United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
U.S. POSTAL SERVICE, MILWAUKEE
PRIORITY ANNEX POST OFFICE,
Oak Creek, WI, Employer
__________________________________________

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

Docket No. 20-0685
Issued: October 8, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 8, 2020 appellant filed a timely appeal from a January 29, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish left trigger finger
causally related to the accepted August 16, 2019 employment incident.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 26, 2019 appellant, then a 29-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 16, 2019 he sustained a left middle finger strain when
he made a fist and jammed his finger while in the performance of duty. He did not stop working.
An August 16, 2019 after-visit summary noted that appellant was seen by Dr. Jeffrey M.
Adler, Board-certified in emergency medicine, who diagnosed left middle finger trigger. It also
noted appellant’s left finger x-rays of that date, interpreted as “unremarkable.”
In an August 17, 2019 return to work note, Dr. Adler reported that appellant had been under
his care since August 16, 2019 and he could return to work without restrictions. In an attending
physician’s report, Part B of an authorization for medical examination and/or treatment (Form CA16),2 of even date, he observed that appellant’s left middle finger was stuck in a flexed position.
Dr. Adler diagnosed trigger finger and checked a box marked “Yes,” indicating that appellant’s
condition was caused or aggravated by an employment activity. He noted that no specific activity
was reported to him.
On August 27, 2019 the employing establishment controverted appellant’s claim,
contending that neither fact of injury nor causal relationship had been established.
In a development letter dated August 30, 2019, OWCP informed appellant of the type of
factual and medical evidence necessary to establish his claim and provided a questionnaire for his
completion. It afforded him 30 days to submit the necessary evidence.
OWCP subsequently received additional medical evidence. August 16, 2019 left finger
x-rays demonstrated normal findings and revealed no acute fracture.
Dr. Andrew D. Navarrete, a Board-certified plastic surgeon, noted in a September 5, 2019
progress note that appellant was seen in the emergency room for evaluation of his left middle
finger locking, which occurred while at work.3 Appellant reported that he locked his left middle
finger into the palm after he made a full fist. Dr. Navarrete indicated that the finger-locking
recurred at least three times since the initial injury. He reviewed the August 16, 2019 x-rays and
diagnosed triggering and locking of the left middle finger.
In a September 13, 2019 response to OWCP’s questionnaire, appellant noted that he was
working on a mail processing machine that sorted first-class mail packages on August 16, 2019.
He explained that, after tying several mailbags, he paused to make a fist because his hand was tired
and stiff. Appellant noted that, after flexing his hand a few times, his left middle finger jammed
and would not unlock. He stated that his supervisor sent him the emergency room, where he was
diagnosed with trigger finger, and was referred to a hand specialist.

2

The Board notes that Part A, the first page of the Form CA-16, is not contained in the case record.

3
The Board notes that Dr. Navarrete incorrectly identified the date of injury as August 17, 2019; however, this
appears to be a typographical error as the accepted date of injury is August 16, 2019.

2

By decision dated October 8, 2019, OWCP denied appellant’s claim. It found that he had
established that the August 16, 2019 employment incident occurred, as alleged, and had submitted
a report from a physician identifying a diagnosed condition. OWCP determined, however, that
the medical evidence of record was insufficient to establish causal relationship between a
diagnosed condition and the accepted employment incident.
OWCP subsequently received an August 17, 2019 emergency room report, wherein
Dr. Adler noted that appellant presented for evaluation of finger pain that he sustained when he
jammed his left middle finger at work. He conducted physical examination, which revealed no
abnormal findings. Dr. Adler diagnosed left trigger finger.
Appellant also submitted an unsigned August 17, 2019 administrative document
concerning his treatment in the emergency department from August 16 through 17, 2019.
On November 6, 2019 appellant requested reconsideration. In support of his request, he
submitted an October 22, 2019 medical report from Dr. Navarrete who opined that, although
causation could not be definitively assessed, appellant’s trigger finger was “more likely than not”
caused by repetitive use of the hand at work or “at a minimum significantly contributed to by work
activities.”
By decision dated January 29, 2020, OWCP denied modification of its October 8, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,5 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
4

Supra note 1.

5

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish left trigger finger
causally related to the accepted August 16, 2019 employment incident.
Dr. Navarrete, in his September 5, 2019 progress note and October 22, 2019 medical
report, noted examination findings, including triggering and locking of the left middle finger, and
diagnosed left trigger finger. He opined that the repetitive use of appellant’s hand at work on
August 16, 2019 had “more likely than not” caused or contributed to left trigger finger. However,
his opinion is equivocal in nature. The Board has held that medical opinions that are speculative
or equivocal are of diminished probative value.11 Moreover, Dr. Navarrete did not provide a
pathophysiological explanation as to how the repetitive motion and use of appellant’s hand while
at work either caused or contributed to his diagnosed left trigger finger.12 Lacking a rationalized
explanation, these reports are insufficient to meet appellant’s burden of proof.
In an August 17, 2019 emergency room report, Dr. Adler diagnosed left trigger finger. He
noted that appellant developed this condition after he jammed his left middle finger at work. In
an August 17, 2019 return to work note Dr. Adler released appellant to return to work without
restrictions. However, in neither report did he provide an opinion as to causal relationship. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.13 These reports,
therefore, are insufficient to establish appellant’s claim.

8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

H.A., Docket No. 18-1455 (issued August 23, 2019).

12

L.T., Docket No. 19-1100 (issued November 13, 2019); M.V., Docket No. 18-0884 (issued December 28, 2018).

13

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

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In Part B of a Form CA-16 of even date, Dr. Adler again diagnosed left trigger finger and
checked a box marked “Yes” indicating that appellant’s condition was caused or aggravated by an
employment activity. The Board has held, however, that medical evidence on causal relationship
that consists only of a physician checking “yes” to a medical form question on whether the
claimant’s condition was related to the history given, without more by way of medical rationale,
is of little probative value.14 Furthermore, Dr. Adler indicated that appellant reported no specific
work activity. The Board has consistently held that if the physician is opining that work activity
caused a diagnosed medical condition, there must be an explanation as to the mechanism of injury
and how the work activity caused the diagnosed medical condition.15 Although the form report
contains a medical diagnosis, without any explanation or rationale for the conclusion reached, such
report is insufficient to establish causal relationship.16
In an August 16, 2019 after-visit summary, Dr. Adler diagnosed left trigger finger. He did
not, however, provide a cause of his diagnosed condition. The Board has held that medical
evidence that does not offer an opinion regarding the cause of an employee’s condition is of no
probative value on the issue of causal relationship.17 Thus, this report is also insufficient to
establish appellant’s claim.
Appellant also submitted an unsigned August 17, 2019 administrative document from an
emergency room. The Board has held that reports that are unsigned or bear an illegible signature
lack proper identification and cannot be considered probative medical evidence as the author
cannot be identified as a physician.18 Therefore, this medical evidence has no probative value and
is insufficient to establish appellant’s claim.
Finally, the record includes the results of August 16, 2019 left finger x-rays. The Board
has held, however, that diagnostic studies, standing alone, lack probative value on the issue of
causal relationship as they do not address whether the employment incident caused any of the
diagnosed conditions.19 Thus, these reports are also insufficient to establish appellant’s claim.

14
S.F., Docket No. 16-1276 (issued October 10, 2017); N.L., Docket No. 17-0454 (issued April 6, 2017); Lillian M.
Jones, 34 ECAB 379, 381 (1982).
15

A.S., Docket No. 16-1028 (issued August 17, 2016).

16

N.V., Docket No. 17-0107 (issued July 3, 2017); Deborah L. Beatty, 54 ECAB 334 (2003) (the checking of a box
marked yes in a form report, without additional explanation or rationale, is insufficient to establish causal relationship).
17

See R.T., Docket No. 19-1346 (issued December 4, 2019); L.B., Docket No 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
18

M.A., Docket No. 19-1551 (issued April 30, 2020); T.O., Docket No. 19-1291 (issued December 11, 2019);
Merton J. Sills, 39 ECAB 572, 575 (1988).
19

K.S., Docket No. 19-1623 (issued March 19, 2020); M.J., Docket No. 19-1287 (issued January 13, 2020).

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As the medical evidence of record is insufficient to establish causal relationship between
the accepted August 16, 2019 employment incident and appellant’s diagnosed left trigger finger,
the Board finds that appellant has not met his burden of proof.20
On appeal appellant asserts that his doctor and supervisor agreed that his injury was the
result of repetitive motion from work. However, as explained above, the Board finds that the
medical evidence submitted was insufficient to establish appellant’s 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 has not met his burden of proof to establish left trigger finger
causally related to the accepted August 16, 2019 employment incident.21
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 8, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

20

R.G., Docket No. 18-0792 (issued March 11, 2020).

21

The Board notes that a completed Form CA-16 authorization may constitute a contract for payment of medical
expenses to a medical facility or physician, when properly executed. However, as noted above, the case record as
transmitted to the Board does not contain the first page, Part A, of the Form CA-16. As this form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim, OWCP should determine if the employing establishment properly executed a Form
CA-16 in this matter. See 20 C.F.R. § 10.300(c); J.G., Docket No. 17-1062 (issued February 13, 2018); Tracy P.
Spillane, 54 ECAB 608 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BORDER PATROL STATION, Tucson, AZ,
Employer
__________________________________________

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Docket No. 08-919
Issued: October 2, 2008

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

Case Submitted on the Record

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

JURISDICTION
On February 8, 2008 appellant filed a timely appeal from the December 17, 2007 and
January 16, 2008 merit decisions of an Office of Workers’ Compensation Programs’ hearing
representative, who affirmed schedule awards. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of the case. The Board also has jurisdiction to review
the February 19, 2008 overpayment decision.
ISSUES
The issues are: (1) whether appellant has more than a 10 percent impairment of his right
lower extremity or more than a 7 percent impairment of his left; and (2) whether the Office
properly denied waiver of an overpayment resulting from a duplicate schedule award, and if so,
whether the Office properly reduced the overpayment by applying a schedule award that was
payable.

FACTUAL HISTORY
On February 17, 2001 appellant, then a 49-year-old senior border patrol agent, injured his
left knee in the performance of duty when he stepped on the side of a mound and it collapsed.
The Office accepted his claim for derangement of meniscus, left knee.1 On January 20, 2002
appellant injured his right knee in the performance of duty when he jumped out of his vehicle
and landed on a rock. The Office accepted his claim for right knee meniscus tear, and he
underwent medial and lateral partial meniscectomies.2
On September 22, 2002 appellant again injured his right knee in the performance of duty.
He was walking from his vehicle, stopped on uneven ground and felt his right knee pop. The
Office accepted his claim for internal derangement of the right knee and appellant underwent
another partial medial meniscectomy. On December 9, 2003 the Office issue a schedule award
for a 10 percent impairment of the right lower extremity due to medial and lateral partial
meniscectomies.3
On December 13, 2003 appellant tripped on a metal piece of flooring at work and his left
knee popped. The Office accepted this claim for left knee osteoarthritis.4
On May 28, 2005 appellant twisted his right knee while walking down wet stairs at work.
The Office accepted his claim for right knee meniscal tear. Appellant underwent medial and
lateral partial meniscectomies, a partial resection of the medial synovial plica and a
chondroplasty of the femoral groove. On February 22, 2006 the Office issued a schedule award
for a 10 percent impairment of the right lower extremity due to the medial and lateral partial
meniscectomies.
The Office referred appellant, together with a statement of accepted facts, to Dr. Jon T.
Abbott, a Board-certified orthopedic surgeon, for a current evaluation of impairment. On
May 16, 2007 Dr. Abbott reported that appellant’s chief complaint was discomfort in his right
knee. On examination of the right knee, appellant had 6 degrees valgus alignment, 0 to 130
degrees range of motion and 2+ tenderness over the medial joint line. X-rays showed five
millimeters medial joint space and seven millimeters lateral joint space. The patellofemoral joint
appeared normal. On the left, appellant had three degrees valgus, 0 to 130 degrees range of
motion, tenderness along the medial joint line. X-rays showed three millimeters medial joint
space and six millimeters lateral joint space. Motor examination was 5/5 in all motor groups
bilaterally, and sensory examination was bilaterally intact. Thigh circumference was 48
centimeters on the right and 49 on the left. Calf measurements were equal.

1

OWCP File No. xxxxxx367.

2

OWCP File No. xxxxxx070.

3

OWCP File No. xxxxxx070.

4

OWCP File No. xxxxxx070.

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On the basis of Dr. Abbott’s evaluation, the Office issued an August 28, 2007 schedule
award for a seven percent impairment of the left lower extremity due to a loss of cartilage
interval in the medial compartment of the left knee.
In a decision dated December 17, 2007, an Office hearing representative found that
appellant had no more than a 10 percent impairment of his right lower extremity and no more
than a 7 percent impairment of his left. In a January 16, 2008 decision, another Office hearing
representative affirmed the Office’s August 28, 2007 schedule award for a seven percent
impairment of the left lower extremity.
On August 2, 2007 the Office issued a preliminary determination that appellant was not
at fault in the creation of a $35,626.01 overpayment. The Office noted that it had twice issued
the 10 percent schedule award for the right lower extremity based on the same impairment.
Appellant completed an overpayment recovery questionnaire listing income, expenses and assets.
At a prerecoupment hearing before an Office hearing representative on December 4, 2007,
appellant testified that he was currently working as a senior patrol agent making $1,764.00
biweekly. He stated that his wife earned $1,768.00 biweekly.5 Appellant reviewed his monthly
expenses with the hearing representative.6 After the hearing, he submitted copies of receipts
relating to pharmacy, medical and propane expenses. Appellant wrote that medical and other
expenses were over $600.00 a month, and he was sure he was not identifying some expenses. He
added that he applied the February 22, 2006 schedule award to his home mortgage.
In a decision dated February 19, 2008, the Office hearing representative found that a
$35,626.01 overpayment arose when the Office issued duplicate schedule awards for the right
lower extremity. The hearing representative found that appellant was not at fault in the creation
of the overpayment. The hearing representative denied waiver and noted that appellant had
$752.00 in excess monthly income.7 The hearing representative determined that appellant could
repay the debt at a rate of $500.00 a month.
Also on February 19, 2008, the Office notified appellant that it was applying the
$23,520.94 schedule award for his left lower extremity to the $35,626.01 overpayment. This left
a net overpayment of $12,105.07.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of the Federal Employees’ Compensation Act8 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
5

This represents a total net household income of $7,652.67: (($1,768.00 + $1,764.00)*26 weeks)/12 months.
Appellant testified that he was multiplying the biweekly total by two and rounding off to $6,900.00.
6

Monthly expenses included: $2,500.00 mortgage, $200.00 property tax, $800.00 food, $50.00 clothing, $950.00
utilities, $800.00 miscellaneous and $1,000.00 revolving credit.
7

The hearing representative used appellant’s rounded figure of $6,900.00 income, lowered miscellaneous
expenses from $800.00 to $600.00 and added $48.00 for propane tank expense.
8

5 U.S.C. § 8107.

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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.9
ANALYSIS -- ISSUE 1
Appellant notes that the A.M.A., Guides identifies numerous causes of impairment,
including dysesthesia, weakness, atrophy, pain, nerve denigration and range of motion. He
contends that his impairment rating should account for all of his symptoms, including always
being in pain, inability to fall asleep or sleep for any length of time, nausea and vomiting caused
by pain medication, and a distorted sense of taste for foods and beverages. Appellant argues that
all of these are clinically appropriate for impairment calculation purposes.
The A.M.A., Guides lists 13 methods to assess lower extremity impairment. These
methods fall into three basic categories: (1) anatomic impairment, including atrophy, arthritis
and nerve injury; (2) functional impairment, including range of motion and muscle strength; and
(3) diagnosis-based impairment, including fractures and meniscectomies.10 However, many of
these methods may not be used together for evaluating a single impairment. The A.M.A., Guides
provides a Cross-Usage Chart at Table 17-2 showing which combinations are allowed.11 The
evaluating physician should select the clinically most specific method of assessment.12
Typically, one method will adequately characterize the impairment and its impact on the ability
to perform activities of daily living. If more than one method can be used, the method that
provides the higher rating should be adopted.13
Appellant injured his left knee on February 17, 2001. He injured it again on
December 13, 2003. The Office accepted that his left knee osteoarthritis was a result of federal
employment. The most specific method for evaluating impairment due to osteoarthritis is found
in Chapter 17.2h of A.M.A., Guides. This chapter explains that the hallmark of all types of
arthritis is thinning of the articular cartilage, which correlates well with disease progression.14
Table 17-31, page 544, shows arthritis impairments based on roentgenographically determined
cartilage intervals. X-rays obtained in 2007 by Dr. Abbott, the referral orthopedic surgeon,

9

20 C.F.R. § 10.404. Effective February 1, 2001 the Office began using the A.M.A., Guides (5th ed. 2001).
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.7b.(4) (August 2002). Because the Office has not yet specified the use of the 6th edition of the A.M.A.,
Guides, standards found in the 5th edition currently apply.
10

A.M.A., Guides 525, Table 17-1.

11

Id. at 526, Table 17-2.

12

Id. at 526.

13

Id. at 527.

14

Id. at 544.

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showed three millimeters medial joint space in appellant’s left knee. Under Table 17-31, this
represents a seven percent impairment of his left lower extremity, which the Office awarded.15
Appellant argues his rating should also incorporate for pain and inability to perform
activities of daily living. Impairment ratings in the body organ system chapters of the A.M.A.,
Guides already make allowance for any accompanying pain.16 These ratings reflect not only the
severity of the medical condition but the degree to which the impairment decreases an
individual’s ability to perform common activities of daily living.17 Appellant argues that his
rating should include muscle weakness, atrophy and loss of motion. The Cross-Usage Chart at
Table 17-2 on page 526 of the A.M.A., Guides prohibits combining the rating for arthritis with
any of these.
Three degrees valgus alignment and 130 degrees active range of knee motion represent
no impairment under Table 17-10, page 537. Dr. Abbott found no peripheral nerve injury.
Manual muscle testing was 5/5. Thigh circumference was greater on the left. So other
applicable anatomic and functional methods of assessment yield no more favorable result.
The Board will affirm the Office’s December 17, 2007 and January 16, 2008 decisions
finding no more than a seven percent impairment of appellant’s left lower extremity due to loss
of cartilage interval in the medial compartment of the knee. Rating the left lower extremity
under Table 17-31, page 544 of the A.M.A., Guides is the most specific method of evaluating
impairment due to osteoarthritis and the x-rays of record do not establish more than a seven
percent impairment.
Appellant injured his right knee several times and underwent several surgeries.
Following his January 20, 2002 injury, he underwent a medial and lateral partial meniscectomy.
Appellant had a second medial partial meniscectomy after his September 22, 2002 injury. After
his May 28, 2005 injury, he underwent another medial and lateral partial meniscectomy.
The most specific method of assessing impairment due to meniscectomy is found in
Chapter 17.2j of the A.M.A., Guides. Table 17-33, page 546, indicates that, when both a medial
and lateral meniscectomy are present, as in appellant’s case, the lower extremity impairment is
10 percent, which the Office awarded. Appellant is not entitled to a higher rating because he
underwent several meniscectomies and came away with less cartilage each time. Only a total
meniscectomy would give him a higher rating under the A.M.A., Guides.
Appellant’s diagnosis-based estimate for meniscectomy may not be combined with loss
due to range of motion, muscle strength or atrophy.18 It may be combined with an estimate for
15

Six millimeters lateral joint space represents no impairment.

16

A.M.A., Guides 20. Dr. Abbott did not report that appellant’s pain was excessive in the context of his
objectively verifiable medical condition, that appellant had a well-established pain syndrome without significant,
identifiable organ dysfunction to explain the pain (such as reflex sympathetic dystrophy), or that appellant had other
associated pain syndromes (such as peripheral neuropathy or causalgia). See id. at 570.
17

Id. at 4.

18

Id. at 526, Table 17-2.

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arthritis, but x-rays showed five millimeters medial and seven millimeters lateral joint space,
which reflect no impairment under Table 17-31, page 544. Other applicable anatomic and
functional methods of assessment do not give appellant a more favorable result. Six degrees
valgus alignment and 130 degrees active range of motion in the knee represent no impairment
under Table 17-10, page 537. As noted, Dr. Abbott found appellant’s strength to be 5/5 in all
groups. There was no peripheral nerve injury. There was a one-centimeter difference in thigh
atrophy on the right. This is the smallest ratable impairment possible and represents a three
percent impairment of the lower extremity under Table 17-6, page 530 of the A.M.A., Guides.
But this is not greater than the rating for meniscectomies and may not be combined with it.
The Board will affirm the Office’s December 17, 2007 decision finding no more than a
10 percent impairment of appellant’s right lower extremity due to medial and lateral partial
meniscectomies. Rating the right lower extremity under Table 17-33, page 546 of the A.M.A.,
Guides is the most specific method of evaluating impairment due to meniscectomies and gives
appellant the most favorable schedule award.
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.19
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.20 If the Office finds that the
recipient of an overpayment was not at fault, repayment will still be required unless
(1) adjustment or recovery of the overpayment would defeat the purpose of the Federal
Employees’ Compensation Act or (2) adjustment or recovery of the overpayment would be
against equity and good conscience.21
ANALYSIS -- ISSUE 2
An overpayment occurred when the Office twice gave appellant a schedule award for the
same impairment. Following his September 22, 2002 employment injury, the Office issued a
schedule award for a 10 percent impairment of the right lower extremity due to medial and lateral
19

5 U.S.C. § 8129(a).

20

20 C.F.R. § 10.433(a) (1999).

21

Id. at § 10.434. Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause
hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office seeks
recovery needs substantially all of his or her current income (including compensation benefits) to meet current
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as
determined by the Office from data furnished by the Bureau of Labor Statistics. A higher amount is specified for a
beneficiary with one or more dependents. Id. at § 10.436. Recovery of an overpayment is considered to be against
equity and good conscience when any individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt. Id. at § 10.437(a). Recovery of an overpayment is also considered to be
against equity and good conscience when any 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. Id. at § 10.437(b).

6

partial meniscectomies. It then erroneously issued the same award for the same impairment after
appellant’s May 28, 2005 employment injury. That schedule award constituted a double
payment.
Appellant was without fault in the creation of the overpayment and is therefore eligible
for waiver. The hearing representative found, however, that appellant had an estimated $752.00
in excess monthly income. The hearing representative accepted appellant’s estimate of
$6,900.00 monthly income, but properly converted the biweekly income he reported at the oral
hearing comes to $7,652.67 in monthly income.22 Even if one were to accept without
documentation every expense appellant claimed on his overpayment recovery questionnaire, at
the oral hearing and in his subsequent correspondence, appellant has over $1,300.00 in excess
monthly income.23 Therefore, he does not need substantially all of his current income to meet
current ordinary and necessary living expenses.24
Further, the evidence does not establish that appellant gave up a valuable right or
changed his position for the worse in reliance on the February 22, 2006 schedule award.
Appellant stated that he applied the schedule award to his home mortgage, but converting the
funds into home equity and reducing his mortgage debt does not establish that he detrimentally
relied on the schedule award by relinquishing a valuable right that cannot be regained or by
making a decision that resulted in a loss.
Recovery of the overpayment will not defeat the purpose of the Act because appellant
does not need substantially all of his current income to meet current ordinary and necessary
living expenses. Recovery will not be against equity and good conscience because the evidence
does not establish detrimental reliance. Repayment of the debt is therefore required by law. The
Board will affirm the hearing representative’s February 19, 2008 decision denying waiver.
The Board’s jurisdiction to review the collection of an overpayment is limited to cases of
adjustment, where the Office decreases later payments of compensation to which the individual
in entitled.25 Because appellant was due a schedule award for his left lower extremity, the Board
finds that the Office properly applied that schedule award compensation to reduce the amount of
the overpayment to $12,105.07.26 Because the Office must recover the balance of the
overpayment by means other than a decrease in later payments of compensation -- appellant was

22

Multiplying the biweekly figure by two, as appellant did, shortchanges the yearly income by four full weeks, or
about $7,064.00.
23

Using appellant’s original figure of $800.00 miscellaneous plus $48.00 for propane tank expense, total
expenses equal $6,348.00.
24

Appellant’s resource base also greatly exceeds that required to demonstrate hardship in repaying the debt. See
Eloise K. Hahn, Docket No 01-1199 (issued June 25, 2002) (the employee’s contribution to the Thrift Savings Plan,
and the contribution’s earnings, are considered assets for purposes of determining waiver).
25

Levon H. Knight, 40 ECAB 658 (1989).

26

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.0300.8(b)
(May 2004).

7

employed and not receiving ongoing compensation for wage loss -- the Board lacks jurisdiction
to review the repayment schedule of $500.00 a month.
CONCLUSION
The Board finds that appellant has no more than a 10 percent impairment of his right
lower extremity and no more than a seven percent impairment of his left. The Board finds that
the Office properly denied waiver of the overpayment resulting from the duplicate schedule
award. The Board further finds that the Office properly reduced the overpayment by applying
the schedule award payable for appellant’s left lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 19 and January 16, 2008 and
December 17, 2007 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 2, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


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

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

Docket No. 12-1261
Issued: October 16, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2012 appellant filed a timely appeal from a March 22, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying a traumatic injury 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 the claim.
ISSUE
The issue is whether appellant has established that she sustained a traumatic right ankle
sprain in the performance of duty on February 3, 2012.
FACTUAL HISTORY
On February 3, 2012 appellant, then a 51-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a right ankle injury that day when stepping down

1

5 U.S.C. § 8101 et seq.

from her delivery vehicle. She stopped work at the time of the injury and returned to limited
duty on February 9, 2012.
In a February 6, 2012 duty status report (Form CA-17), Mandle E. Bagwell, a nurse
practitioner, diagnosed a right ankle sprain sustained on February 3, 2012.
In a February 9, 2012 letter, OWCP advised appellant of the type of additional evidence
needed to establish her claim, including a detailed factual statement identifying the employment
factors alleged to have caused the claimed injuries, and a rationalized statement from her
physician explaining how and why those factors would cause the claimed injuries. It noted that
nurse practitioners were not qualified physicians under FECA. Appellant was afforded 30 days
to submit such evidence.
Appellant submitted a February 9, 2012 form report from Giva Gunthers, a nurse
practitioner, February 6, 2012 intake and insurance forms, and a February 6, 2012 x-ray report
by Dr. Justin Hodge, a Board-certified diagnostic radiologist, noting moderate lateral soft tissue
swelling of the right ankle without fracture or dislocation.
By decision dated March 22, 2012, OWCP denied appellant’s claim on the grounds that
causal relationship was not established. It accepted that the February 3, 2012 incident occurred
at the time, place and in the manner alleged. However, appellant did not submit medical
evidence explaining how and why the February 3, 2012 incident would cause the claimed ankle
sprain.
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
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee sustained a traumatic 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 that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.5

2

5 U.S.C. §§ 8101-8193.

3

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

4

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

5

Gary J. Watling, 52 ECAB 278 (2001).

2

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.6
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medial certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.7
ANALYSIS
Appellant claimed that she sustained a right ankle sprain when stepping from her delivery
vehicle on February 3, 2012. OWCP accepted that the February 3, 2012 incident occurred as
alleged, but denied her claim on the grounds that she did not submit medical evidence
establishing a causal relationship between that event and the claimed ankle sprain.
In support of her claim, appellant submitted form reports from two nurse practitioners.
However, nurse practitioners are not considered physicians under FECA and their opinions are of
no probative medical value.8 While Dr. Hodge is a Board-certified diagnostic radiologist, and
therefore a physician under FECA, he did not submit an explanation of how the February 3, 2012
incident would cause any clinical findings such as the swelling he observed on x-ray. Therefore,
his opinion is insufficient to meet appellant’s burden of proof.9 As the insurance and intake
forms do not address causal relationship, they are also insufficient to establish a medical
connection between the accepted February 3, 2012 incident and the claimed injury.
The Board notes that OWCP advised appellant in a February 9, 2012 letter of the
necessity of submitting medical evidence from a qualified physician explaining how and why the
February 3, 2012 incident would cause the claimed injury. OWCP also advised appellant that
nurse practitioners were not qualified physicians under FECA. However, appellant did not
submit medical evidence from a physician supporting that stepping down from her delivery
vehicle on February 3, 2012 caused the claimed right ankle sprain. Therefore, OWCP properly
denied her claim.

6

Deborah L. Beatty, 54 ECAB 340 (2003).

7

Solomon Polen, 51 ECAB 341 (2000).

8

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law).
9

Deborah L. Beatty, supra note 6.

3

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 established that she sustained a right ankle sprain
in the performance of duty on February 3, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 22, 2012 is affirmed.
Issued: October 16, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 07-275
Issued: April 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 13, 2006 appellant filed a timely appeal from a November 1, 2006 Office
of Workers’ Compensation Programs’ merit decision, denying her claim for compensation for
lost wages on September 6 and 7, 2006. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to compensation for lost wages on September 6
and 7, 2006.
FACTUAL HISTORY
On June 13, 2006 appellant, then a 52-year-old part-time flexible clerk, filed a claim for a
traumatic injury alleging that she sustained a fractured right ankle when it became caught in the
net of a mail container. She went to the emergency room and underwent surgery consisting of
open reduction internal fixation performed by Dr. Brian A. Batman, an orthopedic surgeon. The
Office accepted appellant’s claim for a bimalleolar right ankle fracture. Appellant stopped work

on June 13, 2006. On July 27, 2006 Dr. John P. Furia, an orthopedic surgeon, stated that
appellant’s cast was removed and she could return to eight hours of sedentary work on
August 3, 2006. Appellant’s work hours were reduced to four hours a day by Dr. Batman on
August 7, 2006 due to swelling of her ankle. On August 14, 2006 she returned to eight hours of
limited duty. On August 25, 2006 Dr. Batman indicated that appellant could work eight hours a
day at a sedentary job through September 11, 2006 and could resume regular duty thereafter.
Appellant received continuation of pay from June 14 to July 28, 2006 and was on leave without
pay (LWOP) from July 29 to August 4, 2006. She subsequently received compensation for lost
wages for July 29 to August 25, 2006.
In a Form CA-7 claim for compensation, appellant indicated that on September 6, 2006
she worked for 6.25 hours and was in LWOP status for 1.75 hours. She indicated that she
worked for 6.50 hours on September 7, 2006 and was in LWOP status for 1.50 hours.
On September 29, 2006 the Office asked appellant to submit medical evidence
establishing that she was disabled from her sedentary job for 1.75 hours on September 6, 2006
and 1.50 hours on September 7, 2006.
By decision dated November 1, 2006, the Office denied appellant’s claim on the grounds
that the medical evidence did not establish that she was disabled from her sedentary job on
September 6 and 7, 2006.1
LEGAL PRECEDENT
An employee has the burden of proving by the preponderance of the reliable, probative
and substantial evidence that she was disabled for work as the result of an employment injury.2
Monetary compensation benefits are payable to an employee who has sustained wage loss due to
disability for employment resulting from the employment injury.3 Whether a particular
employment injury causes disability for employment and the duration of that disability are
medical issues which must be proved by a preponderance of reliable, probative and substantial
medical evidence.4
ANALYSIS
The medical evidence establishes that appellant was released to limited-duty work as of
August 3, 2006. Beginning August 7, 2006 she was placed on work restrictions for four hours a
day. As of August 14, 2006 appellant was again returned to eight hours a day of limited duty.

1

Subsequent to the November 1, 2006 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

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

3

Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

4

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

2

Appellant claimed 1.75 hours of compensation for lost wages for September 6, 2006 and
1.50 hours for September 7, 2006. However, there is no medical evidence indicating that she
was unable to perform her sedentary job for any periods of time on those dates. Therefore, the
Office properly denied her claim for compensation for lost wages for September 6 and 7, 2006.
On appeal, appellant states that she is owed compensation for 7.20 hours for a work week
that is not specified. Additionally, there is no final Office decision regarding a 7.20 hour period
of time. The issue on appeal is whether she is entitled to compensation for a total of 3.20 hours
for September 6 and 7, 2006.
CONCLUSION
The Board finds that appellant failed to establish that she was disabled from her sedentary
job for 1.75 hours on September 6, 2006 and 1.50 hours on September 7, 2006 causally related to
her accepted right ankle fracture.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 1, 2006 is affirmed.
Issued: April 11, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

3


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

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

Docket No. 18-1750
Issued: March 11, 2019

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 September 17, 2018 appellant filed a timely appeal from an April 27, 2018 merit
decision and a July 17, 2018 nonmerit 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 has met her burden of proof to establish right
shoulder and back conditions causally related to the accepted February 26, 2018 employment
1
2

5 U.S.C. § 8101 et seq.

Following the issuance of OWCP’s July 17, 2018 decision and on appeal, appellant submitted new 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.

incident; and (2) whether OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On February 28, 2018 appellant, then a 54-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that, on February 26, 2018, she experienced pain in her right shoulder and
lower back after helping a patient off of a scale while in the performance of duty. She related that
she was holding onto the patient’s left arm as he tried to sit in a wheelchair. The patient missed
the wheelchair and fell. He pulled appellant pulled down to the floor while trying to break his fall.
On the reverse side of the claim form the employing establishment controverted the claim
contending that there was no medical evidence to support a work-related injury. No evidence was
submitted with appellant’s claim.
In a development letter dated March 19, 2018, OWCP advised appellant of the deficiencies
of her claim. It requested that she respond to a questionnaire regarding her symptoms and medical
treatment and submit a medical report from her attending physician including a diagnosis, history
of the injury, examination findings, and a rationalized opinion explaining how the reported work
incident caused or aggravated her medical conditions. It afforded appellant 30 days to submit the
necessary evidence.
In a March 9, 2018 letter, received by OWCP on April 6, 2018, the employing
establishment further controverted appellant’s claim. It did not dispute that the February 26, 2018
employment incident occurred as described, but asserted that appellant had not submitted medical
evidence to establish a diagnosed medical condition causally related to the incident.
On April 4, 2018 appellant responded to OWCP’s March 19, 2018 development
questionnaire. She listed the physician who first provided care for her injury and described her
right shoulder and lower back symptoms.
A medical report dated April 4, 2018 from Dr. Natalia Shrestha, a Board-certified internist,
was received by OWCP. Dr. Shrestha related a history of injury that on February 26, 2018
appellant fell at work while trying to catch a patient who was falling as he stepped off a scale to
sit in a wheelchair. She noted that she first treated appellant on February 28, 2018 for continuing
back and shoulder pain. Dr. Shrestha discussed her physical examination and diagnostic test
findings. She assessed low back and right shoulder joint pain.
Right shoulder and lumbar spine x-ray reports dated April 4, 2018 from Dr. Omar S.
Hajibrahim, a Board-certified diagnostic radiologist, were also received. In the right shoulder
x-ray report, Dr. Hajibrahim provided an impression of degenerative changes with no acute bony
abnormality. In the lumbar spine x-ray, he provided an impression of degenerative change without
acute fracture.
An unsigned report dated April 13, 2018 from Saint Joseph Hospital provided diagnoses
of low back pain, other spondylosis, lumbar region, right shoulder pain, and primary osteoarthritis,
right shoulder.
2

On April 23, 2018 Dr. Shrestha responded by completing the medical questionnaire
attached to OWCP’s March 19, 2018 development letter. She indicated that she examined and
treated appellant on February 28 and April 4, 2018. Dr. Shrestha reiterated appellant’s history of
injury. She noted that a lumbar x-ray revealed degenerative disc disease and a right shoulder xray showed degenerative changes of the acromioclavicular (AC) joint. Dr. Shrestha restated her
diagnosis of right shoulder and low back pain. She opined that the diagnosed conditions started
after appellant’s fall. Dr. Shrestha indicated that appellant had been working since her injury, but
she had pain with walking and using her right arm. She advised that her prognosis for recovery
was fair.
By decision dated April 27, 2018, OWCP denied appellant’s traumatic injury claim,
finding that she had not established a diagnosed medical condition due to the accepted
February 26, 2018 employment incident.
OWCP subsequently received a report dated April 23, 2018 in which Dr. David C. Dome,
a Board-certified orthopedic surgeon, opined that appellant’s diagnosed conditions of strain of the
right rotator cuff capsule and sprain of the right AC joint were causally related to the accepted
February 26, 2018 employment incident.3
By appeal request form dated June 7, 2018 postmarked June 14, 2018, and received by
OWCP on June 20, 2018, appellant requested a review of the written record by an OWCP hearing
representative.
Dr. Shrestha, in a letter dated May 21, 2018, reiterated her opinion that appellant’s right
anterior shoulder pain resulted from her fall at work on February 26, 2018. In addition, she
reported a new condition of low back pain with occasional radiation into both calves which started
after her fall at work.
By decision dated July 17, 2018, an OWCP hearings and review examiner denied
appellant’s request for a review of the written record as it was untimely filed. She found that the
request was not postmarked within 30 days of the issuance of the April 27, 2018 OWCP merit
decision. After exercising her discretion, the hearings and review examiner further found that the
issue in the case could equally well be addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was 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
3

Dr. Dome inadvertently noted that the date of injury as February 28, 2018, not February 26, 2018. However, he
accurately described the accepted employment incident.
4

Supra note 1.

3

employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish right shoulder
and back conditions causally related to the accepted February 26, 2018 employment incident.
Dr. Shrestha’s April 4, 2018 report and April 23, 2018 response to OWCP’s development
questionnaire noted a history of the accepted February 26, 2018 employment incident, provided
physical examination and diagnostic test findings, and diagnosed right shoulder joint and low back
pain. She opined that the diagnosed conditions started after appellant’s fall. However, it is not
possible to establish the cause of a medical condition if the physician has not provided a diagnosis,
but only notes pain.9 The Board has consistently held that pain is a symptom and not a
compensable medical diagnosis.10 The Board thus finds that Dr. Shrestha’s reports are insufficient
to meet appellant’s burden of proof.
Dr. Hajibrahim’s April 4, 2018 diagnostic test reports addressed appellant’s right shoulder
and lumbar spine conditions, but failed to offer a medical opinion addressing whether the
diagnosed conditions were caused or aggravated by the February 26, 2018 employment incident.
The Board has held that reports of diagnostic tests lack probative value as they do not provide an
5

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

6

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

7
John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, supra note 6.

9

See A.C., Docket No. 16-1587 (issued December 27, 2016).

10

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008).

4

opinion on causal relationship between the accepted employment incident and a diagnosed
condition.11 This report, therefore, is insufficient to establish appellant’s claim.
An unsigned report dated April 13, 2018 from Saint Joseph Hospital diagnosed low back
pain, other spondylosis, lumbar region, right shoulder pain, and primary osteoarthritis, right
shoulder. The Board has held that unsigned reports, and reports that bear illegible signatures,
cannot be considered probative medical evidence because they lack proper identification.12 Thus,
this report is of no probative value.
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish right shoulder and back injuries causally related to the accepted February 26,
2018 employment incident. Appellant, therefore, has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that “a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his [or her] claim before a representative of the Secretary.”13
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA provide
that a claimant shall be afforded a choice of an oral hearing or a review of the written record by a
representative of the Secretary.14 A claimant is entitled to a hearing or review of the written record
as a matter of right only if the request is filed within the requisite 30 days as determined by
postmark or other carrier’s date marking and before the claimant has requested reconsideration.15
Although there is no right to a review of the written record or an oral hearing if not requested
within the 30-day time period, OWCP may within its discretionary powers grant or deny
appellant’s request and must exercise its discretion.16

11
See D.H., Docket No. 17-1146 (issued October 20, 2017); S.G., Docket No. 17-1054 (issued September 14,
2017); E.V., Docket No. 17-0417 (issued September 13, 2017).
12

R.R., Docket No. 18-1093 (issued December 18, 2018); C.G., Docket No. 18-0549 (issued November 29, 2018).

13

5 U.S.C. § 8124(b)(1).

14

20 C.F.R. §§ 10.616, 10.617.

15

Id. at § 10.616(a).

16

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

5

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for review of the written
record.
Appellant’s June 7, 2018 request for a review of the written record was postmarked on
June 14, 2018, more than 30 days after the issuance of OWCP’s April 27, 2018 merit decision.
Because the postmark date was more than 30 days after the date of OWCP’s April 27, 2018
decision, the Board finds that the request was untimely filed and she was not entitled to a review
of the written record as a matter of right.17
Although appellant’s request for a review of the written record was untimely filed, OWCP
has the discretionary authority to grant the request and it must exercise such discretion.18 In its
July 17, 2018 decision, OWCP’s hearings and review examiner properly exercised her discretion
by notifying appellant that she had considered the matter, but determined that the issue involved
could be equally well addressed by a request for reconsideration before OWCP. The Board finds
that the hearings and review examiner properly exercised her discretionary authority in denying
appellant’s request for a review of the written record.19 The Board has held that the only limitation
on OWCP’s authority is reasonableness. In this case, the evidence of record does not indicate that
OWCP abused its discretion by denying appellant’s request for a review of the written record.
Accordingly, the Board finds that OWCP properly denied appellant’s request for a review of the
written record.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right shoulder
and back conditions causally related to the accepted February 26, 2018 employment incident. The
Board further finds that OWCP properly denied appellant’s request for a review of the written
record as untimely filed pursuant to 5 U.S.C. § 8124.

17

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).
18

See supra note 14.

19

M.B., Docket No. 18-0717 (issued September 5, 2018); Mary B. Moss, 40 ECAB 640, 647 (1989).

6

ORDER
IT IS HEREBY ORDERED THAT the July 17 and April 27, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 11, 2019
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sunrise, FL, Employer
__________________________________________

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Appearances:
Joanne Wright, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1082
Issued: October 29, 2019

Case Submitted on the Record

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

JURISDICTION
On April 17, 2019 appellant, through her representative, filed a timely appeal from a
November 23, 2018 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. 3

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.

3
The Board notes that following the November 23, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether appellant received a $48,649.60 overpayment of compensation
for the period January 1, 2012 through February 3, 2018 because she concurrently received FECA
wage-loss compensation and Social Security Administration (SSA) age-related retirement
benefits; (2) whether OWCP properly found appellant at fault in the creation of the overpayment
and thereby precluding waiver of recovery of the overpayment; and (3) whether OWCP properly
required recovery of the overpayment by deducting $450.00 every 28 days from appellant’s
continuing compensation payments.
FACTUAL HISTORY
On July 23, 1994 appellant, then a 48-year-old mail carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained stress, anxiety, and depression causally related to
factors of her federal employment. She stopped work on June 24, 1994. OWCP accepted
appellant’s claim for post-traumatic stress disorder (PTSD) and a single episode of moderate-tosevere major depression. OWCP paid her wage-loss compensation for total disability.
By decision dated September 30, 1999, OWCP reduced appellant’s wage-loss
compensation as her actual earnings as a modified mail handler, effective March 1, 1999, fairly
and reasonably represented her wage-earning capacity.4
The employing establishment subsequently withdrew appellant’s modified position under
the National Reassessment Program (NRP). On April 18, 2011 OWCP modified the
September 30, 1999 decision and paid her wage-loss compensation for total disability on the
periodic rolls beginning April 10, 2011.
In EN1032 forms signed February 4, 2012, February 7, and March 25, 2013, and
February 6, 2014, appellant indicated that she was not receiving SSA retirement benefits as part
of an annuity for federal service.
In EN1032 forms dated February 12, 2015, February 3, 2016, February 22, 2017, and
February 6, 2018, appellant advised that she received SSA benefits as part of an annuity for federal
service and indicated the monthly amount of her benefits.
On March 28, 2017 SSA provided OWCP with a FERS/SSA dual benefit calculation
worksheet setting forth her SSA rate with FERS and her hypothetical rate without FERS from
January 2012 through the present. With FERS, her SSA rate was $1,399.90 effective
January 2012, $1,423.60 effective December 2012, $1,444.90 effective December 2013,
$1,469.40 effective December 2014 and December 2015, and $1,473.80 effective December 2016.
Without FERS, appellant’s SSA rate was $759.10 effective January 2012, $772.00 effective
December 2012, $783.50 effective December 2013, $796.80 effective December 2014 and
December 2015, and $799.10 effective December 2016.
OWCP completed a FERS offset calculation form on February 7, 2018. It calculated the
amount that it should have offset from appellant’s wage-loss compensation from January 10, 2012
4

In decisions dated 1999 and 2000, OWCP denied appellant’s claim for intermittent wage-loss for various periods
of disability.

2

through February 3, 2018. OWCP found that effective January 1, 2012, the monthly offset was
$640.80 ($1,399.90-$759.10), or $591.51 every 28 days, effective December 1, 2013, the monthly
offset was $651.60 ($1,423.60 - $772.00), or $601.48 every 28 days, effective December 1, 2014
and 2015, the monthly offset was $672.60 ($1,469.40-$796.80) or $620.86 every 28 days, and
effective December 1, 2016 the monthly offset was $674.70 ($1,473.80-$799.10), or $622.80
every 28 days. It divided the 28-day offset amount to find the daily amount, which it multiplied
by the number of days in each period from January 1, 2012 to December 1, 2016, to find the
amount that it overpaid appellant for each period. OWCP added the amounts for each period and
determined that it should have offset $48,649.60 from her wage-loss compensation.
In a preliminary overpayment determination dated February 22, 2018, OWCP notified
appellant that she had received an overpayment of compensation in the amount of $48,649.60
because it had failed to reduce her wage-loss compensation benefits for the period January 1, 2012
through February 3, 2018 by the portion of her SSA benefits that were attributable to federal
service. It further advised her of its preliminary determination that she was at fault in the creation
of the overpayment because she had accepted payments that she knew or reasonably should have
known to be incorrect. OWCP provided appellant with an overpayment action request form and
an overpayment recovery questionnaire (Form OWCP-20). Additionally, it notified her that,
within 30 days of the date of the letter, she could request a telephone conference, a final decision
based on the written evidence, or a prerecoupment hearing.
On March 12, 2018 appellant requested a telephonic prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. In an accompanying Form OWCP20, she advised that she had monthly income of $4,008.11 and monthly expenses of $5,030.68.
Appellant related that she had assets of $53.20. She asserted that she had received disability
benefits from SSA until February 1, 2011 when she turned 65 years old. Appellant indicated that
she had reported her SSA income to OWCP.
A telephonic prerecoupment hearing was held on August 14, 2018. Appellant related that
SSA advised her on August 10, 2010 that it was reducing her benefits due to her receipt of workers’
compensation. On December 29, 2011 it advised her that her benefits had increased as she had
reached the age of full retirement. Appellant applied for disability retirement in 2013, and
provided her Civil Service Annuity (CSA) number on subsequent EN1032 forms. Appellant’s
representative maintained that she had completed the EN1032s, which were updated in 2015 and
2018, to the best of her ability.
By decision dated November 23, 2018, OWCP’s hearing representative found that
appellant had received a $48,649.60 overpayment of compensation as she received wage-loss
compensation from OWCP from January 1, 2012 through February 3, 20165 without an
appropriate offset. She further found that she was at fault in the creation of the overpayment and
thereby precluded from waiver of recovery of the overpayment. The hearing representative
determined that the overpayment would be recovered by withholding $450.00 every 28 days from
appellant’s continuing compensation payments.

5

The Board notes that OWCP’s hearing representative likely made a typographical error by using the date
February 3, 2018 rather than February 3, 2016.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty. 6 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. 7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to the
employee’s federal service. 8 FECA Bulletin No. 97-09 states 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
Section 404.310 of SSA’s regulations provides that entitlement to SSA compensation
begins at 62 years. 10 Section 404.409 of SSA regulations provides that for individuals born from
1943 to 1954, full retirement age is 66 years. 11
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $48,649.60 for the period January 1, 2012 through February 3,
2018 because she concurrently received FECA wage-loss compensation and SSA age-related
retirement benefits.
OWCP paid appellant wage-loss compensation for total disability following her injury. It
subsequently paid her wage-loss compensation for partial disability based on her loss of wageearning capacity effective March 1, 1999, and again for total disability beginning April 10, 2011.
Beginning January 1, 2012, appellant received SSA age-related retirement benefits. As noted, a
claimant cannot receive compensation for wage-loss compensation and SSA retirement benefits
attributable to federal service for the same period. 12 The information provided by SSA indicate d
that a portion of appellant’s age-related SSA benefits were attributable to her federal service. As
OWCP neglected to offset her FECA benefits for the period January 1, 2012 to February 3, 2018,
she received an overpayment of wage-loss compensation. 13

6

5 U.S.C. § 8102.

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

9

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

10

20 C.F.R. § 404.310.

11

Id. at § 404.409.

12

Supra note 10; A.C., Docket No. 18-1550 (issued February 21, 2019).

13

Id.

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Based on the rates provided by SSA, OWCP calculated the overpayment of compensation
by determining the portion of SSA benefits that were attributable to appellant’s federal service. It
received documentation from SSA with respect to the specific amount of age-related SSA
retirement benefits that were attributable to federal service. SSA provided appellant’s SSA rate
with FERS and without FERS for specific periods beginning January 1, 2012.14 OWCP provided
its calculations of the amount that it should have offset for each relevant period based on the SSA
worksheet. The Board has reviewed OWCP’s calculations and finds that it properly determined
that appellant received prohibited dual benefits totaling $48,649.60, creating an overpayment of
compensation in that amount.15
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”16 A claimant who is at fault in the creation of the overpayment is not entitled to
waiver.17 On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect. 18
With respect to whether an individual is without fault, section 10.433(b) of OWCP ’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP has not established that appellant was at fault in the creation
of the overpayment for the period January 1, 2012 through February 3, 2018.
OWCP determined that appellant was at fault in the creation of the overpayment as she
accepted a payment that she knew or should have known was incorrect. It must thus establish that,

14

SSA’s worksheet provided applicable rates effective the following dates: January 2012, December 2012,
December 2013, December 2014, December 2015, and December 2016.
15

A.S., Docket No. 19-0171 (issued June 12, 2019).

16

5 U.S.C. § 8129(b).

17

See C.Y., Docket No. 18-0263 (issued September 14, 2018).

18

20 C.F.R. § 10.433(a).

19

Id. at § 10.433(b); see also D.M., Docket No. 17-0983 (issued August 3, 2018).

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at the time she received the compensation in question, she knew or should have known that the
payment was inaccurate. 20
Appellant advised that she had been eligible for disability benefits from SSA prior to
receiving age-related benefits and that she had applied for retirement benefits in 2013. She
maintained that after she received a CSA number, she provided it on subsequent EN1032 forms.
In EN1032 forms dated February 4, 2012, February and March 2013, and February 6, 2014,
appellant indicated that she was not receiving SSA retirement benefits. In EN1032 forms dated
February 12, 2015, February 3, 2016, February 22, 2017, and February 6, 2018, she advised that
she received SSA benefits as part of an annuity for federal service.
Effective September 2018, OWCP’s procedures provide that a claimant should be found
without fault in a dual benefits scenario where the claimant receives SSA benefits as part of an
annuity under FERS unless there is evidence on file that the claimant was aware that the receipt of
full SSA benefits concurrent with disability/wage-loss compensation was prohibited. 21 The Board
finds that OWCP has not sufficiently explained how the completed EN1032 forms established that
appellant knew or should have known that she was receiving wage-loss compensation benefits
without an appropriate offset due to her SSA retirement benefits.22 Therefore, based on the
circumstances described above, OWCP has not established that appellant was at fault in the
creation of the overpayment for the period January 1, 2012 through February 3, 2018.23
As the Board finds that appellant was without fault in the creation of the overpayment for
the period February 1, 2012 through February 3, 2018, the case will be remanded to OWCP to
consider the issue of waiver of recovery of the overpayment. 24
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$48,649.60 for the period January 1, 2012 to February 3, 2018 because she concurrently received
FECA wage-loss compensation and SSA age-related retirement benefits. The Board further finds
that she was without fault in the creation of the overpayment during the above-noted period and
that the case will be remanded to OWCP to consider waiver of recovery of the overpayment.

20

See G.D., Docket No. 18-0510 (issued August 6, 2018); E.M., Docket No. 17-1987 (issued July 25, 2018).

21

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment,
Chapter 6.300.4g (4) (September 2018).
22

B.M., Docket No. 19-0158 (issued July 11, 2019).

23

See B.M., id.

24

In light of the disposition of Issue 2, Issue 3 is rendered moot.

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ORDER
IT IS HEREBY ORDERED THAT the November 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further proceedings consistent with this opinion of the Board.
Issued: October 29, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wake Forest, NC, Employer
__________________________________________

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

Docket No. 07-120
Issued: April 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 17, 2006 appellant filed a timely appeal from a September 29, 2006 decision
of the Office of Workers’ Compensation Programs, which terminated her compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective September 29, 2006.
FACTUAL HISTORY
On January 31, 2004 appellant, then a 47-year-old rural carrier, filed a traumatic injury
claim stating that she injured her back and head when she slipped on ice while delivering mail on
January 29, 2004. She did not initially stop work, but did work a light-duty assignment.
In the development of her claim, appellant forwarded several medical reports. In a
February 5, 2004 report, Dr. George M. Charron, a Board-certified orthopedic surgeon, noted

that appellant had a fall and diagnosed a lumbar back sprain. He stated that appellant could
return to work within certain restrictions. In a February 19, 2004 report, Dr. Charron advised
that appellant also had a cervical sprain in addition to her lumbar sprain. On March 11, 2004 he
limited appellant to working four hours daily. In an April 7, 2004 magnetic resonance imaging
scan report, Dr. Robert C. Vogler, a Board-certified diagnostic radiologist, diagnosed mild to
moderate cervical spondylytic changes and degenerative joint disease or degenerative disc
disease of the lumbar spine.
On April 26, 2004 the Office accepted appellant’s claim for cervical and lumbar strain
and paid appropriate benefits.
In a May 12, 2004 report, Dr. Charron advised that appellant had not responded well to
conservative treatment for her continued complaints of axial spine pain. He opined that there
were no surgical solutions that he could offer and released appellant to full-time work with
restrictions on lifting more than 10 pounds. Dr. Charron continued submitting reports, through
the summer of 2004 noting appellant’s status.
On May 13, 2004 appellant accepted the employing establishment’s full-time limited
duty job offer effective May 17, 2004. Her wage rate in her limited-duty position was the same
as her wage rate before she was injured.
By letter dated February 16, 2006, the Office requested information from the employing
establishment concerning appellant’s current wage rate. On February 17, 2006 the employing
establishment informed the Office that appellant retired on March 24, 2005, at a wage rate of
$894.50 per week.
By decision dated March 7, 2006, the Office found that appellant’s actual earnings as a
modified clerk fairly and reasonably represented her wage-earning capacity. The Office found
that, as this position paid wages greater than or equal to those of the current pay of the job held at
the time of injury, appellant had no loss of wage-earning capacity.1
On March 21, 2006 the Office requested information from Dr. Charron, concerning
whether he believed that appellant still experienced “residuals caused by the specific job[-]
related injuries” that she sustained on January 29, 2004. Dr. Charron responded to the Office’s
request on March 30, 2006, stating that he last saw appellant on July 26, 2004 and had “no first
hand information” concerning appellant’s condition after that date.
On March 27, 2006 the Office referred appellant to Dr. Donald D. Getz, a Board-certified
orthopedic surgeon, for a second opinion regarding her work-related condition. In a May 5, 2006
report, Dr. Getz found that appellant’s condition was no longer related to her accepted
employment injury. He noted that appellant was initially injured on the job on January 29, 2004,
but that her condition gradually improved with the help of physical therapy, activity modification
and medication. Upon examination of the cervical spine, Dr. Getz found that appellant exhibited
full range of motion with slight muscular tenderness. Examination of the lumbar spine revealed
that appellant was able to bend at the waist and touch her toes. Dr. Getz diagnosed “residual
1

Appellant did not appeal this decision.

2

cervical and low back pain due to generalized muscular deconditioning.” He also noted that
appellant’s history was significant for diabetes, weight-related problems, osteoarthritis and other
degenerative conditions, as well as general muscular deconditioning. Dr. Getz concluded:
“In my opinion current objective findings and residuals are caused by her
preexisting osteoarthritis of the cervical and lumbar spine as shown in
radiographic testing. The job[-]related injury is now resolved to the baseline of
chronic, occasional discomfort related to a gradual progression of those
conditions in the cervical and lumbar spine. In addition general muscular
deconditioning also plays a role in the occasional flare-ups.”
***
“In my opinion the accepted conditions occurring on January 29, 2004 have
resolved and the remaining symptoms are related to the underlying gradual
progression of cervical and lumbar osteoarthritis as well as generalized muscular
deconditioning.”
***
“As a preexisting condition the examinee had degenerative disc disease and
degenerative spine disease in the cervical thoracic and lumbar area on the date of
injury January 29, 2004. The injury represented a transient exacerbation of those
conditions now returned to the gradually progressive baseline.”
On August 23, 2006 the Office notified appellant that it proposed to terminate her
medical benefits and wage-loss compensation. The Office informed appellant that she had
30 days to submit evidence or argument in response.
By decision dated September 29, 2006, the Office terminated appellant’s compensation
benefits.
LEGAL PRECEDENT
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.2 The Office may not terminate compensation without
establishing that the disability ceased or that it was no longer related to the employment.3 The
Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4

2

Charles E. Minniss, 40 ECAB 708, 716 (1989); Vivien L. Minor, 37 ECAB 541, 546 (1986).

3

Id.

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

3

The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.6
ANALYSIS
The Board finds that the Office properly terminated appellant’s compensation benefits.
On March 21, 2006 the Office requested that Dr. Charron address the status of appellant’s
employment-related conditions but, on March 30, 2006, Dr. Charron advised that he had no
opinion on the matter as he had not seen appellant since July 26, 2004. The Office then referred
appellant to Dr. Getz for a current evaluation and opinion on the status of her employmentrelated conditions.
In a May 5, 2006 report, Dr. Getz found, after examining appellant, that her current
condition was due to preexisting, nonwork-related osteoarthritis and muscular deconditioning.
Specifically, he noted that appellant was diabetic and overweight and had osteoarthritis and other
degenerative conditions as well as muscular deconditioning. Dr. Getz noted that appellant’s
osteoarthritis in the spine was preexisting based on diagnostic studies he had reviewed. He
opined that, although appellant’s January 29, 2004 work injury caused a transient exacerbation of
symptoms of her preexisting conditions, he found that the employment-related aggravation had
resolved and appellant’s condition had reverted to its initial, nonemployment related, baseline.
Dr. Getz diagnosed “residual cervical and low back pain due to generalized muscular
deconditioning.” Additionally, he noted that appellant’s degenerative disc disease was a
preexisting condition as well and was not related to her accepted employment injury. Dr. Getz
found that appellant’s accepted condition had resolved and there were no current residuals from
her January 29, 2004 employment injury. He provided a rationalized medical opinion, based on
a complete and accurate medical history and thorough physical examination.7 Dr. Getz’ report
represents the weight of the medical evidence and the Office properly relied upon it in
determining that appellant’s employment-related conditions had resolved without residual.
There are no other medical reports of record supporting that appellant had a work-related
condition after September 29, 2006.

5

Furman G. Peake, 41 ECAB 361, 364 (1990).

6

Id.; see also Calvin S. Mays, 39 ECAB 993 (1988); Patricia Brazzell, 38 ECAB 299 (1986); Amy Rogers,
32 ECAB 1479 (1981).
7

See Victor J. Woodhams, 41 ECAB 345, 352 (1989); Steven S. Saleh, 55 ECAB 169, 172 (2003).

4

On appeal, appellant stated that she still experienced pain and weakness in her back.
This, however, is insufficient to establish that she has continuing entitlement to medical benefits
and wage-loss compensation.8 As noted above, the weight of the medical evidence is
represented by Dr. Getz’ report. As explained in his report, appellant’s work-related conditions
have resolved and her continuing symptoms are attributable to her preexisting conditions.
CONCLUSION
The Board finds that the Office properly terminated appellant’s medical benefits and
wage-loss compensation.
ORDER
IT IS HEREBY ORDERED THAT the September 29, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 12, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8

Once the Office has accepted a claim, it has the burden of justifying termination or modification of
compensation benefits. See supra note 2. After termination or modification of compensation benefits, clearly
warranted on the basis of the evidence, the burden for reinstating compensation benefits shifts to appellant.
Wentworth R. Murray, 7 ECAB 570, 572 (1955).

5