United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 11-781
Issued: March 8, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 8, 2011 appellant, through her attorney, filed a timely appeal of the
September 16, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which denied appellant’s claim for an occupational disease. 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 case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
occupational disease in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On February 28, 2006 appellant, then a 48-year-old clerk, filed an occupational disease
claim, alleging that her modified work duties aggravated her preexisting low back condition.2
She became aware of her condition on June 28, 2005 and realized it was causally related to her
work on November 15, 2005. Appellant retired on April 18, 2005.
Appellant submitted a statement noting that on February 25, 2005 she returned to a
modified distribution clerk position after a prior work injury. While performing her work duties,
which included manual casing, sitting on a rest bar and placing letters in a case one at a time, she
experienced pain in her arms, neck and low back. Appellant worked intermittently and stopped
on April 18, 2005. She submitted a limited-duty job offer dated November 10, 2004. On
March 20, 2002 appellant was treated by Dr. Eric S. Korsh, a Board-certified orthopedic
surgeon, for a work-related back injury. Dr. Korsh noted that on October 6, 2000 she underwent
an anterior lumbar decompression and fusion at L4-5 and lumbar laminectomy at L4-5.
Appellant experienced increasing lower extremity pain and underwent a CT scan which revealed
the fusion was not consolidating. Dr. Korsh diagnosed a disc herniation at L4-5, status post
automated microdiscetomy, degenerative disc disease at L4-5, status post L4-5 decompression
and fusion, pseudarthrosis status post L4-5 decompression and fusion and musculoligamentous
sprain/strain of the lumbar spine. He opined that appellant’s disability precluded substantial
work and was causally related to a work injury of December 14, 1996. Appellant submitted a
report dated March 8, 2005, from Dr. Larry D. Dodge, a Board-certified orthopedic surgeon, who
treated her for increased pain in her back radiating into her legs. Dr. Dodge noted limited range
of motion of the thoracolumbar spine, positive straight leg raises on the left and normal motor
and sensory examination with symmetrical reflexes. He advised that roentgenograms of the
lumbar spine did not disclose any abnormalities and recommended a magnetic resonance
imaging (MRI) scan.
In an August 16, 2006 letter, OWCP advised appellant of the evidence needed to
establish her claim. It requested that she submit a physician’s reasoned opinion addressing the
relationship of her claimed back condition to specific work factors.
In a decision dated September 28, 2006, OWCP denied appellant’s claim finding that
medical evidence was insufficient to establish that her claimed back condition was caused by her
employment.
On October 11, 2006 appellant requested an oral hearing which was held on
March 21, 2007. The employing establishment submitted time and attendance reports dated
February 25 to April 18, 2005.

2

Appellant filed a claim for an emotional condition, File No. xxxxxx575 which was denied by OWCP. She filed
a claim for a low back injury which occurred on December 14, 1996 which was accepted for L4-5 disc herniation
and OWCP authorized surgery, File No. xxxxxx390. Appellant returned to a modified position on February 25,
2005 and worked until April 18, 2005. In File No. xxxxxx390, OWCP terminated her compensation on the grounds
that she refused an offer of suitable work. The cases were consolidated. Docket No. 09-2093 (issued
June 15, 2010).

2

In a decision dated May 15, 2007, an OWCP hearing representative affirmed the
September 28, 2006 decision.
On November 2, 2007 appellant requested reconsideration. She submitted an April 4,
2007 report from Dr. John B. Dorsey, a Board-certified orthopedic surgeon, who treated her for a
low back injury which occurred after lifting parcels and equipment at work on
December 14, 1996. Appellant reported returning to a modified job on February 5, 2005 which
consisted of casing and sorting mail and carrying trays of mail weighing 15 to 20 pounds. She
stopped work on April 18, 2005 due to back pain and depression. Dr. Dorsey stated that
appellant’s repetitive work duties put a strain on her back and legs and aggravated her low back
condition. He diagnosed failed back syndrome with diffuse facet disease, status post L4-5 fusion
and secondary radiculopathy of the left lower extremity. Dr. Dorsey noted that the modified job
was not sedentary but involved significant bending, stooping and reaching overhead which
aggravated or accelerated her spinal condition. He noted that this conclusion was supported by
objective findings and was the direct cause of appellant not being able to work after
April 18, 2005.
In a decision dated November 30, 2007, OWCP denied modification of the May 15, 2007
decision.
On July 2, 2008 appellant requested reconsideration.
In a decision dated October 9, 2008, OWCP denied modification of the November 30,
2007 decision.
On March 27, 2009 appellant requested reconsideration.
In a decision dated June 25, 2009, OWCP denied appellant’s reconsideration request
finding that the request was insufficient to warrant further review of the prior decision. On
August 17, 2009 appellant appealed her claim to the Board. In an order dated June 15, 2010, the
Board set aside OWCP’s October 9, 2008 and June 25, 2009 decisions and remanded the case to
combine the case files and issue a merit decision on appellant’s claim for compensation.3
In a decision dated September 16, 2010, OWCP denied modification of the prior
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim. When an employee claims that she sustained an injury in the
performance of duty, she must submit sufficient evidence to establish that she experienced a

3

Docket No. 09-2093 (issued June 15, 2010).

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specific event, incident or exposure occurring at the time, place and in the manner alleged.
Appellant must also establish that such event, incident or exposure caused an injury.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized 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 of the claimant, 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.5
ANALYSIS
It is not disputed that appellant’s duties as a clerk included performing repetitive duties
including manual casing, sitting on a rest bar and placing letters in a case. It is also not disputed
that she has been diagnosed with a low back condition. However, appellant has not submitted
sufficient medical evidence to establish that her back condition including failed back syndrome
and diffuse facet disease was causally related to specific employment factors or conditions. On
August 16, 2006 OWCP advised her of the type of medical evidence needed to establish her
claim. Appellant did not submit a rationalized medical report from a physician addressing how
specific employment factors may have caused or aggravated her claimed conditions.
Appellant submitted an April 4, 2007 report from Dr. Dorsey who treated her for a low
back injury which occurred after lifting parcels and equipment at work on December 14, 1996.
Dr. Dorsey noted that she returned to a modified job on February 5, 2005 which consisted of
casing and sorting mail and carrying trays of mail weighing 15 to 20 pounds. Appellant reported
stopping work on April 18, 2005 due to back pain and depression. Dr. Dorsey diagnosed failed
back syndrome with diffuse facet disease, status post L4-5 fusion and secondary radiculopathy of
the left lower extremity. He opined that appellant’s work materially worsened and aggravated
her low back condition and was the direct cause of her not being able to work after
April 18, 2005. The Board finds that, although Dr. Dorsey supported causal relationship, he did
not base this opinion on an accurate description of her work duties. In an undated statement,
4

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
5

Solomon Polen, 51 ECAB 341 (2000).

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appellant noted that her work duties included manual casing, sitting on a rest bar and placing
letters in a case individually. However, Dr. Dorsey noted that her work duties including lifting
parcels and equipment and casing and sorting mail and carrying trays of mail weighing 15 to 20
pounds. He opined that these work duties materially worsened and aggravated appellant’s low
back condition. The Board has found that medical opinions based on an incomplete history are
of little probative value.6 The Board further notes that Dr. Dorsey’s opinion was given nearly
two years after appellant retired and there is no contemporaneous medical evidence to support
that she sought treatment during this time for a failed back syndrome as one would expect with
such a condition. Therefore, this report is insufficient to meet her burden of proof.
Appellant submitted a March 20, 2002 report from Dr. Korsh who diagnosed certain low
back conditions and opined that appellant’s current disability was causally related to her work
injury of December 14, 1996. The Board finds that, although Dr. Korsh provided conclusory
support for causal relationship with regard to the 1996 low back injury, his report predates the
2006 occupational disease claim as well as the date that she stated that she was first aware of her
condition, June 28, 2005. Thus, his report provides no specific support for the claim that is at
issue on the present appeal. Similarly, a March 8, 2005 report from Dr. Dodge also predates
when appellant first became aware of her claimed condition. He also failed to specifically
address whether she had a diagnosed medical condition that was causally related to work
factors.7
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.
6

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
7

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
8

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

See 5 U.S.C. § 501.2(c). The Board’s jurisdiction is limited to the evidence that was before OWCP at the time it
issued its final decision; therefore, the Board is unable to review evidence submitted by appellant after the
October 29, 2008 OWCP decision.

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ORDER
IT IS HEREBY ORDERED THAT September 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 8, 2012
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
C.A., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Dodge City, KS, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1438
Issued: May 24, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 22, 2009 appellant filed an appeal from the October 10, 2008 and May 13, 2009
decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.1
ISSUE
The issue is the extent of disability related to appellant’s accepted aggravation of cervical
degenerative disc disease commencing September 2, 2003.
On appeal, counsel for appellant contends that an Office referral physician found that
appellant was disabled from work.

1

For Office decisions prior to November 19, 2008, a claimant had 90 days or no more than one year to file an
appeal. An appeal of Office decisions dated on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e) (2008).

FACTUAL HISTORY
On September 22, 2003 appellant, then a 39-year-old food inspector, filed an
occupational disease claim for neck pain due to her federal employment.2 The employer advised
that appellant resigned as of September 2, 2003 and provided a copy of her job description.
Appellant submitted an October 21, 2003 magnetic resonance imaging (MRI) scan that found a
disc extrusion with nerve root compression at C6-7, a disc protrusion at C5-7 and cervical
spondylosis and degenerative disc disease, primarily involving C5-6 and C6-7. The record
reflects that on March 5, 2004 appellant underwent surgery for an anterior cervical discectomy
and fusion at C5-6 and C6-7 by Dr. Wayne L. Bruffett, a Board-certified orthopedic surgeon. In
an April 29, 2004 treatment record, Dr. Bruffett noted that appellant was six weeks post surgery
and her arm pain was gone. While he noted some trapezial and neck pain, he advised that there
did not appear to be any neurological deficits. X-rays showed the fusion to be solid. Dr. Bruffett
recommended physical therapy for residual pain. He noted that appellant stated that she was not
going to return to her job on the line and “I have told her that she does not really have any
restrictions right now but it is going to take her a little while to get all of her strength and
mobility back. [Appellant] certainly has some limitations and is going to have those chronically
to an extent.”
In a December 18, 2003 decision, the Office initially denied the claim; however, it
subsequently developed the medical evidence of record. On April 6, 2006 it accepted appellant’s
claim for an aggravation of cervical degenerative disc disease and approved the March 5, 2004
surgery.3
On April 7, 2006 appellant filed a claim for compensation for the period commencing
September 1, 2003 and submitted the June 24, 2004 report of Dr. Bruffett who noted that she was
approximately four months postfusion surgery with complaint of chronic neck and shoulder pain.
Dr. Bruffett advised that appellant had no neurologic deficits and that x-rays showed a probable
solid fusion. He stated that, while she did not have restrictions, she had limitations “and she says
she is figuring out what these are.”
In a July 26, 2006 decision, the Office denied appellant’s claim for monetary
compensation. It found that she did not submit sufficient medical evidence to support disability
due to residuals of her accepted cervical condition. The Office noted that the April 29, 2004
treatment note from Dr. Bruffett advised that she did not have any work restrictions.
On August 18, 2006 appellant, through counsel, requested a hearing. On May 1, 2006
Dr. Bruffett noted that x-rays showed appellant’s fusion to be stable and diagnosed status post
cervical discectomy and fusion and chronic neck pain. He advised that appellant would not
benefit from further surgery and recommended an additional MRI scan.4 A May 30, 2006 MRI
2

A March 31, 2003 cervical x-ray diagnosed degenerative changes at C5-6 with osteophyte formation.

3

The Office referred appellant to several second opinion specialists and accepted the claim based on the report of
Dr. Robert C. Thompson, a Board-certified orthopedic surgeon.
4

Appellant submitted medical evidence pertaining to her psychiatric condition; however, the Office did not issue
a final decision on this aspect of her claim. As it is in an interlocutory posture, the Board does not have jurisdiction
over this aspect of her claim. See 20 C.F.R. § 501.2(c).

2

scan demonstrated postoperative changes from C5 through C7 with no evidence of disc
herniation or foraminal stenosis. At the May 4, 2007 hearing, counsel argued that the medical
evidence was sufficient to establish appellant’s disability due to her accepted condition.
In a July 30, 2007 decision, an Office hearing representative remanded the case for
further medical development on the issue of appellant’s disability due to her accepted cervical
condition.
In letters dated October 22, 2007, the Office asked that Dr. Thompson, the second
opinion examiner, and Dr. Bruffett, the attending surgeon, to address whether she had any
disability for work and to complete an enclosed work capacity evaluation. On October 23, 2007
it asked the employing establishment whether it was able to accommodate appellant’s work
restrictions as noted in the February 16, 2006 report of Dr. Thompson. In a November 9, 2007
response, the employer advised that the employing establishment was unable to comply with the
restrictions originally set by Dr. Thompson but noted that appellant had been working full duty
prior to her resignation on September 2, 2003. The record reflects that the Office was
subsequently advised that Dr. Thompson had retired from practice and that Dr. Bruffet did not
respond.
In a December 13, 2007 decision, the Office denied appellant’s claim for wage-loss
compensation for disability related to her accepted condition.
On December 24, 2007 appellant, through her attorney, requested a hearing.
In a January 14, 2008 decision, a supervisory claims examiner with the Branch of
Hearings and Review found that appellant was totally disabled from March 5 through April 29,
2004 due to her cervical surgery and recovery. The case was remanded to the district Office to
refer appellant for a second opinion examination to address whether she was disabled as a result
of her accepted condition after April 29, 2004 and whether the agency was able to provide lightduty work.
On April 11, 2008 the Office referred appellant to Dr. Jeffrey Kornblum, a Boardcertified neurosurgeon. In a June 19, 2008 report, Dr. Kornblum reviewed the history of injury
and medical treatment and listed appellant’s complaint of headache and neck pain with spasm.
On physical examination, he noted a relatively good range of motion of the cervical spine with
Spurling maneuver eliciting no neck or arm pain. Reflexes were symmetrical and muscle tone
was normal. Sensory examination was intact. Dr. Kornblum advised that appellant had a fiveyear history of chronic neck pain
In response to specific questions, Dr. Kornblum advised that appellant’s neck pain
continued to be a problem, limiting her ability to return to factory work and in causing her to
leave a second job of hairstyling. He stated that there were no objective findings, but that it was
not unusual for patients having undergone multiple level fusion to have residual complaints of
neck pain. As this was a presurgical problem related to appellant’s initial complaints and claim,
it was related to her injury-related disability. As to appellant’s capacity for work as of April 30,
2004, Dr. Kornblum noted that she never returned to the employing establishment and that the
significant issue would be her ability to perform repetitive motion of the upper body and lifting

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or carrying from 15 to 44 pounds as noted in appellant’s job description. He stated that, in an
office setting, this could not be assessed and that a functional capacity evaluation would be
required to assess her physical capabilities. Dr. Kornblum found no structural reason based on
examination to limit her activities, which would be based on her comfort, physical fitness and
determination. He advised that appellant would have been temporarily disabled due to her
cervical disc condition and postoperative recovery; the period ending at such time as her fusion
was felt to be complete. Due to appellant’s ongoing complaint, “any inability to perform
repetitive motion or lifting due to pain would have resulted in an ongoing partial disability that is
still in effect today.” Dr. Kornblum reiterated his recommendation of a functional capacity
evaluation to adequately address her present capacity to perform duties, noting that it was
unrealistic that she return to her former duties as a food inspector. He noted that appellant had a
significant psychological history with severe depression requiring hospitalization and was
overweight and clearly deconditioned “such that her secondary factors may well affect
somatization of her pain and her ability to resume gainful employment.”
In an October 10, 2008 decision, the Office denied appellant’s claim for wage-loss
related to her cervical condition commencing September 1, 2003 as the weight of medical
opinion did not support employment-related disability after her resignation.
On October 29, 2008 appellant, through counsel, requested a hearing. At the February 9,
2009 hearing, counsel contended that Dr. Kornblum supported that appellant was totally disabled
due to her accepted cervical condition.
In a May 13, 2009 decision, the Office hearing representative affirmed the October 10,
2008 decision on the grounds that appellant had not submitted sufficient medical evidence to
support that her disability on or after April 30, 2004 was causally related to the accepted
employment injury.
LEGAL PRECEDENT
In general the term “disability” under the Federal Employees’ Compensation Act means
the incapacity because of an employment injury to earn the wages that the employee was
receiving at the time of injury.5 Disability is not synonymous with physical impairment which
may or may not result in the incapacity to earn wages. An employee who has a physical
impairment causally related to her federal employment but who nonetheless has the capacity to
earn the wages she was receiving at the time of injury, has no disability as that term is used in the
Act.6 Whether a particular injury causes an employee to be disabled for work and the duration of
that disability, are medical issues that must be established by a preponderance of the reliable,
probative and substantial medical evidence.7 The Board will not require the Office to pay
compensation for disability in the absence of medical evidence addressing the specific period of

5

See Conrad Hightower, 54 ECAB 796 (2003); Prince E. Wallace, 52 ECAB 357 (2001).

6

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

7

Tammy L. Medley, 55 ECAB 182 (2003).

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disability for which compensation is claimed. To do so would essentially allow employees to
self-certify their disability and entitlement to compensation.8
The issue of whether a claimant’s disability is related to an accepted condition is a
medical question which must be established by a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disability is causally related to
employment factors and supports that conclusion with sound medical reasoning.9 Medical
conclusions unsupported by rationale are of diminished probative value.10
ANALYSIS
Appellant’s claim was accepted for an aggravation of cervical degenerative disc disease
for which she underwent surgery on March 5, 2004. She filed claims for wage-loss
compensation commencing September 2, 2003 when she resigned from her employment as a
food inspector. Appellant contends that she has employment-related disability after that date.
The Board finds that the case is not in posture for decision.
The Office accepted appellant’s claim based on the report of Dr. Thompson, a second
opinion referral in orthopedic surgery. It attempted development of the claim by requesting
updated opinions from Dr. Thompson and Dr. Bruffett, appellant’s surgeon, as to the period of
disability for work and an updated work capacity evaluation. The Office was advised that
Dr. Thompson had retired from practice and Dr. Bruffett did not respond to its inquiry. An
Office hearing representative authorized wage-loss compensation from March 5 to April 29,
2004, the date of surgery to the date that Dr. Bruffett advised that her cervical fusion was solid.
In addressing her disability, the surgeon noted that appellant “does not really have any
restrictions right now” but did have limitations due to loss of strength and mobility. The case
was remanded for further development of the medical evidence as to the extent of disability due
to her accepted condition.
Appellant was referred to Dr. Kornblum who provided a review of the employment
history and medical treatment. On examination of the cervical spine, Dr. Kornblum noted a good
range of motion with no neck or arm pain elicited on testing. While he stated there were no
objective findings on examination, it was not unusual for patients undergoing multiple level
fusion surgery to have residual complaints of pain. As this was a presurgical problem, it was
related to her injury-related disability. Dr. Kornblum noted that appellant stopped work and
never returned to her federal employer and that there would be significant issues with her ability
to perform repetitive motions of the upper body and lifting or carrying from 15 to 44 pounds, as
noted in her job description. He advised that her capacity for work could not be adequately
assessed in an office setting and recommended a functional capacity evaluation. Dr. Kornblum
also stated that there was no structural reason to limit her activities and that she would have been
temporarily disabled due to her cervical condition and surgery; the period ending at such time as
8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Sandra D. Pruitt, 57 ECAB 126 (2005).

10

Albert C. Brown, 52 ECAB 152 (2000).

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her fusion was felt to be complete. He advised that it was unrealistic that she return to her
former duties as a food inspector.
The Board finds that Dr. Kornblum’s opinion on the nature and extent of appellant’s
disability related to her cervical condition is not well explained. Dr. Kornblum noted on
examination in 2008 that appellant had residuals of her accepted cervical degenerative disease
for which she was unable to return to her former employment. However, he also stated that there
were no objective findings related to his examination. Dr. Kornblum noted that she had been
temporarily disabled due to her condition and postoperative recovery but was not clear as to the
specific period of disability. He did not address whether appellant’s disability for work
commenced as of her resignation from work on September 2, 2003 or some other date.
Dr. Kornblum stated that the period of disability ended at such time that her fusion was felt to be
complete. In this regard, he did not state that he adopted the April 29 or June 24, 2004 treatment
notes of Dr. Bruffett or whether her disability extended beyond those dates.11 In both notes,
Dr. Bruffett advised that appellant’s x-rays showed a “probable solid fusion” but Dr. Kornblum
did not address whether he considered her spinal fusion to be “complete” as of either date. He
briefly noted that appellant did not have restrictions but stated that she had limitations for work.
While noting appellant’s present inability to return to her regular duties as a food inspector,
Dr. Kornblum’s opinion on appellant’s disability following surgery is vague and lacks reference
to the medical evidence of record as it pertains to her treatment and the findings of prior
examining physicians.
For this reason, the case will be remanded to the Office for further development of the
medical evidence. Following such development as warranted, it should issue a merit decision on
appellant’s disability related to her accepted cervical condition.
CONCLUSION
The Board finds that the case is not in posture for decision.

11

As noted, the end date of disability was determined by an Office claims examiner to be April 29, 2004.

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ORDER
IT IS HEREBY ORDERED THAT the May 13, 2009 and October 10, 2008 decisions
of the Office of Workers’ Compensation Programs be set aside. The case is remanded for further
development consistent with this decision.
Issued: May 24, 2010
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wallingford, CT, Employer
__________________________________________

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Appearances:
W. Martyn Philpot, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-448
Issued: September 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On November 27, 2009 appellant, through counsel, filed a timely appeal from a June 1,
2009 decision of the Office of Workers’ Compensation Programs (OWCP) denying appellant’s
traumatic injury claim.1 Pursuant to the Federal Employees’ Compensation Act (FECA)2 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits and nonmerit of this
case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on June 1, 2009, the 180-day computation begins June 2, 2009. One hundred and eighty days
from June 2, 2009 was November 30, 2009. Since using December 7, 2009, the date the appeal was received by the
Clerk of the Board, would result in the loss of appeal rights, the date of the postmark would be considered the date
of filing. See 20 C.F.R. § 501.3(f)(1). However, the date of the U.S. Postal Service postmark is illegible. Pursuant
to 20 C.F.R. § 501.3(f)(1) counsel submitted a statement attesting to the fact that he mailed the appeal on
November 27, 2009. As counsel mailed the appeal on November 27, 2009, the appeal is deemed timely filed as of
that date.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty on November 8, 2008, as alleged.
FACTUAL HISTORY
On November 20, 2008 appellant, then a 42-year-old mail handler, filed a traumatic
injury claim alleging that on November 8, 2008 he injured his back while pushing a container of
mail.
Appellant submitted medical evidence with his claim. A November 8, 2008 emergency
room discharge form from Yale Medical Center noted that he was treated that day and released
to return to work on November 13, 2008.
In a December 10, 2008 work capacity evaluation (Form OWCP-5c), Dr. Babu Kumar, a
treating Board-certified internist, advised that appellant was totally disabled through
December 30, 2008. He diagnosed severe lower back pain, right hand numbness and neck pain.
The record also contains notes dated December 5 to 22, 2008 from an unknown provider
reporting massage and physical therapy treatment.
By letter dated January 5, 2009, OWCP informed appellant the evidence of record was
insufficient to support his claim. Appellant was advised as to the medical and factual evidence
necessary to establish his claim and given 30 days to provide the requested information.
In response to OWCP’s request, appellant submitted additional treatment notes from an
unknown provider dated December 12, 2008 to January 5, 2009 for massage and physical
therapy. He also submitted a December 3, 2008 report from Dr. Kumar noting an injury date of
November 8, 2008 and containing illegible diagnoses.
In a January 23, 2009 attending physician’s report (Form CA-20), Dr. Kumar reported
that appellant sustained an injury to his mid to low back due to pushing a mail container on
November 8, 2008. He diagnosed low back pain and spasm and checked “yes” to the question of
whether the diagnosed condition was employment related. Under explanation, Dr. Kumar wrote
“by history provided.” He noted that appellant was currently totally disabled from working due
to his employment injury.
By decision dated February 5, 2009, OWCP denied appellant’s claim on the grounds that
he had failed to establish fact of injury. It found that the evidence of record was sufficient to
establish that the claimed event occurred; but the medical evidence was not sufficient on causal
relation to the employment incident.
Subsequent to the decision, OWCP received additional medical evidence. On
December 3, 2008 Dr. Kumar noted an injury date of November 8, 2008 and illegible diagnoses.
A progress note by an unknown provider for December 3, 2008 listed physical findings and
diagnoses of neck pain, lower back pain and right hand numbness. In a January 23, 2009 duty

2

status report, Dr. Kumar diagnosed lower back pain due to the pushing of mail on
November 8, 2008. He indicated that appellant was unable to resume work at that time.
On February 16, 2009 appellant requested a review of the written record by OWCP’s
hearing representative. In support of his request, he submitted a December 30, 2008 report from
Dr. Kumar noting a November 8, 2008 injury date and diagnosing neck and lumbosacral pain
and right hand numbness.
By decision dated June 1, 2009, OWCP’s hearing representative affirmed the denial of
appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his 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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.7 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.8
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case
has been established, such circumstances as late notification of injury, lack of confirmation of
injury and failure to obtain medical treatment may, if otherwise unexplained, cast substantial

3

5 U.S.C. § 8101 et seq.

4

Bonnie A. Contreras, 57 ECAB 364 (2006); C.S., Docket No. 08-1585 (issued March 3, 2009); .

5

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

6

Barbara R. Middleton, 56 ECAB 634 (2005); B.F., Docket No. 09-60 (issued March 17, 2009).

7

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

8

D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 3; C.B., Docket No. 08-1583 (issued
December 9, 2008).

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doubt on a claimant’s statements.9 The employee has not met his burden when there are such
inconsistencies in the evidence as to cast serious doubt on the validity of the claim.10
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.11 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.12
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.13 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.14 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.15
ANALYSIS
OWCP accepted that an employment incident occurred on November 8, 2009 when
appellant was pushing mail. The issue is whether he submitted sufficient medical evidence to
establish that the employment incident caused an injury. The Board finds that the medical
evidence submitted does not contain a rationalized medical opinion addressing how the workrelated incident caused or aggravated any medical condition or disability. Therefore, appellant
has failed to meet his burden of proof.
Appellant submitted treatment notes for the period December 5 to January 5, 2009 from
an unknown provider pertaining to massage and physical therapy. This evidence provides no
opinion on causal relation. Appellant also submitted a November 8, 2008 Yale Medical Center
emergency room discharge form noting that he could return to work on November 13, 2008 and
an illegible prescription slip. The December 3, 2008 progress note from an unidentified person
9

Barbara R. Middleton, supra note 6; C.S., supra note 4.

10

H.G., 59 ECAB 552 (2008); Betty J. Smith, 54 ECAB 174 (2002).

11

Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Katherine J. Friday, 47 ECAB 591 (1996).

12

Dennis M. Mascarenas, 49 ECAB 215 (1997); P.K., Docket No. 08-2551 (issued June 2, 2009).

13

A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 642 (2006); Y.J., Docket No. 08-1167 (issued
October 7, 2008).
14

Michael S. Mina, 57 ECAB 379 (2006); J.J., Docket No. 09-27 (issued February 10, 2009).

15

Victor J. Woodhams, 41 ECAB 345, 352 (1989); I.J., 59 ECAB 408 (2008).

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listed physical findings and diagnoses of neck pain, lower back pain and right hand numbness.
These reports, too, failed to provide any opinion addressing how appellant’s treatment related to
the accepted incident. The Board has held that a medical report is not probative if there is no
indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2).16 The Board finds that none of these reports are sufficient to support appellant’s
claim as it is unclear whether they were prepared by a physician.
The reports from Dr. Kumar are also insufficient to establish appellant’s claim. In reports
dated December 3 and 30, 2008, Dr. Kumar listed an injury date of November 8, 2008 and
provided diagnoses which were illegible. In a December 10, 2008 Form OWCP-5c, he
diagnosed severe lower back pain, right hand numbness and neck pain and indicated that
appellant was totally disabled. Dr. Kumar provided a history of the injury in a January 23, 2009
report and diagnosed low back pain and spasm. He checked “yes” to the question of whether the
diagnosed condition was employment related based on the history provided by appellant. In a
duty status report also dated January 23, 2009, Dr. Kumar diagnosed low back pain as a result of
pushing mail on November 8, 2008; however, he did not explain how the diagnoses of severe
lower back pain and spasm, right hand numbness and neck pain were caused or contributed to by
the November 8, 2008 employment incident.17 He did not address how the November 8, 2008
employment incident of pushing mail resulted in the reported diagnoses. Dr. Kumar failed to
explain how appellant’s various symptoms were caused or aggravated by pushing mail. He also
failed to provide a full medical history of any prior treatment. The Board finds that Dr. Kumar’s
reports are insufficient to establish that the diagnosed conditions were caused or aggravated by
the accepted employment incident.
Appellant expressed his belief that his back condition was exacerbated by pushing a
container of mail on November 8, 2008. The Board has held that the mere fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.18 Neither the fact that the condition became apparent during a
period of employment, nor the belief that the condition was caused or aggravated by employment
factors or incidents, is sufficient to establish causal relationship.19 Causal relationship must be
substantiated by reasoned medical opinion evidence, which it is appellant’s responsibility to
submit. Appellant’s belief that his condition was exacerbated by the work-related incident is not
determinative.
OWCP advised appellant that it was his responsibility to provide a comprehensive
medical report which described a history of his symptoms, test results, diagnosis, treatment and
the physician’s opinion, with medical reasons, on the cause of his condition. Appellant failed to
16

Thomas L. Agee, 56 ECAB 465 (2005); C.B., Docket No. 09-2027 (issued May 12, 2010).

17

See Gloria J. McPherson, 51 ECAB 441 (2000) (the opinion of the physician must be based on a complete
factual and medical background of the claimant, 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).
18

Kathryn E. Demarsh, 56 ECAB 677 (2005); L.D., Docket No. 09-1503 (issued April 15, 2010).

19

Roy L. Humphrey, 57 ECAB 238 (2005); E.J., Docket No. 09-1481 (issued February 19, 2010).

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submit adequate medical documentation. He has not met his burden of proof to establish that he
sustained an injury in the performance of duty on November 8, 2008, as alleged.
Appellant may submit new evidence or argument with a written request for
reconsideration to the Office 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 failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on November 8, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 1, 2009 is affirmed.
Issued: September 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bedford, MA, Employer
__________________________________________

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

Docket No. 12-1917
Issued: May 22, 2013

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 September 10, 2012 appellant filed a timely appeal from a March 15, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from the last merit decision dated December 20, 2011 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 15, 2012 nonmerit decision, OWCP received additional evidence.
However, the Board may only review evidence that was in the record at the time OWCP issued its final decision.
See 20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

FACTUAL HISTORY
On September 29, 2011 appellant, then a 60-year-old program support clerk, filed a claim
of traumatic injury, alleging that on September 27, 2011 she hit her right knee and leg at work
while trying to stop two residents from fighting.
In support of her claim, appellant submitted several witness statements and a health unit
record dated September 28, 2011, prepared by a nurse practitioner. This record noted her history
of injury and assessed her condition as a right knee sprain.
By letter dated November 15, 2011, OWCP advised appellant of the deficiencies of her
claim, including the fact that nurses are not physicians under FECA and are not competent to
render a medical opinion and gave her the opportunity to submit medical evidence to support her
claim. No additional evidence was received.
In a December 20, 2011 decision, OWCP denied appellant’s claim on the grounds that
the medical component of the fact of injury element was not established. It stated that the
medical evidence submitted did not establish a diagnosed condition caused by the accepted
injury signed by a physician.
On January 18, 2012 appellant submitted a magnetic resonance imaging (MRI) scan
report of her right knee, dated November 9, 2011, from Dr. Tai M. Tran, a Board-certified
diagnostic radiologist. The report found moderate thinning of the medial meniscus posterior root
attachment with possible horizontal tear of the posterior horn and body and also diagnosed
appellant with severe patellofemoral osteoarthritis.
Appellant filed a request for reconsideration on February 29, 2012.
In a March 15, 2012 decision, OWCP denied reconsideration on the grounds that
appellant’s request did not raise a substantive legal question or include new and relevant
evidence to warrant a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
3

5 U.S.C. §§ 8101-8193.

4

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
5

20 C.F.R. § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB
657 (2006).

2

will deny the application for reconsideration without reopening the case for review on the
merits.6
ANALYSIS
On September 29, 2011 appellant filed a claim for traumatic injury, which OWCP denied
by decision dated December 20, 2011. OWCP found that she had not submitted medical
evidence which diagnosed a medical condition causally related to the accepted incident.
Appellant requested reconsideration on February 29, 2012 and submitted the November 9, 2011
MRI scan report from Dr. Tran. The Board finds that OWCP improperly denied merit review of
the claim.
With appellant’s request for reconsideration, OWCP received a November 9, 2011 MRI
scan report signed by Dr. Tran which reported a moderate thinning of the medial meniscus
posterior root attachment with possible horizontal tear of the posterior horn and body, as well as
a diagnosis of severe patellofemoral osteoarthritis. Dr. Tran offered a diagnosis of appellant’s
condition that was previously unsupported by other medical evidence. The Board finds that his
November 9, 2011 report constituted relevant and pertinent new evidence not previously
considered. Therefore, OWCP improperly refused to reopen appellant’s case for further review
of the merits.
To obtain merit review, appellant is not required to submit evidence sufficient to establish
her claim. She need only provide relevant and pertinent new evidence not previously considered
by OWCP.7 Dr. Tran’s report meets this requirement. The case will be remanded for a decision
on the merits of appellant’s claim.
CONCLUSION
The Board finds that OWCP improperly refused to reopen appellant’s claim for further
review of the merits under 5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
7

F.D., 58 ECAB 413 (2007); Billy B. Scoles, 57 ECAB 258 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 15, 2012 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: May 22, 2013
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
__________________________________________
L.A., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Santa Fe, NM, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0949
Issued: December 2, 2020

Case Submitted on the Record

ORDER REVERSING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On March 14, 2020 appellant filed a timely appeal from a September 18, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate
Boards docketed the appeal as No. 20-0949.
The issues on appeal before the Board relate to OWCP’s finding of an overpayment of
wage-loss compensation benefits due to appellant’s alleged concurrent receipt of Federal
Employees’ Compensation Act2 (FECA) wage-loss compensation and Social Security
Administration (SSA) age-related retirement benefits without an appropriate offset for benefits
attributable to the Federal Employees Retirement System (FERS).

1

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s September 18, 2019 decision was Monday,
March 16, 2020. Since using March 19, 2020, the date the appeal was received by the Clerk of the Appellate Boards
would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of the U.S.
Postal Service postmark is March 14, 2019, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

The Board finds that OWCP failed to properly develop the underlying issue of what portion
of appellant’s SSA age-related retirement benefits were attributable to federal employment.
OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until
after SSA benefits are received, an overpayment will almost always occur and will need to be
calculated for each period in which the offset amount was not withheld from compensation.3 The
offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related
retirement benefits that are attributable to federal service.4 FECA Bulletin No. 97-09 provides that
FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits
because the portion of the SSA benefit earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.5 In identifying the fact and amount of an overpayment of compensation following a
claimant’s receipt of age-related SSA retirement compensation, the Board has observed that
OWCP uses a FERS Offset Calculation Worksheet.6 This calculation worksheet is sent to SSA
and the completed form is returned to OWCP setting forth purported SSA calculations as to the
effective date and rate of SSA benefits without FERS and the effective date and rate of SSA
benefits with FERS.7 Following receipt of the purported SSA calculations, a preliminary
determination of overpayment is issued if a prohibited dual benefit was received.8
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the Civil Service
Retirement System (CSRS). Other federal employees are not entitled to be enrolled in a federal
retirement program. Therefore, OWCP’s procedures with regard to FERS participants are not
applicable to all recipients of FECA compensation and SSA age-related retirement benefits.
Therefore, the information solicited on the FERS Offset Calculation Worksheet that OWCP sends
to SSA is not applicable to non-FERS claimants and does not establish either the fact or amount
of an overpayment.
Herein, the evidence of record establishes that appellant was not enrolled in a federal
retirement program. On the reverse side of his traumatic injury claim (Form CA-1), the employing
establishment reported that retirement coverage was not applicable to him. Furthermore, the
Notification of Personnel Action (Form SF-50) of record notes appellant’s retirement plan only as
Federal Insurance Contributions Act. As OWCP has not established that he concurrently received
SSA age-related retirement benefits, based in part on his federal service, and FECA disability
compensation without appropriate offset, it has not established that he received an overpayment of
3

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Identifying and Calculating an Overpayment,
Chapter 6.200.1(h), (September 2018).
4

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

5

FECA Bulletin No. 97-09 (February 3, 1997).

6

Id.

7

Id.

8

Supra note 2.

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compensation in the amount of $5,234.53 for the period October 1, 2007 to July 20, 2019. The
Board therefore finds that the September 18, 2019 decision must be reversed.
IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: December 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 07-1563
Issued: December 3, 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 May 22, 2007 appellant filed a timely appeal of the April 6, 2007 decision of the
Office of Workers’ Compensation Programs which denied merit review. Because more than one
year has elapsed between the most recent merit decision dated February 23, 2006 and the filing
of this appeal on May 22, 2007, the Board lacks jurisdiction to review the merits of appellant’s
claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On June 13, 2000 appellant, then a 48-year-old secretary, filed an occupational disease
claim for bilateral tendinitis in her hands. The Office accepted her claim for tendinitis of the
right thumb and bilateral carpal tunnel syndrome and authorized right and left carpal tunnel
releases. Appellant worked intermittently and returned to full-time duty on January 29, 2001.

In an operative report dated October 2, 2000, Dr. Richard Nolan, a Board-certified
orthopedic surgeon, performed a right carpal tunnel release and partial excision of the transverse
carpal ligament, neurolysis of the median nerve and exploration of the thumb, extensor/abductor
tendon with release. He diagnosed right carpal tunnel syndrome, bilateral and de Quervain’s
stenosing tenosynovitis of the right thumb. On November 13, 2000 Dr. Nolan performed a left
carpal tunnel release and partial excision of the transverse carpal ligament and neurolysis of the
median nerve. He diagnosed left carpal tunnel syndrome and hypertrophy of the transverse
carpal ligament.
On August 21, 2003 appellant filed a claim for a schedule award. She submitted an
August 12, 2003 report from Dr. Nolan who noted that appellant’s symptoms of constant aching
and numbness in the wrists.
In a report dated October 10, 2003, Dr. John R. Chu, a Board-certified orthopedic
surgeon and an Office referral physician, diagnosed post bilateral carpal tunnel release with
residual numbness and subjective numbness of her upper extremities. He advised that appellant
reached maximum medical improvement on that date. Dr. Chu opined that there was no
permanent function loss of either upper extremity with good sensation to light touch as well as
two-point discrimination.
In a report dated November 3, 2003, an Office medical adviser found that appellant had
10 percent impairment of both the right arm and left arm.
In a decision dated November 13, 2003, the Office granted appellant a schedule award for
10 percent impairment of each upper extremity. The period of the award was from October 10,
2003 to December 19, 2004.
On November 8, 2004 appellant requested reconsideration and submitted reports from
Dr. Nolan dated October 2, 2003 to January 6, 2005. Dr. Nolan disagreed with the findings of
Dr. Chu and opined that appellant sustained a 39 percent sensory impairment of the median
nerve bilaterally and a 7 percent sensory impairment below the mid-forearm bilaterally.
In a decision dated February 4, 2005, the Office denied modification of the November 13,
2003 schedule award.
On January 3, 2006 appellant requested reconsideration. In reports dated March 17, 2005
to February 2, 2006, Dr. Nolan noted appellant’s persistent complaints of bilateral carpal tunnel
symptoms. An electromyogram (EMG) dated August 12, 2005 revealed no evidence of diffuse
peripheral neuropathy, mild median neuropathy at both wrists and no evidence of cervical
radiculopathy.
In a report dated January 31, 2006, the Office medical adviser opined that appellant had
no greater than the 10 percent impairment of the upper extremities previously awarded.
In a February 23, 2006 decision, the Office denied modification of the February 4, 2005
decision.

2

On February 14, 2007 appellant requested reconsideration and submitted additional
evidence. A magnetic resonance imaging (MRI) scan arthrogram of the right shoulder dated
March 1, 2006 revealed a tear of the supraspinatus tendon. In reports dated May 4 to
December 19, 2006, Dr. Nolan noted appellant’s continued complaints of pain and paresthesias
in the upper extremities. He noted that wrist splints and medications were ineffective in
relieving appellant’s symptoms and referred her for an evaluation for possible peripheral
neuropathy. In a report dated January 11, 2007, Dr. Nolan reported that appellant was seen by
Dr. Eric Denys, a Board-certified neurologist, who opined that appellant’s condition involved the
skin nerves and ruled out persistent median nerve entrapment. Additional reports from
Dr. Nolan addressed appellant’s complaints of persistent, aching, throbbing pain in the bilateral
wrists, hands and forearms with associated numbness. On August 15, 2006 he noted that
appellant could continue to work subject to restrictions. A January 6, 2007 EMG revealed
normal motor and sensory nerve conduction with a normal median radial sensory comparison.
Also submitted were MRI scan results for the cervical spine dated January 24 and February 12,
2007, which revealed disc degeneration, disc protrusion at C5-6 suspicious for cord
impingement. A January 22, 2007 report from Dr. Barbara A. McQuinn, a Board-certified
neurologist, noted a history of injury and diagnosed subjective numbness in both hands and distal
forearms status post bilateral carpal tunnel syndrome. She opined that appellant did not have a
neuropathy and recommended additional testing to rule out a central cord process or multiple
sclerosis.
By decision dated April 6, 2007, the Office denied appellant’s reconsideration request on
the grounds that the evidence was insufficient to warrant further merit review.
LEGAL PRECEDENT
Under section 8128(a) of the Act,1 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,2 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
(ii) Advances a relevant legal argument not previously considered by the (Office);
or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
[the Office.]”

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b).

3

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.3
ANALYSIS
Appellant’s February 14, 2007 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, appellant did not advance a relevant legal argument not previously considered by
the Office. Consequently, appellant is not entitled to a review of the merits of her claim based on
the first and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted medical reports from Dr. Nolan who
addressed her continued complaints of pain and paresthesias in the upper extremities. He
advised that wrist splints and medication were ineffective in relieving appellant’s symptoms.
However, these reports are not relevant to the underlying issue in this case because they do not
address appellant’s permanent impairment due to her accepted conditions. The reports are
similar to Dr. Nolan’s prior reports already contained in the record and were previously
considered by the Office.4 Therefore, the Office properly found that this evidence did warrant
reopening the claim for a merit review.
Appellant submitted a January 22, 2007 report from Dr. McQuinn who saw appellant for
persistent pain and numbness in her hands and diagnosed subjective numbness in bilateral hands
and distal forearms status post bilateral carpal tunnel syndrome. She opined that appellant did
not have a neuropathy and recommended additional testing. This report is not relevant because it
did not address whether appellant had greater permanent impairment due to her employment
injury. Appellant also submitted reports of diagnostic testing. These reports are also not
relevant because they do not address the issue of appellant’s permanent impairment due to her
accepted conditions. Therefore, the Office properly determined that this evidence did not
constitute a basis for reopening the case for a merit review.
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did she submit
relevant and pertinent evidence not previously considered by the Office.”5

3

Id. at § 10.608(b).

4

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
5

20 C.F.R. § 10.606(b).

4

The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of her claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied her February 14, 2007 request for reconsideration.6
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2007 is affirmed.
Issued: December 3, 2007
Washington, DC

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

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

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

6

Following the Office’s April 6, 2007 decision, appellant submitted additional evidence to the Office. However,
the Board may not consider new evidence on appeal; see 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 08-1237
Issued: October 24, 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 March 21, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated December 21, 2007 finding that she had not
established an emotional injury causally related to her federal employment. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty on May 30, 2006.
FACTUAL HISTORY
On June 29, 2006 appellant, then a 47-year-old revenue agent, filed a traumatic injury
claim alleging that on May 30, 2006 she felt harassed, chased and forced off the road by other
vehicles. She stated that she developed anxiety as a result. The employing establishment noted
that appellant was alone in her car on the way to a training class in Georgia.

In a letter dated July 14, 2006, the Office requested additional factual and medical
evidence from appellant. It allowed 30 days for a response. Appellant submitted a statement
alleging that as she was traveling alone to the training class she was “harassed, chased and forced
off the road by other vehicles causing her to become extremely fearful for her life.” She stated
that she did not have a working cell phone and that she attempted to use her vehicle to get the
attention of the highway patrol. Appellant noticed police lights, but as it was not the highway
patrol, she did not stop. She stated, “The police then stopped me and I was taken to the Catoosa
County Jail until June 1, 2006 and then taken to Rome Regional Hospital until June 3, 2006. The
employing establishment controverted appellant’s claim on the basis of misconduct as she was
allegedly arrested for intoxication and fleeing the police. In a statement dated June 30, 2006,
Joseph Johnson, appellant’s supervisor, noted that appellant attributed her behavior on sleep
deprivation. Appellant made a wrong turn and drove two hours north of Atlanta. Mr. Johnson
submitted a summary of events on July 5, 2006 noting that appellant had approval to travel from
Tampa, Florida to Atlanta, Georgia starting May 30, 2006 to attend a training class. Appellant
was supposed to fly. On May 30, 2006 she telephoned Mr. Johnson and informed him that she
was driving to Atlanta. Appellant stated that she would not be able to reach Atlanta for the start
of the class on that day. Mr. Johnson was unable to reach her or her husband until May 31, 2006.
On that date appellant’s husband informed him that appellant had been in an accident. Another
member of appellant’s training class telephoned Mr. Johnson on June 3, 2006 and reported that
appellant had been jailed for driving under the influence and multiple felony counts.
Mr. Johnson submitted an internet news story regarding appellant.
In a report dated July 6, 2006, Dr. Michael A. Weitzner, a Board-certified psychiatrist,
stated that appellant was undergoing treatment for post-traumatic stress disorder. Appellant
informed him that, following an exhausting period of pursuing a pro se court case with her
husband, she decided to drive to Atlanta for a work meeting. She missed her exit and became
exhausted, anxious and scared driving in an unfamiliar area. Appellant stated that large trucks
were bearing down on her and she believed that the truckers were trying to injure her. She left
the highway and attempted to sleep at a park ranger station, but was startled by another vehicle
and raced back to the highway. Appellant attempted to attract a policeman by driving erratically
and felt out of control, scared and afraid to trust anyone. She panicked and could not calm down.
Dr. Weitzner diagnosed brief psychotic disorder, post-traumatic stress disorder and adjustment
disorder with mixed emotional features. He stated, “It appears that [appellant] suffered from a
brief psychotic disorder at the time of her arrest … [with] grossly disorganized behavior and
severe paranoid thinking as well as significant panic.” Dr. Weitzner opined that appellant’s
prolonged period of sleep deprivation, hypervigilant state and underlying post-traumatic stress
disorder resulted in her brief psychotic episode. He stated that appellant did not knowingly
commit any crime and was not responsible for her actions.
Appellant submitted a narrative statement dated August 13, 2006. She contended that the
employing establishment allowed its employees to drive or fly to the scheduled training and
chose to drive. Appellant became lost while driving and was harassed, chased and forced off the
road by several tractor trailers causing her to fear for her life. She attempted to sleep at a park
ranger station, but was startled when a vehicle drove into the ranger station “speeding toward
[her] car.” Appellant panicked and reentered the highway and tried to get the attention of the
highway patrol, but was forced to stop by local police and taken to the local police station. She
noted that in the week prior to May 30, 2006 she got very little sleep as she was preparing to
2

participate in a hearing without legal representation. Appellant stated that she had no history of
an emotional condition.
By decision dated September 29, 2006, the Office denied appellant’s claim finding that
she was not in the performance of duty at the time of her alleged injury. It found that she
deviated from the direct route to her official duty location as she did not travel by air as
authorized.
Appellant requested reconsideration on September 28, 2007 and stated that she was on
office travel duty on May 30, 2006. She was not found guilty of the felony charges in Tennessee
or Georgia and contended that her deviation was not intentional. Appellant submitted
expungement orders regarding her charges. The employing establishment responded on
October 22, 2007, noting that it reimbursed appellant for her mileage from her residence to the
authorized training site. Appellant submitted an additional statement on December 4, 2007 and
evidence that she was allowed to use her personal vehicle for travel.
By decision dated December 21, 2007, the Office modified its September 29, 2006
decision to find that appellant was in the performance of duty at the time of the May 30, 2006
incident. However, appellant had failed to establish fact of injury as she failed to substantiate
that she was harassed by other drivers on the highway while in route to her training class.
LEGAL PRECEDENT
The Office’s regulations define a traumatic injury as a condition of the body caused by a
specific event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain, which is identifiable as to
time and place of occurrence and member or function of the body affected.1 In order to
determine whether an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred. The second component is whether the employment
incident caused a personal injury. Causal relationship is a medical question that can generally be
resolved only by rationalized medical opinion evidence.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.3 On the other hand, the disability is not covered where it results from such factors as an
1

20 C.F.R. § 10.5(ee).

2

Steven S. Saleh, 55 ECAB 169, 171-72 (2003).

3

5 U.S.C. §§ 8101-8193.

3

employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.4
For harassment to give rise to a compensable disability, there must be evidence which
establishes that the acts alleged or implicated by the employee did, in fact, occur. Mere
perceptions of harassment are not compensable under the Act.5 A claimant must substantiate
allegations of harassment with probative and reliable evidence. Unsubstantiated allegations of
harassment are not determinative of whether such harassment occurred.6 A claimant must
establish a factual basis for his or her allegations of harassment with probative and reliable
evidence.7
ANALYSIS
Appellant has alleged that she developed an emotional condition after being harassed,
chased and forced off the road by several tractor trailers. She alleged that she feared for her life
while in travel status driving to a scheduled training on May 30, 2006. The Office has accepted
that appellant was in the performance of duty while driving to her training on September 30,
2006; however, it found that she has failed to submit the necessary factual evidence to establish
that she was harassed, chased and forced off the road by tractor trailers while driving.
The Board finds that appellant has not submitted any evidence supporting her claim that
she developed an emotional condition resulting from the action of various tractor trailer drivers.
There are no police reports or witness statements which corroborate that she was the victim of
aggressive driving by truckers while in travel status. Appellant’s unsupported allegations that
she was harassed are not sufficient to establish the factual element of her traumatic injury claim.
As she has failed to substantiate that her alleged employment incidents occurred, the Office
properly denied her claim for an emotional condition.
CONCLUSION
The Board finds that appellant did not submit the necessary factual evidence to establish
that the employment incident of harassment and aggressive driving by truckers occurred as
alleged and that the Office therefore properly denied appellant’s emotional condition claim.

4

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125, 129 (1976).
5

Reco Roncoglione, 52 ECAB 454, 456 (2001).

6

Penelope C. Owens, 54 ECAB 684, 686 (2003).

7

Beverly R. Jones, 55 ECAB 411, 417 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 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

5