United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DUBLIN MEDICAL CENTER, Dublin, GA,
Employer
__________________________________________

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

Docket No. 07-2307
Issued: February 25, 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 September 10, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ hearing representative’s January 31, 2007 merit decision, finding that
she did not establish an injury due to her federal employment, and a July 10, 2007 nonmerit
decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over both the
merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
developed a medical condition due to her employment duties; and (2) whether the Office
properly declined to reopen appellant’s claim for review of the merits in accordance with
5 U.S.C. § 8128(a).

FACTUAL HISTORY
On May 16, 2006 appellant, then a 49-year-old medical clerk, filed an occupational
disease claim alleging that she developed pain and swelling in her lower extremities, hands, neck
and low back due to repetitive movement in the performance of duty. She first became aware of
her condition on March 31, 2006 and first attributed her condition to her employment on
April 20, 2006. The Office requested additional factual and medical information regarding
appellant’s claim by letter dated May 22, 2006 and allowed her 30 days to respond. The Office
noted that she began working as a medical clerk on April 4, 2006.
Appellant submitted a narrative statement dated May 26, 2006. She described her
repetitive activities as constantly rising from her seat to go to the copy machine, associate orders
with charts, and write orders on nurses’ boards and answer the telephone. Appellant noted that
she had preexisting conditions including torn ligaments in her left knee, pinched nerves in her
neck, a fractured coccyx, residuals from back surgery and blood clots in her lungs.1
In a report dated June 20, 2006, appellant’s attending physician, Dr. Dwayne L. Clay,
Board-certified in physical medicine and rehabilitation, addressed appellant’s current condition.
He stated that her medical clerk position required her to change positions from sitting to
standing, to twist, stoop and bend. Dr. Clay stated that these activities exacerbated the pain and
discomfort in her knees. He opined that appellant was totally disabled.
By decision dated July 5, 2006, the Office denied appellant’s claim. It found that her
position required repetitive motions but she did not submit sufficient medical evidence to
establish a diagnosed condition as a result of these repetitive motions. The Office denied
appellant’s claim for failure to establish fact of injury.
Appellant requested an oral hearing on July 10, 2006. She testified at the oral hearing on
November 28, 2006.
By decision dated January 31, 2007, the hearing representative affirmed the Office’s
July 5, 2006 decision. He found that appellant had not submitted sufficient medical evidence to
establish that her repetitive employment activities resulted in a diagnosed condition.
Appellant requested reconsideration of the hearing representative’s January 31, 2007
decision on March 15, 2007. She submitted a narrative statement alleging that her repetitive
work activities as a medical clerk aggravated her preexisting conditions. Appellant also
submitted excerpts from an employing establishment manual, a March 22, 2007 job offer and
documents from separate claims. In a note dated April 19, 2006, Dr. Mark J. Samson, a
physician, indicated that appellant was totally disabled from April 19 to 24, 2006. Appellant also
submitted an activity log and Dr. Clay’s June 20, 2006 report.

1

The Office noted that appellant’s claims for lumbar strain, lumbar, thoracic and cervical intervertebral disc
disorders, right leg radiculopathy and pulmonary embolus remained open for medical treatment and that her claim
for coccyx fracture and left knee contusion was also open.

2

By decision dated July 10, 2007, the Office declined to reopen appellant’s claim for
consideration of the merits. The Office found that the evidence was not sufficient to require
further merit review of her claim.
LEGAL PRECEDENT -- ISSUE 1
An occupational disease or illness means a condition produced by the work environment
over a period longer than a single workday or shift.2 To establish that an injury was sustained in
the performance of duty in an occupational disease claim, a claimant must submit the following:
(1) medical evidence establishing the presence of existence of the disease or condition for which
compensation is claimed; (2) a factual statement identifying the 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. The medical opinion 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.3 The Board has held that the mere diagnosis of “pain” does not constitute a basis
for the payment of compensation.4
ANALYSIS -- ISSUE 1
Appellant submitted factual evidence regarding the employment duties which she felt
caused or contributed to her current physical condition. The Office accepted that her position as
a medical clerk required her to change positions from sitting to standing and to bend, twist and
stoop. However, it found that appellant failed to submit sufficient medical opinion evidence to
establish a diagnosed condition as the result of these employment activities.
In support of her claim for an occupational disease, appellant submitted a report dated
June 20, 2006 from Dr. Clay, a physician Board-certified in physical medicine and rehabilitation,
who noted appellant’s job duties and stated that these duties exacerbated the pain and discomfort
in appellant’s knees. Dr. Clay did not provide any other diagnosis of appellant’s knee condition.
He did not provide the necessary medical opinion evidence to meet appellant’s burden of proof
in establishing an occupational disease claim. Dr. Clay did not provide a clear diagnosis. As
noted, the Board has held that the mere diagnosis of “pain” does not constitute a basis for the
payment of compensation. Without submitting a detailed and comprehensive medical report
describing appellant’s history of injury, preexisting conditions and current knee conditions
complete with a diagnosis, appellant has failed to meet her burden of proof and the Office
properly denied her claim.

2

20 C.F.R. § 10.5(q).

3

Solomon Polen, 51 ECAB 341, 343-44 (2000).

4

Robert Broome, 55 ECAB 339, 342 (2004).

3

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,5 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 pertinent new evidence not previously
considered by the Office.6 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.7
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on March 15, 2007 and submitted additional factual
and medical evidence. She submitted a narrative statement, excerpts from an employing
establishment manual and an activity log. These documents constitute factual evidence which is
not relevant to the issue for which appellant’s claim was denied, whether she has submitted
sufficient medical evidence to establish a diagnosed condition resulting from her accepted
employment duties. As these documents are not relevant, the documents are not sufficient to
require the Office to reopen her claim for consideration of the merits.
Appellant also submitted several documents generated by the Office pertaining to
separate claims before the Office. These documents do not constitute medical evidence, do not
address the central issue in the current claim, whether a diagnosed condition resulted from her
employment duties after March 31, 2006, and are not sufficient to require the Office to reopen
her claim for consideration of the merits.
In support of her request for reconsideration, appellant resubmitted Dr. Clay’s June 20,
2006 report. As the Office considered this report in reaching its January 31, 2007 and July 5,
2006 decisions, this report is not new evidence. As the report does not constitute new evidence it
is not sufficient to require the Office to reopen appellant’s claim for consideration of the merits.
Appellant also submitted a work release note dated April 19, 2006 from Dr. Samson, a
physician, indicating that she was totally disabled from April 19 to 24, 2006. While this note is
new medical evidence, it is not relevant and pertinent to the issue for which the Office denied her
claim. There is no diagnosis of a condition which rendered appellant disabled for the period of
time specified by Dr. Samson. Without a medical diagnosis or other medical findings regarding
her condition, this report is not relevant to the issue for which her claim was denied and is not
sufficient to require the Office to reopen appellant’s claim for consideration of the merits.

5

5 U.S.C. §§ 8101-8193, § 8128(a).

6

20 C.F.R. § 10.606(b)(2).

7

20 C.F.R. § 10.608(b).

4

CONCLUSION
The Board finds that appellant failed to submit the necessary medical evidence to
establish a condition resulting from her accepted employment activities and therefore failed to
meet her burden of proof in establishing an occupational disease claim. The Board further finds
that she failed to submit relevant and pertinent new evidence requiring the Office to reopen her
claim for consideration of the merits on July 10, 2007.
ORDER
IT IS HEREBY ORDERED THAT the July 10 and January 31, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 25, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE NAVY, NAVAL
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MEDICAL CENTER, Portsmouth, VA, Employer )
__________________________________________ )
B.W., Appellant

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

Docket No. 11-2090
Issued: May 9, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 23, 2011 appellant filed a timely appeal from the July 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her
January 25, 2011 reconsideration request.1
The Board finds that this case is not in posture for decision. An OWCP decision shall
contain findings of fact and a statement of reasons.2 OWCP’s July 15, 2011 decision contained
neither. It stated: “We have declined your request. We have not reviewed the merits of your
case.” There was nothing enclosed to explain the basis for the determination.
1

Appellant, a secretary, sustained a traumatic injury on October 9, 2008 when, while she was typing, her right
thumb locked up with pain. OWCP accepted her claim for right thumb trigger finger and de Quervain’s disease.
Appellant received a schedule award for a 10 percent impairment of her right upper extremity and a 20 percent
impairment of her left. On September 23, 2010 OWCP denied an increased schedule award. On January 25, 2011
appellant requested reconsideration.
2

20 C.F.R. § 10.126; see Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter
2.1602.7.b (October 2011): “If the evidence submitted to support an application for reconsideration is not sufficient
to require a merit review, OWCP should issue a decision that discusses the evidence submitted, or lack thereof and
explicitly state the basis for the finding of insufficiency. The decision should explain that the application for
reconsideration is denied on the basis that the evidence submitted in support of the application is not sufficient to
warrant review.”

The Board, therefore, will set aside OWCP’s July 15, 2011 decision and remand the case
for a properly issued final decision on appellant’s January 25, 2011 reconsideration request.
IT IS HEREBY ORDERED THAT the July 15, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: May 9, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
DeSoto, MO, Employer
__________________________________________

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

Docket No. 11-1603
Issued: March 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2011 appellant filed a timely appeal from a June 15, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) regarding her wage-earning capacity
determination. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has met her burden of proof to establish that a
modification of the loss of wage-earning capacity determination is warranted.
FACTUAL HISTORY
This case was previously before the Board. In a January 24, 2006 decision, the Board
reversed OWCP’s August 18, 2004 and February 22, 2005 decisions finding that OWCP
improperly reduced appellant’s compensation to zero as her refusal to participate in vocational
1

5 U.S.C. § 8101-8193.

rehabilitation did not occur in the early but necessary stages of vocational rehabilitation.2 In a
July 21, 2010 decision, the Board set aside a June 3, 2009 OWCP decision denying her request
for reconsideration. The Board found that appellant’s reconsideration request should be treated
as a request for modification of the wage-earning capacity determination and remanded the case
for OWCP to adjudicate this issue.3 The facts of the case contained in the Board’s prior
decisions are incorporated herein by reference.4
In a July 10, 2007 report, Dr. Jack C. Tippett, a Board-certified orthopedic surgeon and
second opinion specialist, noted the history of injury and reviewed appellant’s medical record.
He provided examination findings and an impression of healed complex pelvis fracture with
malposition; apparent limb length discrepancy with left leg about three centimeters short;
degenerative joint disease of right sacroiliac joint and dyspareunia. Dr. Tippett stated that
appellant’s pelvic tilt was the result of the accepted conditions and was permanent. He stated
that the accepted conditions also resulted in traumatic changes in the right sacroiliac joint and
that she has pain in that area related to certain movements in her low back and in her hips.
Dr. Tippett opined that the work-related conditions were still active and recommended the use of
half-inch lifts in appellant’s left shoe. He stated that, while intermittent pain may occur, it
should be minimized by occasionally changing from a sitting position to a standing position and
vice-versa. Bending, stooping and heavy lifting should be reduced as necessary. In response to
OWCP’s questions, Dr. Tippett indicated in an October 3, 2007 report that appellant was
partially disabled as a result of the employment injury. He opined that, based on objective
findings, she was able to perform an eight-hour workday with restrictions. In an October 3, 2007
work capacity evaluation form, Dr. Tippett provided permanent work restrictions on lifting over
30 pounds limited, up to four hours a day, and no climbing and squatting; occasional twisting
and bending/stooping; and change positions from sitting and standing as necessary.
On October 12, 2007 appellant was referred for vocational rehabilitation.
On
November 5, 2007 the vocational rehabilitation counselor identified the positions of telephone
solicitor, ticket seller, and cashier-checker (retail trade) as being within appellant’s experience,
education, and medical restrictions and available based on a local labor market study. Placement
efforts began on January 2, 2006 and ran through April 1, 2008. Appellant did not obtain
employment. On April 9, 2008 the vocational rehabilitation counselor indicated that she was not
very cooperative in her job search. He stated that appellant was vocationally and educationally
capable of performing the positions of cashier and customer service, which were reasonably
available in her local commuting area on a full-time basis based on labor market research of
November 5 and December 28, 2007.

2

Docket No. 05-1315 (issued January 24, 2006).

3

Docket No. 10-99 (issued July 21, 2010).

4

Appellant, a part-time rural carrier associate, was injured in a November 15, 1995 motor vehicle accident.
OWCP accepted the claim for closed sacrum/coccyx fracture; closed pubis fracture; closed spleen hematoma; closed
four rib fractures; closed lumbar vertebra fracture; posthemorrhage anemia; forehead open wound and foot/toe
abrasion. It began paying compensation for temporary total disability on December 31, 1995. The employer
terminated appellant’s employment in February 1996.

2

By decision dated June 9, 2008, OWCP reduced appellant’s compensation effective
June 10, 2008 on the basis that the selected position of cashier/checker (retail trade) represented
her wage-earning capacity. It found the position was medically and vocationally suitable and
reasonably available in her commuting area. OWCP further found the physical requirements of
this job allowed appellant to change position (sitting, standing and walking) and was within her
medical restrictions of lifting up to 30 pounds limited to four hours a day and no climbing and
squatting; occasional twisting and bending/stooping; and change positions sitting/standing.
In a May 14, 2009 letter, appellant requested reconsideration. She stated that she had a
difficult time finding work in a cashier position. Appellant explained that she could not find
work because of her medical restrictions as well as the economy. She indicated that a manager
of a local store told her it did not hire people for a cashier position who needed to “sit, walk and
stand every 15 minutes.”
Pursuant to the Board’s July 21, 2010 decision, OWCP considered appellant’s May 14,
2009 letter a request for modification of the June 9, 2008 wage-earning capacity decision. On
July 27, 2010 it sent her a letter discussing the criteria for modification of a formal loss of wageearning capacity decision. Appellant was afforded 30 days to provide factual or medical
evidence to meet such criteria.
On August 11, 2010 OWCP received a statement from appellant requesting information
and an extension of time to obtain information.5 In an August 23, 2010 statement, appellant
indicated that the original wage-earning capacity was in error and her work-related medical
conditions had worsened. She noted potential employers that she contacted from July 17, 2008
through August 6, 2010 that either were not hiring or would not hire a person with her
restrictions.
By decision dated September 10, 2010, OWCP denied modification of the June 9, 2008
loss of wage-earning capacity decision.
On March 11, 2011 appellant requested reconsideration. She indicated that OWCP had a
copy of her August 23, 2010 letter which noted the grounds for her disagreement.
In a December 13, 2010 report, Dr. Clarence A. Temple, a Board-certified orthopedic
surgeon, reported a history of injury as related by appellant and reviewed medical records which
she provided. He provided examination findings and the following assessments: closed fracture
of sacrum and coccyx without mention of spinal cord injury; closed fracture of pubis;
lumbosacral spondylosis without myelopathy; scoliosis (and kyphoscoliosis), idiopathic.
Dr. Temple noted that the diagnosis of scoliosis was not that of idiopathic scoliosis, but rather
scoliosis due to the malposition of her sacrum. He stated that the scoliosis in the lumbar area
secondary to the malposition of the sacrum could reasonably be expected to play a role in the
degenerative changes at L4-5 and L5-S1. This, along with the sacroiliac injury on the left and
what may be a sacroiliac injury on the right, may explain why appellant has pain on standing and
5

OWCP provided appellant copies of her file and information to obtain a physician. In an August 4, 2010 letter,
it notified her that a formal extension would not be granted; however, an additional 14 days were accorded to
provide information.

3

on walking. Dr. Temple explained that, while the addition of a half-inch lift to the left leg may
have been helpful in leveling her sacrum, it would not be expected to provide immediate
improvement and, because the degenerative changes were already present, it may not have been
of benefit in the long run. He noted that the x-rays from four years prior showed some changes
in the facet joints at L5-S1, but the limitations on that single view made it difficult to determine
whether there were changes compared to films he had taken that day. Dr. Temple stated that it
was “reasonable to assume that the degenerative changes have progressed and thus [appellant’s]
condition would have worsened. I have serious doubts as to whether she could maintain any job
in which she was required to stand for more than 15 or 20 minutes at a time or required to walk
for more than 15 [to] 20 feet on a repeated basis.” He agreed that surgery was not indicated.
Dr. Temple opined that appellant’s condition was permanent and would tend to worsen with
time.
By decision dated June 15, 2011, OWCP denied modification of the September 10, 2010
decision.
LEGAL PRECEDENT
Section 8115 of FECA and OWCP regulations provide that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent wage-earning capacity or the employee has no actual earnings, the wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, the employee’s usual employment, age and qualifications for other employment, the
availability of suitable employment and other factors or circumstances which may affect the
wage-earning capacity in his or her disabled condition.6
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which it relies must provide a detailed description of the condition.7
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.8
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by it for selection of a position listed in the Department of Labor’s Dictionary of Occupational
Titles or otherwise available in the open market, that fits that employee’s capabilities with regard
to his or her physical limitations, education, age and prior experience. Once this selection is
made, a determination of wage rate and availability in the open labor market should be made
through contact with the state employment service or other applicable service.9 Finally,
6

5 U.S.C. § 8115; 20 C.F.R. § 10.520; see John D. Jackson, 55 ECAB 465 (2004).

7

William H. Woods, 51 ECAB 619 (2000).

8

John D. Jackson, supra note 6.

9

James M. Frasher, 53 ECAB 794 (2002).

4

application of the principles set forth in Albert C. Shadrick10 will result in the percentage of the
employee’s loss of wage-earning capacity.11
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from postinjury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.12
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.13 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.14 OWCP’s procedure manual provides that, if a
formal loss of wage-earning capacity decision has been issued, the rating should be left in place
unless the claimant requests resumption of compensation for total wage loss.15 The procedure
manual further indicates that, under these circumstances, the claims examiner will need to
evaluate the request according to the customary criteria for modifying a formal loss of wageearning capacity decision.16
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.17 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.18
In addition, Chapter 2.814.11 of OWCP’s procedure manual contains provisions
regarding the modification of a formal loss of wage-earning capacity. The relevant part provides
10

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

11

James M. Frasher, supra note 9.

12

John D. Jackson, supra note 6.

13

D.M., 59 ECAB 164 (2007); Harley Sims, Jr., 56 ECAB 320 (2005); T.M., Docket No. 08-975 (issued
February 6, 2009).
14

Katherine T. Kreger, 55 ECAB 633 (2004).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
16

Federal (FECA) Procedure Manual, id. See Harley Sims, Jr., supra note 13.

17

See D.M., supra note 13; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503, 505 (1984); A.J., Docket No. 10-619 (issued June 29, 2010).
18

See Harley Sims, Jr., supra note 13; Stanley B. Plotkin, supra note 17; F.B., Docket No. 10-99 (issued
July 21, 2010).

5

that a formal loss of wage-earning capacity will be modified when: (1) the original rating was in
error; (2) the claimant’s medical condition has changed; or (3) the claimant has been vocationally
rehabilitated. OWCP procedures further provide that the party seeking modification of a formal
loss of wage-earning capacity decision has the burden to prove that one of these criteria has been
met. If OWCP is seeking modification, it must establish that the original rating was in error, that
the injury-related condition has improved or that the claimant has been vocationally
rehabilitated.19
ANALYSIS
OWCP accepted that appellant sustained closed sacrum/coccyx fracture; closed pubis
fracture; closed spleen hematoma; closed four rib fractures; closed lumbar vertebra fracture;
posthemorrhage anemia; forehead open wound; and foot/toe abrasion as a result of a
November 15, 1995 motor vehicle accident. In a June 9, 2008 decision, it adjusted her
compensation to reflect its determination that she was capable of earning wages in the selected
position of cashier-checker (retail trade). Appellant contends that there has been a material
change in the nature and extent of her injury-related condition and that the original wage-earning
capacity determination was erroneous. She has not argued that she has been retrained or
otherwise vocationally rehabilitated.
Appellant contends that the original loss of wage-earning capacity determination was
erroneous. However, she submitted no evidence that the initial decision of June 9, 2008 was in
error. In the June 9, 2008 decision, OWCP determined that appellant had the wage-earning
capacity to perform the position of cashier/checker (retail trade) and reduced her wage-loss
benefits accordingly. The medical evidence from Dr. Tippett established that she was no longer
totally disabled and OWCP properly referred appellant for vocational rehabilitation counseling.
Because appellant was unable to secure employment, the vocational rehabilitation counselor
identified the position of cashier-checker (retail), among others, as within her capabilities.
OWCP based its June 9, 2008 decision on the latter position which is identified in the Dictionary
of Occupational Titles20 as light physical demand category. The medical evidence established
that she was physically capable of performing the cashier-checker (retail) position. Furthermore,
the rehabilitation counselor reported that, based on appellant’s experience, education, medical
restrictions, and recent labor market surveys she was employable as a cashier-checker (retail
trade) and that such positions were reasonably available in her commuting area. While appellant
believed there were no cashier-checker positions available within her restrictions and
summarized conversations with potential employers, she produced no evidence to show that
OWCP’s determination that the position of cashier-checker was not medically or vocationally
suitable.21 She therefore did not establish that the June 9, 2008 wage-earning decision was
erroneous.
19

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment:
Capacity, Chapter 2.814.11 (October 2009).
20

Determining Wage-Earning

Department of Labor, Dictionary of Occupational Titles.

21

See H.N., Docket No. 09-1628 (issued August 19, 2010) (the fact that appellant was not successful in securing
employment did not establish that the constructed position was not vocationally suitable).

6

Appellant also has not established that there has been a material change in the nature and
extent of her injury-related condition. Dr. Temple stated that it was reasonable to assume that
her condition would have worsened. However, his statement as well as his disagreement as to
whether appellant could maintain a job within her restrictions is speculative in nature.
Dr. Temple did not identify any diagnostic findings or examination findings to support his
conclusion that her condition had worsened and he provided no discussion of the selected
position of cashier-checker (retail trade) or why she was unable to perform such position. The
Board has held that speculative and equivocal medical opinions regarding causal relationship
have no probative value.22 For these reasons, Dr. Temple’s report is insufficient to modify
OWCP’s wage-loss decision.
Appellant therefore did not establish that the June 9, 2008 wage-earning capacity
decision should be modified. She may request modification of the wage-earning capacity
determination, supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that a
modification of the loss of wage-earning capacity determination was warranted.

22

See Alberta S. Williamson, 47 ECAB 569 (1996); Frederick H. Coward, Jr., 41 ECAB 843 (1990); Paul E.
Davis, 30 ECAB 461 (1979).

7

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Haledon, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-2072
Issued: June 8, 2015

Case Submitted on the Record

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

JURISDICTION
On September 29, 2014 appellant, through counsel, filed a timely appeal from a
September 15, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration without a merit review. As more than 180 days
elapsed from September 30, 2013 the date of the most recent OWCP merit decision to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 6, 2012 appellant, then a 44-year-old letter carrier filed a traumatic injury
claim alleging that on December 5, 2012 she injured her back, right leg, and right knee. She
alleged that the extension of her delivery route and heavier volume of mail in her satchel caused
her injury. Appellant stated that she heard a pop and felt pain in her back which radiated down
to her leg and her right knee. She stopped work on December 5, 2012.
By letter dated December 10, 2012, the manager of customer service at the employing
establishment controverted appellant’s claim. He alleged that her claim was an attempt to
challenge a change in her route. The manager disputed appellant’s claim that her route had been
extended and noted that her route was only resequenced to make it more efficient. He also
disputed that her satchel was too heavy; arguing that when her satchel was weighed after the
incident it only weighed 20 pounds and 14 ounces and that adding mail to account for what had
already been delivered, would have only brought the satchel to 24 pounds and six ounces. The
manager specified that mail carriers are required to lift at least 35 pounds. He also claimed that
when emergency personnel arrived on the scene, appellant was able to twist her back without any
inclination of pain.
Also submitted to OWCP was a December 10, 2012 statement from a supervisor of
customer service who witnessed the alleged incident. He alleged that appellant complained
about her route being reconfigured and how some stops caused her satchel to be too heavy before
she began her route. The supervisor advised that he accompanied her on her route to supervise
her. He stated that appellant dropped her satchel at every stop and that when she grabbed her
satchel from the ground and lifted it she stated that she was in pain and could not continue. The
supervisor advised that he called the ambulance and that when he returned to the office he
weighed the satchel and it was 20 pounds and 14 ounces.
In a December 21, 2012 report, Dr. Vincent McInerney, a Board-certified orthopedic
surgeon, advised that appellant was injured when she was asked to carry 35 pounds. He stated
that she had severe neck and low back pain that radiated to her right knee as well as pain
radiating into the interscapular area down her arms to the fingers. Dr. McInerney also noted that
appellant had paracervical spasms. On examination, he found paracervical tenderness, good
neck range of motion, and pain at the extremes of lateral bending and rotation. A back x-ray was
consistent with mild scoliosis. Dr. McInerney diagnosed cervical sprain and interscapular
myofascitis.
In a January 4, 2013 report, Dr. McInerney advised that appellant complained of severe
neck pain, left shoulder pain, and lower back pain that radiated to the right knee. He noted that
she had some improvement, but she was still experiencing bilateral cervical radiculopathy more
significant on the left. Dr. McInerney further noted that appellant had limited neck range of
motion with pain especially on lateral bending and rotation. He stated that this was related to a
work injury where she was asked to lift a 35-pound bag.
In a January 8, 2013 statement, appellant advised that, on the date of her injury, there was
an excessive amount of mail in her satchel and mail in both hands. She stated that she was
struggling and straining to carry the mail and that she repeatedly asked her supervisor if she

2

could deliver some then come back for the rest. Appellant noted that as she was walking she
heard a pop followed by sharp pain in her back that shot down to her legs. She stated that she
collapsed to the ground and her supervisor called an ambulance that took her to the hospital.
In a February 14, 2013 decision, OWCP denied appellant’s claim because the medical
evidence failed to establish that the diagnosed condition was causally related to the alleged work
incident.
Appellant submitted additional evidence from Dr. McInerney. In a January 31, 2013
report, Dr. McInerney advised that she was having left side neck and arm pain as well as right
arm discomfort. Appellant had limited neck range of motion with paracervical spasms.
Dr. McInerney advised that a January 7, 2013 magnetic resonance imaging (MRI) scan revealed
no significant findings. He opined that appellant’s injury was related to the December 5, 2012
work incident where she had to carry a 35-pound bag. Dr. McInerney stated that the incident
was capable of causing the paracervical spasm and the pain that she described because lifting
something heavy in the position that she was in caused traction on the left shoulder and neck area
which irritated the brachial plexus and nerve roots emanating from the cervical spine area. He
stated that the type of traction injury appellant had was plausibly and was most likely the reason
for her continued cervical radiculopathy.
Appellant’s counsel requested a telephone hearing which was held on July 16, 2013.
Appellant advised that her satchel had a greater volume of mail on the date of the incident
because she had to deliver several magazines. She stated that she believed her injury occurred as
a result of bending to pick up her satchel and throwing it over her shoulder.
In a July 26, 2013 report, Dr. McInerney advised that appellant’s neck and shoulder pain
improved and that she returned to modified work. He reiterated that the work incident caused
her pain and paracervical spasm and that the type of traction injury that she had was the plausible
and likely reason for her continued cervical radiculopathy.
By decision dated September 30, 2013, an OWCP hearing representative denied
appellant’s claim because medical evidence did not establish that the diagnosed condition was
causally related to the work incident.
On September 4, 2014 appellant’s counsel requested reconsideration. He argued that
medical evidence was sufficient to establish the claim. In particular, counsel pointed to
Dr. McInerney’s July 26, 2013 report, where he opined that it was plausible and likely that the
incident caused appellant’s neck pain. He also argued, in the alternative, that OWCP had an
obligation to further develop the evidence. Counsel noted that OWCP did not write to
Dr. McInerney to advise him of what was needed to approve the claim. He resubmitted
Dr. McInerney’s July 26, 2013 report and submitted a July 26, 2013 addendum report correcting
his earlier January 31, 2013 report. The correction changed the phrase “capable of causing” to
“is causing” and changed “plausible and most likely the reason” to “plausible and likely the
reason.”

3

By decision dated September 15, 2014, OWCP denied appellant’s request for
reconsideration without a merit review.2
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 Where the request from
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without opening the case for a review of the merits.4
ANALYSIS
In a September 30, 2013 merit decision, an OWCP hearing representative denied
appellant’s claim because medical evidence did not establish that the diagnosed condition was
causally related to the work incident. Appellant submitted a timely request for reconsideration
on September 4, 2014, which was denied by OWCP without a merit review.
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. In support of reconsideration, appellant’s counsel argued that
medical evidence should have been sufficient to establish the claim or, in the alterative, that
OWCP had an obligation to develop the medical evidence. The Board has held that appellant’s
belief that the medical evidence supported causal relationship and a disagreement with OWCP’s
findings on the probative value of the medical evidence does not constitute a new and relevant
legal argument sufficient to warrant merit review of the claim.5 Consequently, these assertions
do not show that OWCP erroneously applied or interpreted a specific point of law and do
not advance a relevant legal argument not previously considered by OWCP.
Appellant resubmitted Dr. McInerney’s July 26, 2013 report. However, this report does
not constitute relevant new evidence because it was previously considered by OWCP.6 She also
2

On September 22, 2014 appellant again requested reconsideration. In a September 30, 2014 decision, OWCP
denied her request for reconsideration without a merit review. As noted, the present appeal was filed on
September 29, 2014. The Board finds that the September 30, 2014 OWCP decision is null and void. Following the
docketing of an appeal with the Board, OWCP does not retain jurisdiction to render a further decision regarding a
case on appeal until after the Board relinquishes its jurisdiction. Any decision rendered by OWCP on the same
issues for which an appeal is filed is null and void. See Douglas E. Billings, 41 ECAB 880 (1990); see also
Linda D. Guerrero, 54 ECAB 556 (2003).
3

E.K., Docket No. 09-1827 (issued April 27, 2010). See 20 C.F.R. § 10.606(b)(2).

4

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.606(b).

5

P.J., Docket No. 13-376 (issued May 10, 2013).

6

See James W. Scott, 55 ECAB 606 (2004) (evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case).

4

submitted a July 26, 2013 addendum to Dr. McInerney’s earlier January 31, 2013 report.
However, this report does not constitute relevant and pertinent new evidence because
Dr. McInerney’s opinion on causal relation expressed in this addendum is essentially identical to
that in his other July 26, 2013 report which, as noted, was previously considered by OWCP.
Because appellant failed to meet one of the standards enumerated under section 8128(a)
of FECA, she was not entitled to further merit review of her claim.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 8, 2015
Washington, DC

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

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

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

5


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

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

Docket No. 07-388
Issued: June 25, 2007

Case Submitted on the Record

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

JURISDICTION
On November 16, 2006 appellant timely appealed the November 7, 2006 merit decision
of the Office of Workers’ Compensation Programs which denied her traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the case.
ISSUE
The issue is whether appellant established that she sustained a traumatic injury in the
performance of duty.
FACTUAL HISTORY
On September 20, 2006 appellant, then a 39-year-old city carrier, filed a traumatic injury
claim alleging that on September 15, 2006 she sustained an injury to her right leg and lower back
when she twisted her body as a result of a dog chasing a Frisbee thrown in her vicinity. Included
with the claim were copies of two “[d]ocumentation of [m]edical [i]mpairment” notes from
Kaiser Permanente dated September 16 and 18, 2006. The September 16, 2006 note stated that

appellant would be unable to work for two days. The September 18, 2006 note was partially
illegible but included the statement “intermittent standing and sitting OK.”
In September 29, 2006 letter, the Office asked appellant for additional medical
information in order to process her claim. Appellant did not respond.
By November 7, 2006 decision, the Office denied appellant’s claim on the grounds that
the medical notes submitted did not provide a diagnosis causally related to the incident and,
therefore, did not establish injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.1
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.2 The second
component is whether the employment incident caused a personal injury.3 The term injury as
defined by the Act, refers to some physical or mental condition caused by either trauma or by
continued or repeated exposure to, or contact with, certain factors, elements or conditions.4
Causal relationship is a medical question that can generally be resolved only by rationalized
medical opinion evidence.5
ANALYSIS
Appellant alleged that she sustained a right leg and lower back injury on September 15,
2006 in the performance of her duties when she twisted her body in response to a dog chasing a
1

Anthony P. Silva, 55 ECAB 179 (2003).

2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

John J. Carlone, 41 ECAB 354 (1989).

4

Elaine Pendleton, supra note 2; 20 C.F.R. § 10.5(a)(14).

5

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). 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 claimant’s specific employment factors. Id.

2

Frisbee in her vicinity. The Office accepted that the employment incident occurred as alleged.
The case depends on whether the employment incident caused a personal injury. The Board
holds that the medical evidence does not establish that appellant had a diagnosed condition
causally related to the accepted incident and, therefore, does not establish a personal injury.
The medical notes submitted failed to provide a diagnosis causally related to the accepted
incident. The September 16, 2006 note stated that appellant would be unable to work for two
days but failed to provide a diagnosed condition or injury. The September 18, 2006 note stated
that “intermittent standing and sitting OK” but also failed to included the requisite diagnosis of a
condition. These two notes were the only medical documents submitted. It is appellant’s burden
to submit sufficient evidence to establish that she sustained an injury. As none of the medical
documents contained explanation of how a diagnosed condition was caused by the accepted
incident, the Board finds that appellant has failed to meet her burden of proof to establish that
she suffered a personal injury in the course of her employment.
CONCLUSION
The Board finds that appellant failed to establish that she sustained a traumatic injury in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 7, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-1333
Issued: May 13, 2021

Case Submitted on the Record

ORDER REVERSING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 11, 2020 appellant filed a timely appeal from an April 16, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 20-1333.
On October 8, 1997 appellant, then a 49-year-old tractor trailer operator, filed an
occupational disease claim (Form CA-2) alleging that he sustained a hip and leg condition due to
factors of his federal employment. OWCP initially accepted his claim for aggravation of lower
back degenerative disc disease. It later expanded the acceptance of the claim to include left elbow
lateral epicondylitis.
A notification of personnel action PS Form-50, dated October 21, 1999, indicated that
appellant was under the Civil Service Retirement System (CSRS).

1

The Board notes that, following the April 16, 2020 decision, appellant submitted additional evidence to OWCP.
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.

On September 5, 2019 the Social Security Administration (SSA) forwarded a Federal
Employees Retirement System (FERS)/SSA dual benefits calculation form to OWCP. The form
indicated that: beginning February 2014, appellant’s SSA rate with FERS was $1,763.70 and
without FERS was $1,022.20; beginning December 2014, his SSA rate with FERS was $1,763.70
and without FERS was $1,039.50; beginning December 2015, his SSA rate with FERS was
$1,793.60 and without FERS was $1,039.50; beginning December 2016, his SSA rate with FERS
was $1,798.90 and without FERS was $1,042.60; beginning December 2017, his SSA rate with
FERS was $1,834.80 and without FERS was $1,063.40; and beginning December 2018, his SSA
rate with FERS was $1,886.10 and without FERS was $1,093.10.
On December 17, 2019 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $52,595.95 had been created because
appellant concurrently received SSA age-related retirement benefits and Federal Employees’
Compensation Act (FECA) benefits for the period February 1, 2014 through November 9, 2019
without an appropriate offset. It found appellant not at fault in the creation of the overpayment
and forwarded an overpayment action request form and an overpayment recovery questionnaire
(Form OWCP-20). OWCP requested that he provide supporting financial documentation
including income tax returns, bank account statements, bills and cancelled checks, pay slips, and
any other records to support his reported income and expenses. It afforded appellant 30 days to
submit the requested information. No response was received.
In a letter dated January 23, 2020, OWCP requested that the Office of Personnel
Management (OPM) advise of appellant’s retirement system as a result of his federal civilian
service. It requested calculations of his SSA benefits with and without offset if he was covered
under the CSRS or the FERS system.
On April 16, 2020 OPM responded to OWCP’s request, noting that appellant’s gross
monthly annuity was $1,133.00 and his offset was $391.61. It did not respond as to appellant’s
retirement system.
By decision dated April 16, 2020, OWCP finalized its preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$52,595.95, for the period February 1, 2014 through November 9, 2019, because it had failed to
offset his compensation payments by the portion of his SSA age-related retirement benefits that
were attributable to his federal service. It further found that he was without fault in the creation
of the overpayment, but denied waiver of recovery of the overpayment because the evidence of
record was insufficient to establish that recovery of an overpayment would defeat the purpose of
FECA or would be against equity and good conscience. OWCP required recovery of the
overpayment by deducting $200.00 every 28 days from appellant’s continuing compensation
payments.
The Board, having duly considered this matter, finds that OWCP failed to properly develop
the underlying issue of what portion of appellant’s SSA age-related retirement benefits were
attributable to federal employment.2
2

J.L., Docket No. 19-1806 (issued July 29, 2020).

2

OWCP’s procedures provide that an overpayment occurs when FECA compensation is not
reduced by the FERS/FECA offset amount. Since the SSA will not report an offset amount until
after SSA benefits are received, an overpayment will almost always occur and will need to be
calculated for each period in which the offset amount was not withheld from compensation.3 The
offset provision of 5 U.S.C. § 8116(d)(2) and applicable regulations apply to SSA age-related
retirement benefits that are attributable to federal service.4 FECA Bulletin No. 97-09 provides that
FECA benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits
because the portion of the SSA benefit earned as a federal employee is part of the FERS retirement
package, and the receipt of FECA benefits and federal retirement concurrently is a prohibited dual
benefit.5 In identifying the fact and amount of an overpayment of compensation following a
claimant’s receipt of age-related SSA retirement compensation, the Board has observed that
OWCP uses a FERS Offset Calculation Worksheet.6 This calculation worksheet is sent
to SSA and the completed form is returned to OWCP setting forth purported SSA calculations as
to the effective date and rate of SSA benefits without FERS and the effective date and rate
of SSA benefits with FERS.7 Following receipt of the purported SSA calculations, a preliminary
determination of overpayment is issued if a prohibited dual benefit was received.8
The Board has observed, however, that not all federal employees are enrolled in FERS.
Some FECA claimants are enrolled in another retirement program, such as the CSRS. Other
federal employees are not entitled to be enrolled in a federal retirement program. Therefore,
OWCP’s procedures with regard to requesting offset information are not applicable to all recipients
of FECA compensation and SSA age-related retirement benefits. Therefore, the information
solicited on the FERS Offset Calculation Worksheet that OWCP sends to SSA is not applicable to
non-FERS claimants and does not establish either the fact or amount of an overpayment.
Herein, the evidence of record does not establish that appellant was enrolled in FERS. The
case record contains election of benefits documents indicating that appellant was covered under
the CSRS offset, not FERS. The Board, therefore, finds that the April 16, 2020 decision must be
reversed.

3

Federal (FECA) Procedure Manual, Part 6 -- Debt Management -- Identifying and Calculating an Overpayment,
Chapter 6.200.1 (h), (September 2018).
4

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

5

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

6

Id.

7

Id.

8

Supra note 2.

3

IT IS HEREBY ORDERED THAT the April 16, 2020 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: May 13, 2021
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Long Beach, CA, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-78
Issued: October 7, 2011

Case Submitted on the Record

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

JURISDICTION
On October 13, 2010 appellant, through her representative, filed a timely appeal from a
September 2, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
that reduced her compensation benefits based on her capacity to earn wages as a medical
assistant. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s wage-earning capacity
was represented by the position of medical assistant.
On appeal, appellant’s attorney contends, inter alia, that OWCP did not meet its burden
to establish that the position of medical assistant was suitable. Her counsel noted that she last
worked in 1989, graduated from nursing school in India in 1964, has a long expired nursing
1

5 U.S.C. § 8101 et seq.

license, no current computer skills and no recent professional office experience. Appellant also
contends that the medical evidence was not appropriately developed and that OWCP did not
discuss the mechanism of the initial injury in finding that the medical assistant position was
suitable.
FACTUAL HISTORY
This case was previously before the Board.2 On May 10, 1988 appellant, then a 49-yearold staff nurse, filed an occupational disease claim for a low back condition sustained while
turning a patient in bed. Appellant stopped work on May 9, 1988 and returned to work in
October 1989 for one day. OWCP accepted her claim for low back strain, dysthemia and
psychological factors affecting physical condition. By decision dated June 17, 1993, the Board
affirmed OWCP’s June 5, 1992 decision, finding that her request for reconsideration of the
termination of appellant’s compensation benefits for her orthopedic condition was untimely filed
and did not demonstrate clear evidence of error. The facts and circumstances of the case are
incorporated herein by reference.
By letter dated June 2, 2008, OWCP referred appellant to Dr. E. Richard Dorsey, a
Board-certified psychiatrist, for a second opinion. In a July 2, 2008 report, Dr. Dorsey diagnosed
a depressive disorder, not otherwise specified. He noted that appellant had an occupational back
injury with some continuing pain and disability and related life circumstance problems.
Appellant also had nonoccupational asthma, cystitis, breast cancer, diabetes mellitus, headache,
diarrhea and status post knee surgery. These nonoccupational physical health problems impaired
her function and related life circumstance. Dr. Dorsey advised that appellant had no significant
mental impairment with respect to her activities of daily living. Based primarily on her
subjective complaints, appellant had a slight impairment with her ability to give and take
supervision, cooperate with others, work under deadlines or otherwise discharge the duties of her
usual and customary occupation as a registered nurse. Dr. Dorsey noted that she probably could
not mentally handle the pace, volume, pressure or complexity of duties as a surgical intensive
care unit nurse, but was mentally capable of working in a lower pressure nursing situation, such
as an outpatient clinic. He also opined that appellant did not require vocational rehabilitation
from a psychiatric standpoint but could participate in such program. Appellant continued to
experience symptoms of depression, which were precipitated by the occupational injury and
which, according to her history and most records, continued without any period of complete
resolution.
In a December 2, 2008 report, Dr. Christopher Cheng, a treating Board-certified family
practitioner, listed appellant’s medical conditions as chronic cystitis, intermittent asthma,
obesity, cancer of breast, essential hypertension, hyperlipidemia, diabetes mellitus type
(uncomplicated), osteoporosis, depression (stable) and status post total knee replacements in
December 2004.
By letter dated December 9, 2008, OWCP informed appellant that it had been advised
that she impeded the rehabilitation efforts of her assigned vocational counselor. The senior
2

44 ECAB 765 (1993).

2

claims examiner was advised by the counselor that appellant refused to meet or participate in any
program to return to work following on initial meeting. She advised appellant that if she did not
provide good reason for not participating in vocational rehabilitation effort, her compensation
would be reduced to zero pursuant to section 8113(b) of FECA.
In a December 10, 2008 report, appellant’s vocational counselor noted that appellant was
capable of obtaining work as a medical assistant or as a receptionist. She found 11 employers
with positions within a 30-mile radius of appellant’s home. The vocational counselor noted that
five openings were identified for medical assistants/technicians and three openings were
identified for receptionist/customer service positions. The employers did not have current
openings but employed both medical assistants and receptionists within the past year. The
vocational counselor noted that the salary was dependent on experience, but wages ranged from
$10.00 per hour to $18.00 per hour.
By letter dated December 22, 2008, OWCP informed appellant that it determined that the
job duties of medical assistant or receptionist were within her work limitations and that OWCP
would provide 90 days of placement services so that she could reach the goal of reemployment.
At the end of the rehabilitation period, it would reduce her compensation based on her ability to
work in the aforementioned positions. The duties of a medical assistant included performing any
combination of duties under the direction of a physician to assist in examination and treatment of
patients. These duties include, interviewing patients, measuring vital signs and recording
information on patient’s charts, preparing treatment rooms for examination, draping patients with
covering and positioning instruments and equipments; cleaning and sterilizing instruments,
completing inventories, ordering medical materials; and keeping records.
In a December 17, 2008 report, Dr. Cheng noted that appellant had multiple medical
problems as listed in his prior report. He advised that she had chronic pelvic pain for one year
now and that this condition made her unable to work.
In a progress report, the vocational counselor, discussed her interactions with appellant
from December 23, 2008 through January 15, 2009. She noted that appellant attended one
appointment, missed two appointments and refused to accept job leads during this period.
Appellant was insulted that she would be expected to apply for medical assistant or receptionist
positions and that she did not feel she could handle any work due to her physical condition.
On March 10, 2009 OWCP proposed reducing appellant’s compensation for wage loss,
finding that she had the capacity to earn wages as a medical assistant. In an April 3, 2009
decision, it finalized the reduction of her compensation. The decision did not affect appellant’s
medical benefits.
On April 30, 2009 appellant requested reconsideration.
In an April 28, 2009 report, Dr. Cheng reiterated that appellant had chronic pelvic pain
for one year and that this condition has made her unable to work. Appellant had been seen by
multiple specialists and had cystoscopy done twice and given antibiotics but continued to have
lower abdominal pain almost everyday. Dr. Cheng noted other conditions that contributed to her
inability to work and that she should be classified as disabled. As to appellant’s depression she

3

stayed awake most of the night and remained restless despite taking medication. Dr. Cheng
noted that she suffered from osteoporosis and noted a history of hurting her back trying to lift a
patient many years ago while working as a nurse. X-ray studies showed degenerative joint
disease of the lumbosacral spine and a compression fracture of L4. Dr. Cheng noted that
appellant had osteoarthritis of the knees for which she had bilateral knee replacements in
December 2004 and continued to have pain on and off. Appellant also had side effects from the
tamoxifen used to treat her breast cancer. Dr. Cheng further noted that she also had asthma,
hyperlipidemia, essential hypertension and diabetes.
In a May 4, 2009 report, Dr. Jory F. Goodman, a treating Board-certified psychiatrist and
neurologist, stated that to a reasonable medical certainty appellant suffered from severe and
chronic major depression compounded by psychological factors affecting her medical illness.
He noted her failure to understand OWCP’s process, the failure of her caregivers to counsel her
or adhere to the process and her further decompensation. Dr. Goodman noted that with proper
ongoing care and supervision modest improvement could be achieved in appellant’s mood and
quality of life but be did not believe that she would ever achieve the capability of returning to
gainful employment in any capacity.
By decision dated July 15, 2009, OWCP denied modification of its April 3, 2009
decision.
On April 9, 2010 appellant, through her attorney, requested reconsideration, contending
that OWCP did not meet its burden and that she remained totally disabled. Appellant’s attorney
contended that the position of medical assistant was not suitable, as appellant was trained as a
nurse in 1964 and her nursing license had long since expired. Appellant had no recent office
experience and was 70 years old. She also argued that OWCP did not establish that the position
of medical assistant was reasonably available.
By decision dated September 2, 2010, OWCP denied modification of the April 3, 2009
wage-earning capacity determination.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.3
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or
if the employee has no actual earnings, his wage-earning capacity is determined with due regard
to the nature of his injury, his degree of physical impairment, his usual employment, his age, his

3

Carla Letcher, 46 ECAB 452 (1995).

4

qualifications for other employment, the availability of suitable employment and other factors
and circumstances which may affect his wage-earning capacity in his disabled condition.4
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to OWCP’s wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.5 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.6
In determining an employee’s wage-earning capacity based on a position deemed suitable
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post injury or subsequently acquired conditions.7 Any incapacity to perform the
duties of the selected position resulting from subsequently acquired conditions is immaterial to
the loss of wage-earning capacity.8
ANALYSIS
OWCP accepted appellant’s claim for a low back strain, dysthemia and psychological
factors affecting a physical condition. It paid compensation and medical benefits. On April 3,
2009 OWCP reduced appellant’s compensation to reflect that she had the capacity to earn wages
as a medical assistant. This determination was upheld in decisions dated July 15, 2009 and
September 2, 2010. As OWCP reduced appellant’s wage-loss compensation on the grounds that
she had the capacity to earn wages in the constructed position of medical assistant, it had the
burden to establish that this position was suitable.9
The Board finds that the medical evidence is not sufficient to establish that appellant had
the ability to perform the position of medical assistant. Dr. Dorsey, the second opinion physician
opined that, based primarily on her subjective complaints, she had a slight impairment and ability
to give and take supervision, cooperate with others, work under deadlines and otherwise
discharge duties of her usual and customary occupation of a registered nurse. He opined that
appellant could probably not mentally handle the pace, volume, pressure and complexity of
duties of a surgical nurse, she was “certainly mentally capable of working in a lower pressure
4

See Wilson L Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

5

See Dennis D. Owen, 44 ECAB 475 (1993).

6

5 ECAB 376 (1953); see also 20 C.F.R. § 10.430.

7

H.C., Docket No. 10-2016 (issued June 20, 2011).

8

Id.

9

Id.

5

nursing situation, such as an outpatient clinic, independent of any physical disability the relevant
special examiners may identify. Dr. Dorsey found that, from an emotional point-of-view, she
was capable of working as a nurse in a low pressure field. However, although he opined that
appellant was capable of working in a less stressful position from an emotional standpoint, he
specifically noted that his opinion did not concern her physical condition. In addition to being
accepted for certain emotional conditions, appellant’s claim was accepted for low back strain.
There is also evidence that she had preexisting medical conditions, such as asthma. Dr. Cheng
noted that appellant had multiple ailments which included asthma, essential hypertension,
diabetes and chronic cystitis. There is no medical opinion addressing whether appellant was
capable of performing the duties of a medical assistant that considered her accepted low back
strain or her preexisting medical conditions.
OWCP’s burden is not satisfied by establishing that the selected position is medically
suitable. As noted, in determining an employee’s wage-earning capacity based on a position
deemed suitable but not actually held, OWCP must also determine whether the position is
vocationally suitable, taking into account her education, age and prior experience.10 OWCP
relied upon the vocational rehabilitation counselor’s opinion to determine that these elements had
been met. Because the rehabilitation specialist is an expert in the field of vocational
rehabilitation, OWCP may rely on his or her opinion as to whether a job was reasonably
available.11 Assistance from a vocational rehabilitation counselor does not, however, relieve the
claims examiner or hearing representative of his responsibility to properly evaluate all of the
relevant evidence in reaching a final determination. OWCP never evaluated the evidence as to
whether the medical assistant position was available to appellant with regard to nonmedical
factors such as her age and qualifications. Appellant was 70 years old at the time that OWCP
found that she was capable of working as a medical assistant. She had not worked for over 20
years. Although appellant had training as a nurse, that training was received in India in 1964.
There is little evidence with regard to her computer skills. These important factors affect
appellant’s ability to reasonably compete for a position as a medical assistant, but OWCP did not
address these factors.
CONCLUSION
The Board finds that OWCP did not establish that appellant’s wage-earning capacity was
represented by the constructed position of medical assistant.

10

20 C.F.R. § 10.403.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8.b(2) (October 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the September 2, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 7, 2011
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS BASE, COMMUNICATION
STRATEGY (COMSTRAT) & OPERATIONS,
Quantico, VA, Employer
__________________________________________

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

Docket No. 21-1244
Issued: March 25, 2022

Case Submitted on the Record

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

JURISDICTION
On August 17, 2021 appellant, through counsel, filed a timely appeal from a June 4, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

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

The Board notes that, following the June 4, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a back condition
causally related to the accepted January 15, 2019 employment incident.
FACTUAL HISTORY
This case has previously been on appeal before the Board. 4 The facts, as set forth in the
Board’s prior order, are incorporated herein by reference. The relevant facts are as follows.
On January 18, 2019 appellant, then a 64-year-old head of training support, filed a
traumatic injury claim (Form CA-1) alleging that on January 15, 2019 he hit his head and injured
his back when he slipped on ice walking from a road to a walkway while in the performance of
duty. He stopped work on January 15, 2019.5
Dr. Vishal Bindal, a Board-certified neuroradiologist, examined appellant on January 15,
2019 and noted his history of injury. He diagnosed traumatic pain, as well as a history of chronic
back pain. Dr. Bindal reviewed x-rays and indicated no acute lumbar spine findings.
In a January 31, 2019 development letter, OWCP advised appellant of the deficiencies of
his claim. It requested additional factual and medical evidence from him and provided a
questionnaire for his completion. OWCP provided 30 days for a response.
In January 18 and 30, 2019 notes, Dr. Vipul Mangal, a Board-certified pain medicine
specialist, described appellant’s January 15, 2019 fall and diagnosed lumbar radiculopathy.
Dr. Yolanda Reid, a Board-certified family practitioner, examined appellant on
February 26, 2019 and diagnosed lumbar disc herniation and lumbar facet arthropathy. She noted
that appellant had experienced a fall one month ago and suffered moderate-to-severe back pain.
Dr. Reid found muscle weakness in the right lower extremity.
By decision dated March 19, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he failed to submit medical evidence establishing a causal relationship between his
diagnosed conditions and his accepted January 15, 2019 employment incident.

3

5 U.S.C. § 8101 et seq.

4

Order Remanding Case, Docket No. 19-1929 (issued August 3, 2020).

5

The record reflects that appellant has a prior traumatic injury claim involving a back injury. On October 5, 2015
appellant, then a 61-year-old audio visual specialist, filed a traumatic injury claim (Form CA-1) alleging that on
September 4, 2015 he sustained lumbar back pain, muscle strain, hypertension, and a contusion after he fell on office
steps and slipped onto his back while in the performance of duty. He did not stop work. OWCP assigned OWCP File
No. xxxxxx897. It administratively combined the files for OWCP File Nos. xxxxxx897 and xxxxxx142 designating
the latter as the master file.

2

On March 26, 2019 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
In additional February 26, 2019 treatment notes, Dr. Reid described appellant’s history of
back pain beginning one month earlier and noted his fall on January 15, 2019. She noted that he
had a spinal stimulator for previously diagnosed lumbar disc herniation and facet disease. Dr. Reid
diagnosed lumbar disc herniation with myelopathy status post a blunt injury with a fall on ice. She
examined appellant on March 27, 2019 due to musculoskeletal pain following a fall at work and
diagnosed herniated lumbar intervertebral disc.
On March 12, 2019 appellant underwent a lumbar spine magnetic resonance imaging
(MRI) scan, which demonstrated a mild disc bulge at L4-5 with probable small superimposed
broad-based central protrusion and severe facet arthropathy.
On April 2, 2019 Dr. Thomas Raley, a Board-certified orthopedic surgeon, examined
appellant due to chronic low back pain with intermittent radiation to his lower extremities. He
noted the January 15, 2019 fall at work and findings on the March 12, 2019 MRI scan of mild disc
bulge at L4-S1with spinal nerve root compression or foraminal stenosis. Dr. Raley diagnosed
chronic pain syndrome and lumbar radiculopathy.
In an April 5, 2019 note, Dr. Reid diagnosed lumbar disc displacement and chronic pain.
She described an injury where appellant fell at work in January 2019.
On April 16, 2019 Dr. Teresa M. Kerge, a Board-certified physiatrist, examined appellant
due to back pain and noted that his condition was injury -related as he slipped and fell on ice at
work. She reviewed his March 12, 2019 MRI scan and diagnosed sacroiliitis.
By decision dated June 3, 2019, OWCP’s hearing representative affirmed the March 19,
2019 OWCP decision. Appellant appealed to the Board and in its August 3, 2020 order,6 the Board
set aside the June 3, 2019 decision and remanded the case, directing OWCP to combine appellant’s
claims under File Nos. xxxxxx142 and xxxxxx897 and issue a de novo decision.
In an April 1, 2019 note, Dr. Raley reported that appellant slipped on ice at work on
December 15, 2018 and had experienced pain since that fall. He diagnosed radiculopathy lumbar
region, spondylosis without myelopathy or radiculopathy lumbar region, and low back pain.
Dr. Raley noted that appellant had experienced low back pain and bilateral lowe r extremity pain
since his fall. On April 17, 2019 he diagnosed chronic pain syndrome, lumbar spondylosis without
myelopathy or radiculopathy, lumbar radiculopathy, and low back pain. Dr. Raley again noted
appellant’s fall at work on January 15, 2019. He further noted that appellant fell down a few stairs
at work on September 4, 2015 and landed on his back. Dr. Raley reviewed appellant’s
October 2015 lumbar MRI scan, which demonstrated L4-5 mild disc bulge and mild central canal
stenosis L5-S1 as well as his June 11, 2018 lumbar MRI scan, which demonstrated L4-5 and L5S1 facet hypertrophy and L4-5 degenerative disc disease. He diagnosed chronic pain syndrome

6

Supra note 4.

3

and radiculopathy of the lumbar region. Dr. Raley repeated his findings in notes dated May 15
through August 8, 2019.
On September 6 and October 4, 2019 Dr. Brian Lee, a Board-certified anesthesiologist,
noted appellant’s history of a January 15, 2019 fall on ice at work and reported that lumbar spine
surgery was scheduled for October 7, 2019. He diagnosed chronic pain syndrome, lumbar
spondylosis, lumbar radiculopathy, and low back pain. In a November 1, 2019 note, Dr. Lee
reported that the October 7, 2019 microdiscectomy had reduced appellant’s right leg radiating
pain.
By decision dated November 16, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record had not established that the employment incident occurred as
alleged. Therefore, it concluded that the requirements had not been met to establish an injury as
defined by FECA.
On November 20, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In notes dated May 9, 2019 through November 4, 2020, Dr. Wahid Baqaie, a Boardcertified orthopedic surgeon, opined that appellant originally injured himself in a 2015 fall and
that he fell again at work on January 15, 2019 resulting in back pain. He diagnosed lumbar
spondylosis, spinal stenosis, degenerative lumbar disc, and lumbar back pain . Dr. Baqaie found
that appellant was status post L5-S1 laminotomy with no evidence of instability.
A hearing was conducted on March 22, 2021, wherein appellant described the January 15,
2019 employment incident and resulting medical treatment.
Following the oral hearing, Dr. Baqaie provided treatment notes dated July 3, 2019 through
February 10, 2021. He reported that appellant’s back symptoms developed suddenly and were
associated with falling on ice at work on January 15, 2019.
By decision dated June 4, 2021, OWCP’s hearing representative affirmed, as modified,
OWCP’s prior decision, finding that appellant had established that the January 15, 2019
employment incident occurred, as alleged, but determined that the medical evidence was
insufficient to establish causal relationship between the diagnosed back conditions and the
accepted January 15, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 8 that an injury was sustained in the performance of duty, as alleged, and that
7

Supra note 3.

8

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 2019);
Joe D. Cameron, 41 ECAB 153 (1989).

4

any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 9 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury. 11
The evidence required to establish causal relationship is rationalized medical opinion
evidence.12 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incident identified by the employee.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted January 15, 2019 employment incident.
OWCP received treatment notes from Dr. Reid dated February 26 through April 5, 2019 in
which she diagnosed lumbar disc displacement. Dr. Reid found that appellant experienced a blunt
injury when he fall on ice at work on January 15, 2019. On April 16, 2019 Dr. Kerge diagnosed
sacroiliitis and opined that this condition was work related as appellant slipped and fell on ice at
work. Dr. Baqaie provided treatment notes dated July 3, 2019 through February 10, 2021
diagnosing lumbar spondylosis, spinal stenosis, degenerative lumbar disc and reporting that
appellant’s back symptoms developed suddenly and were associated with falling on ice at work on
January 15, 2019.
While Drs. Reid, Kerge, and Baqaie attributed appellant’s diagnosed back conditions to his
accepted January 15, 2019 employment incident, neither physician provided medical reasoning

9

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
10

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
11

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
12

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
13

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

5

explaining how or why the fall resulted in his diagnosed conditions. These reports are, therefore,
of limited probative value and insufficient to establish causal relationship. 14
In January 18 and 30, 2019 notes, Dr. Mangal described appellant’s January 15, 2019 fall
and diagnosed lumbar radiculopathy. Dr. Raley submitted a series of notes from April 1 through
August 8, 2019 in which he recounted the January 15, 2019 fall at work and diagnosed lumbar
radiculopathy. Similarly, in notes dated September 6 and October 4, 2019, Dr. Lee noted his
history of a January 15, 2019 fall on ice at work and diagnosed chronic pain synd rome, lumbar
spondylosis, lumbar radiculopathy. None of these physicians provided an opinion on the cause of
appellant’s condition. The Board has long held that medical evidence that does not offer an
opinion regarding the cause of an employee’s condition is of no probative value. 15 Therefore,
these reports are insufficient to establish appellant’s claim.
On January 15, 2019 Dr. Bindal noted appellant’s history of injury and diagnosed traumatic
pain as well as a history of chronic back pain. In a February 26, 2019 note, Dr. Reid found
appellant experienced back pain for one month following a fall. The Board has held that pain is a
description of a symptom, not a clear diagnosis of a medical condition.16 A medical report lacking
a firm diagnosis is of no probative value. 17 These reports are, therefore, also insufficient to
establish a diagnosed medical condition causally related to the accepted employment incident.
Appellant submitted an MRI scan dated March 12, 2019. The Board has held that
diagnostic tests, standing alone, lack probative value on the issue of causal relationship as they do
not address the relationship between the accepted employment factors and a diagnosed condition. 18
For this reason, the MRI scan is insufficient to meet appellant’s burden of proof.
As there is no medical evidence of record establishing that appellant’s diagnosed back
conditions were causally related to the accepted employment incident, the Board finds that
appellant has not met his burden of proof to establish a diagnosed medical condition causally
related to the accepted January 15, 2019 employment incident.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

14

J.N., Docket No. 21-0606 (issued November 23, 2021); T.W., Docket No. 20-0767 (issued January 13, 2021);
see H.A., Docket No. 18-1466 (issued August 23, 2019); L.R., Docket No. 16-0736 (issued September 2, 2016).
15

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

16

See E.S., Docket No. 21-0189 (issued November 16, 2021); C.S., Docket No. 20-1354 (issued January 29, 2021);
D.R., Docket No. 18-1408 (issued March 1, 2019); D.A., Docket No. 18-0783 (issued November 8, 2018).
17

L.T., Docket No. 20-0582 (issued November 15, 2021); E.S.; C.S., id.; J.P., Docket No. 20-0381 (issued July 28,
2020); R.L., Docket No. 20-0284 (issued June 30, 2020).
18

See W.M., Docket No. 19-1853 (issued May 13, 2020); L.F., Docket No. 19-1905 (issued April 10, 2020).

6

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a back condition
causally related to the accepted January 15, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7