United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0695
Issued: August 22, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 6, 2017 appellant filed a timely appeal from a January 19, 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 established more than two percent permanent
impairment of his left lower extremity for which he previously received a schedule award.
FACTUAL HISTORY
On December 17, 2015 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 15, 2015 he sustained a left knee injury when he
was turning around and his foot did not pivot, causing something to pop in his knee. He first
received medical care and stopped work on December 16, 2015 for which he received wage-loss
1

5 U.S.C. § 8101 et seq.

compensation. Appellant sought treatment with Dr. John K. Konkel, a Board-certified
orthopedic surgeon.
In a January 12, 2016 diagnostic report, Dr. Bradley Ferguson, a Board-certified
radiologist, reported that a magnetic resonance imaging (MRI) scan of the left knee revealed
medial meniscus tear, moderate-to-high-grade chondromalacia in the medial compartment, mild
chondral heterogeneity in the lateral tibial plateau, mild grade 2 chondromalacia in the medial
trochlea, and focal edema in the distal lateral prefemoral fat pad.
By decision dated January 28, 2016, OWCP accepted the claim for left knee tear of
medial meniscus.
On February 2, 2016 appellant underwent a left knee arthroscopy with arthroscopic
medial meniscectomy performed by Dr. Konkel. The surgery was approved by OWCP.
In a March 25, 2016 work status note, Dr. Konkel released appellant to work with no
restrictions on March 10, 2016. He diagnosed left acute medial meniscal tear.
On April 7, 2016 appellant filed a claim for a schedule award (Form CA-7).
By letter dated May 10, 2016, OWCP requested Dr. Konkel submit a report addressing
appellant’s work-related conditions, the date of maximum medical improvement (MMI),
objective findings, subjective complaints, and an impairment rating rendered according to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6th ed. 2009).2
In a May 18, 2016 medical report, Dr. Konkel reported that a January 12, 2016 MRI scan
of appellant’s left knee had revealed a torn medial meniscus. He reiterated that on February 2,
2016 appellant had undergone arthroscopy of his left knee with partial meniscectomy.
Dr. Konkel reported that the arthroscopy revealed a torn medial meniscus, degenerative changes,
and chondromalacia. Utilizing page 525 of the sixth edition of the A.M.A., Guides, he
determined that appellant had five percent permanent impairment of the left lower extremity for
a meniscal tear. Dr. Konkel reported that this impairment rating was based on appellant’s
meniscectomy, meniscal injury, and residual chondromalacia.
OWCP routed Dr. Konkel’s report, a statement of accepted facts, and the case file to
Dr. Jovito Estaris, Board-certified in occupational medicine serving as an OWCP district medical
adviser (DMA), for review and a determination on whether appellant sustained permanent partial
impairment of the left lower extremity and date of MMI.
In a December 16, 2016 report, Dr. Estaris reported that appellant’s record was reviewed
for the purpose of determining permanent impairment of the left lower extremity due to a left
knee tear of medial meniscus. He noted that on February 2, 2016 appellant had undergone a left
knee arthroscopy and partial medial meniscectomy. Dr. Estaris reported the date of MMI as
May 18, 2016, the date of Dr. Konkel’s impairment rating.

2

A.M.A., Guides (6th ed. 2009).

2

According to Table 16-3 (Knee Regional Grid) on page 509, Dr. Estaris identified
meniscal injury as the diagnosis-based impairment (DBI), class 1 with a default value of two
percent for partial medial meniscectomy. He noted that there was no available data to perform
grading for functional history or physical examination. Dr. Estaris further reported that clinical
studies could not be used in the adjustment as the MRI scan showed a medial meniscus tear and
was used in classifying the DBI. As there were no adjustments, he determined that appellant
remained in class 1, grade C for two percent permanent impairment of the left lower extremity.
Dr. Estaris noted that Dr. Konkel failed to provide detailed calculations to compare the
differences in the ratings. He speculated that Dr. Konkel added three percent impairment for
chondromalacia of the joint, yet noted that this was not acceptable in accordance with the
A.M.A., Guides. Dr. Estaris further reported that Dr. Konkel’s impairment rating was deficient
with no accompanying history or physical examination at the time of the impairment rating. He
noted that Dr. Konkel referenced page 525 of the A.M.A., Guides yet this only provided an
example of a meniscus tear and how it was rated.
By decision dated January 19, 2017, OWCP granted two percent permanent impairment
of the left lower extremity. It found that the weight of the medical evidence rested with
Dr. Estaris serving as OWCP’s DMA. The date of MMI was noted as May 18, 2016. The award
covered a period of 5.76 weeks from May 18 to June 27, 2016.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.3 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses. For decisions issued after May 1, 2009, the
sixth edition will be applied.4
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health. For
lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition be Class of Diagnosis (CDX), which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).5
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6

3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
5

Supra note 2 at 493-531.

6

Id. at 521.

3

Evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.7
ANALYSIS
OWCP accepted appellant’s claim for left knee tear of medial meniscus. It approved
surgery for a left knee arthroscopy and partial medial meniscectomy, which he underwent on
February 2, 2016. The issue is whether appellant has more than two percent permanent
impairment of the left lower extremity, for which he previously received a schedule award.
The Board finds that appellant has not established more than two percent permanent
impairment of the left lower extremity.
In his May 18, 2016 report, appellant’s treating physician, Dr. Konkel, reported that
appellant sustained five percent permanent impairment of the left lower extremity due to his
meniscectomy, meniscal injury, and residual chondromalacia. His report did not provide
functional history or physical examination findings, nor did he identify any grade modifiers to
explain how he reached his calculation. It is well established that a physician’s opinion should
include a description of impairment, range of motion of affected members, any atrophy or
deformity, decreases in strength or disturbance of sensation in sufficient detail so as those
reviewing the file would be able to clearly visualize the impairment with all its limitations.8
Thus, Dr. Konkel’s report is of limited probative value and insufficient to determine the extent of
permanent impairment.9
In a report dated December 16, 2016, Dr. Estaris, serving as OWCP’s DMA, reviewed
Dr. Konkel’s report and determined that appellant had two percent permanent impairment of the
left lower extremity. According to Table 16-3 (Knee Regional Grid), he identified meniscal
injury, class 1 with a default value of two percent for partial medial meniscectomy.10
Dr. Estaris noted that there was no adjustment in the impairment rating because there was
no available data to perform grading for functional history or physical examination, and clinical
studies did not apply as the MRI scan was used to identify the class. He deferred to a default
impairment rating for a meniscal injury by failing to assign grade modifiers for functional
history, physical examination, and clinical studies. Dr. Estaris explained that the impairment had
not been properly described by appellant’s physician.
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and

7

R.V., Docket No. 10-1827 (issued April 1, 2011).

8

See Peter C. Belkind, 56 ECAB 580 (2005).

9

T.E., Docket No. 11-1805 (issued August 2, 2012).

10

Supra note 2 at 509.

4

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.11
Dr. Estaris properly explained how he calculated appellant’s permanent impairment,
given the limited data available. He considered all the reported findings, as well as appellant’s
partial medial meniscectomy, and gave a sufficient and supportive explanation for his
determination that appellant had two percent permanent impairment of the left lower extremity.
The weight of the medical opinion evidence on this matter rests with Dr. Estaris, OWCP’s
medical adviser.12
Appellant may request a schedule award or increased schedule award at any time based
on evidence of new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish more than two percent permanent
impairment of his left lower extremity for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
11

See supra note 4 at Chapter 2.808.6(f) (March 2017).

12

L.J., Docket No. 17-0754 (issued June 21, 2017).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.D., Appellant
and
DEPARTMENT OF COMMERCE, U.S.
CENSUS BUREAU, Marienville, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1754
Issued: April 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 16, 2013 appellant, through his representative, filed a timely appeal from the
January 17, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied modification of its loss of wage-earning capacity (LWEC) determination. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met one of the standards for obtaining modification of
the March 1, 2012 LWEC determination.

1
2

5 U.S.C. § 8101 et seq.

Appellant does not appeal from OWCP’s June 11, 2013 decision on wage-loss compensation due to postsurgery
recovery and treatment. Thus, the Board will not review it on this appeal. See 20 C.F.R. § 501.3(a).

FACTUAL HISTORY
On May 5, 2010 appellant, then a 55-year-old census enumerator, sustained a traumatic
injury in the performance of duty when he jumped to avoid stepping on an active anthill. OWCP
accepted his claim for left medial meniscus tear. Appellant received compensation for wage loss
on the periodic rolls. His pay rate at the time of injury was $11.50 an hour.
In July 2011, appellant returned to work as a field representative. The employing
establishment advised that the appointment and tour of duty were identical to those of the dateof-injury position. Appellant’s new pay rate was $11.95 an hour.
Appellant’s temporary appointment expired on December 17, 2011. The employing
establishment updated his actual earnings: For the 84-day period from September 25 through
December 17, 2011, appellant earned $1,867.19 or an average of $155.60 a week.
In a decision dated March 1, 2012, OWCP determined that appellant’s actual earnings as
a field representative fairly and reasonably represented his LWEC. As appellant’s actual
earnings in alternative employment exceeded the current wages of the job he held when
injured -- a weekly pay rate of $155.60 compared to $149.28 -- OWCP determined that he had
no LWEC as a result of the accepted employment injury.3
On September 24, 2012 OWCP’s hearing representative affirmed the LWEC
determination after a slight modification of appellant’s pay rate in 2011. As the wages appellant
earned in alternative employment were greater than the wages he earned on the date disability
began, the hearing representative found that he had no LWEC.
On October 11, 2012 appellant requested reconsideration. To support overturning the
LWEC determination, he argued that he did not meet the 60-day duration requirement: from
September 25 through December 17, 2011 -- the period used by OWCP to determine his LWEC
-- he worked 43 days through November 6, 2011, then abandoned his job for 8 days through
November 14, 2011 while he sought the advice of his attending physicians and then resumed
employment for 33 days through December 17, 2011. Appellant added that a change in medical
condition was grounds for modifying the LWEC determination.
Appellant argued that his actual earnings in the alternative employment did not fairly and
reasonably represent his LWEC, as the limitation on walking and standing (up to 15 minutes a
day) would prove difficult or impossible, thereby limiting his realistic work potential to 3.5 hours
a day and making his reemployment not equivalent to his date-of-injury enumerator position.
Appellant took issue with the calculation of his LWEC. He stated that, while he was
allowed to work up to 4 hours a day, OWCP used a provisional 4.5 hours when applying the
“150 formula.” Appellant argued that employment records showed that he worked 114.95 hours
over 49 days from September 25 through December 17, 2011 or an average of 2.35 hours a day,

3

OWCP appeared to use the “150 formula” under 5 U.S.C. § 8114(d)(3) to determine appellant’s date-of-injury
pay rate: 4.5 hours a day (provisional) x $11.50 per hour x 150/52 weeks a year = $149.28 per week.

2

4.9 days a week.4 He noted that even using four hours a day would give him a weekly pay rate
of $137.88, which was less than his $149.28 weekly pay rate at the time of injury. Appellant
added that OWCP did not follow its procedures for calculating his weekly pay rate at the time of
injury.
The employing establishment responded that appellant was rehired on July 6, 2011,
entered a pay status shortly thereafter and remained continuously employed until
December 17, 2011. Appellant’s temporary, nonstatus position was extended several times with
no breaks in employment and no personnel action taken when he sought clarification from his
physicians. The employing establishment noted that standing, walking and sitting were entirely
at his discretion. With respect to the very limited nature of job requirements, it stated: “This is
perhaps the lightest duty, temporary, intermittent, part-time job imaginable.” Further, there was
no medical evidence that appellant was for any reason disabled from performing this job.
The employing establishment explained that appellant was, at the time of injury, a
temporary, intermittent employee. The type of employment and tour of duty of his alternative
employment were exactly that which he held at the time of injury.
In a decision dated January 17, 2013, OWCP denied modification of its March 1, 2012
LWEC determination. There was no evidence of a material change in the nature and extent of
the injury-related condition and no evidence of retraining or vocational rehabilitation. OWCP
also found that appellant submitted no evidence of error in its execution of the “150 formula”
used in the calculation of its March 1, 2012 LWEC determination. As appellant did not meet at
least one of the standards for justifying modification of the LWEC determination, it denied
modification.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his 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
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open
labor market under normal employment conditions.7 The wage-earning capacity of an employee
is determined by the employee’s actual earnings if the employee’s actual earnings fairly and
reasonably represent his or her wage-earning capacity.8 While wages actually earned are

4

Earnings and leave statements show that from September 25 through December 17, 2011, a period of 84 days or
12 weeks, appellant worked 156.25 hours and earned $1,867.19.
5

5 U.S.C. § 8102(a).

6

20 C.F.R. § 10.5(f).

7

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

8

5 U.S.C. § 8115(a).

3

generally the best measure of an injured worker’s capacity for employment, such wages may not
be based on make-shift or sheltered employment.9
Once LWEC is determined, a modification of such determination is not warranted unless
there is a material change in the nature and extent of the injury-related condition, the employee
has been retrained or otherwise vocationally rehabilitated or the original determination was, in
fact, erroneous. The burden of proof is on the party attempting to show modification of the
award.10
ANALYSIS
As appellant requested reconsideration and argued that the March 1, 2012 LWEC
determination should be overturned, he has the burden of proof to establish at least one of the
grounds for modification.
Appellant did not support his request for modification with evidence of a material change
in the nature and extent of the accepted left medial meniscus tear, such that he could no longer
perform the duties of his alternative employment. Indeed, the record establishes that his
alternative employment did not end for medical reasons, but rather because the temporary
appointment expired on December 17, 2011 without further extension.
Appellant made no argument that he was retrained or otherwise vocationally
rehabilitated.11
Appellant did argue that the original determination was, in fact, erroneous. His theory
that he abandoned his alternative employment, breaking his employment from September 25
through December 17, 2011 into two smaller periods, neither of which was 60 days, is not
established. Appellant’s temporary appointment began in July 2011 and continued unbroken, as
verified by the employing establishment, until December 2011, a period of nearly five months.
Moreover, his continuous employment from September 25 through December 17, 2011, upon
which OWCP based its LWEC determination, was more than 60 days.
To determine whether the claimant’s actual earnings in alternative employment fairly and
reasonably represents his LWEC, OWCP should consider whether the kind of appointment and
tour of duty were at least equivalent to those of the job held on the date of injury.12 The
employing establishment confirmed they were identical. Appellant’s actual earnings in
alternative employment performed successfully for more than 60 days fairly and reasonably
represented his wage-earning capacity.

9

A.J., Docket No. 10-619 (issued June 29, 2010); Connie L. Potratz-Watson, 56 ECAB 316 (2005).

10

Daniel J. Boesen, 38 ECAB 556 (1987).

11

Supra note 10.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7.a (October -2009).

4

Parsing the physical demands of his alternative employment, appellant argued that
walking and standing for 15 minutes a day would prove difficult or impossible, thereby reducing
the number of hours he worked on a daily basis to 3.5. The Board has reviewed the physical
demands and notes that there is no requirement that he walk or stand for 15 minutes. To be
precise, both are described as “up to” 15 minutes a day, usually no more than several moments or
minutes at a time. Further, the demands are described as intermittent and seldom and both are
left entirely to the employee’s discretion. The position was essentially sedentary and performed
at home with minimal physical demands in the performance of typical administrative functions.
Indeed, appellant successfully demonstrated that he could perform the duties of his alternative
employment. His argument concerning walking and standing does not establish that the accepted
medical condition limited him to working only 3.5 hours a day.
The record shows that appellant’s alternative employment came with a higher pay rate.
His date-of-injury position as an enumerator paid $11.50 an hour. Appellant’s alternative
employment as a field representative paid $11.95 an hour. As noted above, the tours of duty
were identical. On its face, at least, appellant’s left medial meniscus injury no longer caused a
loss of wage-earning capacity: he was able to earn higher hourly wages than he did when he was
injured.
Appellant argues, however, that OWCP did not follow its procedures when comparing
weekly pay rates. OWCP’s FECA Procedure Manual sets forth rules for determining pay rates
based on unusual terms of employment, pay scales or increments of pay, including the pay rate
for census enumerators, the position he held at the time of injury.13 For the 2010 census, the
Bureau of the Census (Bureau) hired individuals in Local Census Offices (LCO’s) throughout
the United States. Most employees in LCO’s were either enumerators or crew leaders on
temporary (not-to-exceed 180 days) appointments. All temporary-hire positions, including
enumerators and crew leaders, were paid on an hourly basis. Wages in the LCO’s varied by
geographical area and pay types were assigned accordingly. Enumerators were paid from $10.93
to $22.10 an hour.
Based on an analysis of the 2000 Census data, the Bureau determined that, on average,
enumerators worked 4.5 hours a day, 4 days a week. The work patterns for the 2010 census were
anticipated to be similar to the 2000 Census. However, individuals may have worked more or
less depending on the LCO’s operational requirements and the factual evidence should be
evaluated carefully. Because of their irregular federal employment, these employees are usually
paid under the provision of 5 U.S.C. § 8114(d)(3).
In its March 1, 2012 LWEC determination, OWCP found that appellant’s pay rate in
alternative employment as a field representative exceeded the pay rate of his date-of-injury
position as an enumerator. In calculating his pay rate as a field representative, it used
employment records showing that for the 12-week period from September 25 through
December 17, 2011, appellant earned $1,867.19 or an average of $155.60 per week.

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.12.e
(March 2011).

5

In calculating his pay rate as an enumerator, however, OWCP used a provisional
workday of 4.5 hours, an average based on an analysis of the 2000 Census. FECA procedures
make clear that individuals may have worked more or less, “and the factual evidence should be
evaluated carefully.”
Before OWCP can properly compare appellant’s pay rate in alternative employment to
his pay rate at the time of injury, it must carefully evaluate the factual evidence to determine the
latter. Under 5 U.S.C. § 8114(d)(3), it must give regard to the earnings of the employee in
federal employment for the year prior to injury. OWCP should then review the earnings of other
employees in the same or most similar class working the same or most similar employment in the
same or neighboring location. Finally, it must consider any other employment of the employee
or other relevant factors. FECA procedures discuss how OWCP may obtain such information,
but the Board can find no evidence that it developed this evidence.
To determine the employee’s average annual earnings after development is complete,
FECA procedures state that OWCP should take the highest of:
“(1) the earnings of the employee in the year prior to the injury, including any
similar nonfederal employment;
“(2) the earnings of a similarly situated employee; or
“(3) the pay rate determined by the “150 formula.”14
FECA procedures state that OWCP should prepare a memorandum setting forth this
determination and explaining the basis for it. This memorandum, which is subject to the
certifier’s concurrence, should be made part of the record.15 It does not appear that OWCP
followed these procedures. Rather, it seems that OWCP arbitrarily opted to apply the “150
formula” as a first resort, using a provisional 4.5 hours a day rather than a pay rate drawn from
the carefully evaluated factual evidence.16
For this reason, the Board finds that this case is not in posture for decision on whether the
March 1, 2012 LWEC determination was, in fact, erroneous and therefore should be modified.
The Board will set aside OWCP’s January 17, 2013 decision denying modification and will
remand the case to OWCP for further development consistent with its FECA procedures.
Following such further development as may become necessary, OWCP shall issue a de novo
decision on appellant’s request for modification.17

14

Id. at Determining Pay Rates, Chapter 2.900.4.c(5) (March 2011).

15

Id., Chapter 2.900.4.c(6).

16

Id., Chapter 2.900.12.e(3).

17

See Leonard D. Canfield, Docket No. 04-2017 (issued February 1, 2005) (OWCP seemed to arbitrarily apply
the “150 formula” and may not have applied that formula correctly).

6

CONCLUSION
The Board finds that this case is not in posture for decision. Further development is
warranted.
ORDER
IT IS HEREBY ORDERED THAT the January 17, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: April 4, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 09-926
Issued: February 22, 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 February 25, 2009 appellant filed a timely appeal from a January 9, 2009 merit
decision of the Office of Workers’ Compensation Programs affirming a June 26, 2008 decision
terminating her compensation benefits. Pursuant to 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 the Office of Workers’ Compensation Programs met its burden of
proof to terminate appellant’s compensation benefits effective June 24, 2008.
FACTUAL HISTORY
On January 3, 2006 appellant, then a 35-year-old manual clerk injured her right wrist and
forearm while sorting mail. The Office accepted the claim for right wrist sprain and later

expanded her claim to include bilateral carpal tunnel syndrome. Appellant did not stop work but
started a light-duty position.1
Appellant came under the care of Dr. John Pollina, a Board-certified physiatrist, from
January 17 to May 10, 2006 for left periscapular shoulder pain and numbness and pain in her
wrists and hands. She reported working as a manual clerk and noted her work duties included
repetitive wrist and hand activities. Dr. Pollina diagnosed left periscapular myofasciitis and mild
bilateral carpal tunnel syndrome and opined that they were due to overuse and cumulative trauma
which occurred while performing her work duties. Dr. Pollina recommended physical therapy
and wrist splints. An x-ray of the right hand dated February 9, 2006 revealed no abnormalities.
On June 2, 2006 appellant underwent an electromyogram (EMG) which revealed no evidence of
carpal tunnel or radiculopathy.2
Appellant submitted a magnetic resonance imaging (MRI) scan of the cervical spine
dated June 3, 2006 which revealed scoliosis. A March 23, 2007 EMG revealed moderate
bilateral carpal tunnel syndrome and right C5-6 radiculopathy. Appellant came under the care of
Dr. Haranath Policherla, a Board-certified neurologist, who treated her from May 18 to
August 27, 2007 for left-sided neck pain and carpal tunnel syndrome which appellant developed
after lifting trays of mail at work. Dr. Policherla diagnosed cervical radiculopathy and carpal
tunnel syndrome. He advised that appellant could not work due to cervical radiculopathy and
carpal tunnel syndrome.
On September 5, 2007 the Office referred appellant to Dr. B.J. Page, II, an osteopath and
Board-certified orthopedic surgeon, for a second opinion. In a September 19, 2007 report,
Dr. Page reviewed the records provided and examined appellant. He diagnosed a history of
rotator cuff tendinitis, resolved; subjective evidence of periscapular myositis of the left shoulder,
not supported by objective findings; and electrodiagnostic evidence of moderate carpal tunnel
syndrome of both wrists. Examination of the neck revealed limitation of motion, full range of
motion of both shoulders, elbows, wrists and fingers, no evidence of crepitance in the shoulder or
atrophy of the supraspinatus, infraspinatus or in the hands. Dr. Page noted appellant responded
appropriately to pinprick and light touch in the axillary nerve dermatome, median, radial and
ulnar nerve dermatomes of the bilateral upper extremities. He could not find a similar degree of
objective findings to support her subjective complaints involving her left shoulder as there was
no crepitance, atrophy or MRI scan findings to support her pain.
Dr. Page noted
electrodiagnostic evidence of carpal tunnel syndrome which supported her bilateral wrist
complaints. He found that appellant’s shoulder injury of December 5, 2005 resolved. With
regard to her hand complaints, he stated that her symptoms would resolve since she had been off
work for three months and he suspected a nonwork-related issue as her symptoms had worsened.
1

Appellant filed a claim for a traumatic injury occurring on December 5, 2005 which was accepted for left
shoulder sprain, File No. xxxxxx412. On July 12, 2006 appellant filed an occupational disease claim which was
accepted for left shoulder myofasciitis and bilateral elbow ulnar irritation, File No. xxxxxx642. These claims were
consolidated with the current claim before the Board.
2

On November 30, 2006 appellant filed a claim for recurrence of disability which was denied by the Office on
January 10, 2007. Appellant submitted several CA-7, claims for compensation for temporary total disability for the
period of March 23, 24 and 30, 2007. On May 30, 2007 the Office denied appellant’s claim for compensation for
this period.

2

Dr. Page prepared a work capacity evaluation and indicated that appellant was capable of
performing her usual job and identified permanent restrictions.
On October 17, 2007 the Office advised Dr. Page that work restrictions had to be based
on measurable objective evidence of active pathology and not be prophylactic in nature. In an
October 7, 2007 report, Dr. Page noted the prior restrictions were permanent until appellant
underwent carpal tunnel surgery but she needed no restrictions for her shoulder.
In reports dated September 26 and October 22, 2007, Dr. Policherla diagnosed cervical
radiculopathy and moderate carpal tunnel syndrome. He opined these conditions were work
related. Dr. Policherla advised that appellant was totally disabled and would be reevaluated in
four weeks. On December 3, 2007 the Office requested that Dr. Policherla review and comment
on the reports of Dr. Page. Dr. Policherla did not respond. On November 26, 2007 he diagnosed
cervical radiculopathy and moderate carpal tunnel syndrome and recommended wrist splints and
physical therapy.
The Office found that a conflict of medical opinion arose between Dr. Policherla,
appellant’s treating physician, who found that she had residuals of her accepted carpal tunnel
syndrome and cervical radiculopathy and was totally disabled for work, and Dr. Page, an Office
referral physician, who determined that appellant’s shoulder injury of December 5, 2005
resolved and that she could return to work eight hours per day with restrictions due to her
diagnosed carpal tunnel syndrome.
The Office referred appellant to Dr. Michael E. Kosinski, a Board-certified orthopedic
surgeon. In a report dated March 10, 2008, he reviewed the medical records provided,
performed a physical examination and addressed the history of appellant’s work-related injury.
He noted findings upon physical examination of no neck stiffness or muscle spasm, pain in the
back of the neck radiating along the left trapezius, grip strength, wrist extensors, biceps, triceps
and deltoid muscle strengths were symmetrical, equal and normal and biceps, triceps and
brachioradialis tendon reflexes were symmetrical, equal and normal. Dr. Kosinski noted a
negative Tinel’s sign bilaterally over the median nerve and the Phalen’s test elicited complaints
of pain but no sensory changes in the hands bilaterally. He diagnosed subclinical degenerative
disease of the cervical spine that was not radiographically apparent. Dr. Kosinski found no
clinical evidence of radicular problems and that the EMG and MRI scan of the cervical spine
were negative for any nerve root involvement. As to appellant’s carpal tunnel syndrome, she had
an atypical presentation with pain in the forearm. Dr. Kosinski recommended repeat EMG and
nerve conduction studies. He found no evidence of cervical radiculopathy and recommended
appellant return to work but avoid keyboarding.
On March 24, 2008 appellant underwent an EMG which revealed left C5-6
radiculopathy. In a March 24, 2008 report, Dr. Policherla diagnosed cervical radiculopathy and
noted appellant continued to have cervical muscle spasms and positive Spurling’s sign. He
recommended she continue working with restrictions.
On April 9, 2008 the Office requested Dr. Kosinski to review the March 24, 2008 EMG
and Dr. Policherla’s March 24, 2008 report to address whether appellant’s accepted conditions
had resolved. In an April 10, 2008 report, Dr. Kosinski noted that the recent testing confirmed

3

appellant did not have evidence of bilateral carpal tunnel syndrome and did not require treatment
or restrictions for her hands and wrists as previously suggested in his original report. He advised
that appellant’s accepted conditions of left shoulder periscapular myofasciitis, acute right wrist
sprain and bilateral ulnar nerve irritation had resolved and any complaints in the left shoulder
and scapular area would be related to nonwork activities. Dr. Kosinski found that the
degenerative disease of the cervical spine was not work-related.
On May 8, 2008 the Office issued a notice of proposed termination of compensation
benefits on the grounds that Dr. Kosinski’s reports established no residuals of the work-related
left shoulder sprain, right wrist sprain, left shoulder periscapular myofasciitis and bilateral elbow
ulnar irritation. It noted that this decision did not effect appellant’s entitlement to compensation
benefits for the accepted condition of bilateral carpal tunnel syndrome.
In a May 23, 2008 report, Dr. Policherla diagnosed cervical radiculopathy and noted
appellant continued to have pain in her neck radiating into her left shoulder with numbness and
tingling in both wrists. Dr. Policherla noted that a March 24, 2008 EMG revealed left C5-6
radiculopathy.
By decision dated June 26, 2008, the Office terminated appellant’s compensation benefits
effective June 24, 2008 for the accepted conditions of left shoulder sprain, right wrist sprain, left
shoulder periscapular myofasciitis and bilateral elbow ulnar irritation. It found that the weight of
the medical evidence established that she had no continuing disability resulting from her
accepted employment injuries.
On July 9, 2008 appellant requested a telephonic oral hearing which was held on
November 3, 2008. In reports dated May 23 to December 5, 2008, Dr. Policherla diagnosed
cervical radiculopathy and moderate bilateral carpal tunnel syndrome confirmed by EMG. He
noted appellant could continue working with restrictions and wrist splints. An EMG dated
July 8, 2008 revealed moderate bilateral carpal tunnel syndrome.3
In a decision dated January 9, 2009, the hearing representative affirmed the June 26, 2008
Office decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.4 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.5 The right to medical benefits for an accepted condition is not limited to the period
3

Appellant submitted several CA-7’s, claims for compensation, for the period of July 25 to July 28, 2008 which
was denied by the Office in a decision dated November 10, 2008. The November 10, 2008 decision also denied
expansion of the claim to include the condition of cervical radiculopathy. Appellant did not appeal the
November 10, 2008 decision.
4

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

5

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

4

of entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.6
ANALYSIS
The Office accepted appellant’s claim for left shoulder sprain, right wrist sprain, left
shoulder periscapular myofasciitis, bilateral elbow ulnar irritation and bilateral carpal tunnel
syndrome. It reviewed the medical evidence and determined that a conflict in medical opinion
existed between appellant’s attending physician, Dr. Policherla, a Board-certified neurologist,
who indicated that appellant sustained residuals of her work-related carpal tunnel syndrome, left
shoulder myofasciitis and cervical radiculopathy and was totally disabled from work, and
Dr. Page, an Office referral physician, who determined that appellant’s conditions except for
carpal tunnel syndrome had resolved. Consequently, the Office referred appellant to
Dr. Kosinski to resolve the conflict.
The Board finds that the opinion of Dr. Kosinski is sufficiently well rationalized and
based upon a proper factual background such that it is entitled to special weight. Dr. Kosinski
found that appellant’s work-related left shoulder sprain, right wrist sprain, left shoulder
periscapular myofasciitis and bilateral elbow ulnar irritation has ceased without residual.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.7
In a March 10, 2008 report, Dr. Kosinski reviewed appellant’s history, reported findings
and noted that appellant exhibited no objective complaints or definite work-related abnormality
in her condition. He noted findings upon physical examination of grip strength, wrist extensors,
biceps, triceps and deltoid muscle strengths were symmetrical, equal and normal and biceps,
triceps and brachioradialis tendon reflexes were symmetrical, equal and normal with negative
Tinel’s and Phalen’s signs. Dr. Kosinski diagnosed subclinical degenerative disease of the
cervical spine and noted that there was no evidence clinically of radicular problems and the
EMG and MRI scans of the cervical spine were negative for any nerve root involvement. He
opined that based on the absence of objective findings on examination and from a review of the
medical records and diagnostic studies, appellant was able to return to work full time with
restrictions. In a supplemental report dated April 10, 2008 Dr. Kosinski noted that recent EMG
testing confirmed there was no evidence of carpal tunnel syndrome. He opined that appellant’s
accepted conditions of left shoulder periscapular myofasciitis, acute right wrist sprain and
bilateral ulnar nerve irritation had resolved.
After issuance of the pretermination notice, appellant submitted a May 23, 2008 report
from Dr. Policherla, who diagnosed cervical radiculopathy and noted appellant continued to have
pain in her neck radiating into her left shoulder and both wrists. He noted a March 24, 2008
6

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

7

Solomon Polen, 51 ECAB 341 (2000).

5

EMG revealed left C5-6 radiculopathy. Dr. Policherla did not, however, specifically address
how her condition or medical restrictions and disability were causally related to the accepted
employment injuries. The Board has found that vague and unrationalized medical opinions on
causal relationship are of diminished probative value.8
After the termination of benefits, appellant submitted additional reports from
Dr. Policherla who reiterated the diagnosis of cervical radiculopathy and moderate bilateral
carpal tunnel syndrome. Dr. Policherla noted that appellant could continue working with
restrictions and wrist splints. He did not explain how her ongoing condition or medical
restrictions and disability were causally related to the accepted employment injuries.
Additionally, Dr. Policherla’s opinion is similar to his prior reports and is insufficient to
overcome that of Dr. Kosinski or to create a new medical conflict.9
The Board finds Dr. Kosinski had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. He is a specialist in the appropriate field. Dr. Kosinski offered
no basis to support that appellant had no residuals or work-related disability from the accepted
left shoulder sprain, right wrist sprain, left shoulder periscapular myofasciitis and bilateral elbow
ulnar irritation. His opinion as set forth in his reports of March 10 and April 10, 2008 is found to
be probative evidence and reliable. The Board finds that Dr. Kosinski’s opinion constitutes the
weight of the medical evidence and is sufficient to justify the Office’s termination of benefits for
the accepted conditions of acute right wrist strain, left shoulder periscapular myofasciitis,
bilateral elbow ulnar irritation has ceased.10 There is no other medical evidence sufficient to
overcome the opinion of Dr. Kosinski or to create a new medical conflict.
CONCLUSION
The Board finds that the Office has met its burden of proof to terminate benefits effective
June 24, 2008.11

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).
9

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992); Dorothy
Sidwell, 41 ECAB 857 (1990). The Board notes that Dr. Policherla’s reports do not contain new findings or
rationale upon which a new conflict might be based.
10

In cases where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
11

The Board notes that appellant is still entitled to appropriate benefits for the accepted condition of bilateral
carpal tunnel syndrome which was not included in the termination decision affirmed by the Board.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 9, 2009 and June 26, 2008 are affirmed.
Issued: February 22, 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
__________________________________________
B.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milwaukee, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0121
Issued: April 21, 2017

Case Submitted on the Record

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

JURISDICTION
On October 27, 2016 appellant, through counsel, filed a timely appeal from a
September 12, 2016 decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a right wrist condition
causally related to the accepted August 10, 2015 employment incident.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 12, 2015 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 10, 2015, he injured his right wrist as a result of
climbing onto a flatbed tow truck in order to retrieve mail from a broken-down mail delivery
vehicle. He noted that he did not slip or fall. A supervisor noted that no medical reports had
been received to support the claim and denied knowledge of the facts surrounding appellant’s
claimed injury.
By letter dated September 1, 2015, OWCP advised appellant that the evidence of record
was insufficient to support his claim. It noted that he had not submitted any medical evidence in
support of his claim. OWCP afforded appellant 30 days to submit additional evidence.
In support of his claim, appellant submitted a “return to work” note, signed by a nurse
practitioner. He also submitted several reports of physical limitations from Dr. Curtis Crimmins,
a Board-certified hand surgeon, however, these reports did not contain diagnoses.
By decision dated October 5, 2015, OWCP denied appellant’s claim for compensation. It
found that the incident occurred as alleged, but he failed to submit medical evidence containing a
medical diagnosis from a qualified physician in connection with the events of August 10, 2015.
On October 13, 2015 OWCP received a number of reports from Dr. Crimmins.
In a report dated August 12, 2015, Dr. Crimmins stated an impression of acute onset right
wrist pain with heavy load and extension. He gave appellant a splint and recommended blood
work to determine whether there was an inflammatory component to his condition.
On August 20, 2015 Dr. Crimmins reported that appellant’s blood test was normal. He
noted that he recommended appellant undergo a magnetic resonance imaging (MRI) scan.
Dr. Crimmins thereafter related that it appeared appellant had a combination of both underlying
scaphotrapezotrapezoidal (STT) joint arthrosis and flexor carpi radialis (FCR) tendinitis.
In a report dated August 27, 2015, Dr. Crimmins reviewed a right wrist MRI scan of
appellant and noted that it revealed severe arthrosis of the STT joint with edema in the scaphoid
trapezium and trapezoid bones. He also explained that he recommended that appellant proceed
with STT joint arthrodesis.
On September 24, 2015 Dr. Crimmins noted that appellant had returned for a follow up
for his wrist fusion, noting that a cast had been fabricated for strict immobilization.
In a statement dated October 25, 2015, appellant requested an oral hearing before an
OWCP hearing representative. He noted that, at the time of his injury, a diagnosis was not
readily available due to immense swelling and that the diagnosis had only been made after his
MRI scan.
The hearing was held on June 29, 2016. At the hearing, the hearing representative stated
that Dr. Crimmins’ reports did not contain a sufficient explanation of causation or aggravation of
appellant’s condition. Appellant noted that the surgery on his wrist had worsened his condition
2

because two of the three inserted screws were loose. The hearing representative kept the record
open for 30 days for the submission of additional evidence.
On July 7, 2016 Dr. Crimmins noted that “[Appellant] and I had a lengthy discussion
regarding the onset of his wrist pain. He was climbing up onto a flatbed tow truck when he
hyperextended his wrist and had an onset of pain and swelling. It did not resolve over time.
[Appellant] eventually underwent arthrodesis of his STT joint. [He] does remark that he was
completely asymptomatic prior to climbing up onto the flatbed truck. It does appear that
[appellant’s] reported work injury significantly aggravated arthrosis of his STT joint. This
opinion is given to a reasonable degree of medical probability.”
By decision dated September 12, 2016, the hearing representative denied appellant’s
claim finding that Dr. Crimmins’ medical opinion on causation was not sufficiently rationalized.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 injury4 was sustained in the performance of
duty as alleged, and that any disability or medical condition for which compensation is claimed
is causally related to the employment injury.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.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged,
but fail to show that his condition relates to the employment incident.6
The claimant has the burden of proof to establish 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.7 Causal relationship is a
3

Supra note 2.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of 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. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
6

See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

7

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

3

medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence.8 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 compensable employment factors.9
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.10
ANALYSIS
Appellant alleged that on August 10, 2015, he sustained a wrist injury as a result of
climbing onto a tow truck, to retrieve mail from a broken-down postal vehicle. OWCP accepted
that the incident occurred as alleged.
The Board finds that appellant has not submitted medical evidence sufficient to establish
that the August 10, 2015 incident caused or aggravated his diagnosed severe arthrosis of the STT
joint with edema in the scaphoid trapezium and trapezoid bones and FCR tendinitis.
On July 7, 2016 Dr. Crimmins noted that appellant was climbing up onto a flatbed tow
truck when he hyperextended his wrist and had an onset of pain and swelling, noting that it did
not resolve over time and appellant eventually underwent arthrodesis of his STT joint. He
explained, “[Appellant] does remark that he was completely asymptomatic prior to climbing up
onto the flatbed truck. It does appear that his reported work injury significantly aggravated
arthrosis of his STT joint. This opinion is given to a reasonable degree of medical probability.”
The Board has held that a medical opinion on the issue of causation or aggravation of a
condition that is based solely on the observation that a claimant was asymptomatic before the
injury is insufficient, by itself, to establish a causal relationship between the injury and the workrelated event.11 Dr. Crimmins’ opinion lacks a physiologic explanation of how the August 10,
2015 incident caused or aggravated appellant’s claimed conditions. As he did not provide a
reasoned explanation of how the specific employment incident of August 10, 2015 caused or
aggravated appellant’s right wrist condition, his opinion is of limited probative value.12
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

8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
9

J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

10

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996).

12

See S.M., Docket No. 16-0593 (issued February 24, 2017).

4

nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.13
Appellant did not submit a clear and well-rationalized opinion from a physician causally
relating his right wrist condition to the incident of August 10, 2015. As such, the Board finds
that he failed to submit evidence sufficient to establish that his right wrist condition was causally
related to the accepted August 10, 2015 employment incident.
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 his burden of proof to establish that his right
wrist condition was causally related to the accepted August 10, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2016 is affirmed.
Issued: April 21, 2017
Washington, DC

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

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

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

13

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1198
Issued: April 19, 2021

Case Submitted on the Record

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

JURISDICTION
On May 8, 2019 appellant, through counsel, filed a timely appeal from an April 25, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

The Board notes that following the April 25, 2019 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.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $82,137.37 for the period January 1, 2012 through
June 23, 2018, for which she was not at fault, as she concurrently received FECA wage-loss
compensation and Social Security Administration (SSA) age-related retirement benefits without
an appropriate offset; (2) whether OWCP properly denied waiver of recovery of the overpayment;
and (3) whether OWCP properly required recovery of the overpayment by deducting $600.00
every 28 days from appellant’s continuing compensation payments.
FACTUAL HISTORY
On August 11, 2010 appellant, then a 64-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she had developed bilateral basal joint
arthritis and carpal tunnel syndrome due to factors of her federal employment. On November 19,
2010 OWCP accepted her claim for bilateral carpal tunnel syndrome and right cubital tunnel
syndrome. Appellant stopped work on May 7, 2011. She underwent a right carpal tunnel release
and right cubital tunnel release surgery on June 20, 2011. OWCP paid appellant wage-loss
compensation on the periodic rolls, effective August 8, 2011. On August 27, 2012 appellant
underwent a left carpal tunnel release surgery. On May 1, 2013 she returned to light-duty work
four hours per day. Appellant accepted a light-duty position as an opening unit clerk working four
hours per day on June 7, 2013. On July 28, 2013 she stopped work.
By decisions dated December 3, 2013 and April 14, 2014, OWCP denied appellant’s claim
for total disability compensation. However, it continued to pay wage-loss compensation benefits
for four hours per day.
On June 9, 2017 appellant accepted a light-duty position as a clerk working eight hours per
day. Beginning on June 26, 2017 appellant filed a claim for compensation (Form CA-7) for
disability from work, noting that she had worked eight hours on June 17 and 20, 2017 and
thereafter her work hours were reduced to six hours per day or less.
By decision dated October 30, 2017, OWCP denied appellant’s claims for compensation
finding that she was capable of working eight hours per day with restrictions. On November 6,
2017 appellant, through counsel, requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
By decision dated May 10, 2018, an OWCP hearing representative reversed the
October 30, 2017 decision, finding that OWCP failed to properly follow the provisions of 20
C.F.R. § 10.500(a).

3

5 U.S.C. § 8101 et seq.

2

On May 11, 2018 appellant filed a claim for a schedule award (Form CA-7).
On July 2, 2018 OWCP received a completed Federal Employees Retirement System
(FERS)/(SSA) dual benefits calculation form from SSA, which reported that appellant had been
in receipt of SSA age-related retirement benefits since January 2012. SSA reported that:
beginning January 2012 appellant’s monthly SSA rate with FERS was $1,708.60 and without
FERS was $694.40; from December 2012 through November 2013 her monthly SSA rate with
FERS was $1,737.60 and without FERS was $706.20; from December 2013 through
December 2014 her monthly SSA rate with FERS was $1,763.60 and without FERS was $716.70;
from January 2014 through November 2014 her monthly SSA rate with FERS was $1,764.70 and
without FERS was $716.70; from December 2014 through November 2015 her monthly SSA rate
with FERS was $1,794.60 and without FERS was $728.80; from December 2015 through
November 2016 appellant’s monthly SSA rate with FERS was $1,794.60 and without FERS was
$728.80; from December 2016 through November 2017 her monthly SSA rate with FERS was
$1,799.90 and without FERS was $730.90; beginning December 2017 her monthly SSA rate with
FERS was $1,835.80 and without FERS was $745.50.
In a July 12, 2018 letter, OWCP informed appellant that she had been receiving dual FERS
and SSA benefits. It further informed her that her FECA benefits must be adjusted based on the
FERS portion of SSA benefits that were attributable to federal service. OWCP indicated that
appellant’s FECA benefits would be reduced from $1,717.00 to $710.57 every 28 days.
On August 3, 2018 OWCP notified appellant that it made a preliminary overpayment
determination that she had received an overpayment of compensation in the amount of $82,137.37
because she received FECA wage-loss compensation benefits concurrently with SSA age-related
retirement benefits for the period January 1, 2012 through June 23, 2018. It noted that the SSA
had confirmed that a portion of her SSA age-related retirement benefits were attributed to her years
of federal service as an employee under the FERS retirement program and that portion required an
offset of her FECA compensation benefits until June 23, 2018 when her monthly wage-loss
compensation was adjusted. OWCP explained that it had calculated the overpayment of
compensation by determining the difference between appellant’s SSA benefit rates with and
without FERS for each period, and then multiplying that amount by the number of days in each
period. The FERS offset calculation worksheet indicated that OWCP had utilized a 28-day FERS
offset amount of $936.18 from January 1 through November 30, 2012, $952.06 from December 1,
2012 through November 30, 2013, $966.37 from December 1 through 31, 2013, $967.38 from
January 1 through November 30, 2014, $983.82 from December 1, 2014 through November 30,
2015, $983.82 from December 1, 2015 through November 30, 2016, $986.77 from December 1,
2016 through November 30, 2017, and $1,006.43 from December 1, 2017 through June 23, 2018.
Using these figures, OWCP calculated that the total overpayment amount was $82,137.37. It
found that appellant was at fault in the creation of the overpayment. OWCP requested that she
complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documentation. Additionally, it advised appellant that, within 30 days of the
date of the letter, she could request a final decision based on the written record or request a
prerecoupment hearing.

3

On August 14, 2018 appellant noted her disagreement regarding the overpayment and
requested a prerecoupment hearing on the issues of fault and waiver of recovery of the
overpayment before OWCP’s Branch of Hearings and Review.
During the hearing held on January 14, 2019, appellant testified regarding the alleged
overpayment of compensation. She noted her disagreement that she was at fault in the creation of
the overpayment. Appellant indicated that she would submit the Form OWCP-20 and supporting
financial documentation. She noted that she was currently working four hours per day and was
covered under FERS.
In a letter dated March 11, 2019, counsel asserted that he had provided all pertinent
information regarding the overpayment including tax returns, social security data, and bank
statements. Attached was a February 11, 2019 completed Form OWCP-20 and supporting
financial documentation. She listed her monthly income as $1,763.00 in SSA benefits. Appellant
listed her monthly expenses as $500.00 for food and $100.00 for clothing. She indicated that her
utilities and other household expenses were attached. Appellant listed a monthly payment of
$44.60 to Stratford Career Institute, and indicated that all of her other monthly expenses were on
the attached sheets. She reported that she had two dependents, her 30-year-old grandson and her
52-year-old cousin and that she had $80.00 in cash and no other assets. Appellant submitted
evidence establishing that in January 2019 her mortgage, insurance, and property tax totaled
$763.35 per month. She noted a monthly car payment of $340.57 and submitted a February 1,
2019 statement for automobile insurance in the amount of $160.21. Appellant also submitted
monthly billing statements for utilities, including cable, water, sewer, street sweeping, trash
collection, telephone, internet, electric, and gas. She also provided receipts for car repairs on
January 28 and 29, 2019, as well as proof of payment of $15.92 for a newspaper subscription and
a November 26, 2018 podiatrist bill for $178.00. She further submitted TransUnion and Equifax
credit reports as well as earnings and leave statements for pay periods ending January 11, 25, and
February 8, 2019 showing a net pay of $1,118.42, $849.66, and $1,121.61 respectively. Appellant
also submitted a November 28, 2018 Thrift Savings Plan statement indicating that her balance as
of November 27, 2018 was $34,569.33. OWCP also received appellant’s tax returns from 2009
through December 2018 and bank statements from 2013 through 2018.
By decision dated April 25, 2019, OWCP’s hearing representative finalized the
preliminary determination that appellant had received an overpayment in the amount of $82,137.37
for the period January 1, 2012 through June 23, 2018. He determined that appellant was without
fault in the creation of the overpayment. OWCP’s hearing representative denied waiver of
recovery of the overpayment as there was no evidence that recovery would defeat the purpose of
FECA. He found appellant’s monthly income beginning June 20, 2019, when her schedule award
ended, would be $4,870.72 including $876.27 per month in wage-loss compensation based on an
average of eight weeks of wage-loss compensation from August 4 through September 28, 2018,
$2,231.45 per month in earnings based on the $514.95 weekly average of her three recent pay stubs
from the employing establishment for the period January through February 8, 2019, and $1,763.00
in SSA benefits. OWCP’s hearing representative determined that appellant’s monthly expenses
totaled $2,619.49 including mortgage of $763.35, automobile loan of $340.57, telephone costs of
$133.00, cable television costs of $155.97, city utilities of $62.55, automobile insurance of
$160.21, an average of monthly car repairs of $51.75, home gas utility of $194.23, monthly
average of utilities of $87.64, electricity monthly average of $54.30, newspaper cost of $15.90 per

4

month, food $500.00 per month, and clothing $100.00. He found no documentation supporting
the claimed $44.60 per month in tuition claimed and discounted this amount. OWCP’s hearing
representative found this resulted in approximately $2,251.00 in monthly income over debt, which
exceeded the statutory amount of $50.00. He further found there was no evidence that recovery
would be against equity and good conscience. OWCP’s hearing representative required recovery
of the overpayment by deducting $600.00 every 28 days from appellant’s continuing compensation
payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service.6 FECA Bulletin No. 97-09 provides that FECA benefits have to be
adjusted for the FERS portion of SSA 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.7
ANALYSIS -- ISSUE 1
The Board finds appellant received an $82,137.37 overpayment of compensation for the
period January 1, 2012 through June 23, 2018 because she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits, without appropriate offset.
In its April 25, 2019 decision, OWCP found that an overpayment of compensation was
created for the period January 1, 2012 through June 23, 2018. The overpayment determination
was based on the evidence received from SSA with respect to age-related retirement benefits paid
to appellant. A claimant cannot receive both FECA compensation for wage loss and SSA agerelated retirement benefits attributable to federal service for the same period.8 The information

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); T.B., Docket No. 18-1449 (issued March 19, 2019); S.M., Docket No. 17-1802 (issued
August 20, 2018).
7

FECA Bulletin No. 97-09 (February 3, 1997); N.B., Docket No. 18-0795 (issued January 4, 2019).

8
5 U.S.C. § 8116(d)(2); L.W., Docket No. 19-0787 (issued October 23, 2019); J.T., Docket No. 18-1791 (issued
May 17, 2019).

5

provided by SSA indicated that appellant received SSA age-related retirement benefits that were
attributable to federal service during the period January 1, 2012 through June 23, 2018.
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of SSA age-related SSA retirement benefits that were attributable
to federal service. SSA provided their rate with FERS, and without FERS for specific periods
commencing January 1, 2012 through June 23, 2018. OWCP provided its calculations for each
relevant period based on a FERS offset calculation worksheet and in its August 3, 2018
preliminary overpayment determination.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the
period January 1, 2012 through June 23, 2018 and finds that an overpayment of compensation in
the amount of $82,137.37 was created.9
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.10
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.11
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP.12 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00.13
Additionally, recovery of an overpayment is considered to be against equity and good
conscience when an individual who received an overpayment would experience severe financial
9

L.L., Docket No. 18-1103 (issued March 5, 2019); D.C., Docket No. 17-0559 (issued June 21, 2018).

10

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; A.F., Docket No. 19-0054 (issued
June 12, 2019).
11

A.C., Docket No. 18-1550 (issued February 21, 2019); Robert Atchison, 41 ECAB 83, 87 (1989).

12
20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4(a)(2) (September 2018).
13
N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666 (issued April 26, 2019); id. at
Chapter 6.400.4.a(3).

6

hardship in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse.14
OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary.15 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.16
OWCP’s procedures provide that a finding that a type of expense is ordinary and necessary
does not mean that the amount is ordinary and necessary. The burden is on the overpaid individual
to show that the expenses are reasonable and needed for a legitimate purpose. If the claims
examiner or hearing representative determines that the amount of certain expenses is not ordinary
and necessary, he or she must state, in writing, the reasons for the determination. The
determination should be supported by rationale, which may include utilizing statistics from the
Bureau of Labor Statistics that show that the overpaid individual’s expenses exceed that of the
range for the general population. OWCP should be careful to avoid counting an expense twice
when totaling the overpaid individual’s ordinary and necessary living expenses. For example, if
the overpaid individual’s credit card debt is already calculated as a fixed and miscellaneous living
expense, the credit card expense(s) should not be added again as consumer debt expense. If the
amount is added again, it would result in an excessive total for the overpaid individual’s ordinary
and necessary living expenses, and would make the individual appear less able to repay his or her
overpayment than would actually be the case. Furthermore, OWCP should ensure that the monthly
expense used for each credit card reflects only the minimum payment required by the creditor.
The minimum amount should be verified, if necessary, by requiring the overpaid individual to
submit copies of his or her monthly billing statement(s).17
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver of
recovery of the overpayment must be considered, and repayment is still required unless adjustment
or recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.18 OWCP considered appellant’s financial information, as reported in appellant’s
14

20 C.F.R. § 10.437(a)(b).

15

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

16

Id. at § 10.438(b).

17

Supra note 11 at Chapter 6.400.4(b)(2).

18

20 C.F.R. § 10.436.

7

statements, to determine if recovery of the overpayment would defeat the purpose of FECA or if
recovery would be against equity and good conscience.
The Board finds that OWCP properly determined that appellant did not require
substantially all of her income to meet ordinary and necessary living expenses. Based on
appellant’s February 11, 2019 overpayment recovery questionnaire and the record, her total
monthly income of $4,870.72 minus $2,619.49 in monthly debts, resulted in approximately
$2,251.00 in income over debt each month. Thus, based on appellant’s statements and the record,
appellant’s monthly income exceeded her ordinary and necessary living expenses by more than
$50.00, she did not need substantially all of her income for ordinary and necessary living expenses
such that recovery would defeat the purpose of FECA.19
Additionally, appellant did not submit evidence to substantiate that she would experience
severe financial hardship in attempting to repay the debt, or that in reliance on such payment she
gave up a valuable right or changed her position for the worst. Therefore, OWCP properly found
that recovery of the overpayment would not defeat the purpose of FECA or be against equity and
good conscience.20
Because appellant has not established that recovery of the overpayment would defeat the
purpose of FECA or be against equity and good conscience, she has not established that OWCP
abused its discretion by denying waiver of recovery of the overpayment.21
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that, when an overpayment has been made
to an individual who is entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as the error is discovered or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any hardship.22
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$600.00 every 28 days from appellant’s continuing compensation payments.
In setting the recovery rate at $600.00, OWCP explained how it considered the factors set
forth at 20 C.F.R. § 10.441(a) in setting the amount of repayment from continuing compensation
benefits to minimize hardship, while liquidating the debt, as appellant had financial resources
19

G.L., Docket No. 19-0297 (issued October 23, 2019).

20

N.J., supra note 13; V.T., Docket No. 18-0628 (issued October 25, 2018).

21

D.M., Docket No. 17-0810 (issued October 2, 2017).

22

20 C.F.R. § 10.441(a); A.F., supra note 10; Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

8

sufficient for more than ordinary needs.23 Thus, OWCP did not abuse its discretion in setting the
rate of recovery.24 The Board therefore finds that OWCP properly required recovery of the
overpayment from appellant’s continuing compensation payments at the rate of $600.00 every 28
days.
CONCLUSION
The Board finds that appellant received an $82,137.37 overpayment of compensation for
the period January 1, 2012 through June 23, 2018, for which she was not at fault, as she
concurrently received FECA wage-loss compensation and SSA age-related retirement benefits
without appropriate offset. The Board further finds that OWCP properly denied waiver of recovery
of the overpayment and properly required recovery of the overpayment by deducting $600.00
every 28 days from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 19, 2021
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

23

D.S., Docket No. 18-1447 (issued July 22, 2019).

24

T.G., Docket No. 17-1989 (issued June 5, 2018); M.D., Docket No. 11-1751 (issued May 7, 2012).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.L., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS INSTALLATION FACILITIES &
ENVIRONMENT DIVISION, Quantico, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 19-0774
Issued: November 26, 2019

Case Submitted on the Record

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

JURISDICTION
On February 25, 2019 appellant filed a timely appeal from a September 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 appellant submitted additional evidence 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 additional evidence for the first time on
appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a cardiac condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 6 and 13, 2018 appellant, then a 58-year-old high voltage electrician, filed
traumatic injury claims (Form CA-1) alleging that on March 4, 2018 he experienced chest pains
and a heart attack at approximately 9:30 a.m. while in the performance of duty.3 He stopped work
that day. Appellant was admitted to the hospital for a ST-elevation myocardial infarction (STEMI)
with stent and catheterization to left anterior descending (LAD) coronary artery.
On March 8, 2018 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16) for “heart attack.”
In a development letter dated March 13, 2018, OWCP requested that appellant provide
additional factual and medical information to support his claim. A factual questionnaire was
provided for his completion. OWCP afforded appellant 30 days in which to submit the necessary
evidence.
OWCP received multiple hospital records, including diagnostic testing, from March 4
through 6, 2018. In a March 4, 2018 report, Dr. Khalid A. Abousy, a Board-certified cardiologist,
diagnosed an acute myocardial infraction. In a March 7, 2018 attending physician’s report (Form
CA-20), he indicated that appellant would be totally disabled for approximately one to two months
as a result of stent placement.
OWCP received progress notes dated March 13 and April 11, 2018, and an April 12, 2018
attending physician’s report (Form CA-20) from Dr. Abousy regarding appellant’s atherosclerotic
coronary artery disease, post March 4, 2018 STEMI anterior with stent and catheterization to LAD
coronary artery.
By decision dated April 17, 2018, OWCP denied appellant’s traumatic injury claim as he
had not established fact of injury. It found that the evidence submitted was insufficient to establish
that the event occurred as described because appellant had not submitted a response to its
questionnaire. OWCP concluded, therefore, that the requirements had not been met to establish
an injury as defined by FECA.
On April 26, 2018 appellant requested a review of the written record before an OWCP
hearing representative. In an undated statement, he indicated that he had no prior history of cardiac
illness and that he was an essential and key employee during inclement weather and emergency
situations. On the day of the incident, appellant indicated that he was working under cold and
inclement weather, which included extremely high winds, to restore power to Quantico Marine
3

The initial Form CA-1 signed by D.P., Maintenance Mechanic Supervisor, indicated that appellant’s heart attack
did not occur while in the performance of duty. The subsequent Form CA-1 signed by N.F., Agency Reviewer,
indicated that appellant was injured while in the performance of duty.

2

Core Base. The Base was under Code Red weather alert conditions and this was his third straight
day of working 16-hour shifts. Appellant advised that his job required him to lift heavy equipment
or materials averaging 50 pounds and above. He noted that the stress of working 16 hours per day,
inappropriate equipment and gear, and the weight of the equipment and materials caused the stress
and physical strain on his body which he believed caused or contributed to his symptoms of chest
discomfort and body weakness and led to his cardiac condition. Appellant also described his work
activities the week leading up to his heart attack.
Additional medical reports from Dr. Abousy were received. In an April 30, 2018 report,
Dr. Abousy diagnosed coronary artery disease involving native coronary artery without angina
pectoris; presence of drug-coated stent in LAD coronary artery; essential hypertension; and
STEMI involving LAD coronary artery. In an April 30, 2018 a work capacity evaluation (Form
OWCP-5c), Dr. Abousy indicated that appellant was totally disabled from March 4 through
May 15, 2018. He advised that he could return to work with no restrictions on May 15, 2018. In
May 21, June 27 and August 8, 2018 work capacity evaluations (Form OWCP-5c), Dr. Abousy
provided appellant’s work-related restrictions. It also received a copy of Dr. Abousy’s
Certification of Health Care Provider for Employee’s Serious Health Condition (Family and
Medical Leave Act), which noted appellant’s medical course following his myocardial infraction.
An April 26, 2018 echocardiogram report was also received.
In a July 26, 2018 statement, D.P, Maintenance Mechanic Supervisor, indicated that on
March 4, 2018 appellant was asked to work overtime to repair some of the damaged electrical lines
that were knocked down by a wind storm that had occurred earlier in the week. He advised that
appellant had worked volunteer overtime prior to March 4, 2018 for 16 hours, but not on
March 4, 2018. D.P. included a copy of appellant’s time cards, noting that, on March 4, 2018,
appellant had only worked 2.75 hours before falling ill and being taken to the hospital. He
indicated all of the duties appellant mentioned were his normal every day duties as a high voltage
electrician. D.P. disputed appellant’s claim that the weather on March 4, 2018 was cold and
inclement with extremely high winds and attached a copy of a weather report for March 4, 2018.
He also disputed appellant’s claim that he had not been issued appropriate clothing and gear.
By decision dated September 4, 2018, an OWCP hearing representative converted
appellant’s traumatic injury claim into an occupational disease claim and affirmed OWCP’s
April 17, 2018 decision. The hearing representative found that appellant had established that his
position had “physical requirements” and that “he was working when emergency treatment was
obtained and he was treated for a myocardial infarction.” The hearing representative also found
that the medical evidence of record failed to establish that appellant’s myocardial infarction was
caused by his employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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
4

Supra note 1.

3

time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 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.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 claimant.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.9 Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is 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.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a cardiac
condition causally related to the accepted factors of his federal employment.
In support of his claim, appellant submitted several reports from Dr. Abousy which noted
the March 4, 2018 myocardial infraction and placement of a stent in the LAD coronary artery.
Dr. Abousy also diagnosed coronary artery disease, essential hypertension, and orthostasis. He,
however, has not provided an opinion as to the cause of appellant’s cardiac conditions. The Board
has held that medical evidence that does not offer an opinion regarding the cause of an employee’s

5

S.C., Docket No. 18-1242 (issued March 13, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6

S.C., id.; J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden,
Sr., 40 ECAB 312 (1988).
7
S.C., id.; K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7,
2014); Delores C. Ellyett, 41 ECAB 992 (1990).
8

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

9

M.B., Docket No. 17-1999 (issued November 13, 2018).

10

M.L., Docket No. 18-1605 (issued February 26, 2019).

4

condition is of no probative value on the issue of causal relationship.11 Therefore, Dr. Abousy’s
reports are insufficient to establish appellant’s claim.
OWCP also received multiple diagnostic reports taken during appellant’s hospital stay
along with an April 26, 2018 echocardiogram report. However, the Board has held that diagnostic
test reports lack probative value as they do not provide an opinion on causal relationship between
his employment incident and a diagnosed condition.12
Appellant’s honest belief that the factors of his federal employment caused his medical
condition, however sincerely held, does not constitute medical evidence sufficient to establish
causal relationship. As the record lacks rationalized medical evidence establishing causal
relationship between the accepted employment duties and appellant’s cardiac conditions, the
Board finds that appellant has not met his burden of proof.13
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 10.607.14
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cardiac
condition causally related to the accepted factors of his federal employment.

11

M.D., Docket No. 19-0338 (issued July 9, 2019); S.F., Docket No. 18-1030 (issued April 5, 2019); L.B., Docket
No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
12

T.H., Docket No. 18-1736 (issued March 13, 2019).

13

See B.K., Docket No. 19-0829 (issued September 25, 2019).

14

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the September 4, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 26, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6