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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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.

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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).

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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).

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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).

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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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF TREASURY, IRS
NATIONAL OFFICE, Richmond, VA, Employer
__________________________________________

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

Docket No. 13-2030
Issued: March 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 26, 2013 appellant filed a timely appeal from a February 27, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for an
oral hearing by the Branch of Hearings and Review.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the nonmerit decision by OWCP. The last merit decision of record was OWCP’s
December 18, 2012 decision. Because more than 180 days has elapsed between the
December 18, 2012 decision and the filing of this appeal on August 26, 2013, the Board lacks
jurisdiction to review the merits of this case.3

1

Because using the date of delivery, September 3, 2013, as the date of filing would render the appeal untimely,
the appeal is considered to have been filed as of the date of postmark, August 26, 2013. 20 C.F.R. § 501.3(f)(1).
2
3

5 U.S.C. § 8101, et seq.

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for an
oral hearing.
FACTUAL HISTORY
On August 3, 2011 appellant, then a 47-year-old management and program assistant,
filed an occupational disease claim (Form CA-2) alleging that she sustained post-traumatic
stress, anxiety and depression as a result of her federal employment duties.
By decision dated March 2, 2012, OWCP denied appellant’s claim finding that her
emotional condition did not occur in the performance of duty as alleged.
On April 6, 2012 appellant requested an oral hearing before the Branch of Hearings and
Review.
By decision dated May 30, 2012, the Branch of Hearings and Review denied appellant’s
request for an oral hearing on the grounds that it was untimely filed.
By letter dated July 23, 2012, appellant requested reconsideration of the March 2, 2012
decision.
By decision dated December 18, 2012, OWCP affirmed its March 2, 2012 decision
finding that the evidence of record failed to establish that appellant sustained an emotional
condition in the performance of duty.
On January 18, 2013 appellant requested an oral hearing before the Branch of Hearings
and Review.
By decision dated February 27, 2013, the Branch of Hearings and Review denied
appellant’s request for an oral hearing on the grounds that she was not entitled to a hearing as a
matter of right because she had previously requested reconsideration. It exercised its discretion
and further determined that the issue in the case could equally well be addressed by requesting
reconsideration from OWCP and submitting evidence not previously considered which
establishes that she sustained an injury causally related to her federal employment.4
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that before review under section 8128(a) of this
title, a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
4

The Board notes that appellant submitted additional evidence after OWCP rendered its February 27, 2013
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore, this additional evidence cannot be considered on appeal. 20 C.F.R. §510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

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claim before a representative of the Secretary.5 Section 10.615 of the federal regulations
implementing this section of FECA provides that a claimant shall be afforded a choice of an oral
hearing or a review of the written record.6 OWCP’s regulations provide that the request must be
sent within 30 days of the date of the decision for which a hearing is sought and also that the
claimant must not have previously submitted a reconsideration request (whether or not it was
granted) on the same decision.7
Additionally, the Board has held that OWCP, in its broad discretionary authority in the
administration of FECA,8 has the power to hold hearings in certain circumstances where no legal
provision was made for such hearings and that OWCP must exercise this discretionary authority
in deciding whether to grant a hearing.9 OWCP procedures, which require OWCP to exercise its
discretion to grant or deny a hearing when the request is untimely or made after reconsideration,
are a proper interpretation of FECA and Board precedent.10
ANALYSIS
Appellant’s request for an oral hearing before the Branch of Hearings and Review dated
January 18, 2013 was denied on the grounds that she had previously requested reconsideration
pursuant to 5 U.S.C. § 8128(a).11 In its February 27, 2013 decision, OWCP noted that, while she
was not entitled to an oral hearing as a matter of right, it had considered the matter in relation to
the issue involved and, under its discretionary authority, denied the request as appellant could
pursue her claim further by requesting reconsideration and submitting evidence in support of her
claim.
Appellant had previously requested reconsideration on July 23, 2012 and OWCP had
issued its reconsideration decision on December 18, 2012. In the instant case, appellant’s
request for an oral hearing, dated January 18, 2013, was made after OWCP issued its
December 18, 2012 decision on her request for reconsideration made pursuant to 5 U.S.C.
§ 8128. Hence, OWCP correctly found that appellant was not entitled to an oral hearing before
an OWCP hearing representative as a matter of right under section 8124(b)(1) of FECA as she
had previously requested reconsideration.12
5

5 U.S.C. § 8124(b)(1).

6

20 C.F.R. § 10.615.

7

Id. at § 10.616(a).

8

5 U.S.C. §§ 8101-8193.

9

Marilyn F. Wilson, 52 ECAB 347 (2001).

10

Teresa M. Valle, 57 ECAB 542 (2006). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and
Reviews of the Written Record, Chapter 2.1601.4(b)(3) (October 1992).
11

See Peggy R. Lee, 46 ECAB 527 (1995) (where the Board found that appellant’s request for an oral hearing was
made after OWCP issued its decision on his request for reconsideration made pursuant to 5 U.S.C. § 8128 and
therefore appellant was not entitled to an oral hearing before an OWCP hearing representative as a matter of right).
12

Id.

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OWCP then exercised its discretion and determined that appellant’s hearing request could
equally well be addressed by requesting reconsideration and submitting additional evidence to
address the issue in this case. The Board finds that there is no evidence of record that OWCP
abused its discretion in denying appellant’s hearing request.13 Thus, the Board finds that
OWCP’s February 27, 2013 decision denying appellant’s request for an oral hearing was proper
under the law and facts of this case.14
On appeal, appellant argues the merits of the claim. As previously noted, the Board does
not have jurisdiction to review the merits of the claim.
CONCLUSION
The Board therefore finds that OWCP properly denied appellant’s request for an oral
hearing pursuant to 5 U.S.C. § 8124(b)(1).

13

Daniel J. Perea, 42 ECAB 214, 221 (1990).

14

Appellant must file her reconsideration request within one year of OWCP’s December 18, 2012 merit decision.
OWCP regulations and procedure provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s application for
review shows clear evidence of error on the part of OWCP. Id. at § 10.607(b); Federal (FECA) Procedure Manual,
Part 2 – Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 27, 2013 is affirmed.
Issued: March 24, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.K., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
LOGAN INTERNATIONAL AIRPORT,
East Boston, MA, Employer
__________________________________________

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Appearances:
William E. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-693
Issued: December 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 13, 2009 appellant, through counsel, filed a timely appeal from January 28
and December 16, 2008 merit decisions of the Office of Workers’ Compensation Programs.
Under 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 the Office properly calculated appellant’s pay rate for compensation
purposes based on a 24-hour workweek as opposed to a 40-hour workweek.
On appeal, appellant’s attorney contends that the Office should have computed
appellant’s rate of pay for computation purposes based on a full-time, 40-hour-week, as opposed
to a 24-hour week because he had worked as a full-time air traffic control specialist for 26 years
and 7 months and only worked a 24-hour week for 21 months. Thus, the rate of pay at the
24-hour week did not “reasonably and fairly represent the annual earning capacity.”

FACTUAL HISTORY
This is the second time this case has been before this Board. On the prior appeal, the
Board, by a September 20, 2006 decision, set aside a January 23, 2006 decision of the Office and
remanded the case to determine whether the accepted air traffic control incident of
September 20, 2004 caused or aggravated his emotional condition.1 The facts and the law as set
forth in the prior decision are hereby incorporated into this decision.
On remand, the Office, by decision dated March 23, 2007, accepted appellant’s claim for
major depression and panic disorder without agoraphobia. On March 25, 2007 appellant filed a
claim for compensation commencing December 8, 2007.
The employing establishment indicated that appellant was paid a base salary of
$123,668.00. However, the employing establishment indicated that this salary was based on a
40-hour schedule but that he worked a 24-hour week. The employing establishment further
indicated that appellant received additional compensation during the year prior to the accepted
work incident as follows: Sunday premium, $2,908.85; night differential, $986.06; holiday pay,
$4,153.04; on-the-job training premium, $78.07; controller-in-charge (CIC), $5.87; and
controller-incentive-pay (CIP), $4,619.58. The employing establishment also submitted
Notification of Personnel Action Forms, including one indicating that as of January 13, 2002
appellant changed his work schedule to work 8 hours per day on Thursday, Friday and Saturday,
for 24 hours per week, which continued until he stopped work on September 20, 2004.
By letter dated April 13, 2007, appellant’s attorney argued that appellant should be paid
compensation based on a 40-hour week, not a 24-hour week, as a 24-hour week does not
reasonably represent the annual earning capacity of appellant. He noted that appellant recently
had reduced his hours to 24 hours per week because of stress on the job, but that he remained a
full-time employee. Counsel noted that other employees working in a similar class, earned
$123.668 basic pay annually.
By decision dated January 28, 2008, the Office determined that appellant was entitled to
wage-loss compensation based on a salary of $1,672.25 per week, based on a pay rate reflecting
24 hours per week.
By letter dated February 8, 3008, appellant requested an oral hearing. This request was
later changed to a review of the written record. He, through his attorney, indicated that he should
be paid based on a 40-hour week.
By decision dated December 16, 2008, the hearing representative affirmed the Office’s
January 28, 2008 decision.

1

On September 28, 2004 appellant, then a 47-year-old traffic control specialist, filed a traumatic injury claim
alleging that on September 20, 2004 he sustained extreme emotional distress as a result of an operational situation
involving an arrival and departing aircraft on the same runway. Docket No. 06-916 (issued September 20, 2006).

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LEGAL PRECEDENT
Section 8114(d) of the Federal Employees’ Compensation Act2 provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of
pay; or
(B) was not fixed, the average annual earnings are the product
obtained by multiplying his daily wage for the particular
employment, or the average thereof if the daily wage has
fluctuated, by 300 if he was employed on the basis of a 6-day
workweek, 280 if employed on the basis of a 5 1/2-day week and
260 if employed on the basis of a 5-day week.
(2) If the employee did not work in employment in which he was
employed at the time of his injury during substantially the whole year
immediately preceding the injury, but the position was one which would
have afforded employment for substantially a whole year, the average
annual earnings are a sum equal to the average annual earnings of an
employee of the same class working substantially the whole immediately
preceding year in the same or similar employment by the United States in
the same or neighboring place, as determined under paragraph (1) of this
subsection.
(3) If either of the foregoing methods of determining the average annual
earnings cannot be applied reasonably and fairly, the average annual
earnings are a sum that reasonably represents the annual earning capacity
of the injured employee in the employment in which he was working at
the time of the injury having regard to the previous earnings of the
employee in [f]ederal employment and of other employees of the United
States in the same or most similar employment in the same or neighboring
location, other previous employment of the employee or other relevant
factors. However, the average annual earnings may not be less than 150
times the average daily wage the employee earned in the employment
during the days employed within [one] year immediately preceding his
injury.”

2

5 U.S.C. § 8114.

3

Section 8114(e) of the Act provides that, in addition to annual base pay, certain items will
be included in the computation of pay, such as the value of subsistence and quarters, premium
pay and any form of remuneration in kind for services.3 Section 8114(e) specifically provides
that overtime pay is excluded in computing an employee’s monthly pay for compensation
purposes.4
When the job held at the time of injury includes elements of pay such as night or shift
differential, extra compensation for work on Sundays and holidays or pay for administratively
uncontrollable overtime, the Office must include the additional pay in the base pay.5
ANALYSIS
The Board finds that the Office properly computed appellant’s rate of pay. Appellant’s
salary was based on a pay rate of $123,668.00 for a 40-hour week. The Office determined that
this salary equaled $59.26 per hour.6 It then determined that based on a 24-hour workweek, this
would equal weekly wages of $1,427.03.7 The Office then added to this base figure: $55.94 for
Sunday premium ($2,908.85 divided by 52 weeks per year); night differential of $18.96 per
week ($986.06 divided by 52); holiday pay of $79.87 ($4,153.04 divided by 52); premium pay of
$1.50 ($78.07 divided by 52); CIC pay of $0.11 ($5.87 divided by 52); plus CIP pay of $88.84
($4,619.58 divided by 52). This equaled a weekly pay rate of $1,672.25. The Office properly
applied the Act in determining appellant’s pay rate.
The Board does not accept the argument that appellant was entitled to pay based on a
40-hour week. The documentation received by the Office indicated that appellant was paid
based on a 24-hour workweek with fixed hours at the time of his injury and had been working in
that position and those hours for over one year prior to his injury. Therefore, the Office properly
applied section 8114(d)(1)(A) of the Act in determining appellant’s rate of pay.8 As appellant
had fixed annual earnings based on a 24-hour workweek, it would not have been appropriate for
the Office to compare his wages to those of other employees, particularly those who worked a
40-hour week. He did not have full-time wages at the time of injury.
CONCLUSION
The Board finds that the Office properly set appellant’s pay rate for compensation
purposes based on a 24-hour workweek.

3

Id. at § 8114(e).

4

Id.

5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.7(b)
(April 2002); Madelyn Y. Grant, 57 ECAB 533 (2006).
6

$123,688.00 divided by 2087 hours per year.

7

$59.26 multiplied by 12 and divided by 52 equals.

8

5 U.S.C. § 8114(d)(1)(A).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated December 16 and January 28, 2008 are affirmed.
Issued: December 7, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
FEDERAL JUDICIARY, ADMINISTRATIVE
OFFICE OF THE U.S. COURTS,
Washington, DC, Employer
__________________________________________

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

Docket No. 10-437
Issued: November 19, 2010

Case Submitted on the Record

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

JURISDICTION
On December 7, 2009 appellant filed a timely appeal from a November 4, 2009 Office of
Workers’ Compensation Programs’ schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant established permanent impairment to his left leg related to
his accepted November 7, 1997 work injury.
FACTUAL HISTORY
This case has previously been before the Board. In a November 12, 2004 decision, the
Board affirmed a December 12, 2003 Office decision finding that appellant failed to establish a
recurrence of disability on or after January 12, 1998 causally related to his accepted November 7,
1997 employment-related lumbar sprain.1 The Board found that the March 24, 2001 nonwork1

Docket No. 04-1057 (issued November 12, 2004).

related motor vehicle accident was a separate, independent intervening factor that was not
compensable. It also found that appellant submitted no rationalized medical evidence to
substantiate that his current spinal conditions or his disc herniation at the L2-3 level, which
necessitated back surgeries of November 9, 2001 and May 12, 2003, were causally related to the
November 7, 1997 employment injury. The facts of the case as set forth in the Board’s prior
decision are hereby incorporated by reference.
On February 13, 2009 appellant filed a Form CA-7 claim for a schedule award.
In a March 30, 2009 letter, the Office advised appellant that his request for a schedule
award could not be processed as no evidence had been submitted to support that he sustained any
permanent impairment as a result of his accepted lumbar strain. It advised him that schedule
awards may not be paid for impairment to the back, but could be paid for impairment of the
lower extremities. The Office requested that appellant provide a current well-rationalized report
from his physician which provided an opinion on permanent impairment in accordance with the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). A permanent impairment worksheet for the lower extremity was
attached.
On May 11, 2009 the Office received an April 21, 2009 letter from Dr. Timothy Morley,
an osteopath, addressed to appellant’s attorney. Dr. Morley advised that he had examined
appellant and noted significant disc pathology with fractures of the spine. Counsel was
requested to contact Dr. Morley to discuss the case.
By decision dated May 11, 2009, the Office denied appellant’s schedule award claim. It
found the evidence insufficient to establish permanent impairment due to the accepted lumbar
spine.
In a May 14, 2009 letter, appellant’s attorney requested a telephonic hearing, which was
held on September 10, 2009. Appellant testified that he experienced symptoms of weakness and
numbness prior to his nonwork-related motor vehicle accidents, which magnified the situation.
He testified that his physical therapist told him that his pain and discomfort were from his
workers’ compensation injury. The employing establishment did not provide any comments to
the hearing transcript.
In an August 12, 2009 report, Dr. Stuart J. Goodman, a Board-certified neurologist, noted
the history of appellant’s November 7, 1997 work injury and discussed appellant’s medical
treatment and surgical history beginning in 2000 for complaints of low back pain. He presented
findings on examination. Dr. Goodman opined that appellant has a chronic persistent permanent
low back injury, predominantly involving the left lower extremity at L5 dermatome for which
appellant underwent two major surgeries, one on May 12, 2003 and a subsequent surgical
procedure to correct a secondary scoliosis. Under the A.M.A., Guides, Dr. Goodman opined that
appellant had 15 percent permanent impairment of the left lower extremity. He assigned
appellant a Class 3 under Table 17.4, page 570. Dr. Goodman indicated that Figure 17.2 resulted
in a class diagnosis number four after calculations. He assessed a grade modifier of four under
Table 17.7, page 576 and under Table 17.10, page 582, assigned an impairment class of three.

2

Dr. Goodman also stated that appellant reached maximum medical improvement one year after
his last spine surgery.
By decision dated November 4, 2009, an Office hearing representative affirmed the
Office’s prior decision denying appellant’s schedule award claim.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.2
Section 8107 of the Federal Employees’ Compensation Act3 provides schedule awards
for the loss or loss of use of specified members, organs or functions of the body. Such loss or
loss of use is known as permanent impairment. No schedule award is payable for a member,
function or organ of the body not specified in the Act or regulations.4 Because neither the Act
nor the regulations authorize a schedule award for the permanent impairment of the spine, neck
or back,5 no claimant is entitled to such an award.6 However, because the specified members
include the upper and lower limbs, a claimant may be entitled to a schedule award for permanent
impairment to a limb even though the cause of the impairment originated in the spine.7
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
The A.M.A., Guides has been adopted by the Office as a standard for evaluation of
schedule losses and the Board has concurred in such adoption.9 Effective May 1, 2009, the

2

Veronica Williams, 56 ECAB 367 (2005).

3

5 U.S.C. § 8107.

4

William Edwin Muir, 27 ECAB 579 (1976).

5

The Act itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

6

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

7

Rozella L. Skinner, 37 ECAB 398 (1986).

8

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

9

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

3

Office began using the sixth edition of the A.M.A., Guides published in 2008 to calculate
schedule awards.10
ANALYSIS
The Board finds that the Office properly denied appellant’s claim for a schedule award.
Dr. Goodman’s August 12, 2009 report does not establish that appellant’s left lower
extremity impairment was due to his November 7, 1997 work injury, accepted for a lumbar
sprain. He did not provide a sufficient medical opinion establishing such a relationship.
Dr. Goodman fails to provide a clear opinion on causal relationship. He stated that he primarily
reviewed records related to appellant’s treatment in 2001 and 2003, when appellant underwent
lumbar commentaries at L2-3, only in passing, did the physician note that appellant related an
injury on November 7, 1997.11 However, Dr. Goodman did not indicate any awareness that the
only accepted condition at that time was a lumbar sprain. He did not address any of appellant’s
nonwork-related motor vehicle accidents.12 The Board’s prior decision found that appellant’s
March 24, 2001 nonwork-related motor vehicle accident was a separate, independent intervening
factor and there was no evidence to substantiate that appellant’s current spinal conditions or his
disc herniation at the L2-3 level, which necessitated the two back surgeries, were causally related
to the November 7, 1997 employment injury. Dr. Goodman did not otherwise explain how the
accepted lumbar sprain would cause permanent impairment or address his impairment rating in
relation to appellant’s nonaccepted back injuries. Therefore, his opinion is insufficient to
establish that appellant’s 1997 lumbar sprain caused or contributed to any permanent impairment
to his left leg.
It is well established that a claimant is not entitled to a schedule award unless there is
medical evidence establishing that the accepted condition caused permanent impairment to the
scheduled member.13 It must be established that the accepted condition of lumbar strain resulted
in permanent impairment before appellant is eligible for a schedule award. Appellant has not
submitted sufficient medical opinion evidence to establish that his accepted lumbar sprain
resulted in any permanent impairment. He has not met his burden of proof to establish that he is
entitled to a schedule award.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

See S.E., 60 ECAB ___ (Docket No. 08-2214, issued May 6, 2009) (medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
12

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history have little probative value).
13

See Thomas P. Lavin, 57 ECAB 353 (2006).

4

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he is
entitled to a schedule award in connection with his accepted claim.
ORDER
IT IS HEREBY ORDERED THAT the November 4, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2010
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Employer
__________________________________________

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

Docket No. 10-1348
Issued: February 15, 2011

Case Submitted on the Record

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

JURISDICTION
On April 28, 2010 appellant, through her attorney, filed a timely appeal of a February 24,
2010 Office of Workers’ Compensation Programs’ merit decision denying additional
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a recurrence of disability on April 27, 2009 causally related to her July 8, 2003
employment injury.
FACTUAL HISTORY
On July 8, 2003 appellant, then a 46-year-old mail carrier, filed an occupational disease
claim alleging that she developed a left shoulder and arm condition due to picking up and
carrying parcels and stamping return to sender mail. The Office accepted her claim for minor

left upper back strain and right elbow strain on August 27, 2003. Appellant returned to a lightduty position of October 11, 2003.
Appellant filed claims for compensation requesting compensation from August through
October 12, 2007. By decision dated April 9, 2008, the Office denied these claims.
Appellant’s attending physician, Dr. Bhavesh Robert J. Pandya, a Board-certified
internist, completed a report on April 21, 2009 and noted that appellant was involved in a motor
vehicle accident on March 30, 2009 resulting in pain in the neck and shoulder. He noted that
appellant’s magnetic resonance imaging (MRI) scan demonstrated a rotator cuff tear and labral
tear. Dr. Pandya found a tear in the supraspinatus tendon, superior glenoid labral tear, ganglion
cyst and hypertrophic changes at the acromioclavicular joint. He diagnosed strain of shoulder,
rotator cuff tear, labral tear, cervical strain and wrist and thumb conditions which were not
employment related. Dr. Pandya recommended modified activity beginning April 21 through
May 19, 2009. On a claim form dated May 8, 2009 appellant again requested wage-loss
compensation benefits beginning April 25, 2009.
On May 7, 2009 appellant filed a recurrence of disability claim alleging that she could no
longer case mail and began delivering the express mail, packages and mail to carriers as well as
working the lobby. She stated that, due to her neck, right shoulder, thumb and elbow and back
conditions, the employing establishment had no work for her. Appellant attributed her current
condition to her accepted employment injury by stating, “Because over the years of casing mail,
stamping mail, driving to the hubs, express mail, working the lobby, doing passports. Working
back end it all took a toll on my shoulder, neck, back and arm.” On the reverse of the form,
appellant’s supervisor indicated that she did not stop work.
Appellant submitted a letter from the employing establishment dated April 17, 2009
noting that there were no operationally necessary tasks meeting appellant’s work restrictions
within her regular tour of duty. Dr. Pandya examined appellant on May 4, 2009 and listed
appellant’s conditions to include a 1989 knee injury and fibromatosis of plantar fascia.
In a letter dated June 23, 2009, the Office stated that this claim was accepted for minor
left upper back strain and right elbow strain. It noted that appellant had also filed a notice of
recurrences of disability in claim number xxxxxx154.1 The Office also noted that appellant had
received work-related neck, upper back, lower back and left knee leg injuries on March 30, 2009
as a result of a motor vehicle accident. It requested evidence that appellant’s current disability
was attributable to the conditions accepted in this claim and allowed 30 days for a response.
Appellant sought treatment from Dr. Pandya on May 18, 2009 for traumatic tear of the
rotator cuff, cervical radiculitis and nontraumatic rotator cuff tear. Dr. Pandya examined
appellant on June 12, 2009 and noted that appellant reported neck pain. He listed the date of
injury as July 5, 2003 and diagnosed osteoarthritis acromioclavicular joint and traumatic tear of
the rotator cuff. Dr. Pandya also diagnosed lateral epicondylitis and cervical radiculitis. On
June 24, 2009 he treated appellant due to the conditions of neck strain and shoulder strain.
Dr. Pandya listed appellant’s date of injury as July 5, 2003. Appellant reported that her
1

This claim is not currently before the Board.

2

condition had worsened with intense neck and right shoulder pain, left shoulder pain, right arm
and thumb pain. Dr. Pandya stated that electrodiagnostic studies demonstrated probable cervical
C6 and C5 motor acute radiculopathy of the right neck and arm with no carpal tunnel syndrome.
He provided work restrictions. Dr. Pandya examined appellant on July 14 and 20, 2009 and
noted that appellant underwent shoulder surgery on June 17, 2009. He diagnosed sprain or strain
of the cervical spine with cervical radiculitis and stated that appellant had a probable industrial
aggravation of cervical spondylosis that was stable. In a note dated August 3, 2009, Dr. Pandya
discussed appellant’s various conditions and stated that she was totally disabled following her
shoulder surgery.
By decision dated August 20, 2009, the Office denied appellant’s claim for recurrence of
disability due to a lack of work from the employing establishment. It stated that appellant had
provided no medical evidence that the medical restrictions were related to her accepted
employment injuries in this claim.
Appellant requested an oral hearing on September 9, 2009. She submitted a note from
Dr. Pandya dated September 1, 2009 releasing her to return to modified work on
August 17, 2009. On September 24 and October 8, 2009 Dr. Pandya examined appellant. He
submitted reports dated October 8, November 4 and December 2, 2009 and listed appellant’s
date of injury as July 5, 2003.
Appellant testified at the oral hearing on December 18, 2009. She stated that her first
employment injury was in 1989 which was injury to her legs and feet. Appellant testified that
she began sedentary duty in 1996. Her injury in 2003 was the result of her sedentary work.
Appellant stated that her primary duty became driving after 2003. On March 20, 2009 she was
involved in a work-related motor vehicle accident resulting in injuries to her head, knee, shoulder
and back. On April 17, 2009 the employing establishment informed appellant that there was no
work available for her and appellant has not returned to work since that date.
Appellant submitted a report from Dr. Julie M. Fuller, a physician, dated December 30,
2009 diagnosing back injury with a date of injury of July 5, 2003. Dr. Fuller reported pain in the
neck shoulder and right arm. She diagnosed status post rotator cuff tear repair, shoulder region
pain, tenosynovitis de Quervains, cervical radiculitis and lateral epicondylitis.
By decision dated February 24, 2010, the hearing representative affirmed the Office’s
August 20, 2009 decision finding that the medical evidence did not establish that appellant’s
current conditions were related to her accepted employment injury. He noted that appellant had
additional claims accepted for bilateral plantar fibromatosis in 1994 and cervical, thoracic and
lumbar sprain and left knee sprain on March 30, 2009. The hearing representative noted that
appellant had filed an occupational disease claim in 2007 for neck, back and upper extremity
conditions which the Office denied on March 13, 2008.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment

3

that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.2
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establish that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that she cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.3 This burden includes the necessity of furnishing
medical evidence from a physician who, on the basis of a complete and accurate factual and
medical history, concludes that the disabling condition is causally related to employment factors
and supports that conclusion with sound medical reasoning.4
ANALYSIS
Appellant sustained an accepted employment injury to her feet in 1994 resulting in a
light-duty position requiring sedentary work. While working in this light-duty position in 2003,
the Office accepted that she developed additional employment-related conditions of minor left
upper back strain and right elbow strain. Appellant sustained a new employment injury on
March 30, 2009 resulting in accepted conditions of cervical, thoracic and lumbar sprain and left
knee sprain. She has filed a recurrence of disability claim alleging that, beginning April 27,
2009, the employing establishment withdrew her light-duty position finding that there was no
work within her restrictions available.
The medical evidence in this case consists of a series of reports from Dr. Pandya
diagnosing a wide variety of conditions and listing appellant’s date of injury and July 5, 2003.
Dr. Pandya does not offer any medical reasoning for attributing appellant’s current conditions
and work restrictions to her July 5, 2003 employment injury or any other employment injury or
factors. He merely provides a repeating recitation of appellant’s diagnosed conditions including
tear in the supraspinatus tendon, superior glenoid labral tear, ganglion cyst and hypertrophic
changes at the acromioclavicular joint, strain of shoulder, rotator cuff tear, labral tear and
cervical strain. Dr. Pandya’s reports indicate that these conditions are work related as appellant’s
wrist and thumb conditions are not.
Appellant also submitted a report dated December 30, 2009 from Dr. Fuller diagnosing
back injury with a date of injury of July 5, 2003. Dr. Fuller also provided a list of diagnosed
conditions including status post rotator cuff tear repair, shoulder region pain, tenosynovitis
de Quervains, cervical radiculitis and lateral epicondylitis. She also failed to offer any medical
2

20 C.F.R. § 10.5(x).

3

Terry R. Hedman, 38 ECAB 222 (1986).

4

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

4

reasoning in support of her opinion of appellant’s conditions and resulting restrictions are related
to her employment or to her 2003 injury.
The Board is unable to determine from the medical evidence submitted appellant’s
current work restrictions if any due to her accepted 2003 employment injury. In order to
establish her claim, appellant must submit a detailed medical report noting her history of injury
in 2003 and explaining why the accepted left upper back strain and right elbow strain continue to
result in work restrictions as well as the additional conditions currently alleged as employment
related. Without medical evidence establishing that appellant’s current work restrictions are due
to her accepted employment injuries, the Board cannot determine whether the withdrawal of
appellant’s light-duty position was due to accepted employment injuries or to other conditions
not accepted as work related. For these reasons, the Board finds that appellant failed to meet her
burden of proof in establishing a recurrence of disability on or after April 27, 2009.
CONCLUSION
The Board finds that appellant has failed to submit the necessary medical opinion
evidence to establish a recurrence of disability on or after April 27, 2009.
ORDER
IT IS HEREBY ORDERED THAT the February 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 15, 2011
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
W.L., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
SYSTEMS COMMAND, San Diego, CA,
Employer
__________________________________________

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

Docket No. 12-694
Issued: September 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 6, 2012 appellant filed a timely appeal of a January 25, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision finding him at fault in the creation
of an overpayment. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $1,083.02 for the period August 17 through 27, 2011; and (2) whether appellant was
at fault in the creation of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 20, 2009 appellant, then a 50-year-old sheet metal mechanic, filed a
traumatic injury claim alleging that he injured his right shoulder lowering an inboard
transmission in the performance of duty. OWCP accepted his claim for sprain of right shoulder
and upper arm. Appellant underwent a right shoulder arthroscopy with rotator cuff repair and
subacromial decompression, Mumford distal clavical resection and labral debridement on
January 28, 2011. He completed a direct deposit form on January 31, 2011.
On August 1, 2011 OWCP authorized compensation benefits for the period July 31
through August 27, 2011 in the amount of $3,155.79. On August 16, 2011 appellant’s attending
physician released him to return to light duty on August 17, 2011. Appellant filed a claim for
compensation on August 17, 2011 and requested leave without pay compensation from July 30
through August 16, 2011. He returned to work on August 17, 2011.
In a letter dated November 8, 2011, OWCP made a preliminary determination that
appellant was overpaid in the amount of $1,083.02 because he returned to limited-duty work on
August 17, 2011 but received compensation benefits through August 27, 2011. It determined
that he was at fault in the creation of the overpayment because he accepted a payment that he
knew or reasonably should have known was incorrect. OWCP found that appellant received
$3,155.79 for the period July 31 through August 27, 2011, but that he returned to work on
August 17, 2011. Appellant was therefore only entitled to receive compensation benefits from
July 31 through August 16, 2011 in the amount of $1,916.02. OWCP noted that he received an
overpayment of $1,239.77, but that the employing establishment recredited his health benefits,
basic life insurance and optional life insurance benefits, reducing his overpayment to $1,083.02.
By decision dated January 25, 2012, OWCP finalized the preliminary determination and
found that appellant received an overpayment in the amount of $1,083.02, for which he was at
fault. It requested payment of the full amount within 30 days.
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.2
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
may not receive salary, pay, or remuneration of any type from the United States, except in
limited circumstances.3 OWCP’s regulations provide that compensation for wage loss due to

2

Id. at § 8102.

3

Id. at § 8116(a).

2

disability is available only for any periods during which an employee’s work-related medical
condition prevents her from earning the wages earned before the work-related injury.4
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $1,083.02. The record reflects that he returned to work on
August 17, 2011. As noted, FECA and OWCP regulations provide that a claimant may not
receive wage-loss compensation while simultaneously receiving salary or other type of pay from
the United States.5 Fiscal records establish that appellant received compensation in the amount
of $3,155.79 for the period July 31 through August 27, 2011. This resulted in an overpayment of
$1,083.02. The Board will affirm the fact and amount of overpayment of compensation of
$1,083.02.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(a) of FECA6 provides that, where an overpayment of compensation has
been made “because of an error or fact of law,” adjustment shall be made by decreasing later
payments to which an individual is entitled. The only exception to this requirement is a situation
which meets the tests set forth as follows in section 8129(b): “Adjustment or recovery by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of FECA or would be
against equity and good conscience.”7 Accordingly, no waiver of an overpayment is possible if
the claimant is with fault in helping to create the overpayment.
In determining whether an individual is with fault, section 10.320(b) of OWCP’s
regulations8 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 the individual
knew or should have known to be incorrect; or
(2) Failed to furnish information which the individual knew or should
have known to be material; or
(3) With respect to the overpaid individual only, accepted a payment
which the individual knew or should have been expected to know was
incorrect.”
4

20 C.F.R. § 10.500(a).

5

5 U.S.C. § 8116(a).

6

Id. at §§ 8101-8193, 8129(a).

7

Id. at § 8129(b).

8

20 C.F.R. § 10.320(b).

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The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.9 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from OWCP or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.10
ANALYSIS -- ISSUE 2
The Board finds that appellant was not at fault in the creation of an overpayment of
compensation in the amount of $1,083.02 for the period August 17 through 27, 2011.
An overpayment of compensation occurred in this case when appellant returned to fulltime work on August 17 2011 and received compensation for temporary total disability for the
period August 17 through 27, 2011. The compensation check thus covered two periods: a
period of total disability through August 16, 2011, for which appellant remained entitled to
compensation and a period of full-time employment from August 17 through 27, 2011 for which
he was not entitled to compensation. It is during this latter period that the overpayment occurred.
OWCP determined that appellant was at fault in the creation of the overpayment because
he accepted payments that he knew or reasonably should have known to be incorrect. In cases
where a claimant receives compensation through direct deposit, however, it must establish that at
the time a claimant received the direct deposit in question he knew or should have known that
the payment was incorrect.11 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 her account since the acceptance of the overpayment, at the time of receipt of the
direct deposit, lacks the requisite knowledge.12 OWCP’s regulations, effective August 29, 2011,
place claimants on notice that good faith and exercise of a high degree of care in regard to receipt
of benefits require review of electronic bank statements. This regulation does not diminish the
effect of the Board’s previous decisions, as in Tammy Craven,13 that the deposit of compensation
into appellant’s bank account marks the moment that claimant gains control of the funds from
the U.S. Treasury and the overpayment was created. 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. In this
9

See Karen K. Dixon, 56 ECAB 145 (2004).

10

See K.H., Docket No. 06-191 (issued October 20, 2006).

11

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

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

13

Id.

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case, appellant received a payment electronically for a period ending August 27, 2011. Although
he accepted the overpayment in this case by gaining control of the funds deposited into his
account, OWCP has not shown that he knew or should have known at the time of the electronic
deposit of August 1, 2011 that the payment was incorrect. It has not presented sufficient
evidence to establish that appellant accepted a payment which he knew or should have known to
be incorrect. The Board finds that OWCP improperly determined that he was at fault in the
creation of the August 17 through 27, 2011 overpayment. The Board will set aside OWCP’s
January 25, 2012 decision on the issues of fault and recovery with respect to the August 1, 2011
electronic payment and remand the case for consideration of waiver based on appellant’s current
financial circumstances.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $1,083.02 for
the period August 17 through 27, 2011 because he received wage-loss compensation after he
returned to regular duty on August 16, 2011. The Board finds that OWCP improperly found that
he was at fault in the creation of the overpayment and will remand the case for consideration of
whether waiver of the recovery of the overpayment is warranted.
ORDER
IT IS HEREBY ORDERED THAT that the January 25, 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: September 12, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bronx, NY, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 15-1099
Issued: September 20, 2016

Case Submitted on the Record

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

On April 17, 2015 appellant filed a timely appeal from an April 1, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for a recurrence of
disability. This appeal was docketed as No. 15-1099. The Board finds that this case is not in
posture for decision.1
On September 24, 2004 appellant, then a 49-year-old nursing assistant, filed a claim
noting that on July 11, 2001 after taking a patient’s blood, she stuck her right hand when
disposing of the needle. On November 12, 2004 OWCP accepted appellant’s claim for “accident
caused by hypodermic needle to right hand.” On August 1, 2014 appellant filed a claim alleging
a recurrence of the July 11, 2001 injury, noting that from 2003 to present she has suffered from
chronic Hepatitis C. By decision dated September 23, 2014, OWCP denied appellant’s claim as
it found that the evidence did not establish that she had a recurrence or increased disability due to
a change or worsening of the accepted work conditions because there was no factual proof that
appellant was exposed to a patient positive for Hepatitis C, and that therefore the evidence was
insufficient to establish that she contracted Hepatitis C due to the July 11, 2001 injury. By
decision dated April 1, 2015, the hearing representative affirmed OWCP’s September 23, 2014
decision.
1

By decision dated September 13, 2016, the Board denied appellant’s request for oral argument.

It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.2
The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new
and distinct injury, is compensable if it is the direct and natural result of a compensable primary
injury.3
Although OWCP and appellant discuss her claim as a claim for a recurrence of injury, the
Board finds that this did not involve a recurrence of disability due to a spontaneous change in
appellant’s medical condition. Rather, appellant is actually alleging that at the time she stuck
herself with the needle on July 11, 2001, she contracted Hepatitis C. The Board notes that
OWCP has already accepted appellant’s claim for this incident caused by a hypodermic needle
stick to appellant’s right hand. Appellant now alleges that she developed Hepatitis C as a direct
consequence of this accepted needle stick. Her allegation of a consequential injury has never
been considered by OWCP.
Accordingly, appellant’s claim should be considered a claim for a consequential injury.
Therefore, the Board will remand this case, with instructions to OWCP that it consider
appellant’s claim as a claim for a consequential injury.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 1, 2015 is set aside and the case is remanded for further
action consistent with this order.

2

Albert F. Ranieri, 55 ECAB 598 (2004).

3

B.S., Docket No. 12-137 (issued June 19, 2012).

2

Issued: September 20, 2016
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

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