United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, NORFOLK NAVAL
SHIPYARD, Norfolk, VA, Employer
__________________________________________

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

Docket No. 08-1722
Issued: January 9, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 3, 2008 appellant filed a timely appeal from the decision of the Office of
Workers’ Compensation Programs dated January 29, 2008 denying his claim for a recurrence of
disability and an April 15, 2008 decision denying his request for a hearing. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of total disability on July 10,
2007 causally related to his accepted injury of March 8, 2006; and (2) whether the Branch of
Hearings and Review properly denied appellant’s request for an oral hearing as untimely.
FACTUAL HISTORY
On March 14, 2006 appellant, then a 65-year-old painter, filed a traumatic injury claim
(Form CA-1) alleging he suffered a back injury after slipping and falling in an oily waste tank on

March 8, 2006. By letter dated April 10, 2006, the Office accepted his claim for lower back
sprain/strain. Appellant received medical treatment and physical therapy.
By report dated June 22, 2006, Dr. Nickolas L. Pezzella, Board-certified in physical
medicine and rehabilitation, indicated that appellant presented with a work-related injury with
initial onset of lower back pain into the thighs. On this particular date, he reported that
appellant’s thigh pain had resolved although he reported still having significant lower back pain.
Dr. Pezzella noted that he saw no pathology to account for appellant’s back pain on a lumbar
spine magnetic resonance imaging (MRI) scan. He stated that he would have expected
appellant’s condition to have improved over the past three months, not worsen. As appellant’s
symptoms had responded to his prior course of physical therapy, Dr. Pezzella prescribed another
course of physical therapy, as well as twice-daily regiment of Voltaren, a nonsteroidal antiinflammatory (NSAIDS) and a bone scan.
Dr. Pezzella submitted a Form CA-20 dated July 20, 2006. He reiterated his diagnosis of
“unspecified back pain.” Dr. Pezzella indicated that appellant’s lumbar MRI scan, bone scan,
and electromyogram (EMG) findings were all negative. He stated that he had no further
treatment options and that neither he nor his office would be referring appellant to another
physician. Dr. Pezzella also resubmitted a duty status report dated July 18, 2006. His clinical
findings state that appellant reports pain but no pathology was found. The report stated that
appellant was advised to return to work on July 13, 2006 with no restrictions. Finally, by note
dated July 25, 2006, Dr. Pezzella released appellant from his care and told appellant to seek
medical advice elsewhere. His note further reiterated that neither he nor his office would be
referring appellant to another doctor.
Appellant sought treatment from Dr. Stefan Murza, a chiropractor. By Form CA-20
dated January 8, 2007, Dr. Murza stated a diagnosis of right sacroiliac subluxation. In a report
received by the Office on February 7, 2007, he proffered a primary diagnosis of right sacroiliac
subluxation with a secondary diagnosis of lumbar sprain/strain injury. Dr. Murza stated that this
diagnosis was based upon: the history of appellant’s injury; appellant’s subjective complaints;
the results of physical examination and radiographic analysis. An x-ray revealed that appellant’s
right iliac was inferior in positioning compared to the left iliac crest, correlating to the injury
appellant previously sustained.
By letter dated February 8, 2007, the Office notified appellant that it had updated the
accepted condition to include sacroiliac subluxation.
Appellant was referred to Dr. Arthur Wardell, a Board-certified orthopedic surgeon, by
Dr. Murza. By note dated March 14, 2007, Dr. Wardell reported findings of: dorsolumbar
tenderness, midline lumbar tenderness and midline lumbosacral tenderness. He noted a moderate
restriction of low back flexion and that straight leg raising was positive. Dr. Wardell
recommended facet joint injections and a trial of lumbar decompression therapy. The record
indicates that appellant was examined by Dr. Wardell on numerous dates through March, April,
May and June 2007 and underwent right L4-5 and L5-S1 facet injections.

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The Office received a number of attending physician’s reports from Dr. Wardell. In a
report dated June 20, 2007, Dr. Wardell summarized that appellant had been partially disabled
since January 29, 2007 and would continue with restrictions through July 2, 2007.
By report dated July 9, 2007, Dr. Wardell stated that appellant complained of lower back
pain. According to him, appellant alleged that the pain was such that he was unable to perform
his functions at work due to pain. Dr. Wardell stated that appellant was to remain off work until
his next visit on July 16, 2007.
By report dated July 23, 2007, Dr. Wardell noted that appellant had improvement in his
lower back pain after one week of physical therapy. He reported that appellant requested
cancellation of his scheduled epidural due to the improvement.
By report dated August 20, 2007, Dr. Wardell stated that appellant continued to have pain
in his lower back radiating in both legs.
On September 6, 2007 appellant filed a CA-2a, notice of recurrence, stating that, when he
returned to work, he was not able to perform normal duties. He alleged that July 10, 2007 was
the date of recurrence of total disability. Appellant stated that, since returning to work, despite
undergoing three cortisone shots, three epidural shots and physical therapy, the injury he
incurred in March 2006 kept him in constant pain. His supervisor noted that appellant was
accommodated within the physician-recommended restrictions following the original injury and
that when appellant did return to work he did not sustain any other injury or illness that affected
his performance.
By report dated September 10, 2007, Dr. Wardell stated that the epidurals had helped
appellant, but that he had had muscle spasms for the past few days. He opined that appellant was
reaching maximum medical improvement. On September 24, 2007 Dr. Wardell stated that
appellant reported that the pain in his back was better, though there was more pain in the buttock.
He scheduled appellant for a right sacroiliac joint injection on October 8, 2007. On October 8,
2007 Dr. Wardell stated that appellant continued to have pain, mostly on the right side of his
lower back. He stated that they are awaiting approval for sacroiliac joint injections.
Dr. Wardell also noted that appellant would remain out of work.
In an attending physician’s report dated October 8, 2007, Dr. Wardell indicated that
appellant had been partially disabled until July 9, 2007 and totally disabled from July 10, 2007
continuing until October 23, 2007.
By narrative report dated November 7, 2007, Dr. Wardell stated that appellant’s
condition had changed. Although appellant was initially diagnosed with lumbosacral spine
sprain, further testing revealed that he suffers a right L5 radiculopathy and lumbar facet injuries.
Dr. Wardell stated that appellant’s injuries were of a chronic nature.
By report dated December 7, 2007, Dr. Wardell stated that appellant had continued pain
in his lower back that was particularly worse on the right side. He stated that he was still
awaiting approval for appellant’s injections, and that appellant will continue with physical
therapy and would remain out of work. On January 11, 2008 Dr. Wardell reported that appellant
still had pain in his lower back.
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By decision dated January 29, 2008, the Office denied appellant’s claim for recurrence
because the evidence submitted failed to establish that the alleged recurrence resulted from the
accepted work injury.
By letter postmarked March 8, 2008, appellant requested an oral hearing. On April 15,
2008 the Office denied appellant’s request for an oral hearing as untimely because it was not
made within 30 days. It noted that the decision of the district Office was issued on January 29,
2008 and appellant’s request for an oral hearing to the Branch of Hearings and Review was
postmarked March 8, 2008. The Office advised appellant that he could submit additional
evidence and pursue a request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show either a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.1 To establish a change in the nature and extent
of the injury-related condition, there must be probative medical evidence of record. The
evidence must include a medical opinion, based on a complete and accurate factual and medical
history, and supported by sound medical reasoning, that the disabling condition is causally
related to employment factors.2
The Board will not require the Office to pay compensation in the absence of medical
evidence directly addressing the particular period of disability for which compensation is sought.
To do so would essentially allow employees to self-certify their disability and entitlement to
compensation.3
ANALYSIS
The Office accepted appellant’s claim that he sustained a strain/sprain of lumbar region
as a result of a fall on March 8, 2006. On July 13, 2006 appellant was released to regular duty
status, by his then-treating physician, Dr. Pezzella, Board-certified in physical medicine and
1

Albert C. Brown, 52 ECAB 152, 154-155 (2000); Terry R. Hedman, 38 ECAB 222, 227 (1986); 20 C.F.R.
§ 10.5(x) provides, “Recurrence of disability means an inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness without
an intervening injury or new exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical limitations.”
2

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Maurissa Mack 50 ECAB 498, 503 (1999).

3

S.S. v. U.S. Postal Service 108 LRP 4297 (2008); Fereidoon Kharabi, 52 ECAB 291 (2001).

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rehabilitation. Dr. Pezella noted that all of appellant’s diagnostic test results were negative,
including MRI scan bone scan and EMG examinations.
Appellant was placed on light duty as of January 2007. On February 8, 2007 the Office
updated appellant’s accepted condition to include sacroiliac subluxation based upon Dr. Murza’s
reports.
Appellant filed a recurrence of disability claim alleging that he was totally disabled as of
July 10, 2007 due to his March 8, 2006 employment injury. He therefore has the burden of proof
to show a change in the nature and extent of his injury-related condition or a change in the nature
and extent of his limited-duty job requirements. Appellant’s supervisor reported that appellant
was always allowed to work within his medical restrictions and he has not alleged that his light
work was withdrawn. Rather appellant has alleged that he became totally disabled as of
July 10, 2007.
Appellant did not submit sufficient reasoned medical evidence however to establish that
his present condition was causally related to his accepted injury and that it was totally disabling.
In support of his claim, appellant submitted numerous progress notes and reports from
Dr. Wardell whose reports reiterate appellant’s subjective complaints of pain and discomfort and
note the conservative treatments offered by Dr. Wardell. Absent from Dr. Wardell’s reports
however is any semblance of medical rationale addressing why appellant was totally disabled on
or after July 10, 2007 causally related to his accepted March 8, 2006 injury. In his report dated
November 7, 2007, Dr. Wardell noted that appellant had been initially diagnosed with
lumbosacral spine sprain, but that his condition had changed such that appellant had an L5
radiculopathy and lumbar facet injury. His opinion is of limited probative value. Dr. Wardell
does not acknowledge that by July 2006 all of appellant’s examinations, including MRI scan,
bone scan and EMG testing were negative. Most importantly, he does not explain with medical
rationale how appellant would have developed a totally disabling L5 radiculopathy in July 2007,
causally related to his March 8, 2006 injury, if appellant’s examination findings were normal in
July 2007. Furthermore, although Dr. Wardell indicated that appellant was totally disabled as of
July 10, 2007 and continuing through October 23, 2007, he offers no explanation as to why the
diagnosed L5 radiculopathy would be totally disabling. The Board notes that Dr. Wardell
indicated in his progress notes from August 2007 that appellant’s condition was improving.
Dr. Wardell has essentially allowed appellant to self-certify his disability for entitlement
and, therefore, his reports are of diminished probative value.
The Office advised appellant of the evidence required to establish his claim; but, he failed
to submit such evidence. The Board finds that the medical evidence appellant submitted to
support his claim of recurrence is of diminished probative value and, therefore, not sufficient to
discharge his burden of proof. Accordingly, the Office properly denied appellant’s recurrence
claim.

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LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Federal Employees’ Compensation Act concerning a claimant’s
entitlement to a hearing before an Office hearing representative, states: Before review under
section 8128(a) of this title, a claimant not satisfied with a decision of the Secretary is entitled,
on request made within 30 days after the date of issuance of the decision, to a hearing on his
claim before a representative of the Secretary.4
The Office, in its discretion, however, has the authority to hold hearings in certain
circumstances where no legal provision was made for such hearings and it must exercise this
discretionary authority in deciding whether to grant a hearing.
ANALYSIS -- ISSUE 2
The Office issued the decision denying appellant’s recurrence of disability claim on
January 29, 2008. The 30-day period during which appellant could request an oral hearing
commenced on January 30, 2008.5 Although appellant’s request was dated March 7, 2008 the
record reflects that it was not postmarked until March 8, 2008, more than 30 days after the
Office’s decision.6 Therefore, appellant was not entitled to a hearing before an Office hearing
representative as a matter of right. The Office exercised its discretion in this case and found that
appellant’s claim could equally well be addressed by requesting reconsideration and submitting
additional evidence. The only limitation on the Office’s authority is reasonableness. Abuse of
discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of
judgment or actions taken which are contrary to logic and deductions from known facts.7 There
is no evidence of record that the Office abused its discretion in denying appellant’s request for a
hearing under these circumstances.
CONCLUSION
The Board finds the appellant did not meet his burden proof to establish a recurrence of
disability beginning July 10, 2007 causally related to the March 8, 2006 employment injury and
the Office did not abuse its discretion by denying appellant’s request for hearing.

4

5 U.S.C. § 8124(b)(1).

5

See Angel M. Lebron, Jr., 51 ECAB 488 (2000) (the date of the event from which the designated period of time
begins to run shall not be included when computing the time period).
6

See 20 C.F.R. § 10.616(a) (the hearing request must be sent within 30 days as determined by postmark or other
carrier’s date marking).
7

See Daniel J. Perea, 42 ECAB 214 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the April 15 and January 29, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 9, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Capitol Heights, MD, Employer
__________________________________________

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

Docket No. 18-1128
Issued: December 17, 2018

Case Submitted on the Record

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

JURISDICTION
On May 14, 2018 appellant filed a timely appeal from an April 12, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional or
physical condition due to a claimed January 11, 2018 employment incident.

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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 evidence for the first time on appeal. Id.

FACTUAL HISTORY
On January 26, 2018 appellant, then a 60-year-old equal employment opportunity (EEO)
specialist, filed a traumatic injury claim (Form CA-1) alleging that, on January 11, 2018, she
sustained injury when N.G, an EEO manager, snatched a tub from her hands and dumped her
personal belongings on the floor. She described her claimed employment-related injuries as
“blood pressure,” “left arm,” and “anxiety.” Appellant stopped work on January 11, 2018.
Appellant submitted a January 11, 2018 statement in which she indicated that, on the same
date, she was in possession of tubs which contained personal items she needed to move out of her
worksite because it was undergoing renovation. She asserted that N.G asked about the items in
the tubs and she advised N.G. that the tubs contained personal items. N.G. then claimed that she
had a right to look through anything in the worksite and appellant asked her not to do so because
the personal items in the tubs included notes she made about other jobs she held with the employing
establishment. Appellant asserted that N.G. then looked through drawers in her worksite and
indicated, after being asked what she was looking for, “Nothing, as the manager I am doing an
office audit and I can look through anything I want.” N.G. then began to look through three tubs
which contained appellant’s personal items and appellant reached out in order to pull the tubs near
her. Appellant claimed that N.G. grabbed at the tubs and told her to “back up” in a menacing tone.
N.G. then “snatched” a tub out of her hands and threw most of the items in the tub out on the floor,
including a coffee mug that broke. Appellant asserted that N.G. stated, “Now pick it up” and then
made the statement, “I said pick it up,” after she questioned the first statement. N.G. then
“snatched up” a landline telephone that appellant was reaching for and appellant used her mobile
telephone to call an employing establishment official who advised her to follow N.G.’s
instructions. The record also contains another version of appellant’s January 11, 2018 statement,
which contains substantially the same information.
In a January 11, 2018 report, a postal police officer from the U.S. Postal Inspection Service
indicated that appellant had provided a voluntary statement. It is unclear whether the officer was
referring to either of the above-noted January 11, 2018 statements of appellant.
In a January 19, 2018 statement, A.G, a coworker, indicated that on January 11, 2018 she
heard N.G. ask appellant what items were in her tubs and noted that, after appellant stated they
contained personal items, N.G. advised that the office belonged to the employing establishment
and that she was conducting an office audit. Appellant then pulled some tubs towards herself and,
when N.G. grabbed the side of one of the tubs, appellant grabbed the other side of the tub, resulting
in a “slight tug of war.” A.G. asserted that N.G. gave appellant a direct order to “let go” and then
“flipped the tub over” such that the items in the tub fell onto the floor. N.G. then stated to appellant,
“Now pick it up.”
In an undated statement, J.F., another coworker, noted that on January 11, 2018 he
witnessed appellant and N.G. “arguing” about the contents of some tubs and about whether N.G.
could look through them as part of an audit. He indicated that he walked away from where
appellant and N.G were situated and then heard a loud noise, but he noted that he did not actually
witness what had caused the noise.

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Appellant submitted a February 13, 2018 report from Dr. Norman G. McKoy, an attending
Board-certified family practitioner, who indicated that on January 11, 2018 he referred appellant
for psychiatric treatment and noted that she was disabled from January 12 to March 4, 2018.
In a January 15, 2018 statement, N.G. asserted that on January 11, 2018 she appropriately
conducted an office audit of appellant’s worksite and properly questioned her regarding items
contained in several tubs. She noted that appellant asked her in a rude and unprofessional manner
what she was looking for and she advised appellant that she was conducting an office audit and
that the office belonged to the employing establishment. N.G. indicated that she bent down to pick
up a tub and appellant pushed down on the tub such that she could not pick it up. She advised that
appellant ignored her multiple requests to let go of the tub. N.G. asserted that appellant wrongly
claimed that she threw items from the tub to the floor. Rather, the items fell to the floor when she
let go of the tub because of appellant’s refusal to let go of it. N.G. indicated that she then told
appellant to pick the items off the floor. N.G. offered to help appellant pick the items up after
realizing that it was wrong to tell her to do so, but she refused her offer of assistance.
In a March 2, 2018 development letter, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim. In response, appellant submitted an April 5,
2018 statement providing additional details regarding the events of January 11, 2018, which she
believed caused the injury. She submitted an EEO official audit checklist, photocopies of
photographs of her worksite, e-mails and other documents concerning the renovation of her
worksite, and copies of previously submitted statements (other than her own) with her handwritten
comments.
Appellant also submitted a February 8, 2018 report from Dominique Clark, an attending
physician assistant, who discussed appellant’s treatment for psychiatric problems and provided a
diagnosis of adjustment disorder with anxiety. In a March 1, 2018 report, Gena Harmon, an
attending licensed clinical professional counselor, detailed appellant’s psychiatric condition and,
in a March 1, 2018 note, she found that appellant should be excused from work from March 5
to 12, 2018. In a March 14, 2018 note, Dr. McKoy indicated that appellant was medically cleared
to resume full-duty work.
In a March 9, 2018 statement, J.S., another EEO manager, asserted that N.G. acted
appropriately in conducting an office audit of appellant’s worksite on January 11, 2018.
By decision dated April 12, 2018, OWCP denied appellant’s claim for employment-related
emotional and physical conditions. It found that appellant had established that she was a federal
civilian employee who filed a timely claim and that “the evidence supports that an incident you
claimed occurred as described.” OWCP further found, however, that appellant’s claim was denied
because she had not established the medical component of fact of injury. Under the heading,
“Accepted Event(s) That Are Factors of Employment,” in the “findings of fact” portion of the
decision, it noted, “There are no accepted events that are factors of employment.” Under the
heading, “Accepted Event(s) That Are Not Factors of Employment,” OWCP provided a summary
of appellant’s account of the events of January 11, 2018 and a discussion, which purported to be

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its own account of the events of that date.3 Under the heading, “Incident(s) Alleged Which
[OWCP] Finds Did Not Occur,” OWCP indicated, “There are no alleged incidents, which [OWCP]
finds did not occur.” In the “legal analysis” portion of the decision, OWCP further noted, “Based
on these findings, your claim is denied on the medical component of fact of injury because the
medical evidence does not support that you have a medical condition in connection to the accepted
factors of your employment. The requirement has not been met for establishing that you sustained
an injury as defined by FECA.”
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 the injury was sustained while in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is causally
related to the employment injury.4 To establish fact of injury, an employee must submit evidence
sufficient to establish that he or she experienced a specific event, incident, or exposure occurring
at the time, place, and in the manner alleged.5 An employee must also establish that such event,
incident, or exposure caused an 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
Where the disability results from an employee’s emotional reaction to his or her regular or
specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of FECA.8 On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction in force or his or her frustration from not
being permitted to work in a particular environment or to hold a particular position.9
When a claimant has alleged an employment-related emotional or physical condition, he
or she has the burden of proof to establish by the weight of the reliable, probative, and substantial
evidence that the condition for which he or she claims compensation was caused or adversely
affected by employment factors.10 This burden includes the submission of a detailed description
3
OWCP stated that N.G. had a right to view the contents of the tub as part of her audit inspection, and that appellant
failed to follow the instructions of N.G. to release the tub.
4

5 U.S.C. § 8101(1); B.B., 59 ECAB 234 (2007); Elaine Pendleton, 40 ECAB 1143 (1989).

5

J.C., Docket No. 16-0057 (issued February 10, 2016); E.A., 58 ECAB 677 (2007).

6

Id.

7

R.H., 59 ECAB 382 (2008); Ellen L. Noble, 55 ECAB 530 (2004).

8

Lillian Cutler, 28 ECAB 125 (1976).

9

Gregorio E. Conde, 52 ECAB 410 (2001).

10

Pamela R. Rice, 38 ECAB 838, 841 (1987).

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of the employment factors or conditions which he or she believes caused or adversely affected a
condition for which compensation is claimed, and a rationalized medical opinion relating the
claimed condition to compensable employment factors.11 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.12
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant claimed that she sustained emotional and physical injuries on January 11, 2018
due to the actions of N.G., an EEO manager. She claimed that N.G. aggressively flipped over a
tub she was holding, which contained personal items and ordered her to pick the items off the
floor. OWCP denied appellant’s claim for emotional and physical conditions by decision dated
April 12, 2018, but the Board finds that there are deficiencies in this decision which require
appellant’s case to be remanded to OWCP for further development.
In deciding matters pertaining to a given claimant’s entitlement to compensation benefits,
OWCP is required by statute and regulation to make findings of fact.13 The Federal (FECA)
Procedure Manual further specifies that a final decision of OWCP “should be clear and detailed
so that the reader understands the reason for the disallowance of the benefit and the evidence
necessary to overcome the defect of the claim.”14 These requirements are supported by Board
precedent.15
Given the above-described precedent, the Board finds that OWCP’s April 12, 2018
decision does not contain adequate factual findings and/or recitation of the reason(s) for the denial
of appellant’s claim. OWCP’s April 12, 2018 decision contains a number of inconsistencies which
would prevent appellant from understanding the reason for the disallowance of the claim and the
evidence necessary to overcome the defect of the claim.16
In its April 12, 2018 decision, OWCP explained its denial of appellant’s claim by initially
noting that appellant had established that she was a federal civilian employee who filed a timely
11

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

12

Id.

5 U.S.C. § 8124(a) provides that OWCP “shall determine and make a finding of facts and make an award for or
against payment of compensation.” 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
“shall contain findings of fact and a statement of reasons.”
13

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5c(3)(e)
(February 2013).
15

See James D. Boller, Jr., 12 ECAB 45, 46 (1960).

16

See supra note 14.

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claim and that “the evidence supports that an incident you claimed occurred as described.” OWCP
then indicated, however, that appellant’s claim for compensation was denied because she had not
established the medical component of fact of injury.
First, the Board notes that OWCP did not provide a clear explanation of what aspects of
appellant’s assertions regarding the events of January 11, 2018 had been accepted as compensable
employment factors. Second, other portions of the April 12, 2018 decision cast confusion over
whether OWCP did, in fact, accept a compensable employment factor. For example, under the
heading, “Accepted Event(s) That Are Factors of Employment,” in the “findings of fact” portion
of the decision, OWCP noted, “There are no accepted events that are factors of employment.”
However, it did not provide any further elaboration of its rationale for making this statement.
Under the heading “Accepted Event(s) That Are Not Factors of Employment,” OWCP provided a
summary of appellant’s account of the events of January 11, 2018 and a discussion which
purported to be its own account of the events of that date. It did not, however, provide discussion
of which aspects of these competing accounts of the events of January 11, 2018 were accepted as
factual. Under the heading “Incident(s) Alleged Which [OWCP] Finds Did Not Occur,” OWCP
indicated, “There are no alleged incidents which [OWCP] finds did not occur,” but it failed to
provide an explanation for this statement. Given these above-noted statements, OWCP’s further
discussion in the “legal analysis” portion of the decision does not provide meaningful clarification
of its findings of facts or rationale(s) for denying appellant’s claim. It noted, “Based on these
findings, your claim is denied on the medical component of fact of injury because the medical
evidence does not support that you have a medical condition in connection to the accepted factors
of your employment.”
For these reasons, the case must be remanded to OWCP for further development. Upon
remand, OWCP shall issue a de novo decision regarding appellant’s claim for emotional and
physical conditions, which contains adequate findings of fact and recitation of the reason(s) for its
holdings. In producing this decision, OWCP shall describe in detail which aspects of appellant’s
claimed employment factors it holds to be factual and which aspects of any factually established
matters constitute employment factors within the meaning of FECA.
CONCLUSION
The Board finds that the case is not in posture for decision.

6

ORDER
IT IS HEREBY ORDERED THAT the April 12, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further action
consistent with this decision.
Issued: December 17, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.N., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Loma Linda, CA, Employer
__________________________________________

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

Docket No. 16-0637
Issued: June 13, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 18, 2016 appellant, through counsel, filed a timely appeal from a
January 11, 2016 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 the case.
ISSUE
The issue is whether appellant is entitled to wage-loss compensation for the period
commencing January 21, 2015 causally related to his February 13, 2013 employment injury.
FACTUAL HISTORY
OWCP accepted that on February 13, 2013 appellant, then a 54-year-old housekeeping
aide, sustained a lumbosacral sprain and temporary exacerbation of degenerative low back
1

5 U.S.C. § 8101 et seq.

disease, when he slipped on wax in the performance of duty. Appellant did not stop work, but
worked limited-duty assignments.
Throughout 2014 appellant continued to treat with Dr. Jonathan K. Lee, a Board-certified
physiatrist, who diagnosed aggravation of prior lumbar strain, and lumbar strain superimposed
on preexisting lumbar disc degeneration. Dr. Lee continued to provide work restrictions,
including no lifting over 10 pounds, no repetitive bending or stooping.
On January 21, 2015 appellant stopped work. On January 29, 2015 he filed a claim for
compensation (Form CA-7) for the period January 21, 2015 onward.
In a January 21, 2015 disability status form, Dr. Lee advised that appellant was
temporarily totally disabled.
In a February 10, 2015 letter, OWCP advised appellant of the deficiencies in his claim for
compensation. It noted that the medical evidence did not substantiate that the claimed disability
was causally related to his February 13, 2013 work injury. OWCP requested that he submit a
narrative medical report from his treating physician supported by objective findings explaining
how his disability was causally related to his February 13, 2013 work injury. It indicated that
disability compensation was only payable if it was established that the disability was causally
related to his February 13, 2013 work injury without intervening cause. Appellant was afforded
30 days to submit the requested information.
OWCP thereafter received a January 21, 2015 report from Dr. Lee. Dr. Lee reported that
on December 13, 2014 appellant was exiting his shower and his back slipped out. He advised
that appellant had lumbar disc disease with moderate-to-severe spinal stenosis of the lower
lumbar spine and diagnosed discogenic low back pain. While appellant reported an increase in
symptoms since December 13, 2014, Dr. Lee found no neurologic changes. In his March 18,
2015 report, Dr. Lee noted that appellant was last seen on January 21, 2015 with the diagnosis of
aggravation of prior lumbar strain, lumbar strain superimposed on preexisting lumbar disc
degeneration and history of diabetic peripheral neuropathy. He diagnosed discogenic low back
pain and, in a March 18, 2015 disability form, indicated that appellant was temporarily totally
disabled.
By decision dated April 9, 2015, OWCP denied the claim for compensation because the
medical evidence of record did not establish that appellant’s disability starting January 21, 2015
and continuing was causally related to his February 13, 2013 accepted work injury.
On April 14, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on October 22, 2015. Appellant acknowledged
that his back went out when he stepped out of the shower in December 2014. He indicated that
he had never returned to work in a full-duty capacity since his February 13, 2013 work injury,
but worked in a light-duty capacity. Appellant’s counsel asserted that appellant had sustained a
recurrence of disability as his condition spontaneously worsened when he got out of the shower.
Appellant submitted an April 29, 2014 magnetic resonance imaging (MRI) scan and a
March 28, 2015 disability note from Dr. Lee.

2

In May 13, 2015 and September 2, 2015 reports, Dr. Lee diagnosed low back pain and
opined that appellant was totally disabled. He noted prior diagnoses of lumbar strain, lumbar
strain superimposed on preexisting lumbar disc degeneration and history of diabetic peripheral
neuropathy. There were also disability notes from May 13 and September 2, 2015.
In an October 28, 2015 report, Dr. Lee indicated that appellant continued to have pain in
his back due to an aggravation of prior lumbar strain. The aggravation occurred on
December 14, 2014 when appellant was getting out of the shower and he felt pain in his back
which was a little worse than the pain he was experiencing since his injury. Dr. Lee diagnosed
low back pain and opined that appellant was totally disabled until seen by a surgeon. He also
provided an October 28, 2015 slip noting total disability.
In December 23, 2015 medical reports, Dr. Lee noted aggravation of prior lumbar strain,
lumbar strain superimposed on preexisting lumbar disc degeneration, and history of diabetic
peripheral neuropathy and there were no new injuries since last visit of October 28, 2015.
Appellant complained of increased radiating pain into his right leg and was diagnosed with low
back pain.
By decision dated January 11, 2016, the OWCP hearing representative affirmed the
April 9, 2015 decision denying appellant’s claim for compensation.
LEGAL PRECEDENT
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition, which resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means an inability to
work when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his work-related injury or illness is withdrawn (except when such withdrawal
occurs for reasons of misconduct, nonperformance of job duties, or a reduction-in-force) or when
the physical requirements of such an assignment are altered such that they exceed the employee’s
physical limitations.2 Appellant has the burden of proof to establish that there was no medically
appropriate light duty available for the claimed period.3
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden of proof to establish a recurrence of total disability and to show that he cannot perform
the limited-duty position. As part of this burden, the employee must show either a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the
limited-duty requirements.4 To establish a change in the nature and extent of the injury-related
2

20 C.F.R. § 10.5(x). See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

3

J.F., 58 ECAB 124 (2006).

4

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994).

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condition, there must be probative medical evidence of record. The evidence must include a
rationalized medical opinion, based on a complete and accurate factual and medical history and
supported by sound medical reasoning, that the disabling condition is causally related to
employment factors.5
This burden includes the necessity of furnishing evidence from a qualified physician who
concludes, on the basis of a complete and accurate factual and medical history, that the disabling
condition is causally related to employment factors and supports that conclusion with sound
medical reasoning.6
In order to establish that a claimant’s alleged recurrence of the condition was caused by
the accepted injury, medical evidence of bridging symptoms between his present condition and
the accepted injury must support the physician’s conclusion of a causal relationship.7
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relation, not
OWCP’s burden to disprove such relationship.8
ANALYSIS
The Board finds that appellant has not established disability for the period beginning
January 21, 2015 causally related to the February 13, 2013 employment injury.
OWCP accepted appellant’s February 13, 2013 work injury for lumbosacral sprain and
temporary exacerbation of degenerative low back disease. Appellant continued to work in a
light-duty capacity until January 21, 2015, when he stopped work following an increase in pain.
He filed a claim for disability compensation alleging which OWCP denied.
The Board finds that the medical evidence of record does not establish disability from
work due to appellant’s accepted work injury of February 13, 2013. Dr. Lee’s reports detail
appellant’s preexisting back conditions and opine that he is totally disabled. In his October 23,
2014 report, Dr. Lee opined that appellant’s back pain was due to an aggravation of a prior
lumbar strain which occurred when he was exiting the shower on December 14, 2014. However,
no medical rationale was provided in support of this conclusion.9 Dr. Lee did not explain the
significance of the fact that the pain returned while appellant was exiting a shower. He did not
explain whether the pain spontaneously occurred. A recurrence of disability is defined as the
5

Vanessa Young, 55 ECAB 575 (2004).

6

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138 (1982). Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3 (January 2013).
7

Mary A. Ceglia, 55 ECAB 626 (2004).

8

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
9

See Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements merely asserting
causal relationship generally do not discharge a claimant’s burden of proof).

4

inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness, without an intervening
injury or new exposure to the work environment that caused the illness.10 Additionally, Dr. Lee
provided no opinion that the increase in appellant’s back pain was causally related to the
accepted February 13, 2013 work injury, the slip in the shower, or due to appellant’s preexisting
degenerative condition which had progressed beyond what might be expected from the natural
progression of that condition.11 A well-rationalized opinion is particularly warranted when there
is a history of a preexisting condition. As Dr. Lee did not explain what effect the shower
incident had on appellant’s accepted condition, his opinion is not sufficient to establish that
appellant’s disability was causally related to the employment injury of February 13, 2013.
Appellant has not submitted any medical reports from a physician who, on the basis of a
complete and accurate factual and medical history, established that appellant was totally disabled
from work beginning January 21, 2015 and continuing due to residuals of his accepted injury.
He failed to establish by the weight of the reliable, probative, and substantial evidence, a change
in the nature and extent of the injury-related condition resulting in his inability to perform his
employment duties.12
On appeal, counsel contends that the evidence shows a classic recurrence. However, as
discussed above, the medical evidence of record does not support appellant’s disability claim.
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 failed to establish a disability causally related to his
February 13, 2013 employment injury and, thus, is not entitled to wage-loss compensation for
the period commencing January 21, 2015.

10

Y.A., Docket No. 16-0258 (issued April 13, 2016).

11

R.E., Docket No. 14-868 (issued September 24, 2014).

12

Beverly A. Spencer, 55 ECAB 501 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated January 11, 2016 is affirmed.
Issued: June 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 19-0118
Issued: January 15, 2020

Case Submitted on the Record

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

JURISDICTION
On October 19, 2018 appellant filed a timely appeal from an October 11, 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
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $44,303.77 for the period January 1, 2009 through June 23, 2018, for which she was
not at fault, because she concurrently received FECA benefits and age-based benefits from the
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 11, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

Social Security Administration (SSA) without an appropriate offset; (2) whether OWCP properly
denied waiver of recovery of the overpayment; and (3) whether it properly required recovery of
the overpayment by deducting $214.66 from appellant’s continuing compensation payments.
FACTUAL HISTORY
On September 29, 2000 appellant, then a 53-year-old modified city mail carrier, filed an
occupational disease claim (Form CA-2) alleging that her low back pain was caused or aggravated
by factors of her federal employment including prolonged bending, standing, walking, stooping
and carrying of letters and parcels on a hard cement floor. OWCP accepted the claim for sciatica
and displaced lumbar intervertebral disc. It initially paid appellant intermittent wage-loss
compensation on the supplemental rolls. On December 4, 2001 appellant underwent OWCP
authorized lumbar surgery. She did not return to work. OWCP thereafter paid wage-loss
compensation and medical benefits on the periodic rolls.3
In CA-1032 forms dated December 20, 2009, January 18, 2011, January 31, 2012,
January 9, 2013, January 11, 2014, January 15, 2015, January 7, 2016, January 26, 2017, and
January 8, 2018 appellant reported that she was receiving SSA benefits as part of an annuity for
federal service.
On February 9, 2018 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. On April 10, 2018 SSA submitted the completed
form, which showed SSA benefit rates with a FERS offset and without a FERS offset from
January 2009 through December 2017. From January 2009 through November 2011, appellant’s
SSA rate with FERS was $584.40 and without FERS was $297.60. Beginning December 2012,
the SSA rate with FERS was $817.30 and without FERS was $341.30. Beginning December 2013,
the SSA rate with FERS was $829.50 and without FERS was $319.00. Beginning December 2014
through November 2016, the SSA rate with FERS was $843.60 and without FERS was $324.30.
Beginning December 2016, the SSA rate with FERS was $846.10 and without FERS was $325.20.
Beginning December 2017, the SSA rate with FERS was $863.00 and without FERS was
$331.70.4
In a letter dated July 6, 2018, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the portion of SSA benefits earned as a federal employee was
part of her retirement and that the receipt of wage-loss compensation under FECA and federal
retirement was prohibited. OWCP adjusted appellant’s FECA benefits to account for her SSA
offset, which reduced her FECA wage-loss compensation payments from $1,642.00 to $1,151.47.

3

By decision dated February 26, 2008, OWCP reduced appellant’s wage-loss compensation benefits effective
February 17, 2008, as the position of Admitting Clerk fairly and reasonably represented her wage-earning capacity.
4
OWCP paid appellant wage-loss compensation for disability from November 2005 through December 2008 and
December 2011 through November 2012.

2

A FERS offset calculation worksheet for the period January 1, 2009 through June 23, 2018
indicated a total overpayment of $44,303.77.
On July 20, 2018 OWCP issued a preliminary determination that appellant received an
overpayment of compensation in the amount of $44,303.77 because she received FECA wage-loss
compensation benefits concurrently with SSA age-based benefits from January 1, 2009 through
June 23, 2018. It provided a calculation of the overpayment. OWCP recommended that appellant
be found not at fault in the creation of the overpayment because she was not aware nor could she
reasonably have been expected to know that it had paid compensation incorrectly. It requested
that she submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine
a fair repayment method. OWCP also noted that appellant could request waiver of recovery of the
overpayment. It provided her with appeal rights and afforded 30 days for a response. No response
or additional evidence was received.
By decision dated October 11, 2018, OWCP determined that appellant had received an
overpayment of compensation in the amount of $44,303.77 because a portion of her SSA agebased benefits was based on credits earned while working in the Federal Government and that this
portion of her SSA benefit was a prohibited dual benefit. It further found that she was not at fault
in the creation of the overpayment, but denied waiver of recovery. OWCP noted that no response
had been received following the preliminary determination. After completing a waiver of
charges/compromise of principal worksheet, it found that charges could not be waived as the
period necessary to repay the debt with charges was less than appellant’s life expectancy.
However, as accrued charges and principle had increased the period of indebtedness by more than
35 percent, it compromised the accrued charges and principle to $32,900.00. It required recovery
of the compromised overpayment of $32,900.00 by deducting $214.66 every 28 days from
appellant’s continuing wage-loss compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of his
or her federal employment.5 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.6 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.7
Section 10.421(d) of the FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based benefits that are attributable to federal

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

Id. at § 8129(a).

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service of the employee.8 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.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $44,303.77 because she concurrently received SSA retirement
benefits while receiving FECA benefits for the period January 1, 2009 through June 23, 2018.
Appellant has not challenged the fact or amount of overpayment. The record indicates that,
while appellant was receiving compensation for disability under FECA, she was also receiving
SSA age-based retirement benefits during the applicable period. A claimant cannot receive both
compensation for wage-loss and SSA age-based benefits attributable to federal service for the same
period.10 Consequently, the fact of overpayment has been established.
To determine the amount of overpayment, the SSA informed OWCP of appellant’s SSA
rate with FERS and without FERS during the applicable periods. SSA noted that appellant had
received disability, rather than age-based benefits from December 2011 through November 2012.
Based on the information provided by SSA, OWCP calculated that an overpayment of $44,303.77
had occurred during the applicable period.
It excluded the December 2011 through
November 2012 period during which appellant had received disability, rather than age-based
benefits. The Board has reviewed OWCP’s calculations of the dual benefits that appellant received
and finds that it properly determined that she received a $44,303.77 overpayment of compensation.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is not
at fault and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”11
Section 10.437 of the FECA implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment of compensation would experience severe financial hardship attempting

8

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

9

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

10

See supra note 8.

11

5 U.S.C. § 8129(b).

4

to repay the debt; and when an individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his or her position for the worse.12
Section 10.438 of the implementing 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 on 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.13 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.
As OWCP found appellant not at fault in the creation of the overpayment, waiver 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.15 Appellant,
however, had the responsibility to provide the appropriate financial information to OWCP.16
In its preliminary determination dated July 20, 2018, OWCP clearly explained the
importance of providing the completed overpayment questionnaire and supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income and expenses. It advised appellant that it would deny
waiver of recovery if she failed to furnish the requested financial information within 30 days.
Appellant, however, did not respond, nor did she complete a Form OWCP-20 or submit the
financial documentation necessary for OWCP to determine if recovery of the overpayment would
defeat the purpose of FECA or if recovery would be against equity and good conscience.
Consequently, as appellant did not submit the information required under section 10.438
of OWCP’s regulations, which was necessary to determine her eligibility for waiver, OWCP
properly denied waiver of recovery of the overpayment.17
On appeal appellant asserts that she was not at fault in the creation of the overpayment and
that she cannot afford to lose any more income. She indicated that she had to sell her house to
meet her necessary expenses. As explained above, OWCP found appellant not at fault in the
creation of the overpayment. However, because appellant did not provide a completed Form
12

20 C.F.R. § 10.437.

13

Id. at § 10.438(a); see T.B., supra note 8; Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

14

Id. at § 10.438.

15

Id. at § 10.436.

16

Supra note 14.

17

See S.B., Docket No. 16-1795 (issued March 2, 2017).

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OWCP-20 overpayment recovery questionnaire and supporting financial documentation as
requested in OWCP’s July 20, 2018 preliminary determination, OWCP properly denied waiver of
recovery of the overpayment.18
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.19 Section
10.441(a) of the regulations20 provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”21
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$214.66 from appellant’s continuing compensation payments every 28 days.
The record reflects that appellant continues to receive wage-loss compensation under
FECA. When, as in this case, no response is received to the preliminary overpayment
determination, OWCP should set the rate of repayment at 25 percent of the 28 days net
compensation amount.22 Appellant, as noted, did not provide the information necessary for OWCP
to consider the amount to be withheld from her continuing compensation. OWCP gave due regard
to the relevant factors noted above.
The Board, therefore, finds that OWCP properly determined appellant’s repayment
schedule.

18

See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).
19
See E.F., Docket No. 18-1320 (issued March 13, 2019); C.H., Docket No. 18-0772 (issued November 14, 2018);
Lorenzo Rodriguez, 51 ECAB 295 (2000); Albert Pineiro, 51 ECAB 310 (2000).
20

20 C.F.R. § 10.441(a).

21

Id.

22
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.500.8(c)(1) (September 2018).

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CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $32,900.00 for the period January 1, 2009 through
June 23, 2018. The Board also finds that OWCP properly denied waiver of recovery of the
overpayment and properly required recovery of the compromised overpayment amount by
deducting $214.66 from appellant’s continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the October 11, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 15, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

Docket No. 09-1128
Issued: December 7, 2009

Case Submitted on the Record

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

JURISDICTION
On March 24, 2009 appellant filed a timely appeal from a March 12, 2009 decision of the
Office of Workers’ Compensation Programs regarding his schedule award claim. 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 appellant has more than five percent permanent impairment of the
left upper extremity for which he received a schedule award.
FACTUAL HISTORY
On February 15, 2007 appellant, then a 59-year-old letter carrier, injured his left shoulder
when he was involved in a motor vehicle accident while delivering mail. The Office accepted
his claim for sprain of the left shoulder/upper arm and other specified sites and authorized
arthroscopic surgery which was performed on May 14 and September 24, 2007. Appellant did
not stop work.
Appellant was treated at an urgent care center on February 15 and March 5, 2007 and was
diagnosed with myalgia. A magnetic resonance imaging (MRI) scan of the left shoulder dated

April 3, 2007 revealed supraspinatus calcific tendinosis, as well as a focal full thickness tendon
tear, subcoracoid bursa effusion and mild supraspinatus outlet narrowing due to
acromioclavicular joint osteoarthritis. Dr. Douglas McFarlane, a Board-certified orthopedic
surgeon, performed surgery on May 14, 2007 for an open acromioplasty and repair of the rotator
cuff of the left shoulder and diagnosed impingement syndrome with torn left rotator cuff. On
September 24, 2007 he performed manipulation of the left shoulder under anesthesia. On
March 11, 2008 Dr. McFarlane advised that appellant reached maximum medical improvement.
He noted findings upon examination of full range of motion for both shoulders and full strength
in the left arm and opined that appellant had 10 percent permanent impairment of the left
shoulder. Dr. McFarlane released appellant from his care with no work restrictions.
On May 7, 2008 appellant filed a claim for a schedule award.
On May 13, 2008 an Office medical adviser found that appellant had no impairment of
the left arm. The medical adviser noted that Dr. McFarlane performed an open acromioplasty on
May 14, 2007 and that appellant reached maximum medical improvement with normal range of
motion and full strength. The medical adviser also noted that Dr. McFarlane found 10 percent
impairment of the left arm but failed to explain how he arrived at this rating.
On May 16, 2008 the Office requested that Dr. McFarlane address the extent of
permanent partial impairment to appellant’s the left shoulder pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment. In an August 29, 2008 report,
Dr. McFarlane explained his impairment rating, noting that appellant underwent an open
acromioplasty and repair of the rotator cuff of the left shoulder on May 14, 2007 and
subsequently had stiffness due to adhesive capsulitis. Dr. McFarlane noted findings upon
examination revealed full range of motion of the left shoulder and full strength. He opined that
appellant would have to exercise caution to avoid tearing the rotator cuff and, for this reason, he
found 10 percent impairment in accordance with the A.M.A., Guides.
In a September 11, 2008 report, an Office medical adviser reiterated that appellant had
zero percent impairment of the left arm. He noted that appellant reached maximum medical
improvement with normal range of motion and full strength. The medical adviser noted that
Dr. McFarlane did not explain his calculation of 10 percent impairment.
On October 15, 2008 the Office again requested that Dr. McFarlane review the medical
adviser’s impairment rating. On October 27, 2008 Dr. McFarlane opined that appellant had a 10
percent impairment rating of the left shoulder as previously determined. He concurred that
appellant had regained full range of motion and strength in his left arm; however, he noted that
appellant did not have a normal shoulder due to the extensive tear of the rotator cuff.
Dr. McFarlane recommended restrictions for appellant to avoid future injury to the shoulder.
On February 5, 2009 the Office referred appellant for a second opinion to Dr. William
Somers, a Board-certified orthopedic surgeon, for determination of permanent impairment in
accordance with the A.M.A., Guides. In a February 18, 2009 report, Dr. Somers reviewed the
history of injury and medical treatment. He noted the history of appellant’s shoulder conditions
and diagnosed complex and significant left rotator cuff tear, status post repair of the left rotator
cuff tear and status post closed manipulation secondary to arthrofibrosis. Dr. Somers advised
that appellant underwent acromioplasty and repair of the complex rotator cuff tear. He found
that left shoulder abduction was 90 degrees, adduction was 30 degrees, internal rotation was 50
2

degrees, external rotation was 45 degrees, flexion was 180 degrees and extension was 40
degrees, for a total 5 percent impairment of the left arm for loss of range of motion. Dr. Somers
noted additional impairment for motor weakness of the left arm due to weakness around the
scapular nerve for a two percent impairment1 and three percent impairment for the risk of retear
of the repair and future rotator cuff arthroplasty associated with the injury pursuant to “section
1.7” of the A.M.A., Guides. He recommended 10 percent impairment of the left upper extremity
under the A.M.A., Guides. Dr. Somers noted that appellant reached maximum medical
improvement.
On March 2, 2009 the Office medical adviser found that appellant had five percent
impairment of the left upper extremity due to loss of range of motion. The medical adviser noted
that Dr. Somers allowed five percent impairment due to weakness and the possibility of future
rotator cuff arthropathy. However, the medical adviser noted that page 508 of the A.M.A.,
Guides, does not allow the use of weakness in the presence of motion, pain, deformity in
calculating impairment.
By decision dated March 12, 2009, the Office granted appellant a schedule award for
five percent permanent impairment of the left upper extremity. The period of the award was
from March 11 to June 28, 2008.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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. However, the Act 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.
ANALYSIS
The Office accepted appellant’s claim for sprain of the left shoulder/upper arm and other
specified sites. It authorized arthroscopic surgery which was performed on May 14 and
September 24, 2007. On appeal, appellant contends that he has 10 percent impairment consistent
with the reports of Drs. McFarlane and Somers. However, the Board finds that appellant has no
more than nine percent permanent impairment of the left arm.
In reports dated March 11 to October 27, 2008, Dr. McFarlane advised that appellant had
reached maximum medical improvement and had 10 percent permanent impairment due to his

1

Id. at 492, Figure 16-15.

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

3

left shoulder injury. However, he did not explain how he made this rating pursuant to the
A.M.A., Guides.4 Therefore, Dr. McFarlane’s rating is of diminished probative value.
The Office referred appellant to Dr. Somers for a second opinion evaluation. In his
report dated February 18, 2009, Dr. Somers noted left shoulder abduction was 90 degrees,
adduction was 30 degrees, internal rotation was 50 degrees, external rotation was 45 degrees,
flexion was 180 degrees and extension was 40 degrees, for a total of 5 percent impairment for
loss of range of motion. The Office medical adviser concurred in this determination. However,
Dr. Somers and the Office medical adviser incorrectly noted that loss of range of motion for the
shoulder totaled five percent impairment. The Board notes that the A.M.A., Guides provide that
abduction of 90 degrees is four percent impairment,5 adduction of 30 degrees is one percent
impairment,6 internal rotation of 50 degrees is two percent impairment,7 external rotation of 45
degrees is one percent impairment,8 flexion of 180 degrees is zero percent impairment,9 and
extension of 40 degrees is one percent impairment.10 This totals nine percent impairment for loss
of shoulder motion to the left upper extremity.
With regard to impairment for strength deficit, Dr. Somers noted impairment of the left
upper extremity due to motor weakness around the scapular nerves pursuant to Table 16-15 of
the A.M.A., Guides for two percent impairment. However, the A.M.A., Guides, provide under
section 16.8, that decreased strength cannot be rated in the presence of decreased motion.11
Consequently, impairment attributable for decreased strength under section 16.8 cannot be
combined with impairment for decreased motion. The A.M.A., Guides provide that only in rare
cases, if the examiner believed the individual’s loss of strength represents an impairment factor
that has not been considered adequately by other methods in the A.M.A., Guides, then the loss of
strength can be rated separately.12 In this instance, Dr. Somers did not explain why strength
impairment should be rated separately from the range of motion impairment. Dr. Somers also
found three percent impairment for the risk of retear of the repair and future rotator cuff
arthroplasty associated with the injury pursuant to “section 1.7” of the A.M.A., Guides.
However, this finding is not in conformance with measurements on which ratings are based in
the A.M.A., Guides. Chapter 1.7 of the A.M.A., Guides contains no specific provision for

4

Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where the
A.M.A., Guides are not properly followed).
5

A.M.A., Guides, 477, Figure 16-43.

6

Id.

7

Id. at 479, Figure 16-46.

8

Id.

9

Id. at 476, Figure 16-40.

10

Id.

11

See id. at 508, section 16.8a.

12

Id.

4

apportioning particular degrees of impairment due to the risk of reinjury.13 Additionally, fear of
future injury is not compensable under the Act.14
The loss of range of motion to appellant’s shoulder totals nine percent impairment of the
left upper extremity. The Board will modify the Office’s impairment rating to reflect this degree
of permanent impairment.
CONCLUSION
The Board finds that appellant has no more than nine percent permanent impairment of
the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: December 7, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See id. at 12.

14

See Mary Geary, 43 ECAB 300, 309 (1991); Pat Lazzara, 31 ECAB 1169, 1174 (1980) (finding that
appellant’s fear of a recurrence of disability upon return to work is not a basis for compensation).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-674
Issued: October 22, 2009

Case Submitted on the Record

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

JURISDICTION
On January 9, 2009 appellant, through her representative, filed a timely appeal from the
February 14 and August 27, 2008 merit decisions of the Office of Workers’ Compensation
Programs which denied an additional schedule. She also timely appealed the Office’s
September 8, 2008 merit decision, denying compensation for wage loss for a period in 2005.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUES
The issues are: (1) whether appellant has more than a four percent permanent impairment
of her right lower extremity; and (2) whether her disability from April 27 to August 18, 2005 was
causally related to her accepted lumbar radiculopathy.

FACTUAL HISTORY
On April 22, 2005 appellant, then a 57-year-old nurse, filed a claim alleging that her
increasing back pain over the prior two weeks was a result of having to push more stretchers and
move and lift more patients and oxygen tanks due to a reduction in staff. The Office accepted
her claim for lumbar radiculopathy, but not for an underlying herniated lumber disc.1
On March 28, 2007 the Office granted a schedule award for a four percent permanent
impairment of appellant’s right lower extremity. An Office hearing representative set aside this
decision and remanded the case to resolve a conflict in medical opinion. The Office referred
appellant, together with the case file and a statement of accepted facts, to Dr. Ronald B. Greene,
a Board-certified orthopedic surgeon, for an impartial medical evaluation of the extent of
impairment.
Dr. Greene evaluated appellant on December 3, 2007. He related her history and
complaints. Dr. Greene described his findings on physical examination and reviewed appellant’s
medical record, including imaging studies. He diagnosed a right-sided herniated disc at L5-S1
with right S1 radiculopathy. Straight leg raising and sciatic stretch testing were negative. Motor
function of the right and left lower extremities was completely normal from the hips to the toes
in all muscle groups. Muscle functioning was normal and equal bilaterally in all muscle groups.
Reflexes were normal and equal bilaterally for the knee and ankles. The only neurologic
abnormality was a slight decrease in sensation in the right L5 dermatome compared to the
normal left L5 dermatome. Right and left S1 dermatomes were normal. Dr. Greene noted: “My
examination is certainly consistent with other examination by orthopedic surgeons, noting that
her motor evaluation is completely normal.” He pointed that there was no motor impairment, no
loss of motion and no other abnormalities to the right lower extremity.
Dr. Greene graded the severity of the S1 sensory loss at 25 percent, representing a one
percent impairment of the right lower extremity. He added a three percent pain-related
impairment for a total impairment of four percent.
An Office medical adviser reviewed Dr. Greene calculations and determined that
appellant had a one percent permanent impairment of her right lower extremity. He found that
the additional pain-related impairment amounted to a duplicative rating and was not allowed.
In a decision dated February 14, 2008, the Office denied an additional schedule award.
At a June 25, 2008 oral hearing before an Office hearing representative, appellant’s
representative contended that there was insufficient evidence that the Office properly selected
Dr. Greene to serve as the impartial medical specialist. He asserted that Dr. Greene did not
indicate that he performed knee extension strength testing and did not state what grade he
assigned for the sensory deficit.

1

Appellant injured her back at work on April 4, 1996 when she jumped over a side rail to keep a patient from
pulling out his endotracheal tube. The OWCP File No. xxxxxx463.

2

In a decision dated August 27, 2008, the Office hearing representative affirmed the
February 14, 2008 decision. He found that the weight of the medical evidence rested with the
impartial medical specialist, Dr. Greene, and established no more than a four percent permanent
impairment of the right lower extremity.
On February 1, 2007 appellant filed a claim for compensation for leave buyback from
April 27 to August 18, 2005. She used sick leave from April 27 to May 11, 2005 and annual
leave from August 2 to 18, 2005 for a total of 192 hours.
The Office informed appellant that she had to substantiate all time away from work with
medical documentation supporting that her physician found her disabled as a result of her workrelated medical condition. It noted that she saw a physician on April 28, 2005 and another on
May 11, 2005, but neither indicated that she was unable to work. A third physician noted that
appellant stopped work on April 28, 2005 but did not indicate that she was disabled. The Office
gave appellant 30 days to submit a physician’s well-reasoned opinion on why she was unable to
work as a result of her accepted work injury.
On September 19, 2005 Dr. Herbert N. Avart, a Board-certified physiatrist, advised
appellant’s representative that appellant was out of work from April 27 to August 19, 2005 due
to her right lumbar radiculopathy and back pain. On July 17, 2006 Dr. Ronald N. Rosenfeld, a
Board-certified orthopedic surgeon, reported that appellant was first treated at the employee
health unit on April 22, 2005. Appellant was treated with medication and continued to work.
“Approximately, one week later she first noted the onset of ‘severe’ pain radiating down her
right leg and related that this was the first time she had any such symptoms in her lower
extremities. [Appellant] stated that the pain became so severe that she went out of work.”
Indeed, she stated on July 7, 2005 that when the pain started to go down the front of her right leg
with the act of sitting down, “that’s when I felt the need to go out on sick leave.”
In a decision dated April 17, 2007, the Office denied appellant’s February 1, 2007 claim
for compensation. It found that the evidence failed to establish her disability for work for the
period claimed. There was no evidence that any of her physicians had taken her off work.
At an August 8, 2007 oral hearing before an Office hearing representative, counsel
argued that Dr. Avart’s September 19, 2005 report and Dr. Rosenfeld’s July 17, 2006 report
provided prima facie evidence of injury-related disability.
Appellant’s representative later submitted additional medical evidence and requested
reconsideration. In a report dated May 14, 2008, Dr. Avart clarified his August 18, 2005
electrodiagnostic report that appellant’s electromyogram (EMG) and nerve conduction study was
consistent with right S1 radiculopathy. Omitted from this report, Dr. Avart stated, was that the
EMG was completed as appellant was having right leg pain and her magnetic resonance imaging
scan demonstrated right and midline posterior disc herniations compromising the right S1 root.

3

Also omitted from his initial dictation was the fact that the study was completed for radicular
symptomatology. Dr. Avart stated:
“The reason this study was completed was low back and right leg pain worsened.
I want to confirm that [appellant’s] absence from work from April 27 through
August 17, 2005 was directly related to the initial work injury.
“The reason for this opinion, being after the fact that on her initial evaluation, she
had right sciatic nerve tension sign, positive EMG with objective findings
involving the right S1 root.”
In a decision dated September 8, 2008, the Office reviewed the merits of appellant’s
claim and denied modification of its prior decision. It found significant that none of the
contemporaneous medical evidence mentioned total disability for work due to lumbar
radiculopathy. Instead, it mentioned that appellant was able to return to work with restrictions.
The Office found Dr. Avart’s opinion of injury-related disability not well reasoned.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).3
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.4 When there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.5
ANALYSIS -- ISSUE 1
On appeal, appellant’s representative questioned the selection of the impartial medical
specialist, but the Board finds that he did not make a timely challenge.6 He repeated that the
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8123(a).

5

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

6

M.A., 59 ECAB ___ (Docket No. 07-1344, issued February 19, 2008) (claimant raised a timely objection to the
selection of the impartial medical specialist prior to the scheduled examination and provided sufficient reason to
require the Office to demonstrate that it properly followed its selection procedures).

4

impartial medical specialist did not properly apply the A.M.A., Guides “since he did not state the
grade that he was assigning for the sensory deficit at the S1 nerve root.”
Dr. Greene, a Board-certified orthopedic surgeon and impartial medical specialist,
examined appellant on December 3, 2007 and diagnosed a right-sided herniated disc at L5-S1
with right S1 radiculopathy. He found only a very slight reduction in sensation in the affected
dermatome.7 Following the procedure and grading scheme set out in Table 15-15, page 424 of
the A.M.A., Guides, Dr. Greene correctly noted that the maximum lower extremity impairment
due to sensory deficit or pain in the S1 spinal nerve root is five percent. Contrary to the assertion
of appellant’s representative, he specifically graded the severity of that sensory deficit or pain at
25 percent. Multiplying the maximum impairment value by the severity of the sensory deficit or
pain gives a lower extremity impairment of 1.25 percent, which is rounded to 1 percent.
Dr. Greene added a three percent pain-related impairment, which the Office awarded.
The Board finds such a rating unwarranted. Table 15-15, page 424 of the A.M.A., Guides,
already accounts for pain and the chapter devoted to pain-related impairment should not be
redundant of or inconsistent with principles of impairment rating described in other chapters. If
an examining physician determines that an individual has pain-related impairment, he or she will
have the additional task of deciding whether or not that impairment has already been adequately
incorporated into the rating the person has received on the basis of other chapters of the A.M.A.,
Guides.8 Without a sound explanation for incorporating an additional pain-related impairment,9
Dr. Greene did not justify a three percent increase in appellant’s rating. This matter does not
require clarification from the impartial medical specialist, because even if an additional three
percent for pain is added to the impairment caused by sensory deficit or pain in the S1 spinal
nerve root, Dr. Greene’s report does not establish that appellant has more than a four percent
permanent impairment of her right lower extremity, for which she has already received
compensation.
The Board finds that Dr. Greene’s report is based on a proper history and is sufficiently
well reasoned that it must be given special weight in resolving the conflict on the extent of
appellant’s impairment. Because the weight of the evidence establishes that appellant has no
more than a four percent impairment of her right lower extremity, the Board will affirm the
Office’s February 14 and August 27, 2008 decisions.

7

When reporting his findings on physical examination, Dr. Greene stated that the only neurologic abnormality
was a very slight reduction in the right L5 dermatome and that right and left S1 dermatomes were normal. Given his
diagnosis of right S1 radiculopathy, which was consistent with studies and other examinations in the record and his
rating of impairment, based on sensory deficit or pain in the S1 spinal nerve root, it would appear that he confused
the dermatomes in his findings. For purposes of this appeal, it does not matter whether one bases appellant’s
impairment on the S1 or L5 dermatome. The result is the same.
8

A.M.A., Guides 570.

9

See id., (“When This Chapter Should Be Used to Evaluate Pain-Related Impairment”).

5

LEGAL PRECEDENT -- ISSUE 2
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.10 A claimant seeking benefits
under the Act has the burden of proof to establish the essential elements of her claim by the
weight of the evidence,11 including that she sustained an injury in the performance of duty and
that any specific condition or disability for work for which she claims compensation is causally
related to that employment injury.12
As used in the Act, the term “disability” means incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.13 When the
medical evidence establishes that the residuals of an employment injury are such that, from a
medical standpoint, they prevent the employee from continuing in her employment, she is
entitled to compensation for any loss of wage-earning capacity resulting from such incapacity.14
For each period of disability claimed, appellant has the burden of proving that she was
disabled for work as a result of her accepted employment injury.15 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability, are medical
issues that must be proved by a preponderance of the reliable, probative and substantial
evidence.16
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.17 The Board has held that when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that she hurt too much to work, without objective signs of disability being shown, the physician
has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.18

10

5 U.S.C. § 8102(a).

11

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

12

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

13

Richard T. DeVito, 39 ECAB 668 (1988); Frazier V. Nichol, 37 ECAB 528 (1986); Elden H. Tietze, 2 ECAB
38 (1948); 20 C.F.R. § 10.5(17).
14

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

15

David H. Goss, 32 ECAB 24 (1980).

16

Edward H. Horton, 41 ECAB 301 (1989).

17

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

18

John L. Clark, 32 ECAB 1618 (1981).

6

ANALYSIS -- ISSUE 2
On appeal, appellant’s representative argues that Dr. Avart’s May 14, 2008 report
provides prima facie evidence to establish a “recurrence of injury” from April 27 through
August 18, 2005.19
The Office correctly observed that none of the contemporary medical evidence took
appellant off work for lumbar radiculopathy. Appellant was first seen at the employee health
unit on April 22, 2005, where she was given medications and restrictions, but she did not stop
work at that time. It was about a week later, when the pain started going down the front of her
right leg with the act of sitting that she felt the need to go out on sick leave. Appellant took
herself off work and saw Dr. Robert E. Muroff on April 28, 2005. Dr. Muroff’s report that date
did not mention disability for work.
It was September 19, 2005 when Dr. Avart stated that appellant was out of work from
April 27 to August 19, 2005. He related this simply as a part of her history and did not advise
that he had actually taken her off work. On May 14, 2008 Dr. Avart attempted to clarify that
appellant was having right leg pain when she underwent electrodiagnostic testing on August 18,
2005 and that her testing was consistent with right S1 radiculopathy. He stated the reason for the
study was worsened low back and right leg pain.
Dr. Avart did not explain why he never took appellant off work. If the reason for the
study was worsened low back and right leg pain, he did not explain why, after reviewing the
study, he found that appellant was not totally disabled for work. This tends to support that
although appellant had objective findings of right S1 radiculopathy and a worsened low back and
right leg pain, her radiculopathy was not totally disabling.
It appears that appellant took herself off work and that her physicians simply accepted her
self-certification of disability. That left the medical record devoid of any medical finding or
opinion that her accepted lumbar radiculopathy totally disabled her for work from April 27 to
August 18, 2005. Dr. Avart’s attempt to clarify his August 18, 2005 report does not support
appellant’s claim that her right S1 radiculopathy was totally disabling. Because the
preponderance of the reliable, probative and substantial medical evidence does not establish that
appellant’s disability from April 27 to August 18, 2005 was causally related to her accepted
lumbar radiculopathy, the Board will affirm the Office’s September 8, 2008 merit decision
denying compensation for wage loss for that period. The Board notes that appellant has covered
192 hours of that period with sick and annual leave at no wage loss.
CONCLUSION
The Board finds that appellant has no more than a four percent permanent impairment of
her right lower extremity. The Board also finds that she has not met her burden of proof to

19

Because she first stopped work on April 27, 2005 and was not previously disabled, appellant’s claim for
compensation beginning April 27, 2005 is not a claim of “recurrence” of disability. It is a straight claim of disability
causally related to the accepted employment injury.

7

establish that her disability from April 27 to August 18, 2005 was causally related to her
accepted lumbar radiculopathy.
ORDER
IT IS HEREBY ORDERED THAT the September 8, August 27 and February 14, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 22, 2009
Washington, DC

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

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

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

8