United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 21-0945
Issued: March 16, 2022

Case Submitted on the Record

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

On June 3, 2021 appellant filed a timely appeal from the December 8, 2020 OWCP
decision, to which the Clerk of the Appellate Boards assigned Docket No. 21-0945.
By decision dated March 13, 2020, the Board set aside the December 3, 2018 OWCP
decision and remanded the case for OWCP to apply the more stringent clear evidence of error
standard for an untimely request for reconsideration.
In accordance with the Board’s March 13, 2020 decision, OWCP issued a December 8,
2020 decision and denied appellant’s November 20, 2018 request for reconsideration of the merits
of her claim, finding that it was untimely filed and failed to demonstrate clear evidence of error.
On March 7, 2022 the Board issued an order under Docket No. 19-1354, finding that the
March 13, 2020 Board decision was void ab initio and of no effect. The Board reissued the
decision on March 13, 2022, finding that appellant’s November 20, 2018 request for
reconsideration was timely filed from the most recent merit decision dated March 13, 2018.
The Board, having duly considered the matter, notes that because the Board voided the
prior decision under Docket No. 19-1354, OWCP had no jurisdiction to issue the December 8,
2020 decision. Consequently, the December 8, 2020 decision is null and void.

Pursuant to 5 U.S.C. § 8149 and 20 C.F.R. §§ 501.2(c) and 501.3(a), the Board’s
jurisdiction is limited to review of final adverse decisions of OWCP issued under the Federal
Employees’ Compensation Act (FECA). 1 As the December 8, 2020 decision is null and void, the
appeal assigned Docket No. 21-0945 does not contain a final adverse decision over which the
Board may properly take jurisdiction.2 Therefore, the Board finds that the appeal docketed as No.
21-0945 is dismissed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0945 is dismissed.
Issued: March 16, 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

1

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

2

See Order Dismissing Appeal, L.R., Docket No. 20-1447 (issued April 7, 2021).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
MATERIAL COMMAND, Fort Lee, VA,
Employer
__________________________________________

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

Docket No. 12-1020
Issued: October 18, 2012

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 April 10, 2012 appellant filed a timely appeal from a February 8, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) finding an overpayment of
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment in the amount of $6,770.41 for the period September 12 to October 22, 2011; and

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the February 8, 2012 decision. The
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision. The Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB
126 (2005). Appellant may submit the evidence to OWCP with a request for reconsideration.

(2) whether she was at fault in the creation of the overpayment and therefore not entitled to
waiver of recovery.
FACTUAL HISTORY
OWCP accepted that on June 15, 2011 appellant, then a 59-year-old information
technology specialist, sustained a right shoulder and upper arm sprain, right biceps tendon
rupture, right clavicle fracture and left ankle sprain, when she slipped and fell. She stopped work
that day. In its July 6 and August 3, 2011 letters accepting the claim, OWCP advised appellant
that she was expected to return to work as soon as she was able and to notify it once she returned
to work. It informed her that she was only entitled to compensation if she was unable to work
due to her accepted condition and should immediately return any compensation checks received
which included payment for a period after which she returned to work. Appellant was placed on
the periodic rolls.
Appellant submitted a direct deposit sign-up form.
On September 20, 2011 OWCP received notice that appellant had returned to limitedduty work on September 7, 2011.
OWCP paid appellant net compensation of $4,121.12 for the period August 28 to
September 24, 2011.
On October 18, 2011 OWCP noted that appellant returned to work on September 7, 2011.
It advised her that she received an overpayment in the amount of $6,770.41 for the period
September 12 through October 22, 2011, a total of 46 days. OWCP informed appellant that she
was issued a check for the period September 25 through October 22, 2011 in the amount of
$4,121.12 and advised her to return the check to OWCP.
Overpayment worksheets dated October 18, 2011 indicated that appellant received
compensation payments for 46 days of time lost which totaled $6,770.41. It noted that she
returned to work on September 12, 2011.
In a statement dated October 21, 2011, appellant would remit the amount of $4,121.12 to
OWCP. She requested payment for 10 hours of LWOP for the period September 11 to 24, 2011;
6.5 hours of LWOP for the period September 5 through October 8, 2011; and medical travel
refund requests from August 15 to 22, 2011. On November 16, 2011 OWCP received a cashier’s
check from appellant in the amount of $4,121.12. It was noted that it was for an overpayment in
case number xxxxxx030.
In a January 4, 2012 letter, OWCP issued a preliminary decision that appellant received
an overpayment in compensation in the amount of $6,770.41 because she received compensation
for total disability from September 12 to October 22, 2011 (46 days) after she returned to light
duty.3 It found that she was at fault in creating the overpayment because she accepted payment
3

OWCP determined that appellant was overpaid 12 days for the period September 12 to 24, 2011 and overpaid 34
days for the period September 25 to October 22, 2011 for a total of 46 days. It multiplied her daily compensation
rate of $147.18285 by 46 days for a total of $6,770.41.

2

that she knew or reasonably should have known to be incorrect. OWCP informed appellant of
her appellate options and instructed her to complete an enclosed overpayment recovery form and
submit supporting documentation.4
In a February 8, 2012 decision, OWCP finalized the overpayment of $6,770.41. As
appellant submitted payment in the amount of $4,121.12, the remaining balance was $2,649.29.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, she
may not receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.6 A claimant is not entitled to receive total disability compensation and actual
earnings for the same period. OWCP’s procedures provide that an overpayment in compensation
is created when a claimant returns to work but continues to receive wage-loss compensation.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim and paid her compensation for total disability. After
she returned to light duty in September 2011, appellant continued to receive disability
compensation benefits until October 22, 2012. As noted, an employee is not entitled to total
disability compensation for the same time period that she received actual earnings.8 Because
appellant received compensation for total disability after she returned to light-duty work and
received actual earnings, the Board will affirm OWCP’s February 8, 2012 decision on the issue
of fact of overpayment.
The Board finds, however, that the case is not in posture for decision regarding the
amount of overpayment. In its preliminary determination, OWCP calculated the amount of the
overpayment by multiplying the daily compensation rate of $147.182859 by 46, the total days of
overpayment. It found that appellant was overpaid 12 days from September 12 to 24, 2011 and
34 days from September 25 to October 22, 2011 for a total of 46 days. The Board finds,
however, that the period from September 25 to October 22, 2011 is a total of 28 days, not 34.
Appellant received compensation payments for 40 days after she returned to limited-duty work,
4

Appellant submitted additional claims for disability compensation and medical evidence in support of such
claims.
5

5 U.S.C. § 8102.

6

Id. at § 8116(a).

7

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Action, Chapter 6.200.2(a) (May 2004).
8

Id.

9

OWCP calculated the daily rate by dividing $4,121.12, the amount she received every 28 days, by 28.

3

if she returned to work on September 12, 2011. The record reveals that on September 20 and
October 18, 2011 OWCP was informed that she returned to work on September 7, 2011. But,
OWCP noted in its preliminary decision and overpayment worksheets that appellant returned to
work on September 12, 2011. If she returned to work on September 7, 2011 then she was
overpaid an additional 5 days, for a total of 45 days. The evidence of record is unclear as to the
period of the overpayment. This, in turn, renders the amount of overpayment to question. The
Board will set aside OWCP’s February 8, 2012 decision on the amount of overpayment and
remand the case for further clarification regarding the date appellant returned to work and the
number of days of overpayment.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA provides that an overpayment must be recovered unless
incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of FECA or be against equity and good conscience.10 No
waiver of payment is possible if appellant is not without fault in helping to create the
overpayment.11
In determining whether an individual is not without fault or alternatively, with fault,
section 10.433(a) of OWCP’s regulations provide in relevant part:
“An individual is with fault in the creation of an overpayment who-‘(1) Made an incorrect statement as to a material fact which he or she
knew or should have known to be incorrect; or
‘(2) Failed to provide information which he or she knew or should have
known to be material; or
‘(3) Accepted a payment which he or she knew or should have known to
be incorrect).’”12
Whether or not OWCP determines that an individual was at fault with respect to the creation of
an overpayment depends on the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that she is being overpaid.13

10

Id. at § 8129(b).

11

Robert W. O’Brien, 36 ECAB 541, 547 (1985).

12

20 C.F.R. § 10.433(a).

13

Id.

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ANALYSIS -- ISSUE 2
OWCP determined that appellant was at fault in the creation of the overpayment because
she accepted payments that she knew or reasonably should have known to be incorrect.
However, in cases where a claimant receives compensation through direct deposit, OWCP must
establish that at the time the claimant received the direct deposit in question he or she knew or
should have known that a payment was incorrect.14 The Board has held that an employee who
receives payments from OWCP in the form of a direct deposit might not be at fault the first time
an incorrect payment is deposited into his or her account since the acceptance of the
overpayment, at the time of receipt of the direct deposit, lacks the requisite knowledge.15
According to OWCP’s regulations (effective August 29, 2011), good faith and exercise of a high
degree of care in regard to receipt of benefits require review of electronic bank statements. This
regulation is in accordance with the Board’s previous decisions, as in Tammy Craven,16 that a
claimant gains control of the funds from the U.S. Treasury at the moment compensation is
deposited into his or her bank account and, thereby, creates an overpayment. As explained in
Craven, because fault is defined by what the claimant knew or should have known at the time of
acceptance, one of the consequences of electronic fund transfers is that a claimant may not be at
fault for accepting the first incorrect payment because the requisite knowledge is lacking at the
time of deposit.
Appellant received a payment electronically for the period ending September 24, 2011.
Although she accepted the overpayment in this case by gaining control of the funds deposited
into her account, OWCP has not shown that she knew or should have known at the time of the
first electronic deposit of September 24, 2011 that the payment was incorrect. OWCP has not
presented sufficient evidence to establish that appellant accepted a payment which she knew or
should have known to be incorrect.17 Appellant had no reason to suspect at the time of the
September 24, 2011 deposit that OWCP had issued an incorrect payment since this was the first
incorrect payment made. The Board finds that she was not at fault in creating the overpayment
for the period September 12 to 24, 2011. A finding of no fault, however, does not mean that the
claimant may keep the money; only that OWCP must consider eligibility for waiver for this
period. The case will be remanded for OWCP to determine whether appellant is entitled to
waiver for this period. The Board will set aside OWCP’s February 8, 2012 decision on the
issues of fault and recovery for the period September 12 through 24, 2011 and remand the case
for consideration of waiver for the relevant portion of the September 24, 2011 direct deposit.
Regarding the second direct deposit appellant received in October 2011, OWCP advised
her by telephone on October 18, 2011 that she was to receive an improper compensation
payment of $4,121.12 for the period September 25 through October 22, 2011 and that she should
return this compensation. The record establishes that on November 16, 2011 OWCP received a
14

J.H., Docket No. 11-114 (issued July 18, 2011); R.C., Docket No. 10-2113 (issued July 6, 2011); C.S., Docket
No. 10-926 (issued March 16, 2011).
15

Tammy Craven, 57 ECAB 689 (2006); see also George A. Hirsch, 47 ECAB 520 (1996).

16

Id.

17

See also C.K., Docket No. 12-746 (issued May 1, 2012).

5

cashier’s check from appellant in the amount of $4,121.12. Since appellant returned the
compensation payment upon OWCP’s request, the issue of fault is rendered moot
CONCLUSION
The Board finds that appellant received an overpayment because she received wage-loss
compensation after she returned to limited duty in September 2012. The Board finds that the
evidence is not clear as to the period and amount of the overpayment. The Board further finds
that OWCP improperly found that appellant was at fault in the creation of the overpayment for
the first September 24, 2011 electronic payment and will remand the case for consideration of
whether waiver of the recovery is warranted.
ORDER
IT IS HEREBY ORDERED THAT the February 8, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed, in part and set aside in part. The case is
remanded for further action consistent with this decision.
Issued: October 18, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.P., Appellant
and
U.S. POSTAL SERVICE, Dr. CAESAR A.W.
CLARK, SR., POST OFFICE, Dallas, TX,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0511
Issued: December 2, 2020

Case Submitted on the Record

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

On January 6, 2020 appellant filed a timely appeal from a December 18, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards assigned the appeal Docket No. 20-0511.1
On March 16, 2013 appellant, then a 39-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained right knee pain, swelling, and stiffness due to factors
of her federal employment, including repetitive standing, stooping, bending, climbing, and
walking. She noted that she had sustained an aggravation of her preexisting right knee condition.
OWCP accepted appellant’s claim for derangement of the right knee medial meniscus, and
derangement of the right lateral meniscus.

1

The Board notes that, following the December 18, 2019 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.

By decision dated May 17, 2017, OWCP granted appellant a schedule award for 13 percent
permanent impairment of the right lower extremity, pursuant to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2
On June 15, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review. A hearing was held on November 8, 2017.
By decision dated December 21, 2017, OWCP’s hearing representative affirmed the
May 17, 2017 decision.
On February 28, 2018 OWCP expanded the acceptance of the claim to include tear of the
right knee medial meniscus, and old disruption of the right knee medial collateral ligament.
On June 25, 2018 appellant requested reconsideration of the December 21, 2017 decision.
She included a copy of a January 29, 2018 report from Dr. William Tontz, Jr., a Board-certified
orthopedic surgeon and district medical adviser (DMA). Dr. Tontz opined that the anterior
cruciate ligament (ACL) tear was a part of the knee condition and related to the work injury.
Appellant argued that she was rated as having 13 percent permanent impairment because she was
not given credit for the ACL injury, despite the DMA concurring with her physician that the ACL
injury was related.
In a letter dated November 12, 2018 and received on November 19, 2018, appellant
repeated her request for reconsideration. On October 9, 2019 OWCP received another copy of her
request for reconsideration.
By decision dated December 18, 2019, OWCP denied appellant’s request for
reconsideration, finding that it neither raised a substantive legal argument nor provided new and
relevant medical evidence and, therefore, was insufficient to require merit review.
OWCP has a timeliness goal for issuing reconsideration decisions within 90 days from the
receipt of the request.3 The Board has explained that a delay in the issuance of a reconsideration
decision by OWCP can impact appellant’s ability to submit additional evidence or argument and
bring a timely request for reconsideration before OWCP. An untimely request for reconsideration
is subject to review under the clear evidence of error standard, a much higher burden of proof.4 In
the present case, OWCP issued its December 18, 2019 decision more than 90 days after appellant’s
June 25, 2018 request for reconsideration, and more than one year after its December 21, 2017
merit decision. Under such circumstance, to preserve appellant’s right to file a timely request for
reconsideration and to afford the ability to present further evidence or argument to establish the
claim, the case will be remanded to OWCP for a merit review of the evidence of record followed

2

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

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (October 2011).

4

See E.I., Docket No. 18-0634 (issued January 23, 2019).

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by an appropriate decision.5 Following such further development as OWCP deems necessary, it
shall issue an appropriate merit decision.
IT IS HEREBY ORDERED THAT the December 18, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: December 2, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5

See J.S., Docket No. 19-1147 (issued December 17, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.W., Appellant
and
DEPARTMENT OF LABOR, WOODLAND JOB
CORPS CENTER, Laurel, MD, Employer
__________________________________________

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

Docket No. 09-1244
Issued: December 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 19, 2009 appellant filed a timely appeal from the February 23 and April 9, 2009
merit decisions of the Office of Workers’ Compensation Programs denying his traumatic injury
claim. Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant sustained an injury while in the performance of duty on
March 24, 2008.
FACTUAL HISTORY
On April 24, 2008 appellant, a 27-year-old ship training apprentice, filed a traumatic
injury claim alleging that he sustained injuries (contusions) to his upper and lower extremities
when he was hit by a van on March 24, 2008. Appellant missed no time from work.
In a letter dated January 15, 2009, the Office advised appellant that the information
submitted was insufficient to establish his claim and allowed him 30 days to submit additional

information, including a detailed account of the alleged injury and a physician’s report, with a
diagnosis and a rationalized opinion as to the cause of the diagnosed condition.
Appellant submitted a March 24, 2008 work release form, signed by Tanya Green, a
physician’s assistant, who stated that he was able to return to work on March 26, 2008, provided
that he refrain from lifting and prolonged standing, and that he perform only desk work; hospital
discharge instructions on how to treat chest contusions, and upper and lower extremity
contusions; a report of a September 18, 2008 chest x-ray; an April 1, 2008 prescription for
physical therapy, signed by Dr. A. Karm Aziz, a treating physician; and a January 21, 2009
authorization for examination and/or treatment.
In a decision dated February 23, 2009, the Office denied appellant’s claim on the grounds
that the medical evidence did not demonstrate that the claimed medical condition was related to
the established work-related events.
On February 25, 2009 appellant requested reconsideration. He noted that he had been
involved in a pedestrian hit-and-run accident at Woodland Job Corps Center at approximately
4:30 p.m. on the date in question.
Appellant submitted a March 31, 2008 report from Dr. William K. Wong, a chiropractor,
who noted that appellant had been involved in a pedestrian hit-and-run accident on March 24,
2008, when he was hit by a van. He complained of constant, moderate low back and chest wall
pain. Examination revealed upper and lower extremities to be equal in strength at 5/5. Appellant
found moderate tenderness to palpation in the lumbar paraspinal musculature and quadratus
lumborum musculature bilaterally with moderate muscle spasms. Range of motion was mild to
moderately decreased with pain. Spinal segmental dysfunction was present at the L2-L5 motor
unit. Kemp’s test, Adam’s test and Minor’s sign were positive, reproducing pain in the lumbar
spine. Examination of the chest wall revealed tenderness to palpation and trigger point spasm.
Dr. Wong diagnosed lumbar sprain/strain; lumbar segmental dysfunction; chest wall contusion;
chest pain; and muscle spasms at multiple levels. He indicated he took no radiographs.
Dr. Wong opined that appellant’s injuries were “directly and solely the result of his involvement
in a motor vehicle/pedestrian accident on March 24, 2008.”
By decision dated April 9, 2009, the Office denied modification of its February 23, 2009
decision. Noting that Dr. Wong did not qualify as a physician under the Federal Employees’
Compensation Act, the Office found that there was no probative medical evidence which
provided the diagnosis of a condition causally related to the events of March 24, 2008.
LEGAL PRECEDENT
The Act provides for payment of compensation for disability or death of an employee
resulting from personal injury sustained while in the performance of duty.1 The phrase
“sustained while in the performance of duty” is regarded as the equivalent of the coverage

1

5 U.S.C. § 8102(a).

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formula commonly found in workers’ compensation laws, namely, arising out of and in the
course of employment.2
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, 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.3 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury, and generally this can be established only by medical evidence.4
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship.6 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.7 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is evidence that includes a physician’s rationalized opinion on whether there is
a causal relationship between the claimant’s diagnosed condition and the established incident or
factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported

2

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
3

Robert Broome, 55 ECAB 339 (2004).

4

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q)(ee).
5

Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

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

7

Id.

8

20 C.F.R. § 10.303(a).

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by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.9
ANALYSIS
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the March 24, 2008 workplace incident occurred as alleged.
The issue, therefore, is whether appellant has submitted sufficient medical evidence to establish
that the employment incident caused an injury. The medical evidence presented does not contain
a rationalized medical opinion from a qualified physician establishing that the work-related hitand-run accident caused or aggravated any particular medical condition or disability. Therefore,
appellant has failed to satisfy his burden of proof.
Dr. Wong, a chiropractor, diagnosed:
lumbar sprain/strain; lumbar segmental
dysfunction; chest wall contusion; chest pain; and muscle spasms at multiple levels, and opined
that appellant’s injuries were caused by the March 24, 2008 accident. A chiropractor is
considered a physician for purposes of the Act only where he diagnoses subluxation by x-ray.10
The evidence does not reflect that Dr. Wong diagnosed subluxation on the results of an x-ray.
Therefore, his report does not constitute probative medical evidence.
The remaining medical evidence of record consists of a March 24, 2008 work release form;
a report of chest x-ray; a prescription for physical therapy; hospital discharge instructions; and an
authorization for examination and/or treatment. None of these reports contains a history of
injury, a definitive diagnosis or an opinion regarding the cause of appellant’s condition.
Therefore, they are of limited probative value and are insufficient to establish appellant’s
claim.11 The record does not contain an opinion by any qualified physician supporting
appellant’s contention that his condition was causally related to the March 24, 2008 incident.
Appellant expressed his belief that his contusions resulted from the accepted employment
incident. The Board has held that the mere fact that a condition manifests itself during a period
of employment does not raise an inference that there is a causal relationship between the two.12
Neither the fact that the condition became apparent during a period of employment, nor the belief
that the condition was caused or aggravated by employment factors or incidents, is sufficient to
establish causal relationship.13 Causal relationship must be substantiated by reasoned medical
9

John W. Montoya, 54 ECAB 306 (2003).

10

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law. The term ‘physician’ includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).
11

John W. Montoya, supra note 9. See also A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14,
2006); Michael E. Smith, 50 ECAB 313 (1999) (medical evidence which does not offer an opinion regarding the
cause of an employee’s condition is of limited probative value).
12

See Joe T. Williams, 44 ECAB 518, 521 (1993).

13

Id.

4

opinion evidence, which it is appellant’s responsibility to submit. Therefore, appellant’s belief
that his condition was caused by the work-related incident is not determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how his claimed condition was caused or aggravated
by his employment, appellant has not met his burden of proof in establishing that he sustained an
injury in the performance of duty causally related to factors of his federal employment.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained a traumatic injury in the performance of duty on March 24, 2008.
ORDER
IT IS HEREBY ORDERED THAT the April 9 and February 23, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, MID-ISLAND
PROCESSING & DISTRIBUTION CENTER,
Melville, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1680
Issued: August 10, 2017

Case Submitted on the Record

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

JURISDICTION
On August 15, 2016 appellant, through counsel, filed a timely appeal from a July 21,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence that OWCP received after having issued its July 21, 2016
decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time
of its final decision. Therefore, it has no jurisdiction to review this evidence. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant met his burden of proof to establish more than 10 percent
permanent impairment of his right upper extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
On May 13, 2005 appellant, then a 59-year-old tractor-trailer operator, injured his right
shoulder while shutting the door on a trailer. OWCP accepted his traumatic injury claim (Form
CA-1) for right upper arm/shoulder sprain. Between September 2005 and November 2013,
appellant underwent multiple OWCP-authorized right shoulder surgical procedures.4 OWCP paid
compensation for temporary total disability for various periods of wage loss associated with
appellant’s approved surgeries. Appellant last worked on August 28, 2012.5
On June 26, 2015 appellant filed a claim (Form CA-7) for a schedule award.
In a February 3, 2015 report, Dr. Stephen A. Kottmeier, a Board-certified orthopedic
surgeon, found that appellant reached maximum medical improvement (MMI) as of January 8,
2015 and that he had a 1 to 13 percent right upper extremity permanent impairment due to his
biceps condition.6 He referenced Table 15.5, Shoulder Regional Grid, American Medical
Association, Guides to the Evaluation of Permanent Impairment 404 (6th ed. 2009) (A.M.A.,
Guides).7
OWCP referred the case record to its district medical adviser (DMA) and, in a May 25,
2016 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, found that appellant had
10 percent permanent impairment of the right upper extremity. Dr. Harris concurred with
Dr. Kottmeier’s finding that appellant reached MMI as of January 8, 2015. His 10 percent
combined upper extremity rating included 5 percent permanent impairment for residuals due to
multiple right shoulder surgeries, including bicipital tenodesis.8 Dr. Harris also found five

4

Appellant’s right shoulder surgeries included a September 30, 2005 arthroscopic subacromial decompression
and biceps tenodesis, an April 20, 2006 repeat subacromial decompression with bursal resection and open extraction
of bio-tenodesis hardware, a March 9, 2007 diagnostic arthroscopy, and a June 30, 2008 arthroscopic subacromial
decompression and open revision of subpectoral bicipital tenodesis. He also underwent right shoulder neuroma/scar
tissue excisions on April 12 and November 29, 2013.
5

On August 28, 2012 appellant underwent OWCP-approved ultrasound cryoblation of right subclavicular nerve.
OWCP accepted a recurrence of disability, effective August 28, 2012, and appellant has not since returned to work.
Effective April 6, 2013, it placed him on the periodic compensation rolls.
6

Dr. Kottmeir performed several of appellant’s right shoulder surgical procedures.

7

Dr. Kottmeier also noted that appellant had a grade modifier of two (2) for functional history (GMFH) and a
QuickDASH score of 60 percent.
8

A.M.A., Guides 404 (6th ed. 2009), Table 15-5.

2

percent permanent impairment for residual problems with neuropraxia of the right
supraclavicular nerve.9
By decision dated July 21, 2016, OWCP granted appellant a schedule award for 10
percent permanent impairment of the right upper extremity. The award covered a 31.2-week
period from June 27, 2016 to January 31, 2017.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA.10 The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.11 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.12 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.13
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled, “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).14 The Board has approved OWCP’s use of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.15

9

Id. at 436, Table 15-21, Peripheral Nerve Impairment.

10

5 U.S.C. § 8149.

11

See 20 C.F.R. §§ 1.1-1.4.

12

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
13

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
15

Isidoro Rivera, 12 ECAB 348 (1961).

3

ANALYSIS
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the range of motion (ROM) methodology when assessing the extent of
permanent impairment for schedule award purposes.16 The purpose of the use of uniform
standards is to ensure consistent results and to ensure equal justice under the law to all
claimants.17 In T.H., the Board concluded that OWCP physicians were at odds over the proper
methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and DMAs use
both DBI and ROM methodologies interchangeably without any consistent basis. Furthermore,
the Board observed that physicians interchangeably cited to language in the first printing or the
second printing when justifying use of either the ROM or DBI methodology. Because OWCP’s
own physicians were inconsistent in the application of the A.M.A., Guides, the Board found that
OWCP could no longer ensure consistent results and equal justice under the law for all
claimants.18
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the July 21, 2016 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.

16

T.H., Docket No. 14-0943 (issued November 25, 2016).

17

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

18

Supra note 16.

4

ORDER
IT IS HEREBY ORDERED THAT the July 21, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: August 10, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MECHANICAL DEPARTMENT,
WRIGHT-PATTERSON AIR FORCE BASE,
OH, Employer
__________________________________________

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

Docket No. 12-1252
Issued: October 23, 2012

Case Submitted on the Record

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

JURISDICTION
On May 23, 2012 appellant filed a timely appeal from the February 3, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) granting a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he has more than
a five percent permanent impairment of his left arm, for which he received a schedule award.
1
2

5 U.S.C. §§ 8101-8193.

On appeal, appellant requested an oral argument. The Clerk of the Board mailed a letter to appellant to confirm
a continuing desire for an oral argument in Washington, DC. No written confirmation was received; thus the Board
has decided the appeal on the record.

FACTUAL HISTORY
OWCP accepted that on October 4, 2010 appellant, then a 57-year-old air conditioning
equipment mechanic, sustained a Boutonniere Deformity of his left small finger when he stubbed
it reaching for a basketball during physical training at work. It later expanded the accepted
conditions to include “other acquired deformity” of his left small finger. Appellant did not stop
work at that time.
On May 3, 2011 Dr. Christopher Danis, an attending surgeon, performed contracture
release surgery on the proximal interphalangeal joint of appellant’s left small finger. The
procedure was authorized by OWCP. Appellant returned to full duty without restrictions about
six weeks after his surgery.
On September 2, 2011 appellant filed a claim for a schedule award due to his accepted
work injury. In a September 13, 2011 letter, OWCP advised him that a medical report
containing an opinion on his permanent impairment was needed. The impairment rating was to
be calculated under the standards of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009). A letter requesting an
impairment rating was also sent to Dr. Danis.
Dr. Danis responded in a September 20, 2011 letter noting that he did not perform such
medical evaluations. He advised that appellant had reached maximum medical improvement as
of August 15, 2011.
OWCP referred appellant to Dr. Edward G. Fisher, a Board-certified orthopedic surgeon,
for an examination and opinion on the extent of his permanent impairment.
In a November 16, 2011 report, Dr. Fisher detailed appellant’s medical history and
reported the findings of his examination, including range of finger motion testing. Appellant had
a full range of motion in the thumb and fingers of his left hand except for the small finger.
Dr. Fisher noted that appellant reported having some mild soreness over the proximal
interphalangeal joint of his left small finger. He opined that appellant continued to suffer
residuals of the accepted work injury, but had reached maximum medical improvement in
August 2011. Dr. Fisher noted that under Table 15-31 on page 470 of the sixth edition of the
A.M.A., Guides, appellant had zero percent permanent impairment of his left small finger due to
extension of 10 degrees and flexion of 110 degrees of the metacarpophalangeal joint. For his
proximal interphalangeal joint, appellant had 14 percent impairment due to extension lag of 40
degrees and 21 percent impairment due to flexion of 55 degrees. For his distal interphalangeal
joint, he had 0 percent impairment for no extension lag and 25 percent impairment for flexion of
10 degrees. Dr. Fisher stated that adding these impairment values equaled 60 percent digit
impairment for decreased range of motion in the left small finger and noted that converting the
digit impairment to an upper extremity impairment, using Table 15-12 on pages 421 through
423, would render a left upper extremity impairment of 5 percent.
Dr. Fisher’s report was reviewed by Dr. Brian M. Tonne, a Board-certified orthopedic
surgeon serving as an OWCP medical adviser. In a January 21, 2012 report, Dr. Tonne opined
that appellant had reached maximum medical improvement on August 15, 2011. Using Table

2

15-31, he provided an assessment of the impairment of appellant’s left small finger which was in
accordance with the assessment of Dr. Fisher (yielding 5 percent impairment when converted to
the left arm under Table 15-12). Dr. Tonne noted that Dr. Fisher did not provide a functional
history grade adjustment under Table 15-7 on page 406, but indicated that appellant’s
impairment was consistent with grade modifier 1. He stated that, under Table 15-35 on page
477, appellant had a grade modifier 1 for range of motion grade modifiers. Dr. Tonne indicated
that, under Table 15-36 on page 477, no adjustment was necessary when the grade modifiers
from Table 15-7 and Table 15-35 were equal. He concluded that appellant had a five percent
impairment of his left arm.
In a February 3, 2012 award of compensation, OWCP granted appellant a schedule award
for a five percent permanent impairment of his left arm. The award ran for 15.6 weeks from
August 15 to December 2, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
Table 15-31 on page 470 of the sixth edition of the A.M.A., Guides provides guidelines
for evaluating impairment due to limited finger motion.7 An impairment rating for a given digit
may be converted to an impairment rating for an upper extremity using Table 15-12 on pages 421
through 423.8 In order to determine whether a grade adjustment should be made due to functional
history grade, reference is made to Table 15-7 on page 406 and Table 15-35 and Table 15-36 on
page 477.9

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

A.M.A., Guides 470, Table 15-31.

8

Id. at 421-23, Table 15-12.

9

Id. at 406, 477, Table 15-7, Table 15-35 and Table 15-36.

3

ANALYSIS
OWCP accepted that appellant sustained a Boutonniere Deformity and other acquired
deformity of his left small finger when he stubbed it reaching for a basketball during physical
training at work. In a February 3, 2012 award of compensation, it granted him a schedule award
for five percent permanent impairment of his left arm. The award was based on a January 21,
2012 report of Dr. Tonne, a Board-certified orthopedic surgeon serving as an OWCP medical
adviser. Dr. Tonne had evaluated a November 16, 2011 report of Dr. Edward G. Fisher, a
Board-certified orthopedic surgeon serving as an OWCP referral physician.
The Board finds that utilizing Dr. Fisher’s examination findings, Dr. Tonne properly
determined that, under the sixth edition of the A.M.A., Guides, appellant had five percent
permanent impairment of his left arm based on the impairment of his left small finger.
Dr. Tonne noted that, under Table 15-31 on page 470, appellant had no impairment due to the
motion findings for the metacarpophalangeal joint. For his proximal interphalangeal joint,
appellant had 14 percent impairment due to extension lag of 40 degrees and 21 percent
impairment due to flexion of 55 degrees. For his distal interphalangeal joint, he had no
impairment for no extension lag and 25 percent impairment for flexion of 10 degrees.10 These
impairment values equaled a 60 percent digit impairment for decreased range of motion in the
left small finger, which when converted to an upper extremity impairment using Table 15-12 on
page 422, equaled a left upper extremity impairment of five percent.
Dr. Tonne correctly found that, under Table 15-7 on page 406, appellant’s condition
represented a mild problem and was consistent with grade modifier 1. He stated that, under
Table 15-35 on page 477, appellant had a grade modifier 1 for range of motion grade modifiers.
Dr. Tonne indicated that, under Table 15-36 of page 477, no adjustment was necessary when the
grade modifiers from Table 15-7 and Table 15-35 were equal. Therefore, he properly concluded
that appellant had a five percent impairment of his left arm. Appellant has not submitted medical
evidence showing entitlement to a greater amount of schedule award compensation.11
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he has
more than a five percent permanent impairment of his left arm, for which he received a schedule
award.

10

See supra note 7.

11

On appeal, appellant referenced the pain symptoms in his left small finger, but such symptoms were considered
in calculating the functional history as described above. He indicated that he needed compensation for treatment
and pain medication, but his entitlement to medical care is not the subject of the present appeal.

4

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2012
Washington, DC

Alec J. Koromilas, Alternate 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
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 13-2009
Issued: July 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Acting Chief Judge1
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 3, 2013 appellant filed a timely appeal from an August 7, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that his right shoulder
rotator cuff tear was causally related to a June 23, 2013 employment incident.

1

Effective May 20, 2014, Patricia Howard Fitzgerald was appointed Acting Chief Judge.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 25, 2013 appellant, then a 46-year-old mail handler, filed a traumatic injury
claim alleging that on June 23, 2013 he strained his right shoulder while unloading letter trays
from pallets that were over 6.5 feet high. At approximately 4:30 a.m. he was unloading and
fitting letter trays in the robot area and noted that the pallets were too high. At 6:00 a.m.
appellant reported that he experienced pain in his left wrist and right shoulder.3
On June 25, 2013 appellant was provided a Form CA-16, authorization for medical
treatment by his supervisor, who noted that on June 23, 2013 he strained his right shoulder and
experienced left wrist pain.4 In a June 25, 2013 note, Dr. Ulysses D. Findley, a Board-certified
family practitioner, advised that appellant would not be able to work for one week as he was
being treated for a work injury.
In a June 28, 2013 letter, Ruby Smith, a health and resource management specialist with
the employing establishment, controverted appellant’s claim. She contended that he failed to
establish fact of injury or provide probative medical evidence on causal relationship.
By letter dated July 8, 2013, OWCP advised appellant that the evidence submitted was
insufficient to establish his claim. It requested additional evidence to establish that the June 23,
2013 employment incident occurred as alleged and that he sustained a right shoulder condition as
a result of the alleged incident.
In a June 25, 2013 treatment report, Dr. Findley stated that he saw appellant for a right
shoulder and wrist injury incurred while lifting at work on June 23, 2013. He related appellant’s
complaint of sharp paresthesias, weakness, fatigue and anxiety. Appellant’s past medical history
included prior left shoulder surgery in 2010. On examination, Dr. Findley observed cervical
spasm throughout appellant’s neck with a decreased range of motion of the right shoulder
secondary to abduction and adduction and internal and external rotation. He assessed shoulder
and wrist pain and noted that a magnetic resonance imaging (MRI) scan and x-rays of the right
shoulder and wrist would be obtained. Appellant would begin physical therapy the next day.
A June 25, 2013 x-ray of the right shoulder obtained by Dr. Jonathan Eugenio, a Boardcertified radiologist, found no evidence of fracture or dislocation and the soft tissues were
unremarkable. He also stated that x-rays of the left wrist were normal.
A June 28, 2013 MRI scan of the right shoulder obtained by Dr. Robert H. Hardage, a
Board-certified radiologist, revealed a supraspinatus tendon tear at the articular surface near the
insertion, which involved a little greater than 50 percent of the tendon thickness. He stated that

3

The record reflects that appellant filed five previous traumatic injury claims for a December 23, 2005 injury
(File No. xxxxxx789), a May 25, 2007 injury (File No. xxxxxx761), a November 10, 2007 injury (File No.
xxxxxx013), a July 31, 2009 injury (File No. xxxxxx879) and an August 25, 2010 injury (File No. xxxxxx591).
4

A properly completed CA-16 form can create a contractual agreement for payment of medical treatment even if
the claim is not ultimately accepted. OWCP has not made a finding as to whether this form properly authorized
treatment. See Tracy P. Spillane, 54 ECAB 608 (2003); 20 C.F.R. § 10.300.

2

the tear was of an indeterminate age and could be related to the recent history of injury and
clinical correlation was recommended. No other abnormality was seen.
In a July 2, 2013 progress note, Dr. Findley stated that physical examination revealed a
decreased range of motion secondary to abduction and adduction and internal and external
rotation. He diagnosed a rotator cuff tear and referred appellant to an orthopedic surgeon for
repair. On July 3, 2013 Dr. Findley stated that on June 23, 2013 appellant was working and
lifting above his shoulder level. He diagnosed a rotator cuff tear based on the MRI scan.
Dr. Findley checked “yes” that appellant’s condition was caused or aggravated by the described
employment activity. He listed the dates of medical treatment and reported that appellant was
totally disabled from June 23 to July 13, 2013. Dr. Findley advised that appellant could return to
light duty on July 3, 2013. He provided work restrictions for appellant.5 On July 11, 2013
appellant accepted a limited-duty assignment as a modified mail handler effective July 10, 2013.
In a July 15, 2013 narrative report, Dr. Findley listed the history that appellant hurt his
right shoulder and wrist on June 23, 2013 while lifting at work. On examination, he observed
cervical spasm and tenderness throughout appellant’s neck with a decreased range of motion.
Examination of the right shoulder also revealed decreased range of motion secondary to
abduction and adduction and internal and external rotation. There was moderate to severe spasm
and tenderness in the trapezius, deltoid, triceps, biceps and flexor tendons bilaterally.
Examination of appellant’s back revealed moderate to severe spasm and tenderness and severe
sacroiliac joint tenderness. Straight leg raise testing was positive at 30 degrees. Dr. Findley
reported that the June 28, 2013 MRI scan of the right shoulder demonstrated a partial
supraspinatus tendon tear at the articular surface near the insertion a little greater than 50 percent.
He diagnosed a rotator cuff tear with shoulder pain. Dr. Findley opined that based on his
examination, diagnostic imaging and appellant’s subjective complaints there was reasonable
medical probability that the injury he suffered was caused by the June 23, 2013 work-related
injury. He explained that positive orthopedic findings and decreased range of motion in
appellant’s right shoulder were consistent with the nature of the injury experienced by appellant,
for which there was a need for medication and/or surgery. Dr. Findley reported that appellant’s
subjective complaints and reduced functional capacities were concurrent with the results and
objective findings of the physical examination. He advised that appellant was at maximum
medical improvement and, under the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment, had eight percent impairment of the whole person
due to the right shoulder injury.
In a decision dated August 7, 2013, OWCP denied appellant’s claim. It accepted that the
June 23, 2013 incident occurred as alleged and that he was diagnosed with a right shoulder
rotator cuff tear. However, OWCP denied the claim finding insufficient medical evidence to
establish that appellant’s shoulder condition was causally related to the accepted incident.

5

Appellant submitted physical therapy records dated June 26 to July 10, 2013.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence7 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.8
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.9
There are two components involved in establishing the fact of injury. The employee must submit
sufficient evidence to establish that he or she experienced the employment incident at the time,
place and in the manner alleged.10 The employee must also submit probative medical evidence
to establish that the employment incident caused a personal injury.11 An employee may establish
that the employment incident occurred as alleged but fail to show that his or her disability or
condition relates to the employment incident.12
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical evidence.13 The opinion of the physician must be based on a
complete factual and medical background of the employee, must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
employee.14 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.15
ANALYSIS
Appellant alleged injury to his right shoulder as a result of unloading trays from high
pallets on June 23, 2013. OWCP accepted that the work-related incident occurred as alleged. It
6

See supra note 1.

7

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

8

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

9

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

10

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

11

David Apgar, 57 ECAB 137 (2005).

12

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

14

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

15

James Mack, 43 ECAB 321 (1991).

4

denied the claim, however, finding that the medical evidence was insufficient to establish causal
relation. The Board finds that this case is not in posture for decision as to whether appellant
sustained a right shoulder condition as a result of the June 23, 2013 employment incident.
The Board finds that the medical reports from Dr. Findley are sufficient to establish a
prima facie claim of injury. Appellant was first treated on June 25, 2013, at which time
Dr. Findley obtained an accurate history of the June 23, 2013 lifting incident at work. On
physical examination, Dr. Findley observed decreased range of motion of the right shoulder
secondary to abduction and adduction and internal and external rotation. He subsequently
obtained x-rays and an MRI scan of the right shoulder which showed a partial tear (greater than
50 percent) of the supraspinatus tendon at the articular surface near the insertion. Dr. Findley
provided findings from clinical examination of appellant’s right shoulder, noting that appellant’s
prognosis was poor with need for long-term medication and/or surgery. He stated that to a
reasonable degree of medical probability the right shoulder injury sustained by appellant on
June 23, 2013 was due to the lifting above the shoulder level at work. Dr. Findley noted that
appellant’s condition was considered chronic with a high chance of adhesions. The range of
motion limitations exhibited by appellant on physical examination were consistent with the
nature of the injury and caused reduced functional capacity.
The Board finds that the reports of Dr. Findley are sufficient to require further
development of the medical evidence. Dr. Findley accurately described the June 23, 2013
employment incident and reviewed appellant’s history. Upon examination, he observed
decreased range of motion of the right shoulder secondary to abduction and adduction and
internal and external rotation. Further, the June 28, 2013 MRI scan examination demonstrated a
partial supraspinatus tendon tear at the articular surface near the insertion at the rotator cuff.
Dr. Findley opined to a reasonable degree of medical probability that the injury was caused by
the June 23, 2013 lifting incident.16
On remand, OWCP should prepare a statement of accepted facts and refer appellant to an
appropriate medical specialist for an opinion as to whether his right shoulder condition was
caused by or contributed to the June 23, 2013 lifting incident. Following any other further
development as deemed necessary, OWCP shall issue an appropriate merit decision on his claim.
CONCLUSION
The Board finds that this case is not in posture for a decision and requires additional
development of the medical evidence.

16

See R.O., Docket No. 13-626 (issued June 18, 2013); Jimmy A. Hammons, 51 ECAB 219 (1999); John J.
Carlone, 41 ECAB 354 (1989).

5

ORDER
IT IS HEREBY ORDERED THAT the August 7, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.17
Issued: July 14, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

17

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, SEMINOLE
PROCESSING & DISTRIBUTION CENTER,
Orlando, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0208
Issued: October 13, 2021

Case Submitted on the Record

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

JURISDICTION
On December 1, 2020 appellant filed a timely appeal from a June 4, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated May 31, 2019, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 15, 2018 appellant, then a 56-year-old mail handler, filed a traumatic injury claim
(Form CA-1) alleging that on July 15, 2018, she developed pain and aching in her back. She
indicated that the cause of the injury was unknown. On the reverse side of the claim form, the
employing establishment indicated that appellant was in the performance of duty when injured and
that she was on limited duty due to a previously accepted employment injury.3 Appellant stopped
working on July 15, 2018 and retired from the employing establishment on August 17, 2018.
OWCP received several documents also dated July 15, 2018, including a statement from
appellant indicating that she noticed pain in her back after putting away four empty automationcompatible trays; an employing establishment accident report which reflected that she reported
pain in her lower back after pushing an empty dolly; and a work status form from Dr. Timothy
Hendrix, a general practitioner, who noted a diagnosis of low back pain due to a July 15, 2018
work incident and who provided work restrictions.
In a July 27, 2018 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence necessary, including a narrative
medical report from her treating physician containing a detailed description of findings and a
diagnosis, explaining how her work activities caused, contributed to, or aggravated her medical
conditions. OWCP afforded appellant 30 days to submit the requested information.
Thereafter, OWCP received a July 15, 2018 report from Amara Travers, a physician
assistant, noting that appellant presented with complaints of severe lower back pain which she
attributed to pushing a heavy object while at work that day . Ms. Travers performed a physical
examination and diagnosed lumbar back pain.
In a report dated July 22, 2018, Dr. Daniel Cochran, a family practitioner, noted that
appellant’s condition remained unchanged since the July 15, 2018 visit.
Magnetic resonance imaging (MRI) scans performed on July 25, 2018 revealed mild
lumbar spondylotic changes without significant central canal stenosis or evidence of acute lumbar
spine fractures, spondylolysis or large disc herniations.
In a report dated July 30, 2018, Dr. Beth Lanning, an osteopath and medicine family
practitioner, noted that appellant complained of low back pain which radiated to the right thigh
following a work injury. She performed a physical examinatio n and documented right-sided
3

OWCP previously accepted appellant’s March 3, 2012 traumatic injury claim for intervertebral disc disorders,
radiculopathy, lumbar region, and sprain of lumbosacral (joint) (ligament), among other conditions, under OWCP File
No. xxxxxx550. It also accepted an April 28, 2013 traumatic injury claim for sprain of back, lumbar region under
OWCP File No. xxxxxx871. Subsequently, OWCP administratively combined these claims with the former serving
as the master file. OWCP has not administratively combined the current claim, File No. xxxxxx587, with the
aforementioned claims.

2

paraspinal lumbar spasm. Dr. Lanning diagnosed acute midline low back pain without sciatica
and lumbar radicular pain.
In a report dated August 7, 2018, Dr. Esaias Giorgis, a Board-certified occupational
medicine specialist, indicated that appellant related a history of low back pain due to pushing a
heavy object at work on July 15, 2018. He performed a physical examination and found pain with
range of motion. Dr. Giorgis diagnosed acute midline low back pain without sciatica.
In a follow-up visit dated August 13, 2018, Dr. Lanning recommended an orthopedic
consultation.
In his August 22, 2018 medical report, Dr. Stephane Lavoie, a Board-certified orthopedic
surgeon, noted that appellant related a history of twisting her back while at work on July 15, 2018.
He performed a physical examination and documented that appellant complained of pain with
forward flexion of the back. Dr. Lavoie reviewed the July 25, 2018 MRI scan, and found
multilevel disc degeneration, which was slightly worse at L4-5, but no disc herniation or stenosis.
He diagnosed a sprain of the ligaments of the lumbar spine and intervertebral disc degeneration of
the lumbar spine. Dr. Lavoie recommended physical therapy and modified-duty work.
By decision dated September 4, 2018, OWCP accepted that the July 15, 2018 employment
incident occurred, as alleged. However, it denied appellant’s traumatic injury claim, finding that
she had not submitted any medical evidence containing a diagnosis in connection with the accepted
employment incident. Consequently, OWCP found that she had not met the requirements to
establish an injury as defined by FECA.
Thereafter, OWCP received an August 30, 2018 physical therapy report. It also received
an updated statement from appellant dated September 10, 2018, indicating that on July 15, 2018
she felt back pain after putting empty casters into the flat sequencing system machine.
In a September 19, 2018 follow-up visit, Dr. Lavoie noted that appellant’s lumbar pain was
improving with therapy.
On October 4, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on
March 15, 2019.
By decision dated May 31, 2019, OWCP’s hearing representative modified the
September 4, 2018 decision, finding that appellant had established a medical diagnosis in
connection with the accepted July 15, 2018 employment incident. However, the claim remained
denied, because the evidence of record was not sufficient to establish a causal relationship between
the accepted July 15, 2018 employment incident and her diagnosed lumbar conditions.
OWCP received duplicate copies of the July 25, 2018 lumbar MRI scan.
On May 31, 2020 appellant, through counsel, requested reconsideration of the May 31,
2019 decision.
By decision dated June 4, 2020, OWCP denied appellant’s request for reconsideration of
the merits of her claim.
3

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right. 4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority. 5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought. 6
A timely request for reconsideration, including all supporting documents, must set forth
arguments, and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not p reviously
considered by OWCP. 7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits. 8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
On May 31, 2020 appellant filed a timely request for reconsideration of OWCP’s May 31,
2019 decision. 9 The Board finds, however, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law, nor did she advance a relevant legal argument not previously
considered by OWCP. Accordingly, she is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3). 10
In support of her request for reconsideration, appellant did not submit any new medical
evidence. The underlying issue in this case is causal relationship, which is medical in nature, and
she did not submit any pertinent new and relevant medical evidence not previously considered by
OWCP. Although OWCP received an additional copy of the July 25, 2018 lumbar MRI scan, the
Board has held, the submission of additional evidence that either repeats or duplicates information
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
7

Id. at § 10.606(b)(3); see L.F., Docket No. 20-1371 (issued March 12, 2021); B.R., Docket No. 19-0372 (issued
February 20, 2020).
8

Id. at § 10.608.

9

See J.F., Docket No. 16-1233 (issued November 23, 2016).

10

Id. at § 10.606(b)(3); see also C.C., Docket No. 19-1622 (issued May 28, 2020); M.S., Docket No. 18-1041
(issued October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).

4

already in the record does not constitute a basis for reopening a claim. 11 Therefore, appellant is
not entitled to further review of the merits of her claim based on the third requirement under section
10.606(b)(3). 12
The Board, therefore, finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 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

11

S.F., Docket No. 18-0516 (issued February 21, 2020); P.L., Docket No. 18-1145 (issued January 4, 2019);
James W. Scott, 55 ECAB 606, 608 n.4 (2004); Annette Louise, 54 ECAB 783 (2003); Eugene F. Butler, 36 ECAB
393, 398 (1984).
12

See 20 C.F.R. § 10.606(b)(3)(iii).

5