advised him that
he had to carry police gear such as a police belt with work-related paraphernalia, and appellant
indicated that it appeared to aggravate his low back. Dr. Merchant indicated that appellant was
unable to return to work as a police officer because he was unable to lift more than 20 pounds
and he was unable to crouch or stoop on an occasional basis. While he noted appellant’s
description of the alleged factors of employment and his belief that these factors caused
appellant’s lumbar condition, he did not provide his own opinion on causal relationship.9
Dr. Merchant did not provide medical reasoning, or rationale, explaining how appellant’s
accepted employment factors caused or aggravated his diagnosed condition. Medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of
no probative value on the issue of causal relationship.10 Dr. Merchant’s report is therefore
insufficient to establish appellant’s claim.
In a reports dated November 16 and 17, 2017, Dr. Yang diagnosed chronic low back
pain. The Board has held that pain is a symptom, not a compensable medical diagnosis.11 The
Board has also held that a medical report is of no probative value if it does not provide a firm
diagnosis of a particular medical condition, or offer a specific opinion as to whether the accepted
employment incident caused or aggravated the claimed condition.12 While Dr. Yang responded
that the condition found was caused or aggravated by appellant’s employment activity of
“wearing heavy vest and gun belt,” he did not explain how physiologically appellant’s specific
alleged employment factors caused a diagnosed condition.13 As his reports lack a diagnosis and
medical rationale establishing causal relationship, they are therefore insufficient to establish
appellant’s claim.14

9

See L.M., Docket No. 18-0256 (issued May 28, 2019). See also A.M., Docket No. 10-0205 (issued October 5,
2010) (a physician’s opinion must be independent from a claimant’s belief regarding causal relationship).
10

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

11
J.C., Docket No. 18-1503 (issued May 2, 2019); C.M., Docket No. 18-0146 (issued August 16, 2018); D.D., 57
ECAB 734, 738 (2006); Kathy A. Kelley, 55 ECAB 206 (2004).
12

L.E., Docket No. 19-0470 (issued August 12, 2019); M.J., Docket No. 18-1114 (issued February 5, 2019).

13

M.L., Docket No. 19-0813 (issued November 26, 2019); see B.R., Docket No. 17-0294 (issued May 11, 2018).

14

Supra note 8.

4

OWCP received diagnostic reports. The Board has held that diagnostic studies lack
probative value as they do not provide an opinion on causal relationship between the
employment factors and the diagnosed conditions.15
OWCP also received physical therapy reports and a note from a kinesiotherapist. Health
care providers such as physical therapists are not considered “physicians” under FECA. Thus,
their opinions do not constitute rationalized medical opinions and have no probative value.16
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.17 Appellant failed to provide
reasoned medical evidence demonstrating that his lumbar condition was caused or aggravated by
the accepted factors of his federal employment. Accordingly, the Board finds that he has failed
to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted factors of his federal employment.

15

See I.C., Docket No. 19-0804 (issued August 23, 2019).

16

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). George H. Clark, 56 ECAB 162 (2004) (physician
assistant); Jane A. White, 34 ECAB 515, 518 (1983) (physical therapist).
17

Supra note 6.

5

ORDER
IT IS HEREBY ORDERED THAT the December 22, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2020
Washington, DC

Janice B. Askin, 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
__________________________________________
D.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MICHAEL E. DEBAKEY VETERANS
AFFAIRS MEDICAL CENTER, Houston, TX,
Employer
__________________________________________

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

Docket No. 20-0002
Issued: August 25, 2020

Case Submitted on the Record

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

JURISDICTION
On October 1, 2019 appellant filed a timely appeal from an August 14, 2019 merits
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 to consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the August 14, 2019 decision and on
appeal. 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 evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has abused its discretion by denying appellant’s request for
authorization of an adjustable bed with a queen size therapeutic mattress.
FACTUAL HISTORY
On February 6, 1992 appellant, then a 32-year-old personnel clerk, filed a traumatic injury
claim (Form CA-1) alleging that on February 4, 1992 she injured her left knee when she struck it
on a file cabinet under her desk while in the performance of duty. She stopped work on
February 5, 1992. OWCP assigned the claim OWCP File No. xxxxxx923 and accepted for the
conditions of left knee medial contusion and internal derangement.3 It paid appellant wage-loss
compensation on the supplemental rolls commencing March 7, 1993 and authorized two
subsequent left knee arthroscopic surgeries.4
OWCP subsequently expanded the acceptance of the present claim, OWCP File No.
xxxxxx923, to include herniated discs at L4-5 and L5-S1, derangement of the medial meniscus of
the left knee, degeneration of thoracic or thoracolumbar intervertebral disc, thoracic or lumbar
spondylolisthesis, traumatic amputation of right toes with complications, chronic pain,
dermatophytosis of the right nail, and actinic keratosis.5 Appellant underwent authorized lumbar
laminectomy at L4-5 and L5-S1 with anterior lumbar interbody fusion via posterior approach and
posterolateral intertransverse paravertebral gutter effusion, L4 to S1 bilaterally on
November 6, 2006. On August 3, 2007 she underwent authorized amputation of her right fourth
and fifth toes due to gangrene. In addition, appellant underwent authorized right knee arthroscopy
with synovectomy and chondroplasty on July 20, 2008.
On April 30, 2018 Dr. Richard R.M. Francis, an attending Board-certified orthopedic
surgeon, performed authorized bilateral partial laminectomy at L3 and L4 and bilateral
decompression and fusion at L3-4 and L4 nerve roots to treat appellant’s preoperative diagnoses
of severe spinal stenosis at L3-4, spondylolisthesis at L3 and L4, bilateral lumbar radiculopathy,
and previous posterior fusion at L4-5 and L5-S1. On May 1, 2018 he submitted a durable medical
equipment (DME) order for a firm therapeutic foam mattress.

3
Appellant subsequently filed two additional claims before OWCP. In OWCP File No. xxxxxx092 OWCP
accepted an October 22, 1997 left ankle sprain and authorized arthroscopic left knee surgery performed on
April 6, 1998. In OWCP File No. xxxxxx764 it accepted a February 20, 2001 left knee medial meniscus tear, bilateral
derangement of the anterior horn and medial meniscus, chronic pain syndrome, and localized primary osteoarthritis
of the lower leg. Appellant underwent authorized arthroscopic left knee surgery on January 16, 2002 and arthroscopic
right knee surgery on July 20, 2006. On July 23, 2002 OWCP administratively combined OWCP File Nos.
xxxxxx092, xxxxxx764, and xxxxxx923, with OWCP File No. xxxxxx923 serving as the master file.
4

Appellant underwent additional left knee arthroscopic surgeries on March 31, 1992 and August 24, 1995.

5

Appellant stopped work on September 11, 2001 and has not returned.

2

OWCP thereafter received a May 21, 2018 DME order from Dr. Francis who requested
authorization for a therapeutic foam mattress with an adjustable bed frame to treat appellant’s
diagnosis of a prolapsed lumbar intervertebral disc.
In a June 9, 2018 letter, appellant inquired about the status of her request for an adjustable
bed with a queen size therapeutic mattress. She claimed that the mattress set would make a
difference and ease her pain during her recovery process following her second major lumbar
surgery.
OWCP, in a development letter dated June 11, 2018, informed appellant of the deficiencies
of her request for authorization of a prescribed bed and advised her of the type of evidence needed
to support her request. This was to include a statement from her physician that described the basic
equipment and the medical reasons for recommending the equipment, the specific goals of or
benefits expected from this equipment, how often she would utilize the equipment, the expected
duration of its use, a description of alternative treatment that might achieve the same results, and
explain why the same effect could not be achieved in a conventional mattress set with a backboard
and why a queen-sized bed, rather than a full size bed, was warranted. Appellant was also to
provide at least two detailed quotes for the adjustable bed and mattress. She was afforded 30 days
to submit the necessary evidence.
In letters dated June 15 and July 2, 2018, appellant noted her February 4, 1992 workrelated injuries and resultant authorized surgeries, including her April 30, 2018 lumbar surgery.
She explained that she required a queen size mattress set with an adjustable base because she was
a “full-figured” woman with many injuries and increased pain that caused her to roll from side to
side while in bed. Appellant asserted that a full size mattress set would cause her to fall out of
bed. She further asserted that her recovery process was very difficult without proper relaxation
and sleep.
Dr. Francis, in an August 28, 2018 DME authorization request, again sought authorization
for a therapeutic foam mattress to treat appellant’s diagnosed prolapsed lumbar intervertebral disc.
He indicated that the length of use for the requested mattress was one year. Dr. Francis noted that
the equipment was necessary due to appellant’s bilateral laminectomy and decompression at L3-4
with facetectomy and foraminal decompression.
On September 13, 2018 OWCP requested that its district medical adviser (DMA) review a
statement of accepted facts (SOAF) and provide an opinion regarding the medical necessity of the
requested adjustable bed with a queen size therapeutic mattress as prescribed by Dr. Francis.
In a September 24, 2018 report, Dr. Nathan Hammel, a Board-certified orthopedic surgeon,
serving as the DMA, indicated that he had reviewed the SOAF and medical record. He answered
“Yes” to the question of whether the need for the proposed adjustable bed with a queen size
therapeutic mattress was causally related to the accepted medical conditions. However, the DMA
responded “No” with regard to the question of whether the proposed mattress was medically
necessary. He explained that there was no well-established functional benefit to any specific type
of mattress with or without surgery. The DMA noted that the requested mattress was not likely to
decrease appellant’s leg pain or increase functionality and was therefore not medically necessary.

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A September 26, 2018 DME authorization request from a mattress vendor indicated that
the cost of a smart bed was $7,492.58, including delivery and sales tax.
OWCP, in an October 1, 2018 letter, requested that appellant and her physician review the
DMA’s September 24, 2018 report regarding the request for an adjustable bed with a queen size
therapeutic mattress.
On October 14, 2018 appellant requested that OWCP refer her to a second opinion
examiner to determine the medical necessity of the requested mattress.
In a record of a telephone conversation (Form CA-110) dated December 12, 2018,
appellant contended that the DMA’s September 24, 2018 opinion did not properly consider her
second back surgery, which was more extensive.
OWCP subsequently received a December 4, 2018 quote which indicated that the cost of
an adjustable queen size mattress and bed frame was $2,486.50, including sales tax and delivery.
OWCP also received additional medical evidence. In a November 5, 2018 report,
Dr. Djamchid Lotfi, a neurologist, opined that appellant required a swim spa to exercise her lower
extremities, physical therapy, an attendant service because she could not drive to her appointments,
and an orthopedic mattress due to her symptomology.6 He noted a history that she had two toes
amputated in November 2006 and underwent lumbar surgery on April 30, 2018. Dr. Lotfi
indicated that appellant had numbness and tingling in her hands and that she had headaches.
OWCP, by decision dated December 27, 2018, denied appellant’s request for authorization
to purchase an adjustable bed with a queen size therapeutic mattress finding that the opinion of its
DMA constituted the weight of the medical evidence and established that the mattress was not
medically necessary to address the effects of her accepted employment-related conditions.
On January 16, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In a February 23, 2019 letter, appellant contended that the denial of her request was due to
a lack of current medical evidence. She requested approval for the prescribed mattress set in
addition to further treatment and reimbursements for physical therapy, attendant units, as well as
therapeutic items.
By decision dated April 25, 2019, an OWCP hearing representative affirmed the
December 27, 2018 decision. The hearing representative found that the weight of the medical
evidence continued to rest with the September 24, 2018 opinion of OWCP’s DMA and established
that the requested adjustable bed with a queen size therapeutic mattress was not medically
necessary as a result of appellant’s accepted employment injuries.

6
Although the record contains this request for additional DME authorizations, there is no decision of record as to
whether these were ruled upon by OWCP and therefore these authorization requests are not presently before the Board.

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On May 17, 2019 appellant requested reconsideration and submitted additional evidence.
In a March 9, 2019report, Dr. Francis provided examination findings and assessments of low back
pain and lumbar radiculopathy. He noted that appellant had trouble obtaining the hospital bed that
he had ordered and that additional information was required. Dr. Francis indicated that he would
do his best to provide that information. No further information was received.
OWCP, by decision dated August 14, 2019, denied modification of the April 25, 2019
decision.
LEGAL PRECEDENT
Section 8103(a) of FECA7 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, or the period of disability, or aid in lessening the amount of monthly compensation.8
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.9
In interpreting section 8103(a), the Board has recognized that OWCP has broad discretion
in approving services provided under section 8103, with the only limitation on OWCP’s authority
is that of reasonableness.10 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. The only limitation on
OWCP’s authority is that of reasonableness.11 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 by submitting rationalized medical evidence that supports such a
connection and demonstrates that the treatment is necessary and reasonable.12
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.13

7

Supra note 1.

8

5 U.S.C. § 8103; see N.G., Docket No. 18-1340 (issued March 6, 2019); G.A., Docket No. 18-0872 (issued
October 5, 2018); see Thomas W. Stevens, 50 ECAB 288 (1999).
9

See R.M., Docket No. 19-1319 (issued December 10, 2019); Debra S. King, 44 ECAB 203, 209 (1992).

10

M.B., Docket No. 17-1679 (issued February 8, 2018); see D.K., 59 ECAB 141 (2007).

11

See A.W., Docket No. 16-1812 (issued March 15, 2017).

12

M.G., Docket No. 18-0099 (issued April 26, 2018); see Debra S. King, supra note 9.

13

M.G., id.; see Minnie B. Lewis, 53 ECAB 606 (2002).

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ANALYSIS
The Board finds that OWCP has not abused its discretion by denying appellant’s request
for authorization for an adjustable bed with a queen-size therapeutic mattress.
Dr. Hammel, serving as a DMA, reviewed the medical record and a SOAF on
September 24, 2018 and determined that the purchase of the recommended queen size therapeutic
mattress was causally related to the accepted injuries. He further found, however, that the purchase
of the recommended mattress was not medically necessary. The DMA explained that there was
no well-established functional benefit to any specific type of mattress with or without surgery. He
further explained that the recommended mattress was not likely to decrease pain or increase
functionality and thus concluded that the queen size therapeutic mattress was not medically
necessary.
On May 1, 2018 Dr. Francis, appellant’s treating physician, made his initial request that
OWCP authorize a queen size therapeutic mattress set to treat appellant’s accepted condition of
prolapsed lumbar intervertebral disc. He subsequently explained that a therapeutic, queen size
mattress set with an adjustable frame was necessary due to her authorized April 30, 2018 lumbar
surgery and that the length of use for the requested mattress was one year. Dr. Francis reported on
March 7, 2019 that appellant had low back pain and lumbar radiculopathy. Although he opined
that the adjustable bed was necessary to treat her accepted lumbar condition, his reports failed to
provide a rationalized medical opinion explaining why the requested equipment was medically
warranted.14 While Dr. Francis indicated that he would submit additional information to support
his request for the hospital bed, no further evidence was received.
Dr. Lotfi’s November 5, 2018 report mentions the need for an orthopedic mattress,
however, he does not provide a rationalized opinion explaining how or why the mattress would
cure, give relief, reduce the degree or period of disability, or aid in lessening the amount of monthly
compensation. The Board has held that a report is of limited probative value if it does not contain
medical rationale which explains a physician’s opinion.15 This note is therefore insufficient to
establish an abuse of discretion.
OWCP has administrative discretion in choosing the means to achieve the goal of recovery
from a work-related injury and the only limitation on its authority is that of reasonableness.16 As
OWCP’s DMA opined that the requested medical equipment was not medically necessary and
provided an explanation of his opinion, and the evidence submitted by appellant insufficient to
overcome the weight accorded to the DMA, the Board finds that OWCP has not abused its
discretion in denying appellant’s request for authorization for a queen-size therapeutic mattress.

14

See M.B., supra note 10; Kennett O. Collins, Jr., 55 ECAB 648 (2004).

15

D.L., Docket No. 19-0900 (issued October 28, 2019); Y.D., Docket No. 16-1896 (issued February 10, 2017);
C.M., Docket No. 14-0088 (issued April 18, 2014).
16

See supra note 11.

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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 by denying appellant’s request
for authorization for an adjustable bed with a queen size therapeutic mattress.
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 25, 2020
Washington, DC

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

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

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

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