United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0140
Issued: November 25, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On October 27, 2014 appellant filed a timely appeal of an October 15, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of compensation
in the amount of $2,499.52 had been created because appellant received wage-loss compensation
for the period August 6 to 23, 2014 after he returned to work; and (2) whether OWCP properly
denied waiver of recovery of the overpayment.
1

Appellant filed a timely request for oral argument. After exercising its discretion, the Board, by order dated
April 23, 2015, denied his request as his arguments could be adequately addressed in a decision based on a review of
the case record. Order Denying Request for Oral Argument, Docket No. 15-140 (issued April 23, 2015).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 21, 2013 appellant, then a 53-year-old transportation section inspection -cargo explosive detection canine handler/inspector, filed a traumatic injury claim alleging that on
that date he injured his right shoulder when a canine he was rewarding pulled and yanked on a
toy he held. OWCP accepted the claim for right shoulder and upper arm infraspinatus sprain and
rotator cuff. It authorized right shoulder arthroscopic surgery, rotator cuff repair surgery, and
biceps tendon repair, which occurred on February 17, 2014. By letter dated April 24, 2014,
OWCP placed appellant on the periodic rolls for temporary total disability.
Appellant completed direct deposit election forms on January 24, 2014 and the record
reflects that his compensation payments were directly deposited into his bank account.
Appellant returned to full-time light-duty work on August 6, 2014 and regular duty on
August 18, 2014. On August 23, 2014 he received a compensation payment for the period
July 27 to August 23, 2014 in the amount of $4,563.72.
On August 27, 2014 the employing establishment advised OWCP that appellant had
returned to a limited-duty position on August 6, 2014 and to full-duty work on August 18, 2014.
A computer printout sheet dated September 12, 2014 showed that he was entitled to
$434.30 in premium pay for the period August 6 to 17, 2014.
On September 12, 2014 OWCP informed appellant of its preliminary determination that
he had received an overpayment of compensation in the amount of $2,499.52 because he had
been paid on August 23, 2014 in error for the period August 6 through 23, 2014. It noted that he
had returned to an eight-hour light-duty job on August 6, 2014 and regular work on August 18,
2014, but continued to receive compensation for total disability until August 23, 2014.
OWCP stated that appellant was paid $4,563.72 on August 23, 2014 or $162.99 per day,
for the 28-day compensation cycle from July 27 to August 23, 2014. In calculating the
overpayment, it multiplied the daily pay rate of $162.99 times 18 days, the number of days
between August 6 and 23, 2014, to find the total overpayment compensation received during this
period of $2,933.82. Next, OWCP determined the amount of premium pay appellant had been
entitled to for the period between August 6 and 23, 2014. This amount was $434.30. As
appellant was entitled to $434.30 during this period, OWCP then subtracted the $434.30 from the
compensation amount of $2,933.82, to find the amount of overpayment to be $2,499.52. It found
that he was without fault in the creation of the overpayment. OWCP requested that appellant
complete the enclosed overpayment recovery questionnaire and submit supporting financial
documents. Additionally, it notified him that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence, or a
prerecoupment hearing. No completed overpayment recovery questionnaire was received by
OWCP.
By decision dated October 15, 2014, OWCP finalized the preliminary determination that
an overpayment of compensation in the amount of $2,499.52 had been created during the period

2

August 6 to 23, 2014 and that appellant was not at fault in creating the overpayment. It denied
wavier of recovery of the overpayment as he had not submitted any evidence to justify waiver.
LEGAL PRECEDENT -- ISSUE 1
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.3 20 C.F.R. § 10.500 provides that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $2,499.52 because he had been paid in error for the period August 6 through 23, 2014.
Appellant returned to an eight-hour limited-duty job on August 6, 2014, resumed full-duty work
on August 18, 2014, but continued to receive compensation for disability from OWCP through
August 23, 2014. As he received full-time wages for an eight-hour position job for the period
August 6 to 23, 2014, he was not entitled to disability compensation from OWCP for this same
period. Therefore, appellant received an overpayment of compensation.
In calculating the amount of overpayment, OWCP determined the amount of
compensation appellant received between August 6 and 23, 2014. It offset the amount of
compensation he received during this time period by the amount of premium pay he should have
received while performing light-duty work for the period August 6 to 17, 2014. The record
reflects that appellant was entitled to an additional $434.30 for premium pay. In C.D.,4 a
factually similar case, the Board found that OWCP properly offset the amount of the
overpayment for the period May 28 through December 31, 2010 by an underpayment of
compensation based on an incorrect pay rate during the period May 28 to July 3, 2010. As in
C.D., the calculation involved in determining the amount of overpayment was a recalculation of
the amount of compensation appellant should have received during the period in question. It did
not involve an impermissible offset by a future5 or retroactive entitlement.6 The record reflects
that on August 29, 2014 OWCP determined that appellant had been entitled to premium pay for a
portion of the overpayment amount. The Board finds that OWCP properly determined that
appellant had received an overpayment of compensation in the amount of $2,499.52 for the
period August 6 to 23, 2014 ($2,933.82 - $434.30).

3

5 U.S.C. § 8116(a).

4

Docket No. 11-1095 (issued November 9, 2011).

5

See Michael A. Grossman, 51 ECAB 673 (2000).

6

See B.T., Docket No. 13-1619 (February 24, 2014).

3

LEGAL PRECEDENT -- ISSUE 2
When an overpayment of compensation has been made 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 an individual is entitled.7 OWCP may consider waiving an overpayment
only if the individual to whom it was made was not at fault in accepting or creating an
overpayment.8
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP. This information is necessary to
determine whether an overpayment should be waived. This information will also be used to
determine the repayment schedule, if necessary. Failure to submit the requested information
within 30 days of the request shall result in denial of waiver and no further request for waiver
shall be considered until the requested information is furnished.9
ANALYSIS -- ISSUE 2
OWCP determined that appellant was without fault in the creation of an overpayment of
compensation in the amount of $2,499.52 for the period August 6 through 23, 2014. In its
preliminary determination of overpayment dated September 12, 2014, it requested that he
provide financial information and a completed overpayment recovery questionnaire if he wished
to request waiver of the overpayment. Appellant failed to provide any financial information or a
completed overpayment questionnaire form for OWCP to determine whether waiver of the
overpayment was appropriate. Because he failed to submit the requested information within 30
days, OWCP had no discretion in the matter; the law required a denial of waiver.10 OWCP
regulations mandate that the failure to submit requested information results in the denial of
waiver of the overpayment.11 Thus, it properly denied appellant’s request for waiver of recovery
of the overpayment.
CONCLUSION
The Board finds that OWCP properly found that an overpayment of compensation in the
amount of $2,499.52 had been created. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment.

7

5 U.S.C. § 8129(a).

8

20 C.F.R. § 10.433(a).

9

Id. at § 10.438.

10

Supra note 4.

11

20 C.F.R. § 10.438(b).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 15, 2014 is affirmed.
Issued: November 25, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
G.S., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Reno, NV, Employer
_________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0481
Issued: July 25, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 3, 2017 appellant, through counsel, filed a timely appeal from a November 14,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a permanent
impairment of a scheduled member entitling him to a schedule award.
FACTUAL HISTORY
On June 18, 2012 appellant, then 65-year-old aviation safety inspector filed a traumatic
injury claim (Form CA-1) alleging that on that date he twisted his right knee when getting up from
his chair while at work. He did not stop work.
On March 22, 2013 OWCP accepted appellant’s claim for sprain of the right knee, lateral
collateral ligament on the right.3
In a March 29, 2013 report, Dr. Renny Uppal, Board-certified in orthopedic sports
medicine and surgery, noted that appellant injured his knee at work. He opined that appellant now
had an exacerbation of some chondromalacia, possibly a loose body, and a knee sprain. Dr. Uppal
also indicated that appellant had preexisting chondromalacia that was exacerbated by the work
injury and that he also had a loose body and possibly a meniscal tear. He advised that he believed
that appellant “may have a temporary exacerbation, but a permanent problem with
chondromalacia.”
In an October 28, 2013 report, Dr. Uppal noted that he initially saw appellant on June 26,
2012 and indicated that appellant got up from a chair and had a twisting injury along with pain and
problems over his knee that had continued to worsen. He explained that appellant had prior
problems with his knee, but they did not “seem to bother [appellant] much before the incident. We
have tried to treat him conservatively and actually tried to get a hyaluronic acid series approved,
but which has been denied.” Dr. Uppal opined that appellant reached maximum medical
improvement (MMI) because he was unable to treat appellant further with the denials for treatment
of his exacerbation of preexisting arthritis. He explained that at this point it would be reasonable
to consider in the future either a hyaluronic acid series, possibly a knee arthroscopy with removal
of the loose body, or ultimately, a total knee replacement.
On November 25, 2013 appellant filed a claim for a schedule award (Form CA-7).
By development letter dated December 11, 2013, OWCP advised the medical evidence
submitted was insufficient to establish appellant’s claim as there was no narrative report outlining
the current condition or whether he had any permanent impairment as a result of his work-related
condition. Additionally, it explained that he had preexisting chondromalacia and arthritis and that
the medical evidence indicated that these conditions were causing his current symptoms.
Furthermore, Dr. Uppal did not explain how appellant getting up from a chair and twisting his
3

The record reflects that appellant had a preexisting right knee condition accepted by the Department of Veterans
Affairs. Additionally, appellant had a prior right lower extremity under OWCP File No. xxxxxx825. In that claim,
he filed a traumatic injury claim alleging that on June 1, 2011 while climbing and walking down a mountain range of
6,800 feet, while investigating an aircraft accident, he pulled a muscle or strained his right lower calf leg. OWCP
administratively handled the claim for medical benefits which included one medical report and one x-ray. The claim
has been closed since June 8, 2011.

2

right knee could result in the need for a “hyaluronic acid series, possibly a knee arthroscopy with
removal of the loose body, or ultimately a total knee replacement.” OWCP further advised
appellant to submit medical evidence in support of his claim based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4
In a January 8, 2014 report, Dr. Michael E. Hebrard, Board-certified in physical medicine
and rehabilitation, noted appellant’s history of injury and treatment. He noted that, on June 8,
2012, appellant was rising from a seated position at his desk when his right foot got caught in the
carpet, he twisted his right knee and injured it.5 Dr. Hebrard examined appellant, provided
findings, and diagnosed internal derangement of the knee and osteoarthritis of the right knee and
probably of the left knee. He explained that, with a reasonable degree of medical certainty, more
probable than not, that appellant’s ongoing condition was aggravated by the employment incident.
Dr. Hebrard explained that appellant had an initial injury to the right knee in 2011 which was
aggravated again in the injury of June 6, 2012 in the course of employment when appellant got up
from his desk and tripped over a carpet, which caused additional translational stress along the
medial and lateral condyles of the right knee. This led to an acute aggravation with inflammation
and reinjured the already tattered articular fibrocartilage of the knee. Dr. Hebrard noted that
appellant had significantly restricted range of motion of the right knee, swelling and pain, and gait
instability. He opined that appellant was at MMI on January 8, 2014. Dr. Hebrard explained that
an impairment rating would be forthcoming upon receipt of x-rays.
January 13, 2014 x-rays, read by Dr. Eric Kraemer, a Board-certified neurologist, revealed
moderate osteoarthritis in the right knee and a 1.4 centimeter loose body in Hoffa’s fat pad.
In a March 1, 2014 supplemental report, Dr. Hebrard reiterated that appellant reached
MMI. He explained that appellant’s condition of osteoarthritis of the right knee was a
consequential condition from the accepted diagnosis of right knee sprain that did not respond to
conservative measures. Dr. Hebrard determined that appellant underwent a surgical menisectomy
where portions of the menisci were removed leading to joint narrowing which was consistent with
radiographic diagnosis of osteoarthritis.
On August 31, 2015 OWCP referred appellant for a second opinion, along with a statement
of accepted facts (SOAF), a set of questions and the medical record to Dr. Aubrey A. Swartz, a
Board-certified orthopedic surgeon, for an opinion regarding the nature and extent of appellant’s
entitlement to a schedule award.
In a November 16, 2015 report, Dr. Swartz noted appellant’s history of injury and
treatment and his history of preexisting degenerative arthritis in both knees related to his military
service. He also noted that the prior claim of June 1, 2011. Dr. Swartz explained that appellant
used a cane, as he had pain in both knees, with the right more than the left. He noted that 25 years
ago appellant had surgery on the left knee as he had a medial meniscus problem. Dr. Swartz
4

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

5
Dr. Hebrard also referenced a 2011 plane crash that appellant was investigating, when he stepped on rocks coming
down a hill and fell over, experiencing immediate pain.

3

indicated that appellant suffered with pain in the left knee, ever since. He related that, after his
fall in 2011, appellant’s right knee began having problems. Dr. Swartz indicated that surgery, to
include total knee arthroscopies was recommended, but the appellant was reluctant. He also noted
that appellant’s activities of daily living were impacted as he could not climb the stairs without
assistance and was unable to drive due to right knee pain. Additionally, appellant’s pain was
described as an 8 out 10 in the right knee. Dr. Swartz examined appellant and his findings included
that the knee reflexes were 1 plus bilaterally and ankle reflexes were zero. His findings also
included that appellant was very tender to touch medially and laterally in the right knee and right
patella. Regarding the left knee, Dr. Swartz found that appellant was tender laterally to light
palpation and with pain with mild patellofemoral compression in both knees. He was unable to
test for crepitus in the right knee as he was having too much pain with any motion of the right
knee. Dr. Swartz found no crepitus with motion in the left knee.
Dr. Swartz opined that a diagnosis had not been completely established. He indicated that
there was no indication of a magnetic resonance imaging (MRI) scan in the records and he opined
that the prevailing diagnosis was osteoarthritis of the right knee with worsening right knee pain
and condition. Dr. Swartz explained that, without an MRI scan, he could not complete the
diagnosis. Additionally, he noted that appellant had substantial pain and disability behavior with
findings x-ray dated January 13, 2014, of mild medial compartment narrowing of the right knee,
patellofemoral spur formation, loose body within the knee, in addition to chondrocalcinosis of the
right knee, with inconsistent findings. Dr. Swartz opined that the osteoarthritis in the right knee
appeared to be primary osteoarthritis and explained that the June 18, 2012 incident temporarily
aggravated appellant’s right knee, which would require a right knee MRI scan to further assess his
right knee condition. He indicated that he would be ordering the MRI scan to further diagnose the
condition. Dr. Swartz opined that the osteoarthritis of the right knee, with pain was nonindustrial
or preexisting. Additionally, a right knee replacement was needed. Dr. Swartz also indicated that
appellant was not completely cooperative during his examination. He recommended sedentary
work and prescribed restrictions.
A December 29, 2015 MRI scan of the right knee interpreted by Dr. Sivan S. Golan, a
Board-certified diagnostic radiologist, revealed findings, which included advanced degenerative
changes of the lateral knee joint compartment with full-thickness chondral loss, mild underlying
marrow edema and geode formation; complex diffuse degenerative tear of the lateral meniscus;
and diffuse interstitial tearing of the posterior horn and body of the medial meniscus with mild
undersurface fraying; mild chondrosis within the medial and patellofemoral compartments; and
small knee joint effusion with synovitis and numerous intra-articular bodies most notably within
the anterior knee joint compartment as well as the popliteus tendon sheath and mild to moderate
popliteus tendinopathy.
A December 29, 2015 x-ray of the right knee read by Dr. Golan revealed severe
osteoarthritic change of the lateral compartment and mild degenerative change at the
patellofemoral compartment with a suggestion of medial compartment chondrocalcinosis.
A December 29, 2015 x-ray of the left knee read by Dr. Golan revealed minimal tear and
mild lateral and mild-to-moderate patellofemoral compartment joint space loss as described above.
Patellofemoral joint space measurement might be underestimated due to radiographic projection
and marginal osteophyte versus intrarticular body within the lateral knee joint compartment.

4

In a January 8, 2016 report, Dr. Swartz noted that he had reviewed the x-rays and MRI
scan reports. He opined that appellant had severe osteoarthritic changes in the lateral component
of the right knee with bone on bone joint loss and without a residual joint space as the primary
findings, and the MRI scan study revealed advanced degenerative changes in the lateral
compartment and a complex diffuse degenerative tear of the lateral meniscus with diffuse
interstitial tearing of the medial meniscus, and mild arthritis of the medial and patellofemoral
compartment. Regarding the right knee, Dr. Swartz explained that appellant had a temporary
aggravation of his right knee, which had severe lateral osteoarthritis and a complex tear of the
lateral meniscus, with diffuse interstitial tearing of the medial meniscus. He explained that these
“findings would not be related to an acute injury and not related to getting up from [appellant’s]
chair and twisting his right knee.” Dr. Swartz related that, on June 18, 2012, appellant had
advanced osteoarthritis of his right knee, primarily the lateral compartment, in addition to milder
arthritic changes in the patellofemoral and medial compartments. He advised that this was more
likely a temporary aggravation. Dr. Swartz explained that, with regard to the complex
degenerative tearing of the lateral meniscus, he was referring to the second printing of the A.M.A.,
Guides to the Evaluation of Disease and Injury Causation, pages 364-370, 2014. He explained
that the prevalence of degenerative meniscus tears increased with age and was now recognized as
part of the knee osteoarthritic process. Furthermore, there was insufficient evidence that climbing,
driving, kneeling, lifting, sitting, squatting, standing, and walking caused meniscus disorders.
Dr. Swartz opined that the development of degenerative meniscus tears were established as part of
the osteoarthritic process of the knee. He explained that the findings on the MRI scan would not
be related and the injury of June 18, 2012 would be considered to be a temporary exacerbation or
aggravation of the arthritis in appellant’s right knee, which would be considered to have long since
subsided. Dr. Swartz explained that temporary aggravation would not last more than three months,
or until approximately September 18, 2012. Regarding disability, he opined that there were no
injury-related factors of disability, either objective or subjective. Additionally, any need for
treatment would be considered nonindustrial based upon appellant’s preexisting osteoarthritis.
Dr. Swartz indicated that appellant reached MMI within three months of the episode or by
September 18, 2012. He reiterated that a schedule award would not be applicable based upon the
industrial injury. Dr. Swartz explained that appellant did have 50 percent impairment to the right
knee, but this would not be related to the work injury.
On February 25, 2016 OWCP denied appellant’s claim for a schedule award based on
Dr. Swartz’ opinion. In particular, it explained that the report from Dr. Hebrard was based on an
incomplete history of injury. OWCP indicated that appellant did not mention anything about
tripping over a carpet when he filed his Form CA-1. Furthermore, Dr. Hebrard did not give a
rationalized opinion regarding the preexisting conditions to include right knee osteoarthritis.
OWCP found that the second opinion physician, Dr. Swartz, provided a rationalized opinion and
the medical evidence did not support a permanent impairment.
On March 4, 2016 counsel requested a telephonic hearing, which was held before an
OWCP hearing representative on September 22, 2016. During the hearing, appellant explained
that, as he was getting up, the carpet was loose and he believed that his foot must have gotten
caught and that caused him to twist the knee after he got up. Counsel explained that appellant was
merely providing a “further description of the incident as opposed to something new or different.”

5

In a letter dated October 19, 2016, J.P., a program consultant with the employing
establishment, controverted the claim and disagreed with appellant’s new description of the
incident. She noted that, on his claim form, he did not mention getting his shoe caught on a carpet.
Furthermore, none of the treating physicians mentioned the carpet until the January 8, 2014 report
from Dr. Uppal. J.P. also noted that the SOAF made no mention of appellant’s shoe getting caught
on a loose carpet. She also indicated that there was no conflict as Dr. Hebrard’s reports were based
upon an inaccurate factual history and could not create a conflict.
By decision dated November 14, 2016, an OWCP hearing representative affirmed the
February 25, 2016 decision.
LEGAL PRECEDENT
Under section 8107 of FECA6 and section 10.404 of the implementing federal regulations,7
schedule awards are payable for permanent impairment of specified body members, functions, or
organs. It, however, does not specify the manner in which the percentage of impairment shall be
determined. For consistent results and to ensure equal justice under the law for 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.8 The sixth edition of the
A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World Health
Organization’s International Classification of Functioning, Disability and Health (ICF).9 Under
the sixth edition, the evaluator identifies the impairment for the Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 It is well established that in determining
the amount of a schedule award for a member of the body that sustained an employment-related
permanent impairment, preexisting impairments of the body are to be included.12 However, where

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404

8

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

9

A.M.A., Guides 3 (6th ed., 2009), section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
10

Id. at 383-419.

11

Id. at 411.

12

See B.M., Docket No. 09-2231 (issued May 14, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3(a)(3) (January 2010); Dale B. Larson, 41 ECAB 481 (1990); Beatrice L. High, 57
ECAB 329 (2006). This portion of OWCP’s procedure provides that the impairment rating of a given scheduled
member should include any preexisting permanent impairment of the same member or function.

6

there is no demonstrated permanent impairment due to an accepted workplace injury, the claim is
not ripe for consideration of any preexisting impairment.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a permanent
impairment of a scheduled member entitling him to a schedule award.
OWCP accepted appellant’s claim for sprain of the right knee, lateral collateral ligament
on the right.15 As previously noted, appellant had a preexisting right knee condition accepted by
the Department of Veterans Affairs and a prior right lower extremity claim under OWCP File No.
xxxxxx825, which resulted in a muscle or strained his right lower calf leg and was administratively
handled.
The Board finds that appellant has not established that he has a permanent impairment of
a scheduled member entitling him to a schedule award.
OWCP accepted appellant’s claim for sprain of the right knee, lateral collateral ligament
on the right. Appellant filed a claim for a schedule award on November 5, 2013.
In support of his claim for a schedule award, appellant provided a March 1, 2014
supplemental report from Dr. Hebrard, who determined that appellant was at MMI and had 20
percent impairment of the right lower extremity. Dr. Hebrard utilized the sixth edition of the
A.M.A., Guides. He referenced section 2.3 of the A.M.A., Guides and opined that the primary
diagnosis was “osteoarthritis of the knee.” The Board notes, however, that the condition of
osteoarthritis of the knee is not an accepted condition in this claim. Since the accepted condition
was a sprain of the right knee, lateral collateral ligament on the right, the medical evidence must
establish that this condition resulted in a permanent impairment of the right knee.16 However,
Dr. Hebrard did not provide an impairment rating under the A.M.A., Guides for sprain of the right
knee, lateral collateral ligament on the right, nor has he provided a rationalized medical opinion
supporting that appellant’s right knee osteoarthritis condition was causally related to the accepted

13

M.F., Docket No. 16-1089 (issued December 14, 2016); Thomas P. Lavin, 57 ECAB 353 (2006).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
15

As previously noted, the record reflects that appellant had a preexisting right knee condition accepted by the
Veteran’s Administration and a prior right lower extremity Claim No. xxxxxx825. See supra note 3.
16

See M.C., Docket No. 17-1089 (issued November 13, 2017).

7

June 18, 2012 employment injury. Therefore, the medical reports of Dr. Hebrard are insufficient
to establish a permanent impairment of a scheduled member for schedule award purposes.
Following receipt of Dr. Hebrard’s impairment rating report OWCP scheduled a second
opinion examination with Dr. Swartz.
In his January 8, 2016 report, Dr. Swartz found that appellant did not have ratable
impairment under the A.M.A., Guides for his accepted medical conditions of the right knee. He
opined that appellant had severe osteoarthritic changes in the lateral component of the right knee
with bone on bone joint loss and without a residual joint space as the primary findings. Regarding
the right knee, Dr. Swartz explained that appellant had a temporary aggravation of his right knee,
which had severe lateral osteoarthritis and a complex tear of the lateral meniscus, with diffuse
interstitial tearing of the medial meniscus. He explained that these “findings would not be related
to an acute injury and not related to getting up from his chair and twisting his right knee.”
Dr. Swartz further explained that the findings on the MRI scan would not be related and the injury
of June 18, 2012 would be considered to be a temporary exacerbation or aggravation of the arthritis
in his right knee, which would be considered to have long since subsided. He explained that a
temporary aggravation would not last more than three months or until approximately
September 18, 2012. Regarding disability, Dr. Swartz opined that there were no injury-related
factors of disability, either objective, or subjective. He indicated that appellant reached MMI
within three months of the episode or by September 18, 2012. Dr. Swartz reiterated that a schedule
award would not be applicable based upon the industrial injury.
The Board finds that Dr. Swartz’ opinion is entitled to the weight of the evidence as his
report is sufficiently well rationalized and based upon a proper factual background.17 OWCP
properly relied upon his reports in finding that appellant was not entitled to any schedule award.
Dr. Swartz’ examined appellant, reviewed his medical records, and reported accurate medical and
employment histories. There is no current probative medical evidence of record establishing that
appellant has ratable permanent impairment for his accepted medical condition.
Consequently, appellant has not submitted any medical evidence to establish that his
accepted conditions of sprain on the right knee and lateral collateral ligament on the right, caused
a permanent impairment to a scheduled member of the body. As such evidence has not been
submitted, he has not established entitlement to a schedule award.18
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

17

D.B., Docket No. 17-1444 (issued January 11, 2018).

18

See J.A., Docket No. 17-1846 (issued March 27, 2018).

8

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a permanent
impairment of a scheduled member entitling him to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 14, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2018
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)

Appearances:
Brett E. Blumstein, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-920
Issued: July 9, 2013

Case Submitted on the Record

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

JURISDICTION
On March 7, 2013 appellant, through her attorney, filed a timely appeal from a
September 26, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her occupational disease claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
carpal tunnel, lumbar and cervical conditions in the performance of duty.
FACTUAL HISTORY
On April 10, 2011 appellant, then a 63-year-old mail handler equipment operator, filed an
occupational disease claim (Form CA-2) alleging that her repetitive employment duties caused
1

5 U.S.C. § 8101 et seq.

aninjury. She first became aware of her condition on January 4, 2011 and of its relationship to
her employment on April 5, 2011. Appellant stopped work on January 8, 2011 and notified her
supervisor on April 20, 2011. Appellant’s supervisor stated that for the last seven years
appellant worked as an equipment operator which encompassed operating mules and forklifts
and did not have any lifting requirements.
In an undated narrative statement, appellant provided a summary of the different
positions she held while working for the U.S. Postal Service (USPS)from 1983 to 2011. Her
duties included loading sacks, sorting mail, unloading hand trucks, lifting boxes and trays,
pushing loaded hampers weighing up to 1,000 pounds, unloading airline containers, pulling
loaded APC’s, lifting heavy mail sacks onto conveyer belts and loading skids on to dumpers and
belts. Appellant stated that from 2004 to 2011 she was an equipment operator and forklift and
mule driver. Her duties included using the forklift to load and unload pallets, skids and
equipment from trucks and driving the mule to the docks. Appellant was required to hook up
postal equipment which required strenuous pushing and pulling. Certain equipment weighed
from 2,000 to 3,000 pounds, which appellant had to push up a ramp to load onto dispatch trucks.
Appellant performed these duties for 8 to 10 hours a day, 5 to 6 days a week. She believed that
27 years of lifting, pushing and pulling sacks filled with mail and rolling equipment weighing
70 to 3,000 pounds caused or aggravated her injury. Appellant also noted that in July 2008 she
had a back and neck injury but returned to full duty without restrictions in December 2008.
In an April 8, 2011 disability certificate, Dr. Anthony H. Alter, a Board-certified
orthopedic surgeon, reported that appellant was totally incapacitated until June 15, 2011.
By letter dated April 26, 2011, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and asked to respond to the provided questions within 30 days.
In an April 26, 2011 report, Dr. Leonel A. Hunt, a Board-certified orthopedic surgeon,
noted that appellant complained of low back pain radiating from her left hip to her lower leg with
numbness and tingling at the bottom of her foot and toes. Appellant’s symptoms began in
January 2011 with no specific incident and came on gradually, worse with standing and walking.
Upon physical examination and review of a January 2011 magnetic resonance imaging (MRI)
scan of the lumbar spine, Dr. Hunt diagnosed lumbar degenerative spondylolisthesis with
stenosis. He recommended an L4-5 decompression.
In a May 11, 2011 surgical report, Dr. Hunt advised that appellant underwent L4
laminectomy neck, L4-5 bilateral foraminotomies for decompression of nerve roots, L3-4
foraminotomies decompression of nerve roots and L5 laminotomies for her lumbar stenosis with
spondylolisthesis.
By decision dated June 16, 2011, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that her back condition was causally related to the
established work activities.
By letter dated December 7, 2011 appellant, through counsel, requested reconsideration
of OWCP’s decision.

2

Diagnostic reports dated April 26 and May 11, 2011 were submitted from Dr. Donald S.
Cohen, a Board-certified diagnostic radiologist, who summarized imaging results of appellant’s
lumbar spine.
In a May 26, 2011 report, Dr. Hunt stated that appellant’s pain was improving postlumbar
laminectomy and decompression on May 11, 2011. He diagnosed lumbar spinal stenosis with
radiculopathy status post fusion.
In a November 15, 2011 report, Dr. Jacob E. Tauber, a Board-certified orthopedic
surgeon, noted that he evaluated appellant on October 15, 2011.He stated that she had been
employed by USPS since November 26, 1983 as a mail handler. Dr. Tauber noted that
appellant’s job duties included operating a forklift and loading and unloading airline containers,
conveyer belts and equipment. The physical requirements consisted of prolonged standing,
bending, twisting, stooping, repetitive movement of the upper extremities, lower extremities,
repetitive hand movement, gripping, grasping, torqueing, fine finger manipulation, lifting and
carrying. Appellant worked eight hours per day, five days a week and stopped work on
January 18, 2011 due to the intensity of her symptoms.
Dr. Tauber noted that, in approximately 2010, appellant was performing her usual and
customary work duties and experienced pain to her low back, radiating to her left hip and
leg.Appellant also experienced pain to her neck, shoulders, hands and wrists, which she
attributed to the repetitive nature of her job. As her symptoms gradually increased, she sought
treatment with Dr. Adler. In March/April 2011appellant sought treatment with an orthopedic
surgeon and was referred to Dr. Hunt who performed a lumbar laminectomy on May 11, 2011.
Dr. Tauber provided a history of injury, noting that she was involved in a motor vehicle accident
approximately four to five years prior and sustained injuries to her neck and back. Appellant
also sustained an industrial injury to her head and neck in 1989 and sustained a possible
industrial injury to her neck, back and one of her hands in 2009.2 She underwent medical
treatment for her prior injuries and reported a full recovery. Dr. Tauber reported that he
reviewed appellant’s diagnostic studies and records extensively, noting objective findings of
carpal tunnel syndrome (CTS) bilaterally, cervical radiculopathy and cervical stenosis with
confirmation of electrical studies. Upon physical examination, he diagnosed postlumbar
laminectomy for spinal stenosis, spondylolisthesis at L4-5, cervical stenosis with radiculopathy
and bilateral CTS.
Dr. Tauber opined that appellant’s extensive work duties of heavy lifting, bending,
stooping and repetitive motions with her upper extremities would have contributed to
degenerative disease in the cervical and lumbar spine where she had stenosis. Additionally,
repetitive motion duties were a classic cause of CTS. Dr. Tauber stated that strenuous and
repetitive motion duties over the period of time appellant worked for USPS beginning in 1983
was a known cause of contributing to her conditions.A portion of the degenerative condition in
her cervical and lumbar spine was caused by strenuous duties that she carried out in the course of
her employment. Dr. Tauber opined that appellant’s degenerative disc disease of the cervical
spine, cervical stenosis, cervical radiculopathy, bilateral CTS, lumbar stenosis with
2

The record before the Board contains no other information regarding appellant’s prior injuries and whether she
has any other workers’ compensation claims before OWCP.

3

spondylolisthesis and sciatica were all work related and that her surgery should be considered
related to her work duties.He further noted that her work duties were not the sole cause of her
condition as a spinal condition can result from degenerative disease. However, given the
strenuous nature of appellant’s duties, her work significantly contributed to her cervical and
lumbar stenosis and CTS. Dr. Tauber provided her with permanent work restrictions.
By decision dated September 26, 2012, OWCP affirmed its June 16, 2011 decision
finding that the medical evidence of record failed to establish that appellant’s diagnosed
conditions were causally related to the established factors of federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish a causal relationship between the condition, as well as any attendant
disability claimed and the employment event or incident, the employee must submit rationalized
medical opinion evidence based on a complete factual and medical background, supporting such
a causal relationship.7 The opinion of the physician must be one of reasonable medical certainty
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005);Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

4

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
OWCP accepted that appellant engaged in repetitive activities using the upper extremities
including lifting, bending, stooping, standing and carrying as a mail handler equipment operator.
It denied her claim, however, on the grounds that the evidence failed to establish a causal
relationship between the activities and her bilateral CTS, cervical conditionor lumbar condition.
The Board finds that the medical evidence of record is insufficient to establish that appellant’s
conditions are causally related to factors of her federal employment as a mail handler equipment
operator.
In a November 15, 2011 medical report, Dr. Tauber reported that he evaluated appellant
on October 15, 2011 for an injury that occurred on January 4, 2011. He noted that she worked
for USPS since November 1983 and worked eight hours per day, five days a week. Appellant’s
physical duties entailed operating a forklift, loading and unloading airline containers, conveyer
belts and equipment, which consisted of prolonged standing, bending, twisting, stooping,
repetitive movement of the upper extremities, lower extremities, repetitive hand movement,
gripping, grasping, torqueing, fine finger manipulation, lifting and carrying. Dr. Taber noted that
appellant’s lower back and leg pain began in 2010. He provided a history of prior injuries which
includedinjuries to her neck and back from a motor vehicle accident four to five years ago, an
industrial injury to her head and neck in 1989 and a possible industrial injury to her neck, back
and one of her hands in 2009. Appellant stated that she underwent medical treatment for all prior
injuries and fullyrecovered. Upon physical examination and review of diagnostic studies,
Dr. Tauber diagnosed postlumbar laminectomy for spinal stenosis, spondylolisthesis at L4-5,
cervical stenosis with radiculopathy and bilateral CTS.
Dr. Tauber opined that appellant’s extensive work duties of heavy lifting, bending,
stooping and repetitive motions with her upper extremities would have contributed to
degenerative disease in the cervical and lumbar spine where she had stenosis. He stated that
these repetitive motions also contributed to her bilateral CTS. Dr. Tauber noted that the act of
strenuous and repetitive motion duties over the period of time appellant worked for USPS
beginning in 1983 was a known cause of contributing to her conditions. He stated that a portion
of the degenerative condition in her cervical and lumbar spine was caused by her strenuous
duties that she carried out in the course of her employment. Thus, Dr. Tauber opined that
appellant’s degenerative disc disease of the cervical spine, cervical stenosis, cervical
radiculopathy, bilateral CTS, lumbar stenosis with spondylolisthesis and sciatica were all
workrelated and that her surgery should also be considered related to her work duties. He further
noted that her work duties were not the sole cause of her condition, as a spinal condition can
8

James Mack, 43 ECAB 321 (1991).

5

result from degenerative disease, but given the strenuous nature of her duties, work significantly
contributed to her cervical and lumbar stenosis and CTS.
The Board finds that the opinion of Dr. Tauber is not well rationalized. Dr. Tauber’s
report establishes multiple diagnoses, including degenerative disc disease of the cervical spine,
cervical stenosis, cervical radiculopathy, bilateral CTS, lumbar stenosis with spondylolisthesis
and sciatica. He opined that appellant’s repetitive work duties of heavy lifting, bending,
stooping and motions with her upper extremities contributed to her conditions. Dr. Tauber
failed, however, to adequately explain how the repetitive movements caused or aggravated her
conditions other than offering a generalized opinion that strenuous and repetitive work
contributed to degenerative disease in the cervical and lumbar spine. Hestated that prolonged
standing, bending, twisting, stooping, repetitive movement of the upper extremities, lower
extremities, repetitive hand movement, gripping, grasping, torqueing, fine finger manipulation,
lifting and carrying as appellant’s employment duties. Dr. Tauber did not specify how often she
was required to perform various tasks or the frequency of other physical movements. While
Dr. Tauber provided multiple diagnoses and named the various functions of her employment
duties, it is unclear which movements and tasks contributed to which conditions. As he failed to
provide a sufficient explanation as to the mechanism of injury, his statement that appellant
suffered a work-related injury is equivocal in nature and of limited probative value.9
The Board further notes that Dr. Tauber failed to provide an adequate and detailed
medical history. Dr. Tauber indicated that appellant’s lumbar and cervical conditionswere
degenerative in nature and therefore a result of wear and tear. He failed to provide detailed
findings on her diagnostic reports other than generally stating that he had reviewed x-rays, MRI
scan reports and electrical studies. It is unclear what medical reports and records Dr. Tauber
reviewed and relied upon when providing his opinion on the cause of appellant’s injuries. He
also mentioned prior injuries including a neck and back injury from a motor vehicle accident
around 2005/2006, a head and neck injury from a 1989 industrial injury and a 2009 industrial
neck, back and hand injury. No other details were provided regarding appellant’s prior injuries
making it unclear if her current diagnoses were caused by factors of her federal employment as
alleged, a result of a different work-related incident or caused by a nonwork-related incident. It
also appears that Dr. Tauber did not have a complete and accurate history of her injuries as he
made no mention of her July 2008 neck and back injury which was noted by appellant in her
narrative statement.Furthermore, he noted that appellant had a preexisting lumbar and cervical
degenerative condition. While Dr. Tauber stated that her strenuous work duties contributed to
her preexisting condition, he failed to explain how these tasks and movements would cause her
greater injury. The medical history as provided by him does not provide sufficient detail or
clarity on whether appellant’s current conditions are caused or aggravated by a preexisting
condition or her repetitive employment duties as a mail handler equipment operator.
The Board notes that Dr. Tauber did not evaluate appellant until October 15, 2011.
Though appellant has claimed an occupational exposure, his report stated that she sustained an
injury on January 4, 2011. While her Form CA-2 notes January 4, 2011 as the date she first
became aware of her condition, it is unclear if a traumatic injury, either industrial or
9

S.W., Docket No. 08-2538 (issued May 21, 2009).

6

nonindustrial, occurred on that date. Dr. Tauber noted no additional details about the mechanism
of injury, failed to adequately address appellant’s medical history and did not explain how the
accepted factors of federal employment caused or contributed to her multiple injuries. Medical
reports without adequate rationale on causal relationship are of diminished probative value and
do not meet an employee’s burden of proof.10 The opinion of a physician supporting causal
relationship must rest on a complete factual and medical background supported by affirmative
evidence, address the specific factual and medical evidence of record and provide medical
rationale explaining the relationship between the diagnosed condition and the established
incident or factor of employment.11 Dr. Tauber’s report does not meet that standard and is
insufficient to meet appellant’s burden of proof.12
The remaining medical evidence of record is also insufficient to establish appellant’s
claim. While the reports of Dr. Hunt and Dr. Cohen provide findings on her lumbar condition
and establish that she underwent lumbar laminectomy and decompression on May 11, 2011, they
fail to state any opinion on causal relationship and are of limited probative value.13
On appeal, counsel for appellant argues that the medical reports submitted are sufficient
to establish her claim or to warrant further development of the evidence. Proceedings under
FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. While OWCP shares
responsibility in the development of the evidence to see that justice is done, it is appellant’s
burden of proof to submit the evidence necessary to establish her claim.14 The Board has
reviewed the medical evidence and no physician has provided a rationalized opinion that
herdegenerative disc disease of the cervical spine, cervical stenosis, cervical radiculopathy,
bilateral CTS, lumbar stenosis with spondylolisthesis and sciatica were caused or aggravated by
her accepted federal employment duties.15 The generalized statements on causal relationship
made by Dr. Tauber do not raise an uncontroverted inference between appellant’s condition and
the identified employment factors to require further development of the medical evidence and
case record by OWCP.16
In the instant case, the record lacks rationalized medical evidence establishing a causal
relationship between appellant’s degenerative disc disease of the cervical spine, cervical stenosis,
cervical radiculopathy, bilateral CTS, lumbar stenosis with spondylolisthesis and sciatica and
factors of her federal employment as a mail handler equipment operator. As such, appellant has
failed to meet her burden of proof.

10

Ceferino L. Gonzales, 32 ECAB 1591 (1981).

11

See Lee R. Haywood, 48 ECAB 145 (1996).

12

C.B., Docket No. 08-1583 (issued December 9, 2008).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

14

Phillip L. Barnes, 55 ECAB 426 (2004).

15

G.S., Docket No. 10-2231 (issued July 1, 2011).

16

C.f.Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

7

Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her
bilateral CTS, lumbar and cervical conditions are causally related to the accepted factors of her
federal employment as a mail handler equipment operator.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 9, 2013
Washington, DC

Richard J. Daschbach, 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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, San Antonio, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0007
Issued: April 2, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant, through counsel, filed a timely appeal from an August 2,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in the
performance of duty on April 1, 2015, as alleged.
On appeal counsel argues that the decision is contrary to fact and law.
FACTUAL HISTORY
On September 16, 2016 appellant, then 51-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on April 1, 2015, he fractured his left ankle when he
stepped on an uneven sidewalk surface. On the reverse side of the claim form the employing
establishment controverted the claim as appellant was on his break at the time of the alleged
incident. It also noted that appellant continued to work without complaint and did not report the
injury until September 16, 2016.
In support of his claim, appellant submitted an April 19, 2015 magnetic resonance imaging
(MRI) scan diagnosing a complete tearing of the Lisfrano ligament of the second and third
metatarsal homolateral translation, distal posterior tibialis tendon low grade partial thickness tear,
and second, third, and fourth metatarsal base fractures.
By development letter dated September 23, 2016, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised appellant of the type of
medical and factual evidence required and attached a factual development questionnaire for his
completion. OWCP afforded appellant 30 days to provide the requested information.
On September 27, 2016 OWCP received e-mail correspondence dated September 20, 2016
from B.F., stating that she was a tour 1 supervisor in charge of the annex until April 15, 2015. B.F.
did not remember appellant reporting an injury, but did remember that appellant had a toe
amputated at about that time, and that he came to work with a swollen foot.
In an undated witness statement, P.P., a coworker, noted that on the last day he worked
with appellant he observed appellant favoring one of his legs and hobbling. Appellant showed
P.P. a swollen leg when he asked if he was okay. P.P. stated that appellant continued to work until
the end of his tour of duty.
On a May 6, 2015 treatment validation form, Dr. Sean Kersh, a treating podiatrist,
diagnosed dislocated left foot. He indicated that appellant’s left foot condition would require
surgery. Dr. Kersh requested that appellant be excused from work until July 6, 2015.
In a June 16, 2015 statement, R.B., a coworker, related witnessing appellant’s swollen
ankle and foot. R.B. further noted that appellant did a lot of standing and that the swelling
increased as appellant’s tour of duty progressed.
In a June 17, 2015 statement, E.L., a coworker, noted that he worked with appellant and
that he saw appellant’s ankle was purple and blue when appellant removed his shoe and sock. He
recommended that appellant have his ankle checked, which appellant stated he would do once he
was finished with work.
2

Dr. Kersh, on June 17, 2015, noted that appellant would be off work for approximately
three months following his surgery. On July 30, 2015 he related that appellant was scheduled for
surgery on September 11, 2015, after which he would be able to perform sedentary work/lightduty desk work. Dr. Kersh related in a November 10, 2015 note that he had released appellant to
return to work that day with restrictions of no prolonged walking or standing.
The record contains letters noting continuing treatment performed in 2016 dated May 27
and July 11, 2016 by Dr. Thomas Zgonis, a treating podiatrist, and February 29 and April 18, 2016
by Dr. Daniel J. Short, a treating podiatrist.
In a September 16, 2016 statement, appellant related that he injured his ankle on April 1,
2015 walking from the parking lot to the annex following his break. Specifically, he stated that he
twisted his foot when stepping on the edge of the sidewalk. Following the injury, appellant
continued to work although his coworkers noticed his ankle and foot swelling. He also stated he
showed the injury to a supervisor and that the accident occurred on employing establishment
premises.
On September 30, 2016 A.P., Health and Resource Management Specialist, controverted
appellant’s claim. He stated that appellant did not report the incident so the employing
establishment was unable to conduct an investigation. A.P. also observed that appellant continued
to work for seven weeks with no loss work time, incident or complaint. Appellant only reported
the incident to management one year and five months after the claimed injury. Moreover, A.P.
contended that appellant was not in the performance of duty at the time of the alleged incident as
it occurred while appellant was returning from a personal break.
By decision dated October 25, 2016, OWCP denied appellant’s traumatic injury claim. It
found that appellant failed to establish that his left ankle condition was causally related to the
accepted April 1, 2015 incident.
On November 3, 2016 appellant requested a telephonic hearing before an OWCP hearing
representative, which was held on June 8, 2017. During the hearing, he testified that he was
returning from his break at approximately 9:15 a.m. on April 1, 2015 when he twisted his ankle.
At the time, appellant thought nothing of it as he had foot neuropathy; therefore, he continued
working. Towards the end of the tour, he showed a supervisor, B.F., his swollen leg. Appellant
testified that he showed his swollen leg to some coworkers, but there were no witnesses to when
he allegedly twisted his ankle coming back from his break. He also related that he was a type II
diabetic and had neuropathy which impacted sensation in his feet.
In a June 8, 2017 report, Dr. Helo Chen, a treating physician, noted an injury date of
April 1, 2015 and diagnosed left ankle and foot Charcot’s joint. He reported appellant continued
to have daily left foot and ankle swelling and pain due. Dr. Chen opined that appellant experienced
continued disability and pain from the work injury.
By decision dated August 2, 2017, an OWCP hearing representative affirmed the denial of
appellant’s claim. He found the evidence failed to establish that the April 1, 2015 incident
occurred as alleged. In support of this conclusion, the hearing representative noted that appellant

3

continued to work for seven weeks following the alleged April 1, 2015 incident with no problem
or reported the incident to a supervisor on April 1, 2015.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an 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 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place, and in the manner alleged.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.8
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his or her subsequent course of action.9 Such circumstances as late notification
of injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury, and failure to obtain medical treatment may, if otherwise unexplained, cast
doubt on an employee’s statements.10 However, an employee’s statement regarding the occurrence
of an employment incident is of great probative force and will stand unless refuted by strong or
persuasive evidence.11

3

Supra note 2.

4

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

5

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

6

B.F., Docket No. 09-0060 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

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

8
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.
9

See Betty J. Smith, 54 ECAB 174 (2002).

10

Linda S. Christian, 46 ECAB 598 (1995)

11

Gregory J. Reser, 57 ECAB 277 (2005)

4

ANALYSIS
The Board finds that the evidence of record is insufficient to establish that the claimed
employment incident occurred as alleged.
Appellant claimed to have sustained a left ankle injury on April 1, 2015 when he fractured
his left ankle when he stepped off an uneven sidewalk surface. The employing establishment
controverted the claim, noting that appellant did not file the claim or provide notice of injury until
September 16, 2016. Appellant’s supervisor also noted that appellant continued to work for seven
weeks following the alleged injury without taking leave. Appellant also did not seek medical care
until April 19, 2015.
In support of his claim, appellant submitted witness statements from coworkers. However,
P.P., R.B., and E.L., all noted appellant’s swollen foot/ankle, but did not mention a date of injury
or indicate that they had witnessed the alleged incident.
While an injury does not have to be confirmed by eyewitnesses in order to establish that
an employee sustained an injury in the performance of duty, the employee’s statement must be
consistent with the surrounding facts and circumstances and his subsequent course of action.
Appellant alleged the incident occurred on April 1, 2016, but he did not file a claim until
September 16, 2016. He also continued to work without complaint or loss of work time for seven
weeks following the alleged incident, did not respond to OWCP’s request for detailed information
about how the work incident occurred12 and did not provide a clarifying explanation as to why he
waited over 16 months to file a claim after the alleged injury.13
As the foregoing inconsistencies cast serious doubt concerning whether appellant was
injured at work on April 1, 2015 in the performance of duty, the Board finds that he has not met
his burden of proof to establish an injury in the performance of duty. Because appellant failed to
establish the first component of fact of injury, it is not necessary to discuss whether he submitted
medical evidence sufficient to establish that a medical condition existed and whether the condition
was causally related to the alleged employment incident of April 1, 2015.14
On appeal counsel contends that OWCP’s decision was contrary to fact and law. Based on
the findings and reasons stated above, the Board finds that the counsel’s arguments are
unsubstantiated.

12

See E.R., Docket No. 17-0742 (issued June 26, 2017) (OWCP notified appellant of the additional factual evidence
needed to support that the claimed incident occurred as alleged; as he did not submit such evidence, appellant has
failed to meet his burden of proof).
13

J.B., Docket No. 14-1421 (issued November 14, 2014); Betty J. Smith, 54 ECAB 174 (2002) (notification of
injury, if otherwise unexplained, may cast doubt on an employee s statement that an injury occurred as alleged).
14

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

5

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on April 1, 2015, as alleged
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 2, 2017 is affirmed.
Issued: April 2, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1018
Issued: November 14, 2011

Case Submitted on the Record

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

JURISDICTION
On March 17, 2011 appellant filed a timely appeal from a February 25, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his occupational
disease claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
Whether appellant met his burden of proof to establish that he sustained a bilateral
shoulder injury in the performance of duty as a mail carrier.
FACTUAL HISTORY
On January 13, 2011 appellant, then a 31-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he experienced increased bilateral shoulder pain on his
route. He first became aware of his condition on January 6, 2011 and of its relationship to his

1

5 U.S.C. § 8101 et seq.

employment on January 10, 2011. Appellant notified his supervisor on January 10, 2011 and
stopped work the following day.
In a January 10, 2011 narrative statement, appellant reported that on January 6, 2011 he
was on his route when he injured both of his shoulders. He first noticed discomfort while on
route and the pain continued throughout the weekend.
In a January 11, 2011 attending physician’s report (Form CA-20), appellant’s physician
diagnosed bilateral shoulder sprain and strain due to continuous lifting.
In a January 11, 2011 duty status report (Form CA-17), appellant’s physician reported
that he was injured on January 7, 2011. Appellant did not know how the injury occurred other
than both of his shoulders were bothering him by the end of the day. The physician diagnosed
bilateral shoulder pain and provided appellant with work restrictions.
By letter dated January 13, 2011, Amy McCall, a customer service manager, reported that
appellant informed her of his injury on January 10, 2011, stating that he injured his shoulder on
January 6, 2011. Appellant reported that he did not have shoulder pain prior to January 6, 2011
and did not know how it happened. Ms. McCall controverted the claim stating that appellant
could not state where he was, what he was doing and the activity which caused him pain.
In a September 12, 2010 e-mail, Randy LeBlang, a branch supervisor, reported that
appellant approached him on September 8, 2010 inquiring about workers’ compensation for his
shoulder which he had injured the week before.
By letter dated January 24, 2011, OWCP informed appellant that the evidence of record
was insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and asked that he respond to the provided questions within 30 days.
In January 11 and 13, 2011 medical reports, appellant’s physician reported that appellant
complained of bilateral shoulder pain from continuous lifting and reaching overhead.
In a February 2, 2011 report, Brad Chayet, a physician’s assistant (PA), stated that
appellant complained of bilateral shoulder pain which began on January 6, 2011. Appellant
reported that he experienced pain with overhead activity and reaching. He diagnosed bilateral
shoulder pain, right with impingement and rotator cuff tendinitis.
By decision dated February 25, 2011, OWCP denied appellant’s claim finding that the
evidence did not establish that the occupational exposure occurred as alleged. It also noted that
he failed to establish that he sustained an injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was filed within the applicable time

2

5 U.S.C. §§ 8101-8193.

2

limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or occupational disease.5
When an employee claims that he sustained an injury in the performance of duty he must
submit sufficient evidence to establish a specific event, incident or exposure occurring at the
time, place and in the manner alleged. He must also establish that such event, incident or
exposure caused an injury.6 Once an employee establishes that he sustained an injury in the
performance of duty, he has the burden of proof to establish that any subsequent medical
condition or disability for work, for which he claims compensation is causally related to the
accepted injury.7
ANALYSIS
The Board finds that appellant failed to establish that he sustained a bilateral shoulder
injury in the performance of duty as a mail carrier.
Appellant must establish all of the elements of his claim in order to prevail. He must
prove his employment, the time, place and manner of injury, a resulting personal injury and that
his injury arose in the performance of duty. Appellant alleged that he sustained bilateral
shoulder pain from his duties as a mail carrier.
Appellant has not provided sufficient detail to establish that an occupational exposure
occurred as alleged.8 He failed to adequately describe the circumstances of his injury, how he
injured his shoulders and the duties he was performing which caused his injury. Appellant did
not respond to the questionnaire in OWCP’s January 24, 2011 development letter and did not
provide OWCP with the additional factual evidence requested. Moreover, the employing
establishment controverted the claim stating that it was unclear when the injury occurred due to
his conflicting reports.
Appellant did not submit sufficient medical evidence even to establish her claim. The
duty status report diagnosed bilateral shoulder sprain and strain due to continuous lifting. The
January 11, 2011 report stated bilateral shoulder pain due to continuous lifting and reaching
overhead. Neither report provides an adequate explanation of the activities performed during
employment which might have caused a shoulder injury. The medical evidence failed to
describe a mechanism of injury other than generally stating it was caused by reaching overhead
and lifting.
3

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

4

James E. Chadden Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyet, 41 ECAB 992 (1990).

6

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
7

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

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

The report of PA Chayet is also insufficient because registered nurses, licensed practical
nurses and physicians assistants are not physicians as defined under FECA and their opinions are
of no probative value.9
In the instant case, the record lacks any evidence establishing the factual element of
appellant’s claim, namely, when and how it occurred. The record also lacks rationalized medical
evidence to establish an injury causally related to her employment. An award of compensation
may not be based on surmise, conjecture or speculation. Because appellant did not submit
sufficient evidence establishing the alleged occupational injury claim as OWCP properly denied
his claim.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a bilateral shoulder injury in the performance of duty as a mail carrier.
ORDER
IT IS HEREBY ORDERED THAT the February 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law.

4