United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.T., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION,
Hindman, KY, Employer
__________________________________________

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

Docket No. 08-812
Issued: April 3, 2009

Case Submitted on the Record

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

JURISDICTION
On January 23, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated November 20, 2007. Pursuant to 20 C.F.R
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden to terminate compensation benefits
as of November 25, 2007; and (2) whether the Office abused its discretion by denying appellant
authorization for L5-S1 lumbar microdiscectomy surgery.
FACTUAL HISTORY
On February 10, 1986 appellant, a 38-year-old mine inspector, injured his lower back
while crawling through a coal shaft. He filed a claim for benefits on February 13, 1986, which
the Office accepted for lumbar strain and herniated disc at L4-5 with radiculopathy. Appellant
returned to work as a clerk on October 18, 1992. The Office commenced payment for partial

disability compensation.
August 11, 2002.

Appellant obtained employment as a mine safety specialist on

In progress notes dated April 11 and 25, 2007, Dr. John Pellegrini, a Board-certified
surgeon, noted that appellant had lower back pain syndrome, degenerative disc syndrome and
sciatica and “bloated” discs. He scheduled appellant to undergo a magnetic resonance imaging
(MRI) scan of the lumbar spine on April 30, 2007. The MRI scan results indicated mild
degenerative disc disease at L1-2 and L4-5 with a moderate annular disc bulge and a small focal
central disc protrusion and a mild annular disc bulge and a moderate size left-sided disc
herniation at L5-S1. Dr. Pellegrini reiterated these findings in a May 7, 2007 progress note and
referred appellant for a neurological examination with Dr. Phillip A. Tibbs, Board-certified in
neurosurgery.
In a June 13, 2007 report, Dr. Tibbs noted that appellant underwent a myelogram in
July 1986 which showed a herniated nucleus pulposus at L4-5; an epidural steroid block was
administered and appellant’s condition improved. He related, however, that appellant had
recently experienced increasing episodes in which his low back pain exacerbated, which caused
him to take off numerous work days.1 Dr. Tibbs related that appellant had pain radiating to the
left back into his abdomen and leg which worsens with activity and walking. He stated that the
pain was beginning to interfere with work and his quality of life. Dr. Tibbs noted that the
April 30, 2007 lumbar MRI scans showed a left L5-S1 herniated nucleus pulposus. He stated:
“We believe that [appellant’s] current herniation is a direct result of his
documented work injury from 1986, that has continued to progress. He has
obviously tried conservative measures and he has exhausted these. We are
currently recommending a left L5-S1 lumbar microdiscectomy.”
On June 22, 2007 Dr. Tibbs requested authorization for surgery to repair appellant’s
herniated disc at L5-S1. The surgery was proposed for July 7, 2007.
On July 2, 2007 appellant filed a Form CA-7 claim for compensation for wage loss based
on total disability for the period July 3 to August 4, 2007. In a July 2, 2007 form report,
Dr. Pellegrini outlined restrictions of no more than three to four hours of sitting, walking, lifting
and standing and prohibited bending, squatting, climbing, kneeling or twisting. He also
restricted appellant from lifting more than 20 to 50 pounds. Dr. Pellegrini opined that appellant
required microdiscectomy excision surgery and rehabilitation, after which he could return to
work in three or four months. He advised that if appellant did not have the recommended
surgery he would be totally disabled from his usual job.

1

In a May 4, 2007 interoffice memorandum, the Office noted that appellant did not have to file a claim for
recurrence of disability in this case, as part of its review would encompass a consideration of whether his surgery
was connected to the original injury.

2

In a report dated July 16, 2007, an Office medical adviser reviewed the medical record
and recommended that the Office deny authorization for the requested left L5-S1 lumbar
microdiscectomy surgery. He stated:
“The L5-S1 disc lesion is not a consequential condition due to the L4-L5 lesion -one level below the level accepted. The disc lesion at L5-S1 is not caused by
causation, aggravation or precipitation from the lesion at L4-L5. The originally
treated lesion would put much more mechanical stress and wear and tear demands
on the level above L4-L5, not the level below. [Appellant’s] request for surgical
treatment at the L5-S1 level cannot be authorized by [the Office].”
In a July 25, 2007 report, Dr. Pellegrini responded to the Office medical adviser’s denial
of authorization of the requested left L5-S1 lumbar microdiscectomy surgery. He stated:
“[Appellant] is not vocationally rehabilitated! He needs a repair of herniated disc
proven by MRI scan and agreed to by a certified neurosurgeon.... [Emphasis in
original]. He has a severe limp, is in chronic pain and experiences [decreased]
mobility and range of motion of his back and hips due to [pain] from a herniated
disc. The condition is progressive and needs surgical relief to prevent worsening,
allow proper rehabilitation and to prevent him from requiring total disability to
live with this infirmity, dating from an original 1986 injury. Walking and sitting
are impacted negatively by his ... condition.”
Dr. Pellegrini also submitted a July 25, 2007 progress note in which he reiterated his
previous findings of lower back pain syndrome, severe lower back pain and degenerative disc
disease syndrome.
In order to determine appellant’s current condition and to determine whether the
proposed lumbar surgery was related to his accepted condition, the Office referred appellant to
Dr. Richard T. Sheridan, Board-certified in orthopedic surgery, for a second opinion
examination. In an August 22, 2007 report, Dr. Sheridan stated:
“My diagnosis of [appellant’s] lumbar condition as it relates to the work injury is
resolved lumbar strain and resolved L4-5 radiculopathy. The lumbar dis[c]ectomy
proposed by Dr. Tibbs at L5-S1 is not the result of the February 10, 1986 injury.
[Appellant] had a lumbar myelogram on July 9, 1986 which did not show a
herniated disc at L5-Sl. As a matter of fact it was deemed normal. In my opinion
the L5-S1 dis[c]ectomy is due to something that has occurred since, either in
reference to trauma or the natural aging process or some combination of both
since the work event in 1986.
“I believe the surgical procedure proposed by the treating physician would be
appropriate because he has signs of a left S1 radiculopathy. The operative
intervention would likely accomplish, cure, give relief and/or reduce the degree of
the period of disability or aid in lessening the amount of the monthly
compensation. [Appellant] has indications of a S1 radiculopathy on the left.
There is a herniated disc seen on the MRI [scan] of April 30, 2007 and I think an

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L5-S1 dis[c]ectomy would likely cure or give relief and reduce the degree or the
period of disability and aid in lessening the amount of the monthly
compensation.”
In a report dated September 18, 2007, Dr. Sheridan stated:
“There were no objective findings on my physica1 exam[ination] of August 22,
2007 to indicate that the accepted L4-5 herniated disc is still active. There are no
signs of ES hypesthesia. There is no evidence of L5 innervated muscle weakness.
I do believe the accepted condition of L4-5 herniated disc has resolved.”
In a notice of proposed termination dated October 3, 2007, the Office, based on
Dr. Sheridan’s referral opinion, found that the weight of the medical evidence demonstrated that
appellant was no longer disabled and no longer had residuals due to his accepted 1986
employment injury.
Appellant contested the proposed termination and submitted an October 17, 2007
progress report from Dr. Pellegrini, who opined that appellant had a disc “fragment” in the L4-5
area since 1986, which was work related. Dr. Pellegrini stated that the present disc “fragment”
appellant had “may” be at the L4-5 level, not the L5-S1 level as indicated, though he needed to
confirm this through x-rays. In a November 14, 2007 progress report, he indicated that, since he
was unable to locate the x-rays verifying that appellant’s disc “fragment” was presently lodged at
the L4-5 level, he was unable to ascertain the opinion he expressed in his October 17, 2007
report.
By decision dated November 20, 2007, the Office terminated appellant’s compensation.
It found that appellant had no continuing disability or residuals stemming from his accepted 1986
work injury and that Dr. Sheridan’s referral opinion represented the weight of the medical
evidence. The Office also denied authorization for the L5-S1 lumbar microdiscectomy surgery,
finding again that Dr. Sheridan’s referral opinion represented the weight of the medical evidence.
It determined that the recommended surgical intervention was not related to a work-related
condition.
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim, it has the burden of proving that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.2
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
has ceased or that it is no longer related to the employment.3

2

Mohamed Yunis, 42 ECAB 325, 334 (1991).

3

Id.

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ANALYSIS -- ISSUE 1
In this case, the Office based its decision to terminate appellant’s compensation on the
May 29, 2006 report of Dr. Sheridan, its referral physician, who found that appellant’s accepted
conditions of lumbar strain, L4-5 herniated disc and L4-5 radiculopathy had resolved.
Dr. Sheridan noted no objective findings in his August 22, 2007 examination, which indicated
that appellant had any residuals from the accepted L4-5 herniated disc. He advised that the L5S1 herniated disc, shown by MRI scan, was attributable to something that has occurred since the
1986 work injury, either through trauma, the natural aging process or a combination of both.
The Board finds that the Office properly found that Dr. Sheridan’s referral opinion
represented the weight of the medical evidence and negated a causal relationship between
appellant’s current condition and his accepted lumbar strain, L4-5 herniated disc and L4-5
radiculopathy conditions. Appellant submitted Dr. Tibbs’ June 2007 report and numerous
reports from Dr. Pellegrini indicating that he had recently experienced an increase in lower back
pain and had a herniated disc at L5-S1 as shown by April 2007 MRI scan. These physicians
advised that appellant required surgery; Dr. Pellegrini opined that appellant needed to ameliorate
this condition if he wished to continue working at his usual job and avoid being totally disabled.
However, appellant’s current L5-S1 herniated disc has not been accepted as causally related to
the accepted 1986 employment injury. Dr. Pellegrini indicated in his October 17, 2007 report
that appellant might have a disc “fragment” which was actually located at the L4-5 level, as
opposed to the L5-S1 level, since 1986, when he first injured his lumbar spine. However, he
subsequently noted that he was unable to verify this supposition by x-ray.4 Dr. Sheridan’s
reports, in contrast, conclusively demonstrated that appellant had no residuals from the L4-5
herniated disc diagnosed in 1986 and that his current L5-S1 herniated disc was not attributable to
the 1986 work injury. He therefore properly found that appellant had no longer had any
residuals from the accepted conditions and his report is sufficiently probative, rationalized and
based upon a proper factual background. The Board will affirm the November 20, 2007
termination decision.
LEGAL PRECEDENT -- ISSUE 2
Section 8103 of the Federal Employees’ Compensation Act5 provides that the United
States shall furnish to an employee who is injured while in the performance of duty, the services,
appliances, and supplies prescribed or recommended by a qualified physician, which the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in
lessening the amount of the monthly compensation.6 In interpreting this section of the Act, the
Board has recognized that it has broad discretion in approving services provided under the Act.
4

The Board notes that Dr. Pellegrini’s opinion on causal relationship is of limited probative value in that he did
not provide adequate medical rationale in support of his conclusions. William C. Thomas, 45 ECAB 591 (1994).
Dr. Pellegrini’s opinion is of limited probative value for the further reason that it is generalized in nature and
equivocal in that he only noted summarily that appellant “may” have a disc “fragment” in the L4-5 area, as opposed
to a herniated disc in the L5-S1 area, which was shown definitively by MRI scan.
5

5 U.S.C. § 8101 et seq.

6

5 U.S.C. § 8103.

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The Office has the general objective of ensuring that an employee recovers from his injury to the
fullest extent possible in the shortest amount of time. It therefore has broad administrative
discretion in choosing means to achieve this goal. The only limitation on the Office’s authority
is that of reasonableness. Abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deductions from established facts. It is not enough to merely show that the
evidence could be construed so as to produce a contrary factual conclusion.7
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.8
ANALYSIS -- ISSUE 2
In the present case, there was disagreement between the Office medical adviser,
Dr. Sheridan and Drs. Pellegrini and Tibbs, regarding whether appellant’s herniated disc at L5S1 arose as a consequential injury from his accepted 1986 employment injury, which requires
left L5-S1 lumbar microdiscectomy surgery to ameliorate his condition. Dr. Tibbs stated in his
June 2007 report that appellant’s current L5-S1 disc herniation is a direct result of his 1986 work
injury that has continued to progress. The Office medical adviser and Dr. Sheridan opined that
the L5-S1 disc herniation was not a consequential injury which resulted from the original work
injury. When such conflicts in medical opinion arise, 5 U.S.C. § 8123(a) requires the Office to
appoint a third or “referee” physician, also known as an “impartial medical examiner.”9 It was
therefore incumbent upon the Office to refer the case to a properly selected impartial medical
examiner, using the Office procedures, to resolve the existing conflict. Accordingly, as the
Office did not refer the case to an impartial medical examiner, there remains an unresolved
conflict in medical opinion.
Accordingly, the case is remanded to the Office for referral of appellant, the case record
and a statement of accepted facts to an appropriate impartial medical specialist selected in
accordance with its procedures, to resolve the outstanding conflict in medical evidence. It should
therefore, on remand, refer the case to an appropriate medical specialist to submit a rationalized
medical opinion on whether appellant’s herniated disc at L5-S1 was a consequential injury
stemming from his accepted 1986 work injury which requires left L5-S1 lumbar
microdiscectomy surgery to ameliorate his condition. After such development of the case record
as the Office deems necessary, a de novo decision shall be issued.10
7

Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

8

5 U.S.C. § 8123 (a).

9

Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part, “[i]f there is a
disagreement between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.” See Dallas E. Mopps, 44
ECAB 454 (1993).
10

The Board notes that the Office also denied appellant’s request to modify his January 13, 1993 loss of wageearning capacity determination.

6

CONCLUSION
The Board finds that the Office has met its burden of proof to terminate appellant’s
compensation benefits in its November 20, 2007 decision. The Board finds that the case is not in
posture for a decision regarding whether the Office properly denied appellant authorization for
L5-S1 lumbar microdiscectomy surgery.
ORDER
IT IS HEREBY ORDERED THAT the November 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside and remanded in part, in
accordance with this decision.
Issued: April 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rigby, ID, Employer
__________________________________________

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Appearances:
Paul B. Rippel, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-378
Issued: September 17, 2008

Case Submitted on the Record

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

JURISDICTION
On November 6, 2007 appellant, through his attorney, filed a timely appeal of an
August 20, 2007 merit decision of an Office of Workers’ Compensation Programs’ hearing
representative, finding an overpayment in the amount of $147,346.75 for which he was at fault
and directing recovery of the overpayment by initial payment of $50,000.00 and thereafter
monthly payments of $290.00. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $147,346.75 during the period April 19, 1996 through December 24, 2005 because he
received dual compensation benefits from the Department of Veterans Affairs (VA) and under
the Federal Employees’ Compensation Act; and (2) whether the Office properly found that
appellant was at fault in the creation of the overpayment and, therefore, ineligible for waiver of
recovery of the overpayment.

FACTUAL HISTORY
On September 22, 1990 appellant, then a 40-year-old part-time flexible clerk/carrier, filed
a traumatic injury claim alleging that on that date he hurt his back. He was unloading mail sacks
when he fell backwards tripping over another mail sack. The Office accepted the claim for
lumbosacral strain and herniated disc at L3-4 and L4-5. It authorized a laminectomy at L3-5
which was performed on February 14, 1994.
Prior to filing the instant claim, appellant filed a claim with the VA for a back injury he
sustained while serving in the military from February 25, 1969 through December 8, 1972. On
February 1, 1982 the VA awarded him compensation beginning September 14, 1981 for 10
percent disability for a recurrent lumbosacral strain.1 On April 5, 1996 appellant requested an
increase in his VA award. He submitted medical evidence regarding his February 14, 1994 back
surgery. By decision dated July 15, 1996, the VA increased appellant’s compensation to 60
percent disability and granted entitlement to individual unemployability effective
April 19, 1996.2 It found, among other things, that the evidence demonstrated an original injury
sustained during service with industrial reinjury. Following the February 14, 1994 back surgery,
the VA found that appellant was totally disabled.3
On January 22 and December 14, 2002 appellant completed EN1032 forms and noted
under Part D(3), VA benefits, that he received benefits from the VA in file number 29028457,
for a service-connected back injury. He also noted that he had not received an increase in his
VA benefits since his employment-related injury for which he was receiving compensation from
the Office. Appellant stated that he had only received a cost-of-living adjustment increase within
the last 15 months.
By letter dated December 26, 2002, the Office advised appellant that it was adjudicating
payment for his disability claim. As it had been reported that he was receiving disability
compensation from the VA for a service-related injury, it requested that he complete an
accompanying questionnaire regarding his VA claim. Appellant did not respond.
By letter dated March 19, 2003, the Office advised appellant that it was unlawful to
receive compensation benefits from two different agencies for the same disabling injury. It
stated that benefits must be coordinated and reduced by one agency or he must elect to receive
benefits from one of the agencies and not both. The Office again requested that appellant
complete a duplicate copy of its previously mailed questionnaire.
On March 26, 2003 the employing establishment provided the VA information requested
by the Office. It stated that appellant received compensation benefits for a skeletal condition that
rendered him 60 percent disabled effective April 19, 1996. Appellant received $2,247.00 from
1

The VA’s February 1, 1982 decision also awarded appellant compensation for 10 percent disability for a soft
tissue injury to the right foot and leg and 20 percent disability for bursitis of the left shoulder.
2

On March 6, 1996 the Office of Personnel Management approved appellant’s application for disability
retirement.
3

In an October 8, 1996 decision, the VA denied appellant’s request to change its July 15, 1996 decision.

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December 1, 2001 through November 30, 2002 and $2,278.00 from December 1, 2002
through 2003.
On December 8, 2003 and December 18, 2004 appellant completed EN1032 forms
regarding his VA benefits.
By letter dated August 18, 2005, the employing establishment advised the Office that the
VA found appellant unemployable and awarded him compensation for 100 percent disability
based on his 60 percent disability service-connected back injury. It requested that the Office
provide him with an election form if it determined that he was receiving duplicate compensation
benefits from the VA and under the Act for his back injury.
By letter dated November 17, 2005, the Office informed appellant that, since he was
considered 100 percent disabled by the VA effective April 19, 1996, he must make an election
between the compensation benefits payable to him under the Act and those from the VA. It
advised him that benefits under the Act and from the VA were not payable for the same period.
The Office stated that the election was for the period beginning April 19, 1996.
On December 14, 2005 appellant elected to receive disability benefits from the VA
effective April 19, 2006 in lieu of compensation benefits under the Act.
On a December 15, 2005 appellant signed an EN1032 form stating that on April 19, 1996
the VA had increased his benefits to reflect a 60 percent service-connected back disability which
represented 100 percent disability.
On September 14, 2006 the Office made a preliminary determination that appellant
received an overpayment in the amount of $147,346.75 due to his receipt of dual benefits from
the VA and under the Act during the period April 19, 1996 through December 24, 2005. It found
that he was at fault in the creation of the overpayment. It stated that appellant should have
reasonably been aware that he was receiving benefits from two agencies for the same disability.
Appellant was advised that he could request a telephone conference, a final decision based on the
written evidence only or a hearing within 30 days if he disagreed that the overpayment occurred,
with the amount of the overpayment or if he believed that recovery of the overpayment should be
waived. The Office requested that appellant complete an accompanying overpayment recovery
questionnaire (Form OWCP-20) and submit financial documents in support thereof within 30
days.
By letter dated September 18, 2006, appellant, through his attorney, requested an oral
hearing before an Office hearing representative. In an OWCP-20 form dated September 12,
2006, appellant reported monthly income of $2,518.00 which represented his VA benefits. He
also reported monthly expenses of $2,177.72. Appellant had $77,114.32 in cash, stocks,
personal property and other funds. He submitted supporting financial documents.
During a May 23, 2007 hearing and in a June 22, 2007 letter, appellant contended that an
overpayment of compensation had not occurred because he did not receive dual compensation.
He stated that the injury for which he received compensation from the VA was different from the
injury for which he received compensation under the Act.

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By decision dated August 20, 2007, an Office hearing representative finalized the
determination that appellant received an overpayment in the amount of $147,346.75 and that he
was at fault in the creation of the overpayment because he had completed several EN1032 forms
which asked him whether he had received any percentage or increase in his VA award since he
sustained an injury under the Act. The hearing representative ordered repayment of the
overpayment with an initial amount of $50,000.00 and thereafter in monthly payments of
$290.00.4
LEGAL PRECEDENT -- ISSUE 1
Section 8116(a) of the Act5 states:
“(a) While an employee is receiving compensation under this subchapter or if he
has been paid a lump sum in commutation of installment payments until the
expiration of the period during which the installment payments would have
continued, he may not receive salary, pay or remuneration of any type from the
United States, except-(1) in return for service actually performed;
(2) pension for service in the Army, Navy or Air Force;
(3) other benefits administered by the [VA] unless such benefits are
payable for the same injury or the same death; and
(4) retired pay, retirement pay, retainer pay or equivalent pay for service in
the Armed Forces or other uniformed services....”6
Section 8116(b) provides that in such cases an employee shall elect which benefits he
shall receive. Thus, the Act prevents payment of dual benefits in cases where the Office has
found that the disability was sustained in civilian federal employment and the VA has held that
the same disability was caused by military service.7
The Office’s procedure manual discusses when payments of benefits under the Act and
under statutes administered by the VA constitute forbidden dual payments of compensation,
noting that the prohibition against receiving such payments includes an increase in a veteran’s
service-connected disability award, where the increase is brought about by an injury sustained
while in civilian employment.8
4

In the August 20, 2007 decision, the hearing representative stated that the repayment plan required waiver of
$29,603.34 of the total balance due to reduce the period of the overpayment.
5

5 U.S.C. § 8116(a).

6

Id.

7

Sinclair L. Taylor, 52 ECAB 227 (2001); Allen W. Hermes, 43 ECAB 435 (1992).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.8b(1), (2) (February 1995).

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ANALYSIS -- ISSUE 1
Appellant contended that an overpayment of compensation was not created in this case
because he did not receive dual compensation as he received compensation from the VA and
Office for two different injuries. On February 1, 1982 appellant was in receipt of 10 percent VA
award for a back injury. However, the VA increased this award on July 15, 1996 to 60 percent to
reflect the additional disability caused by the accepted employment-related back injury he
sustained on September 22, 1990 and February 14, 1994 surgery. On December 14, 2005
appellant elected to receive benefits from the VA in lieu of benefits from the Office effective on
April 19, 1996. He was not entitled to receive compensation benefits under the Act for his
employment-related lumbar strain for any period following his election to receive benefits from
the VA for the same condition. The Board, therefore, finds that appellant received dual benefits
pursuant to section 8116(a) of the Act.
The record establishes that appellant received wage-loss compensation from the Office in
the amount of $147,346.75 during the period April 19, 1996 through December 24, 2005. Fact
of overpayment is established as an employee is not entitled to receive compensation under both
the Act and statutes administered by the VA. The Board, therefore, finds that an overpayment
was created in the amount of $147,346.75.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act9 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.10 Thus, the Office may not waive the overpayment of compensation
unless appellant was without fault.11 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.12
On the issue of fault, section 10.433 of the Office’s regulations, provides that an
individual will be found at fault if he or she has done any of the following: (1) made an incorrect
statement as to a material fact which he or she knew or should have known to be incorrect;
(2) failed to provide information which he or she knew or should have known to be material; or
(3) accepted a payment which he or she knew or should have known was incorrect.13

9

5 U.S.C. § 8129(b).

10

Michael H. Wacks, 45 ECAB 791, 795 (1994).

11

Norman F. Bligh, 41 ECAB 230 (1989).

12

Diana L. Booth, 52 ECAB 370, 373 (2001); William G. Norton, Jr., 45 ECAB 630, 639 (1994).

13

20 C.F.R. § 10.433(a).

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With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provides in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”14
ANALYSIS -- ISSUE 2
The Office hearing representative evaluated appellant’s testimony and the record, and
applied the third standard in determining that he was at fault in creating the overpayment. In
order for the Office to establish that appellant was at fault in creating the overpayment of
compensation, it must establish that appellant accepted a payment that he knew or should have
known was incorrect.15 The Board finds that the record does not establish that appellant was at
fault in the creation of the overpayment.
The Office found that appellant was at fault in the creation of the overpayment as he was
aware or should have been aware that he was not entitled to dual benefits based on the EN1032
forms he completed. The forms advised appellant to notify the Office whether he had received
any percentage or increase in his VA award since he sustained an injury under the Act, but did
not notify him that he was not entitled to both VA benefits and workers’ compensation.
Therefore, the Board finds that the EN1032 forms were not sufficient to support the Office’s
finding that appellant should have been aware that he was not entitled to both workers’
compensation and the increase in his VA benefits.
Appellant was first advised that he was not entitled to receive both VA and workers’
compensation benefits in the Office’s March 19, 2003 letter advising of its discovery that he was
receiving disability compensation from the VA. He was not asked to make an election to receive
either VA benefits or workers’ compensation until November 17, 2005. The Board finds that
appellant was not at fault in creation of the overpayment.
Since the Board has determined that appellant was without fault in the creation of the
overpayment, the Office may only recover the overpayment in accordance with section 8129(b)
of the Act16 if a determination has been made that recovery of the overpayment would neither
defeat the purpose of the Act nor be against equity and good conscience.17 The case will be
remanded to the Office for further development with respect to whether appellant is entitled to
14

Id. at § 10.433(b).

15

Diana L. Booth, 52 ECAB 370 (2001); Lorenca Rodriguez, 51 ECAB 295 (2000); Robin O. Porter, 40 ECAB
421 (1989).
16

5 U.S.C. § 8129(b).

17

The guidelines for determining whether recovery of an overpayment would defeat the purpose of the Act or
would be against equity and good conscience are set forth in 20 C.F.R. §§ 10.434, 10.436, 10.437.

6

waiver of the $147,346.75 overpayment. After such further development as the Office may find
necessary, it should issue an appropriate decision on the issue of whether the overpayment
should be waived.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $147,346.75 during the period April 19, 1996 through December 24, 2005 because he
received dual compensation benefits from the VA and under the Act. The Board, however, finds
that the Office improperly found that appellant was at fault in the creation of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed in part with respect to fact and amount of
overpayment. The decision is set aside with respect to the fault determination and remanded to
the Office for further proceedings consistent with this decision of the Board.
Issued: September 17, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Detroit, MI,
Employer
__________________________________________

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

Docket No. 07-1381
Issued: October 16, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 19, 2007 denying her claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
June 29, 2006.
FACTUAL HISTORY
On July 6, 2006 appellant, then a 31-year-old collection representative, filed a traumatic
injury claim, Form CA-1, alleging that on June 29, 2006 she slipped and fell on a wet floor in the
employing establishment cafeteria. She indicated that she was 30 weeks pregnant and the nature
of the injury was pain in the right ankle and right side of abdomen.

Appellant submitted a July 7, 2006 note from Dr. Roderick Cairgle, an
obstetrician/gynecologist, stating that she should start maternity leave on June 29, 2006 due to a
fall at work and subsequent preterm contractions. Dr. Cairgle completed a duty status report
(Form CA-17) dated July 24, 2006 with a history that appellant fell on her side in a cafeteria on
June 29, 2006. The description of clinical findings was pelvic pain and contractions and the
“diagnosis due to injury” was reported as threatened preterm labor.
The Office requested that appellant submit additional evidence regarding her claim. In a
report dated August 18, 2006, Dr. Cairgle indicated that a cesarean delivery of twins was
performed on August 7, 2006. He stated that appellant had a complication with one of the babies
that required early delivery.
By decision dated September 27, 2006, the Office denied the claim for compensation.
The Office accepted that an incident occurred on June 29, 2006 as alleged, but found that the
medical evidence was insufficient to establish an injury in the performance of duty.
Appellant requested a review of the written record on October 24, 2006. She submitted a
handwritten treatment note date June 29, 2006 from a university medical center. The signature
of the physician is illegible. The note reported slip and fall on the right lateral side. The
diagnoses included status post abdominal trauma and twin gestation.
In a decision dated January 19, 2007, an Office hearing representative affirmed the
September 27, 2006 decision. The hearing representative found that the medical evidence did
not establish a diagnosed condition causally related to the June 29, 2006 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that he or she sustained an injury while in the performance of duty.2 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally
“fact of injury” consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
employment incident caused a personal injury and generally this can be established only by
medical evidence.3
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.4 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
1

5 U.S.C. §§ 8101-8193.

2

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

3

See John J. Carlone, 41 ECAB 354, 357 (1989).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

2

traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.5
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS
The Office accepted the first component of fact of injury in this case. Appellant alleged
that she slipped and fell while at work on June 29, 2006 and no contrary evidence was presented.
The issue is whether the medical evidence is sufficient to establish a diagnosed medical
condition causally related to the employment incident. This is not a case of a minor injury that
can be identified on visual inspection, such as a laceration, nor is it a clear-cut injury such as a
fall resulting in a broken arm. To establish appellant’s claim there must be rationalized medical
opinion evidence on the issue presented.
The evidence of record does not contain a rationalized medical opinion relating a right
ankle injury or other condition to the accepted incident. The physician who examined appellant
on June 29, 2006 did not provide a complete history of injury or medical opinion on causal
relationship between a diagnosed condition and the employment incident. Dr. Cairgle also failed
to provide a detailed medical report on the issue. He referred to preterm contractions in his
July 7, 2006 note and a diagnosis of “threatened preterm labor” in the July 24, 2006 Form CA17, without providing further explanation. No mention was made of any right ankle injury.
The record does not contain a medical report with an accurate history of the employment
incident, a clear diagnosis and a medical opinion with supporting rationale on causal relationship
between a diagnosed condition and the June 29, 2006 employment incident. In the absence of
such evidence, the Board finds that appellant did not meet her burden of proof and the Office
properly denied the claim.
CONCLUSION
The evidence of record is not sufficient to establish an injury in the performance of duty
on June 29, 2006.

5

Id.

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 19, 2007 and September 27, 2006 are affirmed.
Issued: October 16, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.P., Appellant
and
U.S. POSTAL SERIVCE, PROCESSING &
DISTRIBUTION CENTER, Santa Clarita, CA,
Employer
__________________________________________

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

Docket No. 09-273
Issued: August 12, 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 November 6, 2008 appellant filed a timely appeal from December 6, 2007 and
August 4, 2008 merit decisions of the Office of Workers’ Compensation Programs denying his
occupational disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained an aggravation of an employment-related
back condition due to factors of his federal employment; and (2) whether he sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On September 6, 2007 appellant, then a 52-year-old mail processing clerk, filed an
occupational disease claim alleging that he sustained aggravation of a prior work injury because
he was forced to work outside his restrictions. He attributed the aggravation to management
forcing him to train a female employee and move and lift items in the plan supply room from

June 26 to August 7, 2007. Appellant described his symptoms as pain and numbness through the
legs, fatigue, headaches, dizziness, sleep disturbances, neck strain, pain and numbness in the
arms and depression. Jeff Ward, a supervisor, related that appellant worked in a rehabilitation
job until offered another position with less duties but also different hours and nonscheduled days.
The Office assigned the claim file number xxxxxx424.
The record indicates that appellant sustained lumbar strain, cervical strain and a
permanent aggravation of preexisting degenerative disc disease of the cervical spine at C3-4,
C4-5 and C5-6 and of the lumbar spine at L3-4, L4-5 and L5-S1 on January 19, 2001 in the
performance of duty, assigned file number xxxxxx016. Following his injury, appellant worked
modified duty as a mail processor in the supply room.1
By letter dated September 6, 2007, the employing establishment controverted the claim.2
The employing establishment related that appellant received assistance from other clerks to do
his supply room job. Management believed that he “should be given a job within his medical
restrictions that he could do without taking another employee away from his own job to assist
[him].” Appellant stopped work when he received the new job offer.
On October 10, 2007 Mr. Ward related that appellant worked without incident or
complaint as a supply clerk since 2001. He stated:
“In fact, one day during September 2007 I had a conversation with [appellant]
regarding his ability to safely perform his duties as [s]upply clerk. I wanted to
make sure he was working within the guidelines of his physical restrictions.
[Appellant] specifically stated to me that he asks for help from fellow employees
anytime he has needed assistance with lifting, carrying, pushing, pulling, bending
or stooping. He specifically stated to me, in the presence of another supervisor[,]
Edward Moore, that he has no problem performing the task of [s]upply clerk.”
Mr. Ward maintained that appellant did not work outside his restrictions as he asked for help in
moving and lifting boxes. He indicated that the duties of the position mostly required the use of
a computer and telephone. Mr. Ward related that appellant did not cooperate in training a new
supply clerk, Patsy Mannie, who performed all the moving and lifting of boxes while appellant
watched. Mr. Ward offered appellant a new position on August 10, 2007 with a change in work
1

In a report dated April 12, 2007, Dr. Glenn K. Takei, a Board-certified orthopedic surgeon, selected to resolve a
conflict over whether appellant had any continuing disability in file number xxxxxx016, found that appellant
continued to experience residuals from his work injury. He found appellant was unable to resume his regular job but
could continue to work in his modified position in plant supply and procurement. Dr. Takei noted that it “seems to
be working out well and he has no problems with performing these job duties. It would therefore be my
recommendation that he continue with this job position.” Dr. Takei listed work restrictions of no lifting over five
pounds.
2

In a report dated July 31, 2007, Dr. Nimish Shah, an attending Board-certified anesthesiologist, diagnosed a
permanent aggravation of degenerative cervical and lumbar disc disease, bilateral cervical facet pain and
lumbosacral radicular and lumbar facet pain. He opined that appellant could perform his current modified work
duties. On August 30, 2007 Dr. Shah determined that appellant continued “on temporary total disability as his
modified work restrictions were not honored. [Appellant] was training another employee for two weeks and
required excessive movement, prolonged sitting and standing and developed flare-up of back and neck pain.”

2

hours. Appellant was not happy with the offer and asserted that he did not have difficulty
performing the duties of a supply clerk. He stopped work when he received the offer of a new
position and did not return.
In a statement dated October 12, 2007, Tony Gethers, a manager, related that he asked
appellant to train Ms. Mannie on purchasing and ordering supplies. Ms. Mannie complained that
appellant did not train her but instead had her clean the supply room. Mr. Gethers asserted that
he did not ask appellant to work outside any restrictions but instead instructed him to train
Ms. Mannie “on how to order and purchase supplies that were needed to support mail processing
operations. Based on several conversations I had with [Ms. Mannie] after she initially went into
the supply room it was she who was doing all of the physical work.”
In an undated statement received October 17, 2007, Ms. Mannie described her
assignment to work in the supply room with appellant. She related that initially he refused to
allow her in the room. Ms. Mannie related, “When I was told to report back to the room a few
days later, he had me lifting heavy boxes the entire [hour and a half] that I was there….
[Appellant] instructed me on what boxes to put in the containers and on the top shelves. He
stood and watched the entire time.” She twice complained to management about appellant’s
failure to adequately provide training.
On October 23, 2007 appellant indicated that he worked from January 19, 2001 to
August 10, 2007 in a modified position in plant supply.3 He asserted that management forced
him to train an employee 45 to 90 minutes each day and to assist in moving, lifting and placing
objects weighing 20 to 45 pounds “in the plant supply room within the inventory shelves and
floor. The worsening of [the] condition gradually started to take place between June 26, 2007
and August 7, 2007.” Appellant related that he had to move items that exceeded his restrictions
because the trainee was a female and thus unable to move the items. He indicated that he
became very depressed due to low back pain radiating into his legs.
By decision dated December 6, 2007, the Office denied appellant’s claim on the grounds
that he did not establish fact of injury. It determined that he did not establish the identified
factors.
On December 28, 2007 appellant requested an oral hearing. At the hearing held on
June 3, 2008, he described his January 19, 2001 work injury. Appellant related that he moved
boxes weighing 25 pounds in his position as supply clerk. He denied failing to train Ms. Mannie
and alleged that they both moved boxes. Appellant indicated that management offered him a
position as a security guard. He had previously tried to do the position a few years earlier but
3

In a report dated October 1, 2007, Dr. Julie Goalwin, a clinical psychologist, diagnosed a depressive disorder not
otherwise specified and a pain disorder due to both psychological factors and a general medical condition. She
described appellant’s history of a work injury to his neck and back in January 2001 and a reinjury after he worked
beyond his limitations training an employee. Appellant experienced chronic pain and felt depressed. His pain
increased when he trained a new employee from July 26 to August 10, 2007. Dr. Goalwin noted, “[Appellant]
reports that he reinjured himself when he was training the new employee as a result of having to lift and move heavy
products that went against his medical restrictions of no heavy lifting. She determined that his emotional condition
was due to his work injuries.

3

could not perform the duties. Appellant related that he was depressed because of his pain. The
employing establishment refused to approve his sick leave and terminated his employment.
By decision dated August 4, 2008, the hearing representative affirmed the December 6,
2007 decision. He noted that file number xxxxxx424 had been doubled into master file number
xxxxxx016. The hearing representative determined that appellant had not established that he
sustained an aggravation of a preexisting physical condition because he had not established that
he worked outside his restrictions training Ms. Mannie from June 26 to August 7, 2007. He
noted that at the hearing appellant attributed his condition to work factors since 2001 but found
that there was no evidence that he exceeded his work restrictions at any time. The hearing
representative further concluded that the medical evidence was insufficient to show that work
activities caused or aggravated a back condition. The hearing representative determined that
appellant did not establish an emotional condition due to working outside his restrictions. He
noted that, if appellant believed that he had a consequential injury due to pain from his accepted
back condition, he should file a claim under file number xxxxxx016.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;7 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;8 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.9

4

5 U.S.C. §§ 8101-8193.

5

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

6

See Ellen L. Noble, 55 ECAB 530 (2004).

7

Michael R. Shaffer, 55 ECAB 386 (2004).

8

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

9

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

4

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained lumbar strain, cervical strain and a
permanent aggravation of cervical and lumbar spine degenerative disease due to a January 19,
2001 employment injury, assigned file number xxxxxx016. On September 6, 2007 appellant
filed an occupational disease claim alleging that he sustained an aggravation of his accepted back
condition due to training an employee from June 26 to August 7, 2007. He asserted that he had
to lift and move items from the inventory shelves weighing in excess of his five-pound lifting
limitation.
Appellant has the burden to establish the occurrence of the employment factors to which
he attributes his condition.10 The Board finds that he has not demonstrated that he was forced to
work outside his restrictions. In a statement dated October 23, 2007, appellant related that
management forced him to train an employee and help her lift and move items weighting 20 to
45 pounds. He maintained that he had to exceed his restrictions in assisting the trainee because
she was female. The employing establishment controverted appellant’s allegations, noting that
he had worked in the position since 2001 and obtained assistance from coworkers to comply with
his lifting limitations. Appellant’s supervisor, Mr. Ward, maintained that he did not cooperate in
training Ms. Mannie and that she performed all of the lifting and moving of boxes. He noted that
appellant stopped working when he received an offer of a new position. Mr. Gethers, a manager,
related that he instructed appellant to train Ms. Mannie on how to order supplies and did not
require him to perform any work outside his restrictions. In a statement dated October 17, 2007,
Ms. Mannie asserted that appellant initially refused to train her and then had her lifting heavy
boxes during her training time. She maintained that he watched her move the boxes without
providing any assistance. Appellant has not established by the weight of the evidence that he
performed work outside his restrictions while training Ms. Mannie from June 26 to
August 7, 2007. As he has not established the occurrence of the claimed factors to which he
attributed his condition, he has not met his burden of proof to show that he sustained an
occupational disease.11
On appeal, appellant raised allegations regarding the fairness of the hearing proceedings.
The Board’s jurisdiction, however, extends only to the review of final decisions of the Office.12
He further denied speaking to Mr. Ward about his job and alleged that the fact that the trainee
continued training with him for such a long period shows that he was providing training. The
issue, however, is whether appellant has established that he worked outside his restrictions for
the period in question. He has not submitted such evidence and thus the Office properly denied
his claim.

10

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005).

11

See M.W., 57 ECAB 710 (2006).

12

20 C.F.R. § 501.2(c).

5

LEGAL PRECEDENT -- ISSUE 2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.13 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his frustration from not being permitted to work in a particular environment or to hold
a particular position.14
ANALYSIS -- ISSUE 2
Appellant alleged that he experienced increased pain and depression from working
outside his restrictions while training a new employee. The Board has held that being required to
work beyond one’s physical limitations may constitute a compensable employment factor if the
record substantiated such activity.15 As previously discussed, however, appellant’s supervisor
denied that he worked outside his limitations and he has not submitted any evidence
corroborating his assertion. Thus, he has not established the required factual basis for his
allegation.16 As appellant has not established a compensable work factor, the Board will not
consider the medical evidence.17
CONCLUSION
The Board finds that appellant has not established that he sustained an aggravation of an
employment-related back condition due to factors of his federal employment.18 The Board
further finds that he has not established that he sustained an emotional condition in the
performance of duty.

13

5 U.S.C. §§ 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

14

Gregorio E. Conde, 52 ECAB 410 (2001).

15

David C. Lindsey, Jr., 56 ECAB 263 (2005).

16

Allegations alone are insufficient to establish a factual basis for an emotional condition claim; the claim must
be supported by probative evidence. Pamela D. Casey, 57 ECAB 260 (2005).
17

Richard Yadron, 57 ECAB 207 (2005).

18

Appellant submitted new evidence with his appeal. The Board has no jurisdiction to review new evidence on
appeal; see 20 C.F.R. § 501.2(c). Appellant can submit this evidence to the Office and requested reconsideration
under 5 U.S.C. § 8128.

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 4, 2008 and December 6, 2007 are affirmed.
Issued: August 12, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, NORTH BAY
PROCESSING & DISTRIBUTION CENTER,
Petaluma, CA, Employer
__________________________________________

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Appearances:
Stephen J. Duggan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-700
Issued: August 12, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 9, 2014 appellant, through her attorney, filed a timely appeal from a
September 20, 2013 decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that an October 18,
2012 wage-earning capacity decision should be modified.
On appeal, appellant asserts that she was physically incapable of performing the
constructed position of surveillance system monitor and that the position was not readily
available in her commuting area.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 21, 2006 appellant, then a 43-year-old small parcel bar code sorter clerk, filed an
occupational disease claim alleging that she injured her right arm working on postal machines for
23 years. On September 26, 2006 she filed a traumatic injury claim, alleging that she injured her
left upper extremity while lifting heavy bundles that day. Appellant did not stop work after
either claimed injury. The occupational disease claim was adjudicated under file number
xxxxxx466 and the traumatic injury claim under file number xxxxxx804.
On November 3, 2006 OWCP accepted that appellant sustained a sprain of the left
shoulder and upper arm under file number xxxxxx804. After an initial denial, it accepted that
she sustained bilateral carpal tunnel syndrome and right shoulder strain under file number
xxxxxx466. The two claims were combined. Appellant was off work intermittently and
received compensation. She began modified duty in June 2007.
On January 29, 2009 appellant was granted a schedule award for nine percent impairment
of the left arm. On February 2, 2009 OWCP issued a schedule award for 10 percent impairment
of the right arm, based on her shoulder injury.
Dr. Michael E. Hebrard, a Board-certified physiatrist, began treating appellant in
March 2009. By decision dated August 28, 2009, OWCP denied that she sustained a recurrence
of disability on February 11, 2009. The employing establishment withdrew appellant’s modified
position effective November 2, 2009, based on the National Reassessment Process (NRP).
Appellant was placed on the periodic compensation rolls. On March 31, 2010 Dr. Scott M.
Taylor, an orthopedic surgeon, performed surgery for a right shoulder arthroscopy with
subacromial decompression.
In a December 6, 2010 report, Dr. Joel Weddington, an orthopedic surgeon, noted that
appellant had not worked for a year and described symptoms that included difficulty with
activities of daily living. Physical examination demonstrated positive Phalen’s and Tinel’s tests
bilaterally and diminished wrist flexion and shoulder range of motion bilaterally with positive
impingement signs. Dr. Weddington diagnosed multiple upper extremity complaints and chronic
pain, bilateral carpal tunnel syndrome and bilateral shoulder problems status post arthroscopy on
the right. He recommended continued conservative care.
OWCP referred appellant to Dr. Ramon L. Jimenez, Board-certified in orthopedic
surgery, for a second-opinion evaluation. In a December 23, 2010 report, Dr. Jimenez noted his
review of a statement of accepted facts and the medical record and her complaints of bilateral
shoulder, elbow and hand pain, right worse than left and numbness and tingling.2 He noted that
appellant was right-hand dominant. Physical examination demonstrated limited range of motion
of both shoulders and localized tenderness in the subacromial region. Wrist and hand range of
motion was good bilaterally with an equivocally positive Tinel’s sign on the right. Dr. Jimenez
diagnosed bilateral carpal tunnel syndrome, rotator cuff syndrome and shoulder sprain. He
advised that appellant was not totally disabled and currently able to work and participate in
2

Dr. Jimenez also reported that appellant had a right carpal tunnel release in 2007. A copy of the operative report
is not found in either case record.

2

vocational rehabilitation. In an attached work capacity evaluation Dr. Jimenez indicated that
maximum medical improvement had been reached and provided permanent restrictions of no
reaching or reaching above the shoulder, two hours of repetitive movements of the wrists and
elbows and four hours of pushing, pulling and lifting 10 pounds.
In January 2011, appellant was referred for vocational rehabilitation and underwent
vocational assessment on March 29, 2011. Computer training was recommended. In a
supplemental report dated April 23, 2011, Dr. Jimenez revised his work capacity evaluation to
find that appellant could do three hours of reaching in a sedentary position but no reaching to
shoulder or higher and that she could perform repetitive movements of the wrist and elbow for
up to three hours daily.
On May 2, 2011 Dr. Hebrard reviewed Dr. Jimenez’ December 16, 2010 report. He
provided physical examination findings and referred appellant to Dr. Weddington. In a May 5,
2011 report, Dr. Weddington reiterated his diagnoses and recommended electrodiagnostic testing
of the upper extremities. The testing was obtained by Dr. Hebrard on May 27, 2011 and
demonstrated right C6 radiculopathy and evidence of left median sensory mononeuropathy
across the wrist. A June 16, 2011 magnetic resonance imaging (MRI) scan of the cervical spine
demonstrated minimal degenerative changes.
In June 2011, James M. Graham, a vocational rehabilitation counselor, identified the
positions of call-out operator and surveillance-system monitor as within appellant’s physical
limitations. A rehabilitation plan was approved and in June 2011 appellant began a 26-week
training program in computer skills. An October 7, 2011 training progress report indicated that
she successfully completed 310 hours of training and was a model student. Appellant completed
computer training on December 2, 2011 and earned a certificate as computer operator and
customer service representative.
On October 27, 2011 Dr. Hebrard advised that appellant had permanent restrictions of
minimal repetitive overhead work with pushing, pulling and lifting of no more than 10 pounds
and no reaching above the shoulder. A March 30, 2012 MRI scan study of the left shoulder
demonstrated moderate to moderately severe cuff tendinosis, degenerative-type fraying of the
labrum, probable adhesive capsulitis, moderate degeneration of the acromioclavicular joint with
bone and soft tissue inflammation and other factors likely to contribute to subacromial
impingement. In an April 2, 2012 treatment note, Dr. Hebrard provided restrictions of no
pushing, pulling or reaching at or above the shoulder; no lifting greater than 8 to 10 pounds
intermittently; pushing and pulling were not to exceed 10 pounds; no repetitive grasping, finger
or pinching for more than 30 minutes each hour; no repetitive forceful grasping or pinching more
than 30 minutes at a time; and allow for breaks of five minutes each hour.
On August 13, 2012 Mr. Graham updated the labor market surveys for the positions of
call-out operator and surveillance-system monitor. He noted that the positions were within
appellant’s physical limitations and advised that they were reasonably available in the local labor
market, each with wages of $400.00 per week. OWCP obtained updated salary information from
the employing establishment.

3

By letter dated September 4, 2012, OWCP proposed to reduce appellant’s compensation
benefits based on her capacity to earn wages as a surveillance system monitor.3 Based on the
opinion of Dr. Jimenez, she could return to full-time work and that the surveillance system
position was within the permanent restrictions identified by the physician. OWCP further noted
that the labor market survey prepared by the rehabilitation counselor indicated that the position
was reasonably available in the local labor market at a weekly wage of $400.00. The physical
demands indicated that the position was sedentary with no climbing, balancing, stooping,
kneeling, crouching, crawling and occasional reaching and handling and occasional lifting of
10 pounds.
Appellant disagreed with the proposed reduction, contending that it was not within
restrictions provided by Dr. Hebrard on September 24, 2012 and her MRI scan studies of the
cervical spine and left shoulder.
On October 18, 2012 OWCP found that the weight of the medical evidence rested with
the opinion of Dr. Jimenez. It reduced appellant’s compensation benefits, effective that day,
based on her capacity to earn wages as a full-time surveillance system monitor, which
represented a 60 percent loss of wage-earning capacity. OWCP noted that the record did not
contain a September 24, 2012 report from Dr. Hebrard.
On November 28, 2012 appellant requested reconsideration and submitted Dr. Hebrard’s
September 24, 2012 treatment note. Dr. Hebrard reported her complaints of ongoing problems
with both shoulders. He provided examination findings and advised that appellant could work in
a sedentary environment with no work at or above shoulder level and no pulling or reaching of
more than 7 to 10 pounds. An October 9, 2012 MRI scan study of the right shoulder
demonstrated deficiency of the intra-articular portion of the biceps, moderate-to-moderately
severe cuff tendinitis, mild subacromial bursal synovitis and broad spurring from the
undersurface of the acromial process that could contribute to impingement.
In treatment notes dated December 14, 2012 and January 23, 2013, Dr. Hebrard reiterated
his findings and conclusions. He added an additional restriction that simple grasping or fine
manipulation was limited to no more than 15 minutes per hour. A January 23, 2013 upper
extremity electrodiagnostic study demonstrated no evidence for a peripheral neuropathy.
By decision dated March 12, 2013, OWCP denied modification of the October 18, 2012
wage-earning capacity determination. It noted that the restrictions provided by Dr. Hebrard
would not prevent appellant from performing the sedentary position of surveillance system
monitor.

3

The Dictionary of Occupational Titles job description for surveillance system monitor is as follows: Monitors
premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors
and notifies authorities by telephone of need for corrective action: Observes television screens that transmit in
sequence views of transportation facility sites. Pushes hold button to maintain surveillance of location where
incident is developing and telephones police or other designated agency to notify authorities of location of disruptive
activity. Adjusts monitor controls when required to improve reception and notifies repair service of equipment
malfunctions.

4

Appellant again requested reconsideration on June 23, 2013. She submitted reports dated
May 16, 2013, in which Dr. Hebrard advised that she could not drive more than two hours in a
day or more than 20 minutes each hour; could not lift more than 7 to 10 pounds intermittently or
continually; sitting was limited to three hours at a time; sitting and standing were to be alternated
for 10 minutes each hour; and fine manipulation and simple grasping were restricted to
15 minutes per hour, not to exceed four hours a day. Dr. Hebrard reiterated his findings and
conclusions on August 6, 2013.
In a merit decision dated September 20, 2013, OWCP found that appellant did not meet
her burden of proof to modify the October 18, 2012 wage-earning capacity decision. It again
noted that the restrictions provided by Dr. Hebrard did not preclude appellant from performing
the duties of the selected position of surveillance system monitor.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.4
OWCP’s procedures in effect at the time OWCP rendered its October 18, 2012 decision
provided that, “[i]f a formal loss of wage-earning capacity decision has been issued, the rating
should be left in place unless the claimant requests resumption of compensation for total wage
loss. In this instance the [claims examiner] will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity.”5
The procedures contained provisions regarding the modification of a formal loss of
wage-earning capacity. The relevant part provided that a formal loss of wage-earning capacity
will be modified when: (1) the original rating was in error; (2) the claimant’s medical condition
has changed; or (3) the claimant has been vocationally rehabilitated. OWCP’s procedures further
provided that the party seeking modification of a formal loss of wage-earning capacity decision
has the burden to prove that one of these criteria has been met. If OWCP is seeking
modification, it must establish that the original rating was in error, that the injury-related
condition has improved or that the claimant has been vocationally rehabilitated.6
Applicable case law and OWCP’s procedures require that once a formal wage-earning
capacity decision is in place, a modification of such determination is not warranted unless there
is a material change in the nature and extent of the injury-related condition, the employee has
been retrained or otherwise vocationally rehabilitated or the original determination was, in fact,

4

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

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment, Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995); see Chapter 2.1501.3 (June 2013).
6

Id., at Chapter 2.814.11 (June 1996).

5

erroneous.7 The burden of proof is on the party attempting to show a modification of the wageearning capacity determination.8
ANALYSIS
The Board finds that appellant did not submit sufficient evidence to show that the
October 18, 2012 wage-earning capacity determination should be modified. On appeal,
appellant generally asserted that the wage-earning capacity determination was erroneous because
she was physically incapable of performing the selected position of surveillance system monitor.
Further, the position was not readily available in her commuting area. Appellant, however, did
not submit sufficient evidence to show error in OWCP’s October 18, 2012 decision.
The selected position, surveillance system operator, is sedentary with physical demands
requiring no climbing, balancing, stooping, kneeling, crouching, crawling and occasional
reaching, handling and occasional lifting of 10 pounds. The position is described as observing
television screens, pushing button to maintain surveillance of location, telephoning police or
other designated agency to notify authorities of location of disruptive activity, adjusting monitor
controls when required to improve reception and notifying repair service of equipment
malfunctions.
In the October 18, 2012 decision, OWCP found that the weight of the medical evidence
rested with Dr. Jimenez, an OWCP referral orthopedic surgeon, who provided permanent
restrictions of three hours of reaching; no reaching above the shoulder; three hours of repetitive
movements of the wrists and elbows; and four hours of pushing, pulling and lifting 10 pounds.
Dr. Weddington, an attending orthopedic surgeon, did not discuss appellant’s work capabilities
in his December 6, 2010 and May 5, 2011 reports. Dr. Hebrard, an attending physiatrist, advised
on October 27, 2011 and April 2, 2012 that she had permanent restrictions of no pushing, pulling
or reaching at or above the shoulder; no lifting greater than 8 to 10 pounds intermittently;
pushing and pulling were not to exceed 10 pounds; no repetitive grasping, finger or pinching for
more than 30 minutes each hour; no repetitive forceful grasping or pinching more than
30 minutes at a time; and allow for breaks of 5 minutes each hour. As these restrictions are
within those of the surveillance system monitor position, OWCP properly found that appellant
had the physical capacity of performing the constructed position. The medical evidence does not
support total disability.
Moreover, appellant submitted no evidence to establish that the selected position was not
readily available in her commuting area. Mr. Graham, the vocational rehabilitation counselor,
provided a labor market survey on August 13, 2012 in which he certified that he found sufficient

7

Stanley B. Plotkin, 51 ECAB 700 (2000).

8

Id.

6

jobs in her commuting area.9 Appellant did not meet her burden of proof to establish that the
original wage-earning capacity determination was in error.10
The medical evidence submitted by appellant subsequent to the October 18, 2012
decision is insufficient to establish a material change in the nature and extent of her
injury-related condition. In a September 24, 2012 report, Dr. Hebrard noted her complaints of
ongoing problems with both shoulders and advised that she could work in a sedentary
environment with no work at or above shoulder level and no pulling or reaching of more than
7 to 10 pounds. In later reports, he additionally advised that appellant could not drive more than
2 hours in a day or more than 20 minutes each hour; could not lift more than 7 to 10 pounds
intermittently or continually, was unable to tolerate sitting for 3 hours at a time; was to alternate
between sitting and standing for 10 minutes each hour. Fine manipulation and simple grasping
were restricted to 15 minutes per hour not to exceed 4 hours a day. The accepted conditions in
this case are left shoulder and upper arm sprain, right shoulder strain and bilateral carpal tunnel
syndrome. The surveillance system monitor position does not require fine manipulation and
minimal grasping.11 The medical evidence submitted by appellant is insufficient to establish a
material change in the nature and extent of her injury-related condition such that the October 18,
2012 wage-earning capacity decision should be modified. Dr. Hebrard did not explain how the
accepted conditions affected either appellant’s driving or sitting and the additional restrictions do
not show that appellant’s condition had materially changed.
The record contains no evidence to show that appellant had been vocationally retrained
since the October 18, 2012 wage-earning capacity determination. Appellant, therefore, did not
meet her burden of proof to establish that the October 18, 2012 wage-earning capacity should be
modified.12
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that an
October 18, 2012 wage-earning capacity decision should be modified.

9

OWCP’s procedures provided that a rehabilitation specialist is an expert in the field. The claims examiner may
rely on his or her opinion as to whether a job is reasonably available and vocationally suitable. See Lawrence D.
Price, 54 ECAB 590 (2003).
10

Federal (FECA) Procedure Manual, supra note 5.

11

Supra note 3.

12

Federal (FECA) Procedure Manual, supra note 5; see C.H., Docket No. 13-2179 (issued April 23, 2014).

7

ORDER
IT IS HEREBY ORDERED THAT the September 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2014
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Oklahoma City, OK, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1115
Issued: November 25, 2013

Case Submitted on the Record

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

JURISDICTION
On April 8, 2013 appellant, through her attorney, filed a timely appeal from a March 28,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP), which denied
modification of a decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a schedule award.
FACTUAL HISTORY
On November 2, 2004 appellant, then a 49-year-old patient services assistant injured her
pelvis when she was struck by a door. OWCP accepted the claim for pelvis sprain and later
expanded her claim to include leg numbness and lumbar degenerative disc disease. Appellant
worked intermittently thereafter.
1

5 U.S.C. §§ 8101-8193.

A December 10, 2004 magnetic resonance imaging (MRI) scan of the lumbar spine
revealed a signal change in the disc at L4-5 and L5-S1 compatible with desiccation, minimal
bulging at L4-5 and broad-based disc bulge at L5-S1 indenting the thecal sac. Appellant was
treated by Dr. A.J. Bisson, a Board-certified physiatrist, from June 3, 2005 to August 29, 2008,
who diagnosed pelvic sprain and strain and lumbar radiculopathy. On July 22, 2008 Dr. Bisson
opined that she was at maximum medical improvement and could work with restrictions. An
August 5, 2005 electromyogram (EMG) revealed no abnormalities. An October 28, 2005 lumbar
CT scan revealed normal segments at L2-3 and L3-4, symptomatic L4-5 annular tear with small
disc protrusion, collapse and resorption of disc space at L5-S1.
On September 10, 2008 appellant claimed a recurrence of disability. On December 18,
2008 OWCP denied the claim. In a July 8, 2009 decision, an OWCP hearing representative
vacated the decision and remanded the case for further medical development.
Thereafter, OWCP referred appellant to a second opinion physician and a referee
physician. In a March 22, 2010 report, Dr. C.L. Soo, a Board-certified orthopedic surgeon and
referee physician,2 noted examination findings of abnormal excessive tenderness over the
lumbosacral junction as well as limited flexion, extension and rotation of the lumbar spine.
Appellant had an intact sensory examination of the lower extremities, negative straight leg raises,
while strength was normal and equal bilaterally from L2-S1 with some weakness over the right
L5. Dr. Soo diagnosed lumbar degenerative disc disease aggravated by the November 2, 2004
work injury and a collapsed disc over L5-S1 not causally related to her work injury. He
recommended a functional capacity evaluation, which revealed that appellant could do sedentary
work for less than eight hours per day with lifting restrictions.
On August 20, 2010 OWCP accepted appellant’s recurrence of disability commencing on
September 16, 2008.3
In a September 16, 2010 EMG report of the lower extremities, Dr. M.E. Goodrich, a
Board-certified radiologist, to whom appellant was referred to by her treating physician, opined
that there was no evidence of bilateral tarsal tunnel syndrome or lumbosacral motor radiculopathy.
Testing did not reveal evidence of acute or chronic denervation.
On July 27, 2011 appellant filed a claim for a schedule award. In a May 26, 2011 report,
Dr. John W. Ellis, a Board-certified family practitioner, opined that pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) she
had 30 percent impairment of the right leg and 16 percent impairment of the left leg.
In an August 17, 2011 report, an OWCP medical adviser noted that, while Dr. Ellis
attributed impairment to motor and sensory deficits, this conflicted with evidence from
Dr. Goodrich who found no electrodiagnostic evidence for lumbosacral radiculopathy and Dr. Soo
who opined that appellant had intact sensation and normal and equal strength bilaterally with some
possible weakness on the right big toe but no true weakness. He recommended a second opinion.
2

Dr. Soo was chosen as a referee with regard to appellant’s ability to work.

3

Appellant was removed from her position for cause by the employer effective February 26, 2011. She did not
receive wage-loss compensation after February 25, 2011.

2

OWCP referred appellant to Dr. Shawn Smith, a Board-certified orthopedic surgeon, who
indicated in a report dated September 20, 2011, that she had self-limited range of motion and
nonphysiologic findings. Dr. Smith opined that appellant had evidence of diabetic peripheral
neuropathy and tarsal tunnel symptoms. He opined that based on the physical examination above
and the history provided as well as objective testing done that there was no spinal nerve lower
extremity impairment.
Dr. Smith determined that appellant reached maximum medical
improvement on September 11, 2008. His report and the case record were referred to the medical
adviser who, in a report dated October 6, 2011, used Dr. Smith’s findings upon examination to
determine that she sustained zero percent permanent impairment of the lower extremities in
accordance with the A.M.A., Guides.4
In an October 19, 2011 decision, OWCP denied appellant’s claim for a schedule award.
Appellant requested reconsideration and submitted additional medical evidence. In a
report dated April 11, 2012, Dr. Ellis opined that she had 30 percent impairment of the right leg
for sensory and motor deficits and 16 percent impairment of the left leg for sensory and motor
deficits in accordance with the A.M.A., Guides. The impairment rating was duplicative of his
May 26, 2011 report previously submitted.
In a decision dated August 8, 2012, OWCP denied modification of the prior decision.
Appellant requested reconsideration. She submitted an EMG dated April 13, 2012, which
revealed distal nerve conduction responses were of low amplitude or absent which may be seen as
peripheral neuropathy although the slowing of nerve conduction velocities in neuropathy was not
noted with no electrodiagnostic indication of active lumbosacral radiculopathy.
In an October 22, 2012 report, Dr. Ellis opined that appellant had 14 percent impairment of
the right leg and 7 percent impairment of the left leg for sensory and motor deficits. He noted
tightness of the lumbar paraspinous muscles, tenderness over the iliolumbar and sacroiliac
ligaments, decreased sensation on the inner thigh and dorsal and lateral aspects of both feet
consistent with L5 and S1 spinal nerve root impairment, weakness with flexion and extension of
the knees, marked weakness on dorsiflexion and plantar flexion, positive straight leg raising
bilaterally and antalgic gait. There was decreased sensation of L4, L5 and S1 spinal nerves
bilaterally and reflexes were 1+ and equal bilaterally. Dr. Ellis noted diagnoses that right
lumbosacral plexus impingement, back strain, deranged discs at L4-5 and L5-S1 and bilateral L4,
L5 and S1 nerve root impairment. He referenced the spinal nerve root deficits under the Guides
Newsletter, July/August 2009.5 Dr. Ellis utilized Table 2, Spinal Nerve Impairment, Lower
Extremity found in the Guides Newsletter. For the right leg, he found 1 percent impairment for
the L4 nerve root, 8 percent impairment for the L5 nerve root and 5 percent impairment for the S1
nerve root, for a total of 14 percent right leg impairment. For the left leg, Dr. Ellis found one
percent impairment for the L4 nerve root, four percent impairment for the L5 nerve root and two
percent impairment for the S1 nerve root, for a total of seven percent left leg impairment. He

4

A.M.A., Guides (6th ed. 2008).

5

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

3

attached a worksheet explaining the percentages attributed to sensory and motor deficit for each
nerve root as well as grade modifiers for functional history and clinical studies.
In a January 11, 2013 report, an OWCP medical adviser reviewed Dr. Ellis’ report and
noted his impairment findings based on sensory and motor deficits. The medical adviser
contrasted this with the report of Dr. Smith, who found normal strength and Dr. Soo who found
intact sensory function. Based on this he advised that there was no basis on which to rate
impairment.
OWCP found a conflict in the medical evidence and referred appellant to Dr. Sami R.
Framjee, a Board-certified orthopedic surgeon, who indicated, in a March 8, 2013 report, that he
reviewed the record and examined her. Dr. Framjee noted a history of her work-related injury and
advised that she had reached maximum medical improvement. He noted appellant’s history was
significant for diabetes and Grave’s disease. Dr. Framjee noted findings upon examination of a
markedly overweight woman with complaints of pain on superficial touching. On a request that
she undergo lumbar range of motion testing, appellant indicated that she was unable to do so but
she had normal sitting balance. She resisted attempted straight leg raising but this was observed to
be negative in sitting position. Sensory examination produced diffuse, nonorganic, inconsistent
hypesthesia in the entire right leg. Sensory examination was normal on the left. Motor testing
revealed nonorganic breakaway weakness in both lower extremities. Examination of the left knee
revealed pain on superficial touch, range of motion of the left knee was carried out with resistive
force, no instability and no meniscal signs. Log rolling of the hip produced no acute pain.
Dr. Framjee noted that, after obtaining appellant’s history, conducting an examination and
reviewing medical records and radiographic studies, he found no evidence of any anatomical
injury to appellant’s lumbar spine or pelvis secondary to the work injury of November 2, 2004.
Instead, he opined that her clinical picture was indicative of symptom magnification with multiple
Waddell’s signs. Therefore, Dr. Framjee opined that the physical examination was unreliable. He
stated that no medical care was presently indicated secondary to the work injury. Dr. Framjee
noted that the MRI scans of the lumbar spine were essentially within normal limits, that is ageappropriate and did not indicate any acute post-traumatic pathology secondary to the accident of
November 2, 2004. He opined that if appellant sustained a contusion type injury to the lumbar
spine and pelvis her symptoms should have resolved within four weeks of the accident.
Dr. Framjee opined that in accordance with the A.M.A., Guides he was unable to find any
evidence of permanent impairment of the lumbar spine, right or left lower extremity or the pelvis
secondary to the accident of November 2, 2004. He indicated that appellant’s clinical picture was
nonorganic in nature.
In a report dated March 19, 2013, an OWCP medical adviser used Dr. Framjee’s findings
pursuant to the A.M.A., Guides and determined that appellant sustained zero percent permanent
impairment of the lower extremities. The medical adviser indicated that he was unable to find any
evidence of permanent impairment of the lumbar spine, right or left lower extremity or the pelvis
secondary to the accident of November 2, 2004 and that her clinical picture was nonorganic in
nature.
In a decision dated March 28, 2013, OWCP denied modification of the decision dated
August 8, 2012 denying appellant’s claim for a schedule award based on the report of the referee
physician Dr. Framjee who found no basis for a schedule award.

4

LEGAL PRECEDENT
Section 8107 of the FECA6 and its implementing federal regulations,7 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 for all claimants, OWCP has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.8 For decisions issued beginning May 1, 2009, the
sixth edition of the A.M.A., Guides will be used.9
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether the
cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as the
schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.12 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures which memorializes proposed tables outlined in the
July/August 2009 Guides Newsletter.13
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination and resolve the conflict of medical
evidence.14

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

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

10

Pamela J. Darling, 49 ECAB 286 (1998).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

12

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

13

See supra note 3.

14

5 U.S.C. § 8123(a); M.S., 58 ECAB 328 (2007).

5

ANALYSIS
Appellant’s claim was accepted by OWCP for pelvis sprain, leg numbness and
degeneration of the lumbar and lumbosacral intervertebral. On July 27, 2011 she filed a claim for
a schedule award. Appellant submitted evidence from her physician, Dr. Ellis, who opined that
she had 14 percent impairment of the right lower extremity and 7 percent impairment of the left
lower extremity for sensory and motor deficits in accordance with the A.M.A., Guides causally
related to the November 2, 2004 work injury. However, Dr. Smith, an OWCP referral physician,
found normal strength and no basis to rate impairment. Likewise, Dr. Soo a previous impartial
specialist on a different issue found intact sensation and motor strength bilaterally. In a
January 11, 2013 report, an OWCP medical adviser indicated that appellant had no permanent
impairment as a result of the November 2, 2004 work injury. Consequently, OWCP found that a
conflict existed in the medical evidence regarding whether appellant had permanent impairment of
the legs due to her work injury and referred her to Dr. Framjee to resolve the conflict.
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.15
The Board finds that, under the circumstances of this case, the opinion of Dr. Framjee is
sufficiently well rationalized and based upon a proper factual background such that it is entitled to
special weight and establishes that appellant sustained no permanent impairment of the lower
extremities causally related to the November 2, 2004 work injury.
Dr. Framjee reviewed appellant’s history, reported findings and noted an essentially
normal physical examination. He noted that her history was significant for diabetes and Grave’s
disease. Dr. Framjee noted that, after obtaining appellant’s history, conducting a physical
examination and reviewing medical records and radiographic studies, he found no evidence of any
anatomical injury to her lumbar spine or pelvis secondary to the work injury of November 2, 2004.
Rather, Dr. Framjee opined that her clinical picture was indicative of symptom magnification with
multiple Waddell’s signs. Therefore, he opined that the physical examination was unreliable and
not a basis for rating permanent impairment. Dr. Framjee explained that MRI scans of the lumbar
spine were essentially normal given appellant’s age and did not indicate any acute post-traumatic
pathology secondary to the November 2, 2004 injury. He opined that if she sustained a contusion
type injury to the lumbar spine and pelvis her symptoms should have resolved within four weeks
of the accident. Dr. Framjee opined that in accordance with the A.M.A., Guides he was unable to
find any evidence of permanent impairment of the lumbar spine, right or left lower extremity or
the pelvis secondary to the work injury of November 2, 2004. He indicated that appellant’s
clinical picture was nonorganic in nature. Dr. Framjee found no objective basis on which to rate
impairment due to the accepted conditions.
The Board finds that Dr. Framjee properly determined that there was no basis under the
A.M.A., Guides for a schedule award.

15

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

6

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 is not entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 25, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7