United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wauchula, FL, Employer
__________________________________________

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

Docket No. 13-900
Issued: July 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 5, 2013 appellant, through her attorney, filed a timely appeal from a
February 1, 2013 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 sustained an injury causally related to factors of her
federal employment.
FACTUAL HISTORY
On January 5, 2012 appellant, then a 37-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a lumbar nerve injury causally related to

1

5 U.S.C. § 8101 et seq.

her federal employment.2 She became aware of the condition and its relationship to employment
on December 28, 2011. On the claim form appellant identified the repetitive movements in
delivering mail and described the nature of her condition as a sporadic L4-5 nerve.
The medical evidence includes a report dated January 27, 2012 from Dr. Abdullah
Haider, a family practitioner. The history provided stated that appellant was an office manager.3
Dr. Haider reported that appellant was treated for right shoulder, lumbar and left hip pain.
Appellant also received treatment from Dr. Jose Briceno, a family practitioner and associate of
Dr. Haider, on February 8, 2012.
By decision dated March 26, 2012, OWCP denied the claim for compensation. It found
the medical evidence was insufficient to establish causal relation.
Appellant requested a hearing before an OWCP hearing representative, which was held
on July 17, 2012. She submitted a June 8, 2012 report from Dr. Darryl Miller, a Board-certified
orthopedic surgeon, who obtained a history that appellant “feels that she was injured while
working” at the employing establishment. He stated that symptoms began approximately six
months prior to December 2011. Dr. Miller provided results on examination and diagnosed
symptomatic radiculopathy of the right arm and left leg.
In a report dated July 12, 2012, Dr. Miller stated that appellant advised of being injured
during the course of her employment as a rural mail carrier on or about December 28, 2011. He
noted the results of a June 6, 2012 examination. Dr. Miller stated that he reviewed the physical
requirements of a rural letter carrier, and “[b]ased upon these physical requirements, the accurate
factual and medical history provided by [appellant], and my physical examination, it is my
opinion, within a reasonable degree of medical probability, that the physical injuries sustained by
[appellant] were directly caused by the physical requirements of her job” as a rural letter carrier.
By decision dated September 13, 2012, an OWCP hearing representative affirmed the
March 26, 2012 decision. She found that the medical evidence from Dr. Miller did not identify
or address the cause of any radicular symptoms or relate it to appellant’s work activity.
In a letter dated December 19, 2012, appellant, through her representative, requested
reconsideration. In a report dated December 18, 2012, Dr. Miller noted the results of a
November 5, 2012 MRI scan that included a C5-6 disc protrusion, disc bulges at C3-4,
superimposed at C5-6 and present at C6-7, bilateral foraminal stenosis at C5-6 and straightening
of the expected lumbar lordosis. He opined that appellant’s job as a rural carrier “caused,
contributed, aggravated or exacerbated the central disc protrusion at C5-6; disc bulges at C4
through C6; and straightening of lumbar lordosis shown on [appellant’s] November 5, 2012
cervical MRI [scan], as [appellant] was asymptomatic prior to her date of injury.”

2

The employing establishment indicated that appellant was a temporary relief carrier with work hours that varied.

3

The record contains appellant’s job application from November 2009 indicating that she worked as an office
manager in private employment. A February 9, 2012 letter from the employing establishment stated that appellant
also had a job “cleaning” at a radio station.

2

By decision dated February 1, 2013, OWCP reviewed the merits of the claim for
compensation. It denied modification on the grounds that the medical evidence was insufficient
on the issue of causal relation.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant.6
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.7 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.8
Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty, and must be supported by medical rationale, explaining
the nature of the relationship between the diagnosed condition and appellant’s specific
employment factors.9
ANALYSIS
Appellant claimed that her job duties as a rural carrier contributed to her back and neck
conditions. Dr. Miller diagnosed a right arm and left leg radiculopathy, C5-6 disc protrusion and
disc bulges from C4-6 and straightening of lumbar lordosis. With respect to causal relationship
between a diagnosed condition and appellant’s federal employment, the Board finds there is
insufficient medical evidence.
A rationalized medical opinion is an opinion based on a complete factual and medical
background. It is not clear from the record how long appellant worked as a rural carrier or how
4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

6

Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See Robert G. Morris, 48 ECAB 238 (1996).

8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

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many hours she worked. There is also an indication that she also worked in private employment.
Dr. Miller did not provide a detailed factual background or history discussing these issues or
demonstrating a complete understanding of appellant’s work history. He stated only that he
reviewed a job description without providing a complete and accurate background.
As to causal relationship, a medical opinion must be supported by rationale addressing
how specific work activities or duties caused or contributed a diagnosed condition. Dr. Miller
opined in a December 18, 2012 report that he believed the central disc protrusion at C5-6, disc
bulges at C4 through C6 and straightening of lumbar lordosis were related to the rural carrier job
“as [appellant] was asymptomatic prior to her date of injury.” The Board notes that Dr. Miller
did not clarify his stated conclusion on causal relations. In a June 8, 2012 report, he indicated
that appellant had symptoms six months prior to December 2011, but in the July 12 and
December 18, 2012 reports, he referred to appellant’s statement that December 28, 2011 was the
date of injury. It is well established that an opinion that a condition is causally related to a
federal employment because the employee previously was asymptomatic is insufficient, without
supporting medical rationale, to establish causal relationship.10 The statement by Dr. Miller that
appellant had been asymptomatic prior to an unexplained date of injury is of diminished
probative value. He did not provide an adequate explanation as to how specific job duties as a
rural carrier contributed to a diagnosed condition.
The Board finds that appellant did not meet her burden of proof. The medical evidence
of record does not provide a rationalized medical opinion, based on a complete and accurate
background, on causal relationship between a diagnosed condition and her federal employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish an injury causally related to factors of her
federal employment.

10

Michael S. Mina 57 ECAB 379 (2006); Kimper Lee, 45 ECAB 565 (1994); Thomas D. Petrylak, 39 ECAB
276 (1987).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 1, 2013 is affirmed.
Issued: July 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, OAKLAND
PROCESSING & DISTRIBUTION CENTER,
Oakland, CA, Employer
__________________________________________

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

Docket No. 19-0497
Issued: February 5, 2020

Case Submitted on the Record

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

JURISDICTION
On January 8, 2019 appellant filed a timely appeal from a December 12, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than one year has
elapsed from OWCP’s most recent merit decision, dated May 6, 1999, to the filing of this appeal,2

1

Appellant also filed a timely request for oral argument in this case. By order dated December 10, 2019, the Board,
after exercising its discretion, denied his request for oral argument as it would further delay issuance of a Board
decision and not serve a useful purpose. Order Denying Request for Oral Argument, Docket No. 19-1497 (issued
December 10, 2019).
2

For final adverse decisions of OWCP issued prior to November 19, 2008, the Board’s review authority is limited
to appeals which are filed within one year from the date of issuance of OWCP’s decision. See 20 C.F.R.
§ 501.3(d)(2) (2008).

pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On May 15, 1998 appellant, then a 38-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on April 13, 1998 he was falsely accused by a coworker, V.H., for using
“improper language” when referring to males while in the performance of duty. This resulted in
an April 17, 1998 “just cause” interview for unacceptable conduct, which he contended set off his
preexisting psychological condition. Appellant stopped work on April 18, 1998 and returned to
work on May 15, 1998.5
In a May 15, 1998 letter, L.G., a supervisor, verified that on April 13, 1998 V.H., a
coworker, had reported an incident wherein appellant was talking in a loud voice and using
inappropriate language containing expletives while referring to Hispanics, Asians, and Caucasians.
He indicated that on April 17, 1998 appellant was given a “Just Cause Interview” to make him
aware of possible disciplinary action for unacceptable conduct.
In a June 9, 1998 development letter, OWCP advised appellant that additional factual and
medical evidence was necessary to establish his claim. It afforded him 30 days to submit the
necessary evidence.
OWCP received appellant’s June 12, 1998 statement and a June 15, 1998 report from
Dr. James R. Liles, a Board-certified psychiatrist, who advised that appellant was on medical leave
through July 15, 1998.
By decision dated July 6, 1998, OWCP denied appellant’s claim. It found that the evidence
failed to establish a compensable employment factor or that the employing establishment had
erred, abused its authority or acted unreasonably in its handling of the alleged April 13, 1998
employment incident. OWCP concluded, therefore, that appellant’s condition did not occur “while
in the performance of [his] regular or specially assigned duties.”

3

5 U.S.C. § 8101 et seq.

4
The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.
5

The record is unclear as to when appellant again stopped work.

2

On July 24, 1998 appellant requested a hearing before an OWCP hearing representative,
which was held on February 23, 1999. By decision dated May 6, 1999, the hearing representative
affirmed the July 6, 1998 decision, finding that, as no compensable employment factors were
established, appellant had not established an emotional condition in the performance of duty.
Appellant continued to submit additional evidence. This included an April 29, 1999
favorable decision from the Social Security Administration, which found that appellant had been
disabled from work since April 16, 1998, and the first page of a February 7, 2002 Order of the
United States Court of Appeals for the Ninth Circuit, Order No. 00-17359, which granted the
motion to recall the mandate, denied appellant’s petition for panel rehearing, and concluded that
no further filings would be accepted in this closed appeal.
In a November 17, 2018 letter, which OWCP received on December 4, 2018, appellant
requested reconsideration. He argued that since he had timely filed a complaint to the Ninth Circuit
Court of Appeals of the May 6, 1999 hearing representative’s decision, this tolled the appeal time
to pursue his FECA claim. Appellant also contended that he was in the performance of duty when
he sustained his emotional condition as he was at work when the injury occurred.
By decision dated December 12, 2018, OWCP denied appellant’s reconsideration request,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.6 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.7 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s integrated Federal Employees’ Compensation System (iFECS)).8
Imposition of this one-year filing limitation does not constitute an abuse of discretion.9
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error.10 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of

6

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
7

20 C.F.R. § 10.607(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

9

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
10
See 20 C.F.R. § 10.607(b); M.H., Docket No. 18-0623 (issued October 4 2018); Charles J. Prudencio, 41 ECAB
499, 501-02 (1990).

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OWCP.11 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record.12
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.13 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must not only be of sufficient probative value to create a conflict
in medical opinion or establish a clear procedural error, but must be of sufficient probative value
to shift the weight of the evidence in favor of the claimant and raise a substantial question as to
the correctness of OWCP’s decision.14
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations15 and procedures16 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.17
The most recent merit decision was OWCP’s May 6, 1999 decision which found that the evidence
of record was insufficient to establish an emotional or psychiatric condition in the performance of
duty. As appellant’s request for reconsideration was not received by OWCP until December 4,
2018, more than one year after the May 6, 1999 decision, it was untimely filed.18
In support of his untimely request for reconsideration, appellant argued that he had timely
filed a complaint regarding OWCP’s May 6, 1999 decision to the Ninth Circuit Court of Appeals,
11

L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See
also 20 C.F.R. § 10.607(b); supra note 8 at Chapter 2.1602.5 (February 2016).
12

J.W., Docket No. 18-0703 (issued November 14, 2018); Robert G. Burns, 57 ECAB 657 (2006).

13

S.C., Docket No. 18-0126 (issued May 14, 2016); supra note 8 at Chapter 2.1602.5(a) (February 2016).

14

J.W., supra note 12; Robert G. Burns, 57 ECAB 657 (2006).

15
F.N., Docket No. 18-1543 (issued March 6, 2019); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
16

Supra note 8 at Chapter 2.1602.4 (February 2016); see L.A., Docket No. 19-0471 (issued October 29, 2019);
Veletta C. Coleman, 48 ECAB 367, 370 (1997).
17

J.W., supra note 12; Robert F. Stone, 57 ECAB 292 (2005).

18

20 C.F.R. § 10.607(b); see L.A., supra note 16; Debra McDavid, 57 ECAB 149 (2005).

4

which tolled the time to pursue his FECA claim. The Ninth Circuit Court of Appeals, however,
by order dated February 7, 2002 had affirmed the dismissal of appellant’s complaint against the
Department of Labor, denied his petition to rehear that decision, and concluded that no further
filings would be accepted in this closed case. Thus, there is no evidence that the Ninth Circuit
Court of Appeals had overturned OWCP’s May 6, 1999 decision. Appellant’s argument that his
timely filing with the Ninth Circuit Court of Appeals tolled the time limitation to pursue his claim
has no reasonable color of validity as it did not contain any basis to find that OWCP had erred in
denying appellant’s claim.19 Because his request was untimely, he must demonstrate clear
evidence of error on the part of OWCP in denying his emotional condition claim.
In support of his untimely request for reconsideration, appellant submitted an April 29,
1999 favorable Social Security Administration decision, which found appellant to be disabled. It
is well established that decisions of other federal agencies or governmental bodies are not
dispositive to issues raised under FECA. Decisions made by such tribunals are pursuant to
different statues which have varying standards.20
Appellant also argued that he had established his FECA claim since he was at work when
he sustained his emotional condition, and therefore he was in the performance of duty. However,
FECA’s definition of performance of duty, in the case of an emotional condition claim, is that
appellant must establish a compensable employment factor with respect to his allegations.21 In
this case, appellant’s emotional condition claim was denied as he did not establish error or abuse
with regard to the employing establishment’s administrative action in conducting a “Just Cause
Interview” for unacceptable conduct arising from the alleged April 13, 1998 work incident.
Appellant has not submitted any argument or evidence to demonstrate clear evidence of
error in OWCP’s May 6, 1999 decision. The Board thus finds that OWCP properly found that
appellant’s request for reconsideration failed to demonstrate clear evidence of error.22

19

See D.P., Docket No. 19-0964 (issued October 2, 2019); T.W., Docket No. 18-1088 (issued February 14, 2019).

20

See C.S., Docket No. 16-1784 (issued May 7, 2018); F.M., Docket No. 15-1869 (issued May 4, 2016).

21

See generally M.A., Docket No. 19-1017 (issued December 4, 2019).

22

See J.D., Docket No. 18-1765 (issued June 11, 2019).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
HOUSTON VETERANS ADMINISTRATION
MEDICAL CENTER, Houston, TX, Employer
__________________________________________

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

Docket No. 07-2102
Issued: March 11, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 14, 2007 appellant filed a timely appeal from an April 20, 2007 merit decision
by a hearing representative of the Office of Workers’ Compensation Programs who affirmed a
schedule award for three percent impairment to appellant’s right upper extremity. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant had more than three percent permanent impairment of the
right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
On May 31, 2005 appellant, then a 43-year-old medical support assistant, sustained injury
to her right hand and wrist pain when a patient twisted it in an escape attempt. She stopped work
on June 6, 2005 and returned to limited duty on September 6, 2005. The Office accepted
appellant’s claim for right wrist sprain/strain and paid appropriate compensation.

On June 8, 2005 Dr. Steven D. Thompson, a Board-certified orthopedic surgeon, reported
that appellant was assaulted at work by a psychiatric patient and sustained swelling and
tenderness in her right wrist. He noted that x-ray testing was normal and diagnosed probable
wrist strain. A July 6, 2005 magnetic resonance imaging (MRI) scan report read by Dr. Richard
Orie, a radiologist, revealed right wrist strain and/or mild partial tear of the ulnar attachment of
the triangular fibrocartilage as well as small radiocarpal joint effusion. On July 22, 2005
appellant underwent a triangular fibrocartilage tear and lunotriquetral ligament repair of the right
wrist by Dr. Thompson. In an August 10, 2005 note he reported that x-rays showed “good
position of the implant for the triangular fibrocartilage repair.” On November 2, 2005
Dr. Thompson indicated that, although appellant’s implant was in a good position, she
experienced some pain and tenderness around her scar and diagnosed probable dorsal wrist
synovitis. In a December 5, 2005 note, he stated that appellant’s wrist was fully recovered and
she could return to full duty as soon as her psychiatrist deemed it advisable. On April 19, 2006
Dr. Thompson reiterated that appellant’s wrist was fully recovered and she was physically able
to perform full duty.
In a June 5, 2006 report and impairment rating, Dr. Flavia Thomas, an osteopath, noted
appellant’s complaints of continuing right wrist pain and stiffness. She diagnosed wrist joint
pain and sprain and advised that appellant reached maximum medical improvement on
April 19, 2006. Pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), fifth edition, Chapter 16,1 Dr. Thomas rated
appellant’s right upper extremity impairment based on loss of range of motion. She measured
appellant’s right wrist flexion at 60 degrees, extension at 58 degrees, ulnar deviation at
18 degrees and radial deviation at 20 degrees. Dr. Thomas noted that section 16.4(g)2 of the
A.M.A., Guides, as well as Figures 16-283 and 16-31,4 indicated that appellant had no
impairment based on loss of flexion, loss of extension, loss of radial deviation and two percent
impairment based on loss of ulnar deviation. She advised that, although loss of strength could
represent “an impairing factor,” insufficient time had passed to properly rate appellant’s
impairment on that basis. However, Dr. Thomas stated that appellant’s two percent impairment
rating for loss of range of motion “does not sufficiently reflect the severity of her condition.
[Appellant] had a surgical procedure to her wrist which resulted in the use of an implant. This
implant causes discomfort and is visible under the skin.” Dr. Thomas recommended an
additional one percent impairment based on appellant’s surgically placed implant. Using the
Combined Values Chart on page 604 of the A.M.A., Guides,5 she calculated that appellant had
three percent impairment of the right arm.

1

A.M.A., Guides 433-521 (5th ed. 2000).

2

Id. at 466-470.

3

Id. at 467, Figure 16-28.

4

Id. at 469, Figure 16-31.

5

Id. at 604-05.

2

On July 14, 2006 appellant claimed a schedule award.
On August 18, 2006 the Office medical adviser indicated that he reviewed the medical
record. He noted the range of motion measurements of Dr. Thomas and their corresponding
impairment rating values pursuant to the A.M.A., Guides. The Office medical adviser concurred
that appellant had two percent impairment for loss of range of motion and one percent
impairment for “ongoing pain” in the wrist, corresponding to his estimates and Chapter 18, page
573 of the A.M.A., Guides.6
On October 5, 2006 the Office granted appellant a schedule award for three percent
impairment of the right upper extremity.
On October 11, 2006 appellant requested an oral hearing, which was held on
February 8, 2007.
Appellant also provided a November 10, 2006 impairment rating from Dr. Roger Kevin
Pringle, a chiropractor, who noted that appellant had restricted and painful right wrist range of
motion and explained that, although she was able to work, she had to modify many of her job
duties and activities of daily living to accommodate her right wrist and hand condition.
Dr. Pringle measured appellant’s active range of motion of the right wrist at “20, 20 and
15 degrees,” her flexion at “5, 10 and 5 degrees” ulnar deviation at “10, 10 and 15 degrees” and
radial deviation at “5, 5, and 5 degrees.” He stated that he used the A.M.A., Guides, Figures
16-287 and 16-31,8 to determine that appellant had 21 percent permanent impairment of the right
upper extremity.
By decision dated April 20, 2007, the hearing representative affirmed the schedule award
for three percent impairment of the right upper extremity. She noted that appellant provided a
new report and impairment rating from Dr. Pringle but, as a chiropractor, his report did not
constitute competent medical evidence on the issue of appellant’s permanent impairment for
schedule award purposes.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act9 and its
implementing regulations10 sets forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law to all
claimants, good administrative practice necessitates the use of a single set of tables so that there
6

Id. at 573.

7

Id. at 467, Figure 16-28.

8

Id. at 469, Figure 16-31.

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404 (1999).

3

may be uniform standards applicable to all claimants. The A.M.A, Guides has been adopted by
the implementing regulation as the appropriate standard for evaluating schedule losses.11
ANALYSIS
The Board finds that appellant did not meet her burden of proof in establishing that she
was entitled to a schedule award for greater than three percent permanent impairment of the right
upper extremity. In support of her schedule award claim, she provided a June 5, 2006 report and
impairment rating from Dr. Thomas, who determined that she had three percent impairment
based on loss of range of motion and pain at her surgical implant site. Dr. Thomas measured
appellant’s wrist range of motion as follows: 60 degrees of flexion, 58 degrees of extension,
18 degrees of ulnar deviation and 20 degrees of radial deviation. Pursuant to Figure 16-28 on
page 467 of the A.M.A., Guides,12 60 degrees of wrist flexion translates to zero percent
impairment and 58 degrees of extension also corresponds to zero percent impairment. Figure
16-31 on page 469 of the A.M.A., Guides13 indicates that 18 degrees of ulnar deviation
corresponds to two percent impairment and 20 degrees of radial deviation translates to zero
percent impairment. Therefore, the Board finds that Dr. Thomas correctly measured appellant’s
total impairment based on loss of range of motion at two percent. She concluded, however, that
an impairment rating based solely on appellant’s loss of range of motion was inadequate because
appellant reported continuing discomfort after receiving a surgical implant. Therefore,
Dr. Thomas without referencing the A.M.A., Guides, recommended that the Office award an
additional one percent impairment for pain. As she did not explain how one percent impairment
for pain was in conformance with the A.M.A., Guides, her report does not establish entitlement
to impairment for such pain.
The Office referred the record and Dr. Thomas’ impairment rating to its medical adviser,
who concurred with her assessment of appellant’s impairment. The Office medical adviser noted
that Dr. Thomas correctly found that appellant had two percent impairment based on loss of
range of motion. Because appellant had continuing pain from her surgical implant, he agreed
that she should be entitled to an additional one percent impairment for pain based on Chapter 18
at page 573 of the A.M.A., Guides.14 Chapter 18 states that impairment ratings should be based
on the objective body system impairment rating if such a rating “appears to adequately
encompass the pain experienced by the individual due to his or her medical condition.”15
However, if appellant’s pain appears to slightly increase the “burden of his or her condition,”
Chapter 18 provides that an examiner may award up to three percent additional impairment.16
The Board has held that examiners should not use Chapter 18 to rate pain-related impairments
11

See id.; Linda R. Sherman, 56 ECAB 127 (2004).

12

A.M.A., Guides 467, Figure 16-28.

13

Id. at 469, Figure 16-31.

14

Id. at 573.

15

Id.

16

Id.

4

for any condition that can be adequately rated on the basis of the body and organ impairment
systems given in other chapters of the A.M.A., Guides.17 The medical adviser did not explain
why appellant’s impairment could not be adequately rated using other impairment rating
methods, particularly Chapter 16, which addresses upper extremity impairments. He did not
explain why appellant was entitled to one percent impairment for pain, making only a general
referents page 573 of the A.M.A., Guides. The Board finds that the medical adviser did not
provide sufficient explanation for rating appellant’s impairment due to pain under Chapter 18 of
the A. M.A., Guides..
Appellant also provided a report from Dr. Pringle, who opined that she had 21 percent
impairment of the right upper extremity. However, Dr. Pringle is a chiropractor and therefore he
may only be considered a “physician” in certain limited circumstances. Under the Act, the term
physician includes chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.18 Dr. Pringle’s report did not diagnose any spinal subluxation as
demonstrated by x-ray nor did he treat her by manual manipulation of the spine. Accordingly, he
is not a physician pursuant to the Act and his impairment rating is not competent medical
evidence. The Board has held that, even under the circumstances where a chiropractor is
recognized as a physician under the Act, the chiropractor is not considered a physician in
diagnosing or evaluating disorders of the extremities for purposes of determining a schedule
award, although those disorders may originate in the spine.19 Therefore, Dr. Pringle’s
impairment rating not probative.
Consequently, the medical evidence does not establish permanent impairment greater
than the three percent awarded by the Office.
CONCLUSION
The Board finds that appellant has not established that she has more than three percent
permanent impairment of the right arm for which she received a schedule award.

17

Linda Beale, 57 ECAB __ (Docket No. 05-1536, issued February 15, 2006), citing FECA Bulletin No. 01-01
(issued January 31, 2001); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 4 (June 2003); A.M.A., Guides, Chapter 18.3(b); see also A.G., 58 ECAB __ (Docket No. 07-677, issued
June 21, 2007).
18

5 U.S.C. § 8101(2) (1993); Isabelle Mitchell, 55 ECAB 623 (2001).

19

George E. Williams, 44 ECAB 530 (1993).

5

ORDER
IT IS HEREBY ORDERED THAT the April 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 11, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER EAST, Cherry Point, NC,
Employer
__________________________________________

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Appearances:
Michele P. Moore, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-959
Issued: December 7, 2010

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant filed a timely appeal from the November 17, 2009
decision of the Office of Workers’ Compensation Programs denying her claim for a throat
condition and the February 5, 2010 decision denying her request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that her throat
condition was causally related to factors of her employment and; (2) whether the Office abused
its discretion in denying her request for reconsideration.
FACTUAL HISTORY
On February 25, 2009 appellant, then a 59-year-old machine tool operator, filed an
occupational disease claim alleging that she sustained a throat condition due to exposure to
coolant in her coffee. In an October 30, 2008 statement, W.J. Hermance, a foreman, noted her

complaints of harassment by Eric Rowe, including destroying equipment and pouring machine
coolant into her coffee cup. Mr. Rowe left a note accusing appellant of taking someone else’s
coffee cup and noting that coolant was left in the cup for two days.
On March 10, 2009 the employing establishment controverted appellant’s claim, noting
that she did not drink the coolant in the coffee cup. Appellant stated that the smell of the liquid
in the cup would cause anyone who operated machinery to suspect there was coolant in it. She
reported the incident to her supervisor and then cleaned the cup before using it.
On April 1, 2009 the Office asked appellant to provide additional factual and medical
information, including a comprehensive medical report with medical rationale addressing causal
relationship of her throat condition to factors of her federal employment.
In an August 27, 2008 report, Dr. H.J. MacDonald, Jr., an attending physician, provided
findings on physical examination of her nose, mouth and throat. A computerized tomography
(CT) scan revealed enlargement in the base of the tongue region. Appellant stopped smoking in
February 2008. Dr. MacDonald made a tentative diagnosis of lingual tonsillitis and proposed a
tonsillectomy and, to rule out pathology caused by smoking, a biopsy of the base of the tongue.
On February 17, 2009 Dr. Kristina Gintautiene, an attending Board-certified internist,
stated that she began treating appellant for throat problems in August 2008. Appellant
underwent surgery in September 2008 and had a good result. In December 2008, she reported
throat pain.
In a January 19, 2009 report, Dr. Paul S. Camnitz, a Board-certified otolaryngologist,
noted that appellant had a three- or four-month history of throat discomfort. Appellant had a
tonsillectomy in September 2008 but experienced a worsening of her symptoms later. She
advised that she drank an unknown chemical at work that exacerbated her symptoms. Appellant
also had a history of reflux. Dr. Camnitz provided findings on physical examination and an
impression of persistent left-sided throat discomfort. An abnormal CT scan revealed a subtle,
asymmetric soft tissue mass in the left tonsillar area. Dr. Camnitz scheduled a left radical
tonsillectomy. On February 16, 2009 he advised that the surgical pathology report revealed
chronic inflammation and fungus. There was no evidence of atypia. Appellant did well
following surgery. On April 9, 2009 she told Dr. Camnitz that she had a rash on her tongue.
Dr. Camnitz advised that what appellant saw was normal papillae of the tongue. Physical
examination of her mouth and throat was normal.
By decision dated July 7, 2009, the Office denied appellant’s claim for a throat condition,
finding that the evidence did not establish that it was causally related to her employment.
Appellant requested a review of the written record. By decision dated November 17,
2009, an Office hearing representative affirmed the July 7, 2009 decision.
Appellant requested reconsideration. She argued that the evidence was sufficient to
establish that she drank coolant from the coffee cup. Appellant argued that a grinder she used in
her work had a malfunctioning mist collector that also could have caused her throat condition. In
one page from the transcript of an Equal Employment Opportunity Commission (EEOC)
hearing, Debra Bautista, a division director, stated that on December 1, 2008 appellant alleged
2

for the first time that she drank some of the coolant in the coffee cup. In a December 12, 2008
statement, Eric Wortham advised that Mr. Rowe told him that he had dipped the coffee cup used
by appellant into coolant at least three times. The cup was Mr. Rowe’s and he was upset when
he saw it at her workstation. He put the cup in the coolant tank upside down and then shook it,
leaving only a residue or film on the cup.
By decision dated February 5, 2010, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted did not warrant further merit review.
LEGAL PRECEDENT -- ISSUE 1
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.1 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.2
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that an employee’s claimed condition became apparent during a period of
employment, nor her belief that her condition was aggravated by her employment, is sufficient to
establish causal relationship.3
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to meet her burden of proof in establishing that her
throat condition was causally related to factors of her employment.
Dr. MacDonald provided findings on physical examination of appellant’s nose, mouth
and throat. A CT scan revealed enlargement in the base of the tongue region. Appellant stopped
smoking in February 2008. Dr. MacDonald made a tentative diagnosis of lingual tonsillitis. He
did not provide a rationalized opinion explaining the cause of appellant’s condition.

1

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

2

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

3

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

3

Dr. MacDonald’s report is not sufficient to establish that her throat condition was caused or
aggravated by exposure to coolant or any other employment factor.
Dr. Gintautiene began treating appellant for throat problems in August 2008. Appellant
underwent surgery in September 2008 and had a good result. In December 2008, she reported
throat pain. Dr. Gintautiene did not provide a rationalized opinion explaining the cause of
appellant’s throat pain. Her report is not sufficient to establish that appellant’s throat condition
was caused or aggravated by exposure to coolant or any other employment factor.
On January 19, 2009 Dr. Camnitz noted that appellant had a three- or four-month history
of throat discomfort. Appellant had a tonsillectomy in September 2008 but experienced a
worsening of her symptoms later. Dr. Camnitz advised that she drank a chemical at work that
exacerbated her symptoms. He noted that appellant also had a history of reflux. A CT scan
revealed a soft tissue mass in the left tonsillar area for which she underwent a left radical
tonsillectomy. On February 16, 2009 Dr. Camnitz advised that the pathology report revealed
chronic inflammation and fungus. He did not, however, provide a rationalized opinion
explaining the cause of these conditions. On April 9, 2009 appellant told Dr. Camnitz that she
had a rash on her tongue. Dr. Camnitz found normal tongue papillae and physical examination
of her mouth and throat was normal. Because he did not provide a rationalized opinion
explaining the cause of the throat conditions in the pathology report, his reports are not sufficient
to establish that these conditions were caused or aggravated by exposure to coolant or any other
employment factor.
There is no comprehensive medical report of record, based on a complete and accurate
factual background, containing physical findings, objective test results and a rationalized opinion
as to how appellant’s throat condition was caused or aggravated by employment factors.
Appellant failed to meet her burden of proof. The Office properly denied her claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against compensation.
The Office, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a).5
To require the Office to reopen a case for merit review under section 8128(a) of the Act,6
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
4

5 U.S.C. § 8128(a).

5

Annette Louise, 54 ECAB 783, 789-90 (2003).

6

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).

4

pertinent new evidence not previously considered by the Office.7 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.8 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.9
ANALYSIS -- ISSUE 2
Appellant argued that the evidence was sufficient to establish that she drank coolant from
the coffee cup. She argued that a grinder she used in her work had a malfunctioning mist
collector that could have caused her throat condition. In an EEOC hearing transcript,
Ms. Bautista stated that on December 1, 2008 appellant alleged for the first time that she drank
some of the coolant in the coffee cup. In a December 12, 2008 statement, Mr. Wortham reported
that Mr. Rowe told him that he had dipped the coffee cup used by appellant into coolant and then
shook it, leaving only a residue or film on the cup. The issue in this case is medical, whether her
throat condition was caused by factors of her employment. The evidence submitted on
reconsideration is not rationalized medical evidence addressing causal relationship. Therefore, it
does not constitute relevant and pertinent new evidence not previously considered by the Office.
Because appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered or submit relevant and
pertinent new evidence not previously considered by the Office, the Office did not abuse its
discretion in denying her request for reconsideration.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that her
throat condition was causally related to factors of her employment. The Board further finds that
the Office did not abuse its discretion in denying her request for reconsideration.

7

20 C.F.R. § 10.606(b)(2).

8

Id. at § 10.607(a).

9

Id. at § 10.608(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 5, 2010 and November 17, 2009 are affirmed.
Issued: December 7, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kalamazoo, MI,
Employer
__________________________________________

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

Docket No. 07-79
Issued: May 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On November 10, 2006 appellant, through counsel, filed a timely appeal from a
September 12, 2006 merit decision of the Office of Workers’ Compensation Programs’ hearing
representative affirming the denial of her recurrence claim. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3 the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of total
disability effective March 22, 2004 causally related to her November 12, 2000 employment
injury.
FACTUAL HISTORY
On November 30, 2000 appellant, then a 41-year-old mail processor, filed a traumatic
injury claim alleging that on November 12, 2000 she injured her right shoulder and neck while
lifting a heavy tray of mail. The Office accepted the claim for cervical strain, C5-6 herniated
disc and C5-6 radiculitis. The Office authorized C5-6 anterior cervical discectomy and fusion

surgery which was performed on July 11, 2001. Appellant stopped work on November 25, 2000
and returned to light-duty work on February 10, 2001. She stopped again on May 12, 2001,
returned to work on October 20, 2001 and stopped work again on January 26, 2002.
In a report dated October 30, 2003, Dr. David J. Brockman, a treating Board-certified
physiatrist, reviewed and approved a proposed job offer. On December 13, 2003 the employing
establishment offered appellant a modified position of automatic clerk working initially for four
hours per day which she accepted on February 28, 2004. The physical requirements of the
position, included no lifting or reaching for up to two hours per day and no extension of the neck.
Appellant returned to a part-time modified job on March 17, 2004.
A February 23, 2004 magnetic resonance imaging (MRI) scan revealed slight bulging
disc at C6-7, “postsurgical changes are seen at the C5-6 level (anterior dis[c]ectomy and fusion)”
and C4-5 small left paracentral disc protrusion with “no compromise of the cord or exiting nerve
roots. Under impression, Dr. Azzam S. Kanaan, a Board-certified neurologist, reported C4-5 and
C6-7 degenerative changes with no neural structure compromise and C5-8 postsurgical changes
seen with bilateral foraminal stenosis “at this level which could compromise the exiting C6 nerve
roots.”
On April 5, 2004 appellant filed a claim for a recurrence of total disability beginning
March 22, 2004.1 She alleged that the employing establishment failed to comply with her
permanent restrictions and she was unable to perform the modified job duties.
On May 13, 2004 Dr. Kurt P. Helgerson, a treating Board-certified family practitioner,
concluded that appellant was totally disabled based upon her inability to reach, pull and “look
down due to neck pain.” Due to appellant’s inability to look down without severe pain,
Dr. Helgerson concluded that she was unable to perform her modified job duties.
By decision dated May 25, 2004, the Office denied appellant’s recurrence of disability
claim.
In a letter dated May 28, 2004, appellant’s counsel requested an oral hearing which was
held on February 17, 2005.
On June 10, 2004 David N. Makowski, a treating Board-certified family practitioner,
diagnosed significant neck pain with referred pain and numbness. He reported that an MRI scan
was “consistent with C5-6 foraminal stenosis, which again influenced this referred pain down
appellant’s arms.” Dr. Makowski opined that appellant was currently totally disabled from
performing her modified job duties.
On September 30, 2004 Dr. Patrick R. Reddan diagnosed cervical radiculopathy, upper
back myofascial pain and status post anterior cervical discectomy and fusion. A physical
examination showed “multiple myofascial trigger points across the mid and upper back.” Range
of motion included 90 degrees passive abduction for the left arm, pain complaints “on the right at
1

Appellant has not returned to work. On December 1, 2005 the employing establishment issued a notice of
removal effective January 13, 2006.

2

approximately 60 degrees of abduction.” A review of a February 23, 2004 MRI scan showed “a
small left paracentral disc protrusion at C4-5 level,” C5-6 bilateral foraminal stenosis and wellpreserved disc space at C5-6 with a slight bulging disc.
On February 25, 2005 the Office received an April 29, 2004 report by Dr. Herman C.
Sullivan, a Board-certified neurologist, finding no supportive neurological deficits to confirm a
radiculopathy. A motor examination was normal. Dr. Sullivan reported appellant’s complaints
“of altered sensation in a nondermatomal pattern” under sensory examination. He stated that
these complaints implicated “C5-6, C7-8 on the right side as well as the left side. Dr. Sullivan
recommended an electromyography nerve conduction study.
By decision dated June 10, 2005, the Office hearing representative set aside the May 24,
2004 decision and remanded the case for further development of the medical evidence. The
hearing representative found that the February 23, 2004 MRI scan provided evidence of a
worsening of her accepted C5-6 herniated disc. The hearing representative found the reports of
Dr. Helgerson and Dr. Makowski insufficient to support appellant’s claimed recurrence as they
contained inadequate rationale and there were no “physical findings on examination to support
disability from work.” He further noted that the record was devoid of any medical opinion
addressing why appellant continued to have residuals of her accepted work injury in view of the
fact that she only worked nine days in the past three and one-half years.
On June 23, 2005 the Office referred appellant to Dr. Bruce D. Abrams, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a report dated July 18, 2005,
Dr. Abrams presented findings based upon a physical examination, review of the objective and
factual evidence and list of questions. He diagnosed status post C5-6 discectomy and fusion with
right upper extremity radiculitis. Dr. Abrams noted that a 2004 MRI scan “shows the possibility
of C6 nerve root foraminal stenosis.” Physical examination revealed slight cervical spine range
of motion, no evidence of cervical spasm, normal muscle strength and “subjective tenderness in
the cervical area.” Dr. Abrams opined that appellant was capable of working with restrictions.
The restrictions included no elevation of her head, no overhead work and no lifting more than 10
to 15 pounds. In response to the Office’s question, Dr. Abrams opined that appellant’s
subjective complaints were supported by objective findings. He opined that appellant continued
to have residuals from her accepted employment injury but was not totally disabled.
In a letter dated August 24, 2005, the Office requested a supplemental report from
Dr. Abrams based upon an enclosed surveillance videotape of appellant for the period July 18 to
26, 2005.
In a September 27, 2005, addendum, Dr. Abrams reviewed the surveillance videotape
supplied by the Office. The activities he observed appellant engaging in appeared to be
completely normal without any evidence of hesitation or restriction of motion. Dr. Abrams
opined that appellant was capable of returning to full-time work with no restrictions or
limitations. He stated that his opinion had changed based upon a review of the surveillance
video. Dr. Abrams concluded that appellant’s condition had not worsened due to the cervical
spine surgery and, therefore, a modified job assignment working four hours per day was not
required. He noted that the videotape showed that there was no significant range of motion
restrictions. Dr. Abrams also reported that appellant appeared to have no problem lifting,

3

carrying, overhead work with her arm and bilateral use of her upper extremities. In an
October 5, 2005 investigative report, Sarah Nerreter reported on surveillance of appellant from
February 25 to July 27, 2005. During this period, Ms. Nerreter observed appellant performing
various activities, including swimming, driving a pickup truck, lifting small children and grocery
bags, weeding, sweeping, pulling up tent stakes and picking up lawn chairs.
On October 17, 2005 the Office requested Dr. Abrams to provide an addendum report to
address an issue with respect to medical reports and diagnostic testing contemporaneous with her
March 21, 2004 work stoppage. On December 8, 2005 Dr. Abrams noted his previous reports
dated July 18 and September 27, 2005. In response to the question posed by the Office, he
stated:
“The review on page three of [appellant] her present complaints in the
examination of July 18, 2005 combined with her examination on page four of that
date does not at all correspond with the observed findings on the surveillance
[videotape ] reported in the September 27, 2005 supplemental report.
“In answer to the questions posed in the note of October 17, 2005, it would be my
opinion that there is no medical evidence to demonstrate any material worsening
of [appellant’s] accepted condition. At the time of the examination, she
subjectively limited her range of motion and she expressed subjective complaints.
This does not at all correspond with the observed findings on the surveillance
tape, where [appellant] was able to extend her head fully, had a normal, full range
of motion and showed no evidence of pain.”
Dr. Abrams opined that appellant had symptom magnification and was capable of working eight
hours with no restrictions.
By decision dated December 14, 2005, the Office denied appellant’s claim for a
recurrence of total disability beginning March 22, 2004.
In a letter dated December 20, 2005, appellant, through counsel, requested an oral
hearing before an Office hearings representative. On May 12, 2006 appellant’s counsel
requested a review of the written record by an Office hearing representative.
On February 2, 2006 Dr. Makowski indicated that he has not seen appellant since
September 20, 2004 and “she was effectively terminated from our office on November 9, 2004.”
He stated that appellant had complaints of terrible back and neck pain on her last visit.
By decision dated September 12, 2006, the Office affirmed the denial of appellant’s
claim for a recurrence of total disability beginning March 22, 2004.
LEGAL PRECEDENT
The Office’s regulation defines the term recurrence of disability as follows:
“Recurrence of disability means an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition, which
4

had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness. This term also means an
inability to work that takes place when a light-duty assignment made specifically
to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical
limitations.”2
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.3 To establish a change in the
nature and extent of the injury-related condition, there must be probative medical evidence of
record. The evidence must include a medical opinion, based on a complete and accurate factual
and medical history, and supported by sound medical reasoning, that the disabling condition is
causally related to employment factors.4
ANALYSIS
The Office accepted the claim for cervical strain, C5-6 herniated disc and C5-6 radiculitis
and authorized C5-6 anterior cervical discectomy and fusion surgery.
Appellant claimed compensation for a total recurrence of the accepted neck employment
injury. She alleged that the employing establishment failed to comply with her restrictions and
she was unable to perform the position. The Board finds that appellant has not met her burden of
proof to establish that she sustained a recurrence of total disability causally related to her
November 12, 2000 employment injury.
Appellant returned to modified light-duty work on March 17, 2004 working four hours
per day. Dr. Brockman, a treating Board-certified physiatrist, reviewed and approved the job
offer on October 30, 2003. Appellant subsequently stopped work, claiming a recurrence of total
disability as of March 22, 2004. She must demonstrate either that her condition has changed
such that she could not perform the activities required by her modified job or that the
requirements of light duty changed or were withdrawn. The record contains no evidence that the
light-duty job requirements were changed or withdrawn.
In support of her claim for a recurrence of total disability, appellant submitted reports
from Dr. Helgerson and Dr. Makowski. In a May 13, 2004 report, Dr. Helgerson concluded that
2

20 C.F.R. § 10.5(x).

3

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
4

Maurissa Mack, 50 ECAB 498 (1999).

5

appellant was totally disabled due to her inability to reach, pull and “look down due to neck
pain.” He attributed appellant’s inability to perform her modified job duties due to severe pain.
In a June 10, 2004 report, Dr. Makowski diagnosed significant neck pain with referred pain and
numbness. He reported that an MRI scan was “consistent with C5-6 foraminal stenosis, which
again influenced this referred pain down [appellant’s] arms.” Dr. Helgerson opined that
appellant was currently totally disabled from performing her modified job duties. However,
these reports are of limited probative value as neither Dr. Helgerson nor Dr. Makowski provided
medical rationale explaining how appellant became disabled due to her accepted injury or was
unable to continue work at her light-duty position beginning March 22, 2004. Dr. Helgerson
provided a one paragraph report which did not report any finding based on a physical
examination of appellant. Rather, he referred to these findings of Dr. Homon Sullivan.
Similarly, Dr. Makowski submitted a brief note to support his finding of total disability. Without
any explanation to support that appellant was disabled on or after March 22, 2004 due to her
accepted injury, these reports are insufficient to meet her burden of proof.5
Appellant also submitted a report by Dr. Reddan in support of her claim. On
September 30, 2004 Dr. Reddan diagnosed upper back myofascial pain, cervical radiculopathy
and status post anterior cervical discectomy and fusion. A physical examination revealed
multiple myofascial trigger points across upper and mid back. Dr. Reddan did not provide any
opinion addressing whether appellant was disabled on or after March 22, 2004 due to her
accepted November 12, 2000 employment injury. His report is of diminished probative value in
establishing a recurrence of disability.
On June 23, 2005 the Office referred appellant to Dr. Abrams for a second opinion
evaluation. In a report dated August 2, 2005, Dr. Abrams opined that appellant was capable of
working with restrictions. He opined that she continued to have residuals from her accepted
employment injury, but was not totally disabled. The Office requested a supplemental report
from Dr. Abrams based upon a surveillance videotape of appellant. In a September 27, 2005
addendum, Dr. Abrams reviewed the surveillance videotape and noted the activities he observed
appellant engaging in appeared to be completely normal with no evidence of restriction of
motion or hesitation. Based upon a review of the surveillance videotape, Dr. Abrams opined that
appellant was capable of returning to full-time work with no restrictions or limitations. He stated
that his opinion hanged based upon a review of the surveillance videotape. Dr. Abrams
concluded that appellant’s condition had not worsened due to the cervical spine surgery and,
therefore, a modified job assignment working four hours per day was not required. On
October 17, 2005 the Office requested Dr. Abrams to further address the issue of appellant’s
March 22, 2004 work stoppage. Dr. Abrams opined that there was no medical evidence to
support that her accepted condition had worsened. He reported that appellant subjectively
limited her range of motion at the time of his examination and expressed subjective complaints.
Dr. Abrams found that appellant’s subjective complaints did not correspond with activities as
demonstrated on the surveillance video tape which showed appellant fully extending her head
with full range of motion and no evidence of pain. He opined that appellant had symptom
5

Richard A. Neidert, 57 ECAB ___ (Docket No. 05-1330, issued March 10, 2006) (medical reports not
containing rationale on causal relation are entitled to little probative value and are generally insufficient to meet an
employee’s burden of proof).

6

magnification and was capable of working eight hours with no restrictions. The Board finds that
Dr. Abrams’ report is based on a full and accurate history of appellant’s medical history and
treatment. His report constitutes the weight of medical opinion
The Board finds that appellant has submitted insufficient evidence to show a change in
the nature and extent of her physical condition, arising from the employment injury which
prevented her from performing her light-duty position. There is no evidence showing that
appellant experienced a change in the nature and extent of the light-duty requirements or was
required to perform duties which exceeded her medical restrictions. The light-duty position
performed by appellant was in conformance with the medical restrictions set forth by her then
treating physician and the record is devoid of any evidence which would indicate that there was a
change in the nature and extent of the light-duty requirements or that she was required to perform
duties which exceeded her medical restrictions.
Appellant has not met her burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements which would prohibit her from performing the light-duty position she assumed
after she returned to work.
CONCLUSION
The Board finds that appellant has failed to establish that she had a recurrence of total
disability on and after March 22, 2004.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2006 is affirmed.
Issued: May 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, MIAMI
INTERNATIONAL AIRPORT, Miami, FL,
Employer
__________________________________________

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Appearances:
Stanley M. Rosenberg, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-171
Issued: January 16, 2008

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 24, 2006 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated January 10 and September 28, 2006. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
This issue is whether appellant met his burden of proof to establish that he sustained a
stress-related condition in the performance of duty causally related to factors of his federal
employment.
FACTUAL HISTORY
On November 24, 2005 appellant, then a 47-year-old transportation security officer, filed
a (Form CA-2,) occupational disease claim, alleging that factors of his federal employment

caused cardiac arrhythmias and atrial fibrillation. His supervisor noted that he was no longer
screening luggage and was performing clerical duties at work.
In reports dated March 2 and 15, 2005, Dr. Lawrence Blacher, Board-certified in internal
medicine and cardiovascular disease, noted that appellant had been hospitalized from January 20
to 30, 2005 when he underwent an electrophysiologic study. He recommended 30 days of bed
rest and advised that appellant could return to full duty without restrictions on March 28, 2005.
In reports dated June 1 and 28 and July 8, 2005, Dr. Blacher advised that appellant was
hospitalized from May 22 to 27, 2005 for ablation surgery, needed 30 days of bed rest and
should be off work until further notice. In a November 14, 2005 report, he reported that
appellant had a known history of multiple episodes of cardiac dysrhythmias including both
paroxysmal supraventricular tachycardia and recurrent atrial fibrillation which had required
hospitalization. Dr. Blacher opined that “it seems that many of his episodes of arrhythmias are
related to the stress of his job and he probably should be reassigned to an area that is less
stressful.” On November 15, 2005 appellant accepted a light-duty position with the employee
support center/records department. The job duties were described as filing and sorting employee
records and other administrative work.
By letter dated December 8, 2005, the Office informed appellant of the type evidence
needed to support his claim, to include a comprehensive medical report from his physician with
an explanation of how his work exposure caused his condition. The Office also requested that
the employing establishment respond to the claim. Appellant stopped work on December 18,
2005 and did not return. In a decision dated January 10, 2006, the Office denied appellant’s
claim, noting that he did not respond to the December 8, 2005 letter.
On January 25, 2006 appellant requested “an appeal” of his denial and further alleged
that he had panic attacks causally related to his federal employment. He described his regular
employment duties as providing security and protection of air travelers, airports and aircraft,
identifying dangerous objects in baggage, cargo, and/or on passengers and preventing those
objects from being transported onto aircraft. Appellant stated that he was required to wand, pat
down, operate x-ray machines, lift and screen baggage up to 70 pounds and perform ticket
review using electronic and imaging equipment. He reported that he stood for up to eight hours
without sitting and that the work environment was hectic and stressful due to noise from alarms
and machinery, dealing with disruptive and angry passengers, time pressures and the requirement
to identify and locate potentially life-threatening devices and devices intended to create mass
destruction. Appellant stated that he was hired on October 13, 2002 and first experienced
cardiac symptoms on January 15, 2003. He noted that the condition had worsened and alleged
that it was aggravated by the constant vigilance required in the hectic stressful work
environment. Appellant reported that, while he worked in a nonstressful environment in
November 2005, in December 2005 he was returned to his regular duties and this caused a
worsening of his condition.
Appellant also requested a review of the written record and submitted July 27 and
August 13, 2004 reports in which Dr. Enrique J. Huertas, Jr., a cardiologist, noted that appellant
had been under his care for some time. Dr. Huertas diagnosed supraventricular tachycardia and
advised that appellant was hospitalized for monitoring and testing and that he could return to
work on August 16, 2004. He stated that appellant’s cardiac condition and medical regimen did

2

not restrict him from performing his regular job duties. On a November 11, 2005 form
Dr. Blacher noted that appellant had a four-year history of recurrent cardiac arrhythmias and that
each episode temporarily disabled him. He advised that appellant was currently stable but
required continual follow up. By report dated February 8, 2006, Dr. Carlos A. Perez-Machado,1
noted that appellant suffered severe panic attacks when working in a stressful environment and
that his symptoms had worsened to the point that he was unable to work. He advised that
appellant could not work in an environment that included noise from alarms and machinery or
deal with angry passengers and time pressures, stating that appellant should be under the care of
a psychiatrist. On February 17, 2006 Dr. Sebastian de la Maza, a psychiatrist, advised that
appellant should not work. In a March 31, 2006 report, he diagnosed severe panic and
depressive disorders. Dr. de la Maza stated that appellant felt threatened by his job situation and
requirements and opined that his ability to perform was seriously hampered by fears.
Dr. de la Maza advised that appellant’s prognosis was guarded and that his diagnosis, by
definition, affected his work performance and that he could not return to work for the foreseeable
future.
On August 24, 2006 the employing establishment noted appellant’s absences from work
from July 20 through August 14, 2004, January 21 through March 28, April 28 through May 10,
May 22 through August 3, August 23 through September 8, October 23 through November 14,
and December 18, 2005 to the present. By decision dated September 28, 2006, an Office hearing
representative affirmed as modified the January 10, 2006 decision. The hearing representative
found that the evidence established that appellant was in the performance of duty at the time of
his claimed condition as he was required to perform the job duties he described but that the
evidence did not establish that his cardiac or emotional condition was causally related to the
established employment factors.
LEGAL PRECEDENT
To establish his claim that he sustained a stress-related condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that he has an
emotional or stress-related disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to his condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to his stress-related condition.2 If a claimant does implicate a factor of employment, the
Office should then determine whether the evidence of record substantiates that factor. When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, the Office must base its decision on an analysis of the medical
evidence.3

1

Dr. Perez-Machado’s credentials could not be ascertained.

2

Leslie C. Moore, 52 ECAB 132 (2000).

3

See Dennis J. Balogh, 52 ECAB 232 (2001).

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Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,4 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.5
There are situations where an injury or illness has some connection with the employment but
nevertheless does not come within coverage under the Act.6 When an employee experiences
emotional stress in carrying out his or her employment duties and the medical evidence
establishes that the disability resulted from an emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his or her emotional reaction to a special
assignment or other requirement imposed by the employing establishment or by the nature of the
work.7
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.8 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9 Neither the mere fact
that a disease or condition manifests itself during a period of employment nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.10
ANALYSIS
The Board agrees that due to the nature of his position, appellant’s regular duties as a
transportation security officer were stressful. These job duties are compensable factors of
employment. The Board, however, finds that appellant failed to establish that he sustained either
an emotional or a cardiac condition causally related to the employment factors. While appellant
submitted a number of medical reports that generally opined that his condition was caused by
work stress, none of the physicians provided a rationalized medical opinion identifying the
specific job issues which they felt caused appellant’s condition.

4

28 ECAB 125 (1976).

5

5 U.S.C. §§ 8101-8193.

6

See Robert W. Johns, 51 ECAB 137 (1999).

7

Lillian Cutler, supra note 4.

8

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

See Leslie C. Moore, supra note 9; (2000); Gary L. Fowler, 45 ECAB 365 (1994).

10

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

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A physician’s opinion on the issue of whether there is a causal relationship between a
claimant’s diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background of the claimant. To be considered rationalized, a
physician’s opinion must be expressed in terms of a reasonable degree of medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and specific employment factors.11
In his July and August 2004 reports, Dr. Huertas merely diagnosed supraventricular
tachycardia and advised the appellant could return to work on August 14, 2004. He did not
provide an opinion regarding the cause of appellant’s condition and medical evidence that does
not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.12
Dr. Blacher merely noted appellant’s hospitalizations and opined that appellant’s
episodes of arrhythmias were related to job stress and that he should be assigned to an area that
was less stressful. Likewise, in his February 8, 2006 report, Dr. Perez-Machado noted that
appellant suffered severe panic attacks when working in a stressful environment and advised that
he should not work in an environment that included noise from alarms and machinery or deal
with angry passengers and time pressures. In reports dated February 17 and March 31, 2006,
Dr. de la Maza diagnosed severe panic and depressive disorders. He stated that appellant felt
threatened by his job situation and requirements and opined that he could not work, concluding
that his ability to perform was seriously hampered by his fears.
A mere conclusion without the necessary medical rationale explaining how and why the
physician believes that a claimant’s accepted exposure could result in a diagnosed condition is
not sufficient to meet the claimant’s burden of proof. The medical evidence must also include
rationale explaining how the physician reached the conclusion he or she is supporting.13
Furthermore, the possibility of a future injury does not constitute an injury under the Act.14 The
Board finds these reports are of diminished probative value as they do not contain sufficient
medical reasoning explaining the basis for the physicians’ stated opinions from a medical
perspective to demonstrate that the conclusions reached were sound, logical and rational.15
In assessing medical evidence, the number of physicians supporting one position or
another is not controlling. The weight of such evidence is determined by its reliability, its
probative value and its convincing quality. The factors that comprise the evaluation of medical
evidence include the opportunity for and the thoroughness of physical examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of

11

Larry D. Dunkin, 56 ECAB 220 (2004).

12

Willie M. Miller, 53 ECAB 697 (2002).

13

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

14

See Brenda L. DuBuque, 55 ECAB 212 (2004).

15

K.W., 59 ECAB ____ (Docket No. 07-1669, issued December 4, 2007).

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analysis manifested and the medical rationale expressed in support of the physician’s opinion.16
The opinion of a physician must be of reasonable medical certainty and must be supported by
medical rationale explaining causal relationship.17
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a stress-related cardiac or emotional condition causally related to his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2006 is affirmed.
Issued: January 16, 2008
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

16

Anna M. Delaney, 53 ECAB 384 (2002).

17

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bell, CA, Employer
__________________________________________

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

Docket No. 16-0467
Issued: May 23, 2016

Case Submitted on the Record

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

JURISDICTION
On January 13, 2016 appellant, through counsel, filed a timely appeal from a
September 30, 2015 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $3,143.53; and (2) whether OWCP properly
determined that appellant was at fault in the creation of the overpayment of compensation,
thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 23, 1992 appellant, then a 33-year-old mail equipment handler, filed a
traumatic injury claim (Form CA-1) alleging that he sustained injury on September 22, 1992
when he was hit in his right leg by a forklift at work. OWCP accepted that he sustained a right
knee sprain, right leg contusion, and lumbar sprain. Appellant received disability compensation
on the daily roll beginning April 14, 2009. He received disability on the periodic rolls beginning
June 7, 2009.2
The record contains a form, signed on April 22, 2014, in which appellant elected to
receive retirement benefits from the Office of Personnel Management (OPM), under the Civil
Service Retirement System (CSRS) or Federal Employees Retirement System (FERS), instead of
FECA benefits. On the form, appellant certified that he understood that he was not entitled to
receive FECA benefits and CSRS/FERS benefits concurrently (except for a schedule award).
In a July 17, 2014 notice, OWCP advised appellant of its preliminary determination that
he received an overpayment of compensation in the amount of $3,143.53 because he received a
prohibited dual payment of FECA disability compensation and retirement benefits from OPM for
the period May 1 to 31, 2014. It also made a preliminary determination that he was at fault in the
creation of the overpayment because he knew or should have known that he could not receive
such dual benefits. OWCP advised appellant that he could submit evidence challenging the fact,
amount, or finding of fault, and request waiver of recovery of the overpayment. It informed him
that he could submit additional evidence in writing or at a prerecoupment hearing, but that a
prerecoupment hearing must be requested within 30 days of the date of the written notice of
overpayment. OWCP requested that appellant complete and return the enclosed financial
information questionnaire (Form OWCP-20) within 30 days even if he was not requesting waiver
of recovery of the overpayment.
Appellant requested a telephone prerecoupment hearing with an OWCP hearing
representative on the issues of fact, amount, and fault.3 During the hearing held on March 24,
2015, counsel argued that it was not clear from the record whether appellant actually received
retirement benefits from OPM for the period May 1 to 31, 2014.
By decision dated June 15, 2015, an OWCP hearing representative determined that the
case should be remanded to OWCP to determine whether appellant received retirement benefits
from OPM for the period of the claimed overpayment, May 1 to 31, 2014. He found that the
case record did not contain clear evidence regarding the period appellant had received retirement
benefits from OPM and determined that, on remand, OWCP should attempt to obtain such
evidence.
On remand, OWCP requested that OPM indicate when appellant began receiving
retirement benefits from OPM. The memorandum of a September 22, 2015 telephone
2

In late 2010, appellant filed two occupational disease claims (Forms CA-2) under separate file numbers for a
skin disorder and for carpal tunnel syndrome. Neither claim was accepted by OWCP.
3

Appellant asserted that he timely notified OWCP of his receipt of retirement benefits from OPM.

2

conversation indicated that an OPM official reported that on June 10, 2014 he received
retirement benefits from OPM for the period May 1 to 31, 2014. In a letter dated September 28,
2015, an OPM official advised OWCP that appellant received retirement benefits from OPM
beginning May 1, 2014 and continuing.4
In a September 30, 2015 decision, OWCP determined that appellant had received an
overpayment of compensation in the amount of $3,143.53. It found that he was at fault in the
creation of the overpayment, thereby precluding waiver of recovery of the overpayment. OWCP
determined that appellant knew or should have known that he could not receive the dual benefits
that created the overpayment.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 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 duty.5 Section 8116 of FECA defines the limitations on the right to receive
compensation benefits.6 Section 8116(a) provides that, while an employee is receiving workers’
compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being
compensated for under FECA.7 Section 10.421(a) of OWCP’s implementing regulations provide
that a beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.8 The beneficiary must elect the benefit that he or she wishes to
receive.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,143.53.
The record contains documents showing that appellant elected OPM retirement benefits
beginning effective May 1, 2014. As noted above, FECA and OWCP regulations provide that a

4

The evidence of record reveals that appellant received FECA disability compensation for the period May 1
to 31, 2014 in the amount of $3,143.53.
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

Id. at § 8116(a).

8

20 C.F.R. § 10.421(a).

9

Id.

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beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity.10
As appellant elected retirement benefits from OPM for a period already covered by
FECA compensation payments, the Board finds that he did in fact receive an overpayment of
compensation for the entire amount. His election of retirement annuity benefits from OPM,
beginning May 1, 2014 and continuing through May 31, 2014, created a prohibited dual benefit
under section 8116 of FECA. The record supports that appellant received wage-loss
compensation in the amount of $3,143.53 for the period May 1 to 31, 2014. The Board,
therefore, affirms OWCP’s September 30, 2015 decision on the issue of fact and amount of
overpayment.11
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that where an overpayment of compensation has been
made “because of an error of fact or law,” adjustment shall be made by decreasing later
payments to which an individual is entitled.12 The only exception to this requirement is a
situation which meets the tests set forth as follows in section 8129(b): “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 this
subchapter or would be against equity and good conscience.”13 No waiver of payment is
possible if the claimant is not “without fault” in helping to create the overpayment.14
In determining whether an individual is not “without fault” or alternatively “at fault” in
the creation of an overpayment, section 10.433(a) of Title 20 of the Code of Federal Regulations
provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment -(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or

10

See supra notes 7 and 8.

11

5 U.S.C. § 8116; see N.P., Docket No. 15-1799 (issued January 11, 2016).

12

Id. at § 8129(a).

13

Id. at § 8129(b).

14

L.J., 59 ECAB 264 (2007).

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(3) Accepted a payment which he or she knew or should have known to be
incorrect….”15
Section 10.433(b) of OWCP’s regulations provides:
“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.”16
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant was at fault in the
creation of the overpayment of compensation under the third prong of 20 C.F.R. § 10.433(a)17
and that, therefore, the overpayment was not subject to waiver.
On April 22, 2014 appellant signed a form in which he elected to receive retirement
benefits from OPM instead of FECA disability compensation. On the form, appellant certified
that he understood that he was not entitled to receive FECA benefits and CSRS/FERS benefits
concurrently (except for a schedule award). He, therefore, was advised that he could not receive
dual benefits comprised of FECA disability compensation and retirement benefits from OPM.
Whether an individual is at fault with respect to the creation of an overpayment depends
on the circumstances of the overpayment. The circumstances in this case support OWCP’s
finding of fault. Appellant had been advised that receipt of retirement benefits and FECA
disability compensation for the same period was a prohibited dual benefit. He nonetheless chose
to receive both disability retirement benefits and FECA benefits for the period May 1 to 31, 2014
when on June 10, 2014 he accepted a retirement check from OPM which covered the period
May 1 to 31, 2014. OWCP properly found appellant at fault in the creation of an overpayment of
compensation in the amount of $3,143.53 as he accepted a prohibited dual payment which he
knew or should have known he could not receive.18 Because appellant was at fault in the
creation of the overpayment of compensation, the overpayment was not subject to waiver of
recovery.19

15

20 C.F.R. § 10.433(a).

16

Id. at § 10.433(b).

17

See supra note 15.

18

See N.P., supra note 11.

19

See supra notes 13 and 14.

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CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $3,143.53. The Board further finds that OWCP properly
determined that he was at fault in the creation of the overpayment of compensation and that,
therefore, the overpayment was not subject to waiver.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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