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

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

Docket No. 10-912
Issued: January 6, 2011

Case Submitted on the Record

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

JURISDICTION
On February 18, 2010 appellant filed a timely appeal from a December 23, 2009 merit
decision of the Office of Workers’ Compensation Programs. 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 met his burden of proof to establish that he sustained an
emotional condition due to factors of his federal employment.
FACTUAL HISTORY
On March 23, 2009 appellant, a 44-year-old part-time flexible distribution clerk, filed an
occupational disease claim for an emotional condition he attributed to his employer for allegedly
violating rules established under the labor relations manual and the American Postal Workers’
Union. He stopped work on December 30, 2008.

Appellant submitted a March 27, 2009 work capacity report from Dr. Daniel O.
Mongiano, a family practice physician, who noted treatment for interpersonal and work-related
stress. Dr. Mongiano excused appellant from work December 31, 2008 through March 27, 2009.
By decision dated May 15, 2009, the Office denied the claim, finding that appellant did
not establish any compensable employment factors.
Appellant alleged he was subjected to discrimination and harassment by management
since returning to work on June 1, 2009. He alleged that management repeatedly treated him
unfairly by refusing to advance him to a regular position, in violation of his employment contract
and union rules. Appellant alleged that, after two coworkers retired, management never posted
their positions for bid.
Appellant alleged that his supervisor gave him additional employment duties to perform,
but he was not provided enough time to complete them. His failure to complete his assignments
became the basis of his supervisor’s recommendation that he be removed from his registry cage
job. Appellant asserted that he was singled out for poor performance and held to standards
different than those of his coworkers. He noted that none of the other registry cage employees
had to do additional duties. Appellant also alleged that his supervisor falsely accused him of
taking more breaks than allowed.
On May 31, 2009 appellant, through his attorney, requested an oral hearing, which the
Office conducted on September 11, 2009.
Appellant testified that he stopped working on December 31, 2008, because he was
experiencing chest pains, which he attributed to 10 years of discrimination at the employing
establishment. He described an incident when his supervisor told him to perform additional
employment duties, which he did not want to do because he was already performing a strenuous
job. At that time, another employee was standing nearby “doing absolutely nothing.” Appellant
stated that this frustrated and angered him, so much so that he experienced chest pains and left
work to seek medical attention. He also alleged that his leave requests were denied, while other
coworkers’ leave requests were granted. Appellant reiterated that he was denied a custodial
position, despite his seniority. He was told that there was not enough work to justify hiring him.
Appellant was also told that there were no custodial positions available.
By decision dated December 23, 2009, an Office hearing representative affirmed the
May 15, 2009 decision. The Office found that appellant did not establish his allegations of
administrative error or abuse.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
1

5 U.S.C. §§ 8101-8193.

2

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

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including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 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.5
To establish that he sustained an emotional condition in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or stress-related disorder; (2) factual evidence identifying employment factors or incidents
alleged to have caused or contributed to his condition; and (3) rationalized medical opinion
evidence establishing that the identified compensable employment factors are causally related to
his stress-related condition.6 If a claimant does implicate a factor of employment, the Office
should then determine whether the evidence of record substantiates that factor.7 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter asserted, the Office must base its decision on an analysis of the medical evidence.8
Workers’ compensation law is not applicable 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. When the disability results from an emotional
reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Act.9 On the other hand, there are
situations when an injury has some connection with the employment, but nonetheless does not
come within the coverage of workers’ compensation because it is not considered to have arisen
in the course of the employment.10 Further, in cases involving harassment or discrimination
allegations, there must be evidence that implicated acts of harassment or discrimination did, in
fact, occur supported by specific, substantive, reliable and probative evidence.11
Administrative and personnel matters, although generally related to the employee’s
employment are administrative functions of the employer rather than the regular or specially
3

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

4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

6

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

7

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

8

Id.

9

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

10

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

11

See Ruth C. Borden, 43 ECAB 146 (1991).

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assigned work duties of the employee and are not covered under the Act.12 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.13
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.14
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.15 If a claimant does implicate a factor of
employment, it should then determine whether the evidence of record substantiates that factor.
When the matter asserted is a compensable factor of employment and the evidence of record
establishes the truth of the matter asserted, the Office must base its decision on an analysis of the
medical evidence.16
ANALYSIS
The Office denied appellant’s emotional condition claim because he did not established
any compensable employment factors. The Board must, therefore, review whether the alleged
incidents and conditions of employment are covered employment factors under the terms of the
Act.
Appellant attributed his emotional condition to his employer allegedly violating
established rules and his employment contract in the denial of a regular position. Appellant did
not address with specificity how any specific provision of the manual or contract was violated by
the employer. He therefore failed to establish the factual component of this allegation.
Appellant also attributed his condition to 10 years of discrimination and harassment in that his
employer did not give him the job he requested. An employee’s dissatisfaction with being, or not
being given specific job duties constitutes frustration from not being permitted to work in a
particular environment or to hold a particular position and, absent evidence of error or abuse, is
not compensable.17

12

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
13

See William H. Fortner, 49 ECAB 324 (1998).

14

Ruth S. Johnson, 46 ECAB 237 (1994).

15

Dennis J. Balogh, supra note 7.

16

Id.

17

Robert Breeden, 57 ECAB 622 (2006).

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Appellant also alleged that his leave requests were denied, while those of his coworkers
were granted. These allegations pertain to administrative or personnel matters and are unrelated
to the employee’s regular or specially assigned work duties and thus do not generally fall within
the coverage of the Act.18 Whether the employing establishment erred or acted abusively is a
question of reasonableness.19 There is no probative evidence of record demonstrating error,
abuse, or that the employing establishment acted unreasonably.20
Mere perceptions of harassment or discrimination are not compensable; a claimant must
establish a basis in fact for the claim by supporting his allegations with probative and reliable
evidence.21 Appellant submitted no documentation, witness statements or other evidence to
support his allegations of harassment or discrimination. For these reasons, the Board finds
appellant has not established a compensable employment factor with respect to these allegations.
Appellant attributed his emotional condition to being assigned to perform additional and
unwanted employment duties while another coworker stood nearby “doing absolutely nothing.”
He asserted that he was singled out for poor performance and held to standards different than
those of his coworkers. The Board notes that the assignment of work is also an administrative
function.22 The manner in which a supervisor exercises this discretion generally falls outside the
ambit of the Act. This principle recognizes that a supervisor or manager must be allowed to
perform his or her duties and employees will, at times, dislike the actions taken. Mere
disagreement or dislike of a supervisory or of a managerial action will not be compensable,
absent evidence of error or abuse.23 Appellant did not assert that his actual work duties caused
his alleged medical conditions. Rather, he disagreed with the manner in which job assignments
were made. Accordingly, appellant has not established a compensable factor of employment in
this regard.
Appellant generally alleged that he was not given the proper amount of time to complete
these additional duties. Emotional reactions to situations in which an employee is trying to meet
his or her position requirements are compensable.24 The Board finds, however, that appellant
has not established the factual aspect of his claim regarding his workload or time constraints.
Appellant submitted a September 2007 workload summary and generally discussed the
additional employment duties he was assigned and alleged that he was unable to complete them
in the time allotted. His allegations lack specificity and do not clearly identify any particular

18

Sandra Davis, 50 ECAB 450 (1999).

19

See Richard J. Dube, 42 ECAB 916, 920 (1991).

20

Edgar G. Maiscott, 4 ECAB 558 (1952).

21

Curtis Hall, 45 ECAB 316 (1994); Margaret S. Krzycki, 43 ECAB 496 (1992).

22

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

23

C.S., 58 ECAB 137 (2006).

24

Trudy A. Scott, 52 ECAB 309 (2001).

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work duty that caused his alleged emotional condition.25 Consequently, appellant has not
established a compensable employment factor with regard to this allegation.
For these reasons, appellant has not established a compensable employment factor under
the Act. He has not met his burden of proof to establish that he sustained an emotional condition
in the performance of duty.26
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof to establish that he
sustained an emotional condition due to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2011
Washington, DC

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

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

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

25

See Robert Breeden, 57 ECAB 622 (2006) (the claimant did not establish the factual aspects of assertions
regarding work duties where the claimant’s statements lacked specificity and where the claimant did not submit
sufficient supporting evidence).
26

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Hasty P. Foreman, 54 ECAB 427 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
__________________________________________

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

Docket No. 19-0876
Issued: January 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 18, 2019 appellant filed a timely appeal from a December 19, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 19, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish that the acceptance
of his claim should be expanded to include additional conditions causally related to the accepted
February 21, 2018 employment injury.
FACTUAL HISTORY
On February 28, 2018 appellant, then a 56-year-old work and family life consultant, filed
a traumatic injury claim (Form CA-1) alleging that he twisted his left foot on February 21, 2018
when pushing a cart through a doorway while in the performance of duty, causing a sprain and
possible fracture of his left foot. On the reverse side of the claim form, the employing
establishment noted that appellant had stopped work and received medical care on
February 22, 2018.
In support of his claim, appellant submitted a February 22, 2018 report wherein
Dr. Bejjenki Chary, Board-certified in internal medicine, advised that he should be excused from
work through the end of the month. In a uniform consultation referral form of the same date, he
referred appellant to an orthopedist to evaluate a sprained or broken left foot.
In a March 1, 2018 development letter, OWCP informed appellant that additional evidence
was required in support of his claim. It requested that he submit a comprehensive narrative medical
report from a qualified physician that included a diagnosis and an opinion, supported by medical
rationale, addressing how the claimed employment incident caused or aggravated a medical
condition. OWCP attached a factual questionnaire for appellant’s completion and afforded him
30 days to submit the necessary evidence.3
By decision dated April 3, 2018, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish causal relationship between the diagnosed
condition and the accepted February 21, 2018 employment incident.
OWCP subsequently received an x-ray of appellant’s left foot, obtained on February 22,
2018, which revealed swelling of the soft tissue in the lateral forefoot, a plantar heel spur, a two
millimeter linear ossific fragment resulting from trauma at the fifth metatarsal, and no fractures.
On February 22, 2018 Dr. Peter E. Lavine, an orthopedic surgeon, obtained a history of
appellant tripping on February 21, 2018 at work, injuring his left foot. On examination he found
tenderness in the second, third, and fourth metatarsal, swelling of the left foot, and hypersensitivity
of the peroneal nerve. Dr. Lavine indicated that the x-ray of appellant’s left foot did not display
any fractures. He diagnosed left foot pain, a contusion of the dorsum of the left foot, and possible
reflex sympathetic dystrophy (RSD).
In a progress report dated March 1, 2018, Dr. Lavine found that appellant’s left foot was
tender and swollen with restricted movement. He diagnosed left foot pain and advised that he was
3
OWCP subsequently received a March 8, 2018 employing establishment work status report (Form CA-3) which
indicated that appellant had returned to work without restrictions on March 5, 2018.

2

unable to work. On April 3, 2018 Dr. Lavine noted that appellant’s foot pain had resolved,
reoccurred, and again resolved. He found minimal dorsal swelling with no tenderness and
diagnosed left foot pain.
On October 18, 2018 appellant requested reconsideration.
In a November 14, 2018 development letter, OWCP requested additional information from
appellant, including a response to its question of whether he had a similar disability or symptoms
prior to his injury and all records of any prior treatment. It also requested a comprehensive
narrative medical report from a qualified physician that included a diagnosis and an opinion,
supported by medical rationale, addressing how the claimed employment incident caused or
aggravated a medical condition. OWCP advised that pain was not a valid diagnosis. It afforded
appellant 20 days to submit the requested evidence.
In a December 4, 2018 letter, appellant responded that he did not have a similar disability
or symptoms prior to his workplace injury, recounted the trajectory of his treatment, and noted that
OWCP should have everything it needs to accept his claim in its possession.
By decision dated December 19, 2018, OWCP modified its April 3, 2018 decision. It
determined that the medical evidence from his attending physician was sufficient to establish his
claim for a left foot contusion. OWCP, however, denied appellant’s claim for additional left foot
conditions, however, finding that the evidence of record was insufficient to establish causal
relationship between the additional diagnosed conditions and the accepted February 21, 2018
employment injury.4
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish 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 FECA, that the claim was timely filed within the applicable
time limitation period of FECA,6 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the performance of
duty, it must first be determined whether a fact of injury has been established. A fact of injury
4

By separate decision dated December 19, 2018, OWCP formally accepted appellant’s claim for left foot contusion.

5

Supra note 1.

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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determination is based on two elements. First, the employee must submit sufficient evidence to
establish that he or she actually experienced the employment incident at the time, place, and in the
manner alleged.9 Second, the employee must submit sufficient medical evidence to establish that
the employment incident caused a personal injury.
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.10 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons.
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of claim should be expanded to include additional conditions as causally related to the
accepted February 21, 2018 employment injury.
Appellant submitted a February 22, 2018 report wherein Dr. Lavine noted the history of
appellant tripping on February 21, 2018 at work, injuring his left foot. On examination Dr. Lavine
found tenderness in the second, third, and fourth metatarsal, swelling of the left foot, and
hypersensitivity of the peroneal nerve. He indicated that the x-ray of appellant’s left foot did not
display any fractures. Dr. Lavine diagnosed left foot pain, a contusion of the dorsum of the left
foot, and possible RSD. In a progress report dated March 1, 2018, he found that appellant’s left
foot was tender and swollen with restricted movement. Dr. Lavine diagnosed left foot pain and
advised that he was unable to work. On April 3, 2018 he noted that appellant’s foot pain had
resolved, reoccurred, and again resolved. Dr. Lavine found minimal dorsal swelling with no
tenderness and diagnosed left foot pain. None of these reports, however, provided an opinion on
causal relationship between appellant’s additional left foot conditions and the accepted
employment injury. The Board has held that medical evidence that does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.11 These reports, therefore, are insufficient to establish expansion of appellant’s claim.
In a February 22, 2018 report, Dr. Chary advised that appellant should be excused from
work through the end of the month. In a uniform consultation referral form of even date, he
referred appellant to an orthopedist to evaluate a sprained or broken left foot. As Dr. Chary did
not provide an opinion on causal relationship, this report is also insufficient to establish expansion
of the claim.12
Appellant also submitted an x-ray of his left foot, obtained on February 22, 2018, which
revealed swelling of the soft tissue in the lateral forefoot, a plantar heel spur, a two millimeter
linear ossific fragment resulting from trauma at the fifth metatarsal, and no fractures. The Board,
9

D.B., Docket No. 18-1359 (issued May 14, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

10

5 U.S.C. § 8124(a).

11

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

12

Id.

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however, has held that diagnostic tests, standing alone, lack probative value as they do not provide
a physician’s opinion on whether there is a causal relationship between appellant’s accepted
employment incident/exposure and a diagnosed condition.13
As the medical evidence of record is insufficient to establish causal relationship between
additional diagnosed left foot conditions and the accepted employment injury, the Board finds that
appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that the
acceptance of claim should be expanded to include additional conditions as causally related to the
accepted February 21, 2018 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board
13
See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1333
Issued: December 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 22, 2014 appellant, through his attorney, filed a timely appeal of a February 10,
2014 merits 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 to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic back
injury due to the accepted employment incident on April 25, 2011.
On appeal counsel argued that the reports of Dr. Mark A.P. Filippone, a Board-certified
physiatrist, met appellant’s burden of proof or in the alternative required OWCP to undertake
further development of appellant’s claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board.2 The facts and circumstances
of the case as set out in the prior decision are adopted herein by reference. The relevant facts
follow.
On May 2, 2011 appellant, then a 57-year-old electronic maintenance technician, filed a
traumatic injury claim alleging that on April 25, 2011 he bent over to unlock the lock on a mail
processing machine and ruptured discs in his back. By decision dated June 7, 2011, OWCP
denied appellant’s claim for a traumatic injury finding that he had not submitted medical
evidence based on a proper history of injury establishing that he sustained an injury due to his
accepted employment incident of bending over to release a lock. Counsel requested an oral
hearing, before an OWCP hearing representative.
Appellant submitted a narrative statement dated June 24, 2011 claiming that on April 25,
2011 at 3:00 p.m., he was notified that due to a shortage of maintenance mechanics he was to
perform a daily maintenance route on four delivery bar code sorter machines, two of which had
to be completed by 6:00 p.m. To complete this assignment, he had to remove all items from the
perimeter of the machines, bring the assigned tools including the vacuum cleaner to the
machines, open all locked doors and vacuum the internal components while working in a
crouched or kneeling position. Appellant had completed these tasks on two machines by 6:00
p.m. and was in the process of removing the maintenance lock from the circuit breaker when he
stood up and immediately felt severe pain in his lower back in the vicinity of his left kidney.
While waiting for this pain to resolve he felt a numbing sensation that extended from his right
knee to his right ankle and started to lose sensation in his right foot and leg.
Dr. Filippone completed a report on October 5, 2011 noting that he reviewed appellant’s
June 24, 2011 statement and diagnosed low back derangement with clear evidence of internal
derangement of the lumbar spine and obvious evidence of cervical radiculitis. Dr. Filippone
stated that the injury on April 25, 2011 was the culmination of all of appellant’s back injuries and
was “quite literally the straw that broke the camel’s back….”
Appellant testified at the oral hearing on October 11, 2011 that his duties included
cleaning postal machines. This task involved moving a tool case weighing 40 pounds as well as
a separate toolbox weighing 200 pounds, a toolbar weighing 25 pounds, a rolling a vacuum
cleaner weighing 20 pounds and moving the letter equipment from around and atop the machine.
Appellant stated that letter equipment included carts weighing between 400 and 550 pounds
which had to be pushed away from the machine. He stated that his back pain occurred after
completing two of the four machines assigned to him while releasing a maintenance lock on the
circuit breaker. Appellant stated that he pulled the circuit breaker and stood up. He then
experienced pain in his back and a then a few minutes later numbness going down his right leg.
By decision dated November 23, 2011, an OWCP hearing representative affirmed the
prior decision of June 7, 2011, finding that appellant failed to submit sufficient medical opinion
evidence, based on a proper history of injury, to establish a causal relationship between
appellant’s diagnosed back condition and his employment incident of April 25, 2011.
2

Docket No. 13-40 (issued May 7, 2013).

2

Counsel requested reconsideration on December 5, 2011. By decision dated June 27,
2012, OWCP denied modification of its prior decision finding that the medical reports did not
provide a consistent mechanism of injury and are insufficient to establish that the employment
injury occurred as alleged. The Board reviewed appellant’s case on May 7, 20133 and found that
appellant had not submitted the necessary medical opinion evidence to establish that his
employment activities on April 25, 2011 resulted in his diagnosed conditions. The Board found
that Dr. Filippone stated that he had reviewed appellant’s history of back injuries as well as his
description of employment activities on April 25, 2011. He diagnosed low back derangement
and stated that appellant’s current condition was a culmination of his previous back injuries. He
opined that the April 25, 2011 injury was “the straw that broke the camel’s back.” The Board
found that this report did not provide the necessary medical explanation of how appellant’s work
activities caused or contributed to his diagnosed condition and without some medical reasoning,
this report was insufficient to meet appellant’s burden of proof. The Board concluded that
Dr. Filippone did not explain how or why appellant’s activities would result in his diagnosed
condition and affirmed the June 27, 2012 decision of OWCP.
On November 13, 2013 counsel requested reconsideration. He submitted an additional
report from Dr. Filippone dated October 31, 2013 in which Dr. Filippone related that on
April 25, 2011 appellant was pulled from his position of electronic technician and ordered to
work as a maintenance mechanic. Appellant was told to work on two machines, each 100 feet
long with 25 set of double steel doors. He was required to unlock and vacuum the interior of
each machine which included reaching in with a vacuum probe wand to the top of the machine
and then squatting down or kneeling to vacuum the bottom of the machine. Appellant was
required to complete this task in 60 minutes rather than the normal allotted time of between 75
and 90 minutes. He also pushed a 150-pound cart, wore a 20-pound tool belt and dragged a
vacuum cleaner hose. In addition, there were various items scattered in front of the machine
doors weighing between 50 and 600 pounds which appellant had to move to complete his
assigned task. Dr. Filippone concluded that appellant was working at an accelerated rate in a job
beyond his usual physical requirements. He stated, “About 50 minutes into this literally backbreaking work, he began to feel back pain but he continued working for another hour or so, but
he never made it to the two-hour break.” Dr. Filippone stated, “As described there was rapid
flexion/extension, rotation, squatting, stooping, reaching and twisting at a very rapid
nonphysiologic pain in a condensed period of time in a condensed space in a man not adequately
physically acclimatized to do this repetitive rapid task and this overloaded and herniated his
lumbar spine.”
By decision dated February 10, 2014, OWCP denied modification of its prior decision
finding that Dr. Filippone did not explain how the mechanism of appellant’s rapid
flexion/extension, rotation and squatting caused lumbar herniations. It further found that
Dr. Filippone had not explained how the lumbar herniations were the direct result of appellant’s
April 25, 2011 employment incident.

3

Id.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.5 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.6
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”7 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit
sufficient evidence, generally only in the form a medical evidence, to establish that the
employment incident caused a personal injury.9 A medical report is of limited probative value
on a given medical question if it is unsupported by medical rationale.10 Medical rationale
includes a physician’s detailed opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment activity. The
opinion of the physician must be based on a complete factual and medical background of the
claim, must be one of reasonable medical certainty, and must be supported by medical reasoning
explaining the nature of the relationship between the diagnosed condition and specific
employment activity or factors identified by the claimant.11
ANALYSIS
Appellant filed a notice of traumatic injury alleging that he sustained a back injury on
April 25, 2011. He submitted narrative statements describing his employment duties on that date
which OWCP has accepted as factual. OWCP denied his claim on the grounds that the medical
evidence was not sufficiently detailed and well reasoned to establish a causal relationship
4

5 U.S.C. §§ 8101-1893.

5

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

6

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

7

20 C.F.R. § 10.5(ee).

8

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

9

J.Z., 58 ECAB 529 (2007).

10

T.F., 58 ECAB 128 (2006).

11

A.D., 58 ECAB 149 (2006).

4

between his diagnosed conditions and his accepted employment incident. Appellant requested
reconsideration and submitted an additional report from Dr. Filippone addressing his alleged
employment-related condition. In his October 31, 2013 report, Dr. Filippone provided a detailed
description of appellant’s employment duties on April 25, 2011.
The Board finds that this report is not based on an accurate history of injury and therefore
lacks probative value. While Dr. Filippone provided a detailed description of appellant’s
employment duties, his report contradicted appellant’s statements that he had no back pain until
completing two machines around 6:00 p.m. Dr. Filippone described a gradual onset of back pain
50 minutes into appellant’s assigned tasks. This description does not comport with appellant’s
statements of sudden pain. As Dr. Filippone’s report is not factually accurate, it cannot
constitute the weight of the medical evidence and meet appellant’s burden of proof in
establishing his traumatic injury claim. The Board finds that the factual deficits in
Dr. Filippone’s report are such that his report does not require further development by OWCP as
argued on appeal.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. § § 10.605 through 10.607.
CONCLUSION
The Board finds that the medical evidence is not based on a proper factual background
and due to these deficits cannot establish appellant’s traumatic injury claim.

5

ORDER
IT IS HEREBY ORDERED THAT the February 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.12
Issued: December 2, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

12

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Attica, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1170
Issued: March 10, 2016

Case Submitted on the Record

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

JURISDICTION
On April 28, 2015 appellant filed a timely appeal from an April 6, 2015 merit decision of
the Office Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $3,343.44 for the period July 14, 2012 to August 23, 2014; (2) whether OWCP
properly denied waiver of recovery of the overpayment; and (3) whether OWCP properly
withheld $350.00 from appellant’s continuing compensation payments beginning May 3, 2014.
On appeal, appellant contends that she had not received any information regarding the
overpayment prior to OWCP’s letter which she received on April 7, 2015 and that she was not

1

5 U.S.C. § 8101 et seq.

aware of the $3,343.44 overpayment. She asserts that recovery of the overpayment would cause
undue hardship for her and her family.
FACTUAL HISTORY
OWCP accepted that on May 3, 2011 appellant, then a 51-year-old city carrier, sustained
a lumbar herniated disc at L2-3 when she slipped and fell in muddy water. It authorized lumbar
surgery performed on October 1, 2012.
Appellant began receiving wage-loss compensation on the supplemental rolls from
July 2, 2011 to August 25, 2012.
Periodic rolls payments continued through
September 22, 2012. Subsequently, OWCP returned appellant to the supplemental rolls from
April 7 to May 28, 2013. Appellant was placed back on the periodic rolls as of June 2, 2013.
Postretirement life insurance premiums were not deducted from her payments.
In a June 4, 2013 letter, the Office of Personnel Management (OPM) informed OWCP
that as a compensationer, appellant was eligible to continue the Federal Employees’ Group Life
Insurance (FEGLI) coverage. The final base salary on which FEGLI was based was $56,508.00.
Appellant’s postretirement election was no reduction and the commencement date for
postretirement deductions was July 14, 2012. OWCP began making the deduction on
August 24, 2014.
On September 19, 2014 OWCP issued a preliminary determination finding that appellant
had been overpaid in the amount of $3,343.44, because postretirement life insurance premiums
were not paid from July 14, 2012 to August 23, 2014. It made a preliminary finding that she was
without fault in creating an overpayment. OWCP stated that premiums for the period July 14,
2012 to August 23, 2014 amounted to $3,343.44. It informed appellant of her right to challenge
the fact or amount of the overpayment or request a waiver of the overpayment. If appellant
wished a waiver of the overpayment, she was directed to submit financial information by
completing an overpayment recovery questionnaire (Form OWCP-20). She was afforded 30
days to respond. An overpayment worksheet showed that $3,343.44 should have been deducted
from appellant’s wage-loss compensation for the period July 14, 2012 to August 23, 2014. The
preliminary determination was sent to her address of record. Appellant did not respond.
By decision dated April 6, 2015, OWCP finalized that appellant received an overpayment
of compensation in the amount of $3,343.44, for which she was not at fault. It denied waiver of
recovery of the overpayment because she failed to submit the requested financial information.
OWCP directed recovery from appellant’s continuing compensation payments at the rate of
$350.00 per month commencing May 3, 2015. The decision was sent to her address of record.
LEGAL PRECEDENT -- ISSUE 1
Under the FEGLI program,2 most civilian employees of the Federal Government are
eligible to participate in basic life insurance with one or more options. The coverage for basic
life is effective unless waived and premiums for basic and optional life coverage are withheld
2

The law governing life insurance for federal employees is found at 5 U.S.C. §§ 8701-8716.

2

from the employee’s pay. With certain restrictions, insurance benefits continue postretirement.
Insurance remains in effect until canceled and premiums due are to be deducted from the injured
employee’s compensation payments.3 When FEGLI premiums, including postretirement
insurance premiums are incorrectly withheld, the entire amount of the unpaid premium is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM
upon discovery of the error.4
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation,
so that his or her life insurance coverage could be continued without reduction. 5 C.F.R.
§ 870.701 (December 5, 1980) provided that an eligible employee had the option of choosing no
life insurance; Option A -- basic coverage (at no additional cost) subject to continuous
withholdings from compensation payments that would be reduced by two percent a month after
age 65 with a maximum reduction of 75 percent; Option B -- basic coverage (at an additional
premium) subject to continuous withholdings from compensation payments that would be
reduced by one percent a month after age 65 with a maximum reduction of 50 percent; or Option
C -- basic coverage subject to continuous withholdings from compensation payments with no
reductions after age 65 (at a greater premium).5
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect.6 Any employee who
does not file a life insurance election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and
does not have that type of optional insurance.7 When an underwithholding of life insurance
premiums occurs, the entire amount is deemed an overpayment of compensation because OWCP
must pay the full premium to OPM upon discovery of the error.8
FECA provides that the United States shall pay compensation for the disability or death
of an employee resulting from personal injury sustained while in the performance of duty.9
When an overpayment has been made to an individual because of an error of fact or law,
3

5 C.F.R. §§ 870-73.

4

James Lloyd Otte, 48 ECAB 334, 337 (1997). 5 U.S.C. § 8707(d); see also Keith H. Mapes, 56 ECAB 130
(2004); James Lloyd Otte, id. An underwithholding of premiums results in a two-tiered liability: The claimant owes
the employing establishment the underwithheld funds, and similarly the employing establishment owes the
insurance fund/OPM. If this occurs, OWCP must make OPM whole and remit the entire amount of the
underwithholding, even if the debt is eventually waived. Federal (FECA) Procedure Manual, Part 5 -- Benefit
Payments, Life Insurance, Chapter 5.401.11.b(2) (August 2004).
5

See James J. Conway, Docket No. 04-2047 (issued May 20, 2005).

6

5 C.F.R. § 870.504(a)(1).

7

Id. at § 504(b).

8

5 U.S.C. § 8707(d); see also Keith H. Mapes, 56 ECAB 130 (2004); James Lloyd Otte, supra note 4.

9

Id. at § 8102(a).

3

adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.10
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment of compensation in the amount of $3,343.44 for the period July 14,
2012 to August 23, 2014.
Appellant has received compensation benefits from OWCP since July 2, 2011. While in
compensationer status, she remained responsible for all insurance benefits, including the
premiums for postretirement basic life insurance at whatever option appellant had selected.
While OPM notified OWCP by letter dated June 4, 2013 that appellant had elected the
postretirement, no reduction option beginning July 14, 2012, it did not provide documentation of
that election. In this case, OWCP simply relied on a statement from OPM and placed the burden
on appellant to disprove the fact of the overpayment. A claimant is entitled to an adequate
statement of reasons with respect to any final decision by OWCP.11
In N.J.,12 the Board remanded the case to OWCP for further development because the
evidence was unclear as to why postretirement optional life insurance premiums had been
deducted as of a certain date. Similarly, in this case the evidence fails to establish the basis for
the optional postretirement life insurance premiums for the no reduction option as the signed
election form is not in the record.
Appellant would be responsible for the additional cost associated with her election of the
optional postretirement basic life insurance. However, as OWCP has not factually established
that appellant elected the optional coverage, there can be no finding of overpayment. The case
will be remanded to OWCP.13 On remand, OWCP should obtain from OPM the executed
election form completed by appellant, prior to determining whether appellant received an
overpayment of compensation. After such further development as OWCP deems necessary, it
should issue a de novo decision.

10

Id. at § 8129(a).

11

J.L., Docket No. 14-0194 (issued June 25, 2015). See also L.D., Docket No. 12-1408 (issued April 26, 2013)
(finding that OWCP did not provide adequate reasons for calculating an overpayment when the record contained no
worksheets or other specific documentation confirming the amount of compensation received).
12

Docket No. 13-2164 (issued April 18, 2014).

13

See generally id. (finding that the information from OPM did not sufficiently establish the date that a claimant’s
deductions for postretirement basic life began). See S.K., Docket No. 15-0511 (issued September 9, 2015); K.M.,
Docket No. 14-2001 (issued November 6, 2015).

4

CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
received an overpayment in the amount of $3,343.44 for the period July 14, 2012 to
August 23, 2014.14
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further consideration
consistent with this decision of the Board.
Issued: March 10, 2016
Washington, DC

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

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

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

14

In view of the Board’s finding that the case is not in posture for decision regarding whether appellant received
an overpayment of compensation, it is premature to address the issues of waiver and recovery.

5


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

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Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0173
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On November 24, 2020 appellant, through counsel, filed a timely appeal from a June 1,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 22, 2019, as he no longer had
1

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

5 U.S.C. § 8101 et seq.

disability or residuals causally related to his accepted December 1, 2006 employment injury; and
(2) whether appellant met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
FACTUAL HISTORY
On December 8, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 1, 2006 he sustained a back injury when two dogs
attacked him from behind and he twisted his back while in the performance of duty. He stopped
work on the date of the claimed injury and returned to limited-duty work several months later.3
OWCP assigned OWCP File No. xxxxxx368 to the claim and accepted it for lumbar sprain and
lumbago.4
Appellant received treatment for his December 1, 2006 employment-related back injury
from several attending physicians, including Dr. David A. Bundens, a Board-certified orthopedic
surgeon, and Dr. Laura E. Ross, an osteopath and Board-certified orthopedic surgeon. X-rays of
appellant’s lumbar spine from December 21, 2006 contained an impression of degenerative
changes of the lumbar discs, predominately at L5-S1. On January 4 and 12, 2010 Dr. Bundens
indicated that appellant was performing his regular duties on a full-time basis with some
complaints of back discomfort. Appellant stopped work on June 19, 2010. In an October 14, 2013
report, Dr. Ross diagnosed lumbar herniation and radiculitis of the right leg.
OWCP engaged in extensive development of the medical evidence between 2013 and 2018,
including referral to three OWCP referral physicians and two impartial medical specialists.5 In a
June 29, 2018 report, Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon who served as
the second of the two impartial medical specialists, reported the findings of his May 17, 2018
physical examination and determined that appellant did not have any work-related residuals or
disability.6

3

OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability
from work commencing December 11, 2009.
4

Under a separate claim, assigned OWCP File No. xxxxxx201, OWCP previously accepted that appellant sustained
a right wrist strain and right knee tenosynovitis when he pushed a plastic tub on September 29, 2000. Under another
separate claim, assigned OWCP File No. xxxxxx165, it accepted that he sustained a lumbar sprain related to carrying
telephone books on November 28, 2001. Appellant commenced working in a light-duty position on November 29,
2001 and returned to his regular duties on December 19, 2001. After a period of disability related to OWCPauthorized right wrist surgery performed on April 4, 2004 in connection with his claim under OWCP File No.
xxxxxx201, he returned to his regular duties in June 2005.
5

Commencing March 8, 2015, OWCP placed appellant on the periodic rolls and paid him wage-loss compensation
for total disability.
6

OWCP had determined that there was a conflict in the medical opinion evidence between Dr. Ross and
Dr. Andrew Newman, a Board-certified orthopedic surgeon who served as an OWCP referral physician. In a June 1,
2017 report, Dr. Newman determined that appellant’s December 1, 2006 employment injury had resolved. In a July 7,
2017 report, Dr. Ross opined that appellant continued to have residuals of the December 1, 2006 lumbar sprain and
that he was totally disabled.

2

In a July 30, 2018 report, Dr. Ross indicated that appellant’s current diagnosed conditions
that were causally related to the December 1, 2006 employment injury included multilevel lumbar
disc protrusions with herniations at L1-2 and L3-4 and disc bulges at multiple levels with annular
tears at L1-2, L3-4, and L4-5. She indicated that objective findings of the injury still existed,
including spasm in the lumbar spine. Dr. Ross advised that appellant was medically able to return
to work with restrictions of lifting no more than 10 pounds, and working no more than eight hours
at a time. She advised that appellant could sit for five hours in total, and stand for three hours
altogether with breaks.
In a March 6, 2019 notice, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he no longer had residuals or disability causally related
to his accepted December 1, 2006 employment injury. It informed appellant that the special weight
of the medical opinion evidence rested with the report of Dr. Friedenthal, the impartial medical
specialist. OWCP afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross repeated her prior findings and noted, “[h]is
speciﬁc work-related condition has not resolved.” He indicated that appellant was medically able
to return to work with restrictions of lifting no more than 10 pounds and working no more than 8
hours at a time. Appellant was able to sit for 45 to 60 minutes continuously, stand for
approximately 30 minutes continuously, sit for five hours altogether, and stand for three hours
altogether with breaks. Dr. Ross differed with Dr. Friedenthal’s assessment that appellant merely
sustained a lumbar strain, as this is not what was noted on his magnetic resonance imaging (MRI)
scan of the lumbar spine. She disagreed with Dr. Friedenthal’s assessment that the aggravation of
appellant’s condition ceased when he returned to full-duty work three or four months after
December 1, 2006.
Appellant, through counsel, argued that Dr. Friedenthal’s June 29, 2018 report did not
contain adequate medical rationale in support of its conclusions and that all of the relevant medical
documents were not provided to Dr. Friedenthal for review.
In early-September 2019, OWCP determined that it would not pursue action based on the
Dr. Friedenthal’s opinion, which had been based on a physical examination conducted on
May 17, 2018.
OWCP then referred appellant, along with a statement of accepted facts (SOAF) and series
of questions, for a second opinion examination and evaluation with Dr. Stanley Askin, a Boardcertified orthopedic surgeon. It requested that he provide an opinion regarding whether appellant
continued to have residuals of his accepted December 1, 2006 employment injury.

3

In a September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He noted that appellant showed full
range of motion of his elbows, forearms, wrists, fingers, and thumbs, and that muscle function of
the trapezii, latissimus dorsi, pectoralis major, deltoids, triceps, wrist flexors, and wrist extensors
was intact bilaterally. Appellant reported that, when he moved his right wrist, there was pain in
the radial aspect of his forearm, but not over the wrist joint proper. Dr. Askin reported that the
Finkelstein’s test for de Quervain’s tendinitis and testing for the intersection syndrome were
negative for the respective conditions. He indicated that appellant reported pain in the radial aspect
of his right forearm, but that this was “a subjective report without objective manifestation.”
Straight-leg raising was negative to 90 degrees while seated and appellant’s low back muscles
relaxed appropriately on alternate leg stance from which it is concluded that there was no present
muscle spasm. Dr. Askin noted that appellant offered 80 degrees of forward flexion and 10 degrees
of side-bending to each side, which was quite reasonable for a 62-year-old person. Examination
of appellant’s knees revealed full range of motion and normal ligamentous function. Dr. Askin
opined that appellant ceased to have residuals of the accepted lumbar sprain and lumbago
conditions sustained on December 1, 2006, noting that he had no objective findings other than the
fact that he examined as a rather typical 62-year-old man. He indicated, “[appellant] does not have
any concurrent nonwork-related disability, apart from the fact that when a person is 62 years of
age he is not as physically capable as when he was 20 years of age, but that is a biologically
imposed consequence of senescence.” Dr. Askin advised that there was nothing identifiably
objective that would preclude appellant’s resumption of his employment activities.
By decision dated November 22, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, as he no longer had residuals or disability
causally related to his accepted December 1, 2006 employment injury. It found that the weight of
the medical evidence rested with the opinion of Dr. Askin.
On December 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a December 9, 2019 duty status report (Form CA-17) from Dr. Scott
Fried, a Board-certified orthopedic surgeon, who diagnosed right wrist sprain/tenosynovitis and
recommended work restrictions. In a December 9, 2019 work capacity evaluation report (Form
OWCP-5c), he also recommended work restrictions. Appellant also submitted a functional
capacity evaluation (FCE) report, signed by Dr. Fried on December 6, 2019, which showed that
appellant could lift or carry up to 10 pounds.
During the hearing held on April 6, 2020, counsel argued that the weight of the medical
opinion evidence rested with the opinion of Dr. Ross who found continuing employment-related
residuals and disability.
By decision dated June 1, 2020, OWCP’s hearing representative affirmed the
November 22, 2019 decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.7 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. 8 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 10 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019.
The weight of the medical evidence is represented by the thorough, well-rationalized
opinion of Dr. Askin, the OWCP referral physician. The September 27, 2019 report of Dr. Askin
establishes that appellant had no residuals or disability due to his accepted December 1, 2006
employment injury after November 23, 2019.
In his September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He opined that appellant ceased to
have residuals of the accepted lumbar sprain and lumbago conditions sustained on December 1,
2006, noting that he had no objective findings other than the fact that he examined as a rather
typical 62-year-old man. Dr. Askin indicated, “[appellant] does not have any concurrent nonworkrelated disability, apart from the fact that when a person is 62 years of age he is not as physically
capable as when he was 20 years of age, but that is a biologically imposed consequence of
senescence.” He advised that there was nothing identifiably objective that would preclude
appellant’s resumption of his employment activities.
The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the relevant issue of
7

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
8

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
9

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
11

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

5

continuing residuals/disability related to the December 1, 2006 employment injury. Dr. Askin
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that appellant had no
objective findings of the accepted lumbar sprain and lumbago.12
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross indicated that appellant sustained these
injuries due to the December 1, 2006 work-related incident and found that he still had ﬁndings
including spasm in the lumbar spine. She recommended work restrictions and noted, “[h]is
speciﬁc work-related condition has not resolved.”
The Board finds, however, that Dr. Ross’ reports are of limited probative value with respect
to OWCP’s termination action because it has not been accepted that appellant sustained her abovedetailed diagnosed conditions in connection with the December 1, 2006 employment injury.
Dr. Ross has not otherwise explained, with medical rationale, how such injuries were sustained by
appellant on December 1, 2006. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/level of disability has an employment-related cause.13 Therefore, these reports
are insufficient to support appellant’s claim that OWCP improperly terminated compensation.
As the evidence of record is insufficient to overcome the weight accorded to Dr. Askin, the
Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 14 To establish causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized

12

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).
13

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018);
Manuel Gill, 52 ECAB 282 (2001).

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medical evidence based on a complete medical and factual background, supporting such causal
relationship.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
disability or residuals causally related to his accepted December 1, 2006 employment injury after
November 22, 2019.
After OWCP’s November 22, 2019 decision terminating appellant’s compensation
effective the same date, appellant submitted additional medical evidence , which he felt showed
that he was entitled to compensation after November 22, 2019 due to residuals of his December 1,
2006 employment injury. Given that the Board has found that OWCP properly relied on the
opinion of the OWCP referral physician, Dr. Askin, in terminating appellant’s compensation
effective November 22, 2019, the burden shifts to appellant to establish that he is entitled to
compensation after that date.
Appellant submitted a December 9, 2019 duty status report from Dr. Fried who diagnosed
right wrist sprain/tenosynovitis and recommended work restrictions. In a December 9, 2019 work
capacity evaluation report, Dr. Fried also recommended work restrictions. Appellant also
submitted an FCE report, signed by Dr. Fried on December 6, 2019, which showed that appellant
could lift or carry up to 10 pounds. The Board has reviewed the additional evidence submitted by
appellant and finds that it is not of sufficient probative value to establish that he had
residuals/disability related to his December 1, 2006 employment injury after November 22, 2019.
As noted above, it has not been accepted that appellant sustained a wrist injury on December 1,
2006 and none of these reports contains an opinion that appellant had residuals/disability due to
the accepted lumbar sprain or lumbago conditions. The Board has held that medical evidence that
does not offer an opinion regarding work-related residuals or disability is of no probative value on
the issue of causal relationship.16
As appellant has not submitted any rationalized medical evidence establishing tha t he had
employment-related disability or residuals after November 22, 2019, causally related to the
accepted December 1, 2006 employment injury, he has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019. The Board further

15

Id.

16

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

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finds that appellant has not met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
PEARL HARBOR-HICKAM, Honolulu, HI,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 20-0632
Issued: October 6, 2021

Case Submitted on the Record

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

On January 27, 2020 appellant filed a timely appeal from an October 1, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate
Boards docketed the appeal as No. 20-0632.1
On May 10, 2017 appellant, then a 61-year-old child and youth program assistant, filed a
traumatic injury claim (Form CA-1) alleging that on April 27, 2017 she pulled a tendon in the back
of her right leg when she was helping children clean up the playground while in the performance
of duty. On the reverse side of the claim form her supervisor indicated that she did not believe
that appellant was injured in the performance of duty as she failed to provide a diagnosis and had

1

The Board notes that, following the October 1, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

not proven causal relationship. She also noted that appellant sustained a prior injury to her right
knee.2 Appellant did not stop work.
In an April 28, 2017 statement, appellant explained that she hurt the back of her right knee
on April 27, 2017 while she was assisting the children to clean up the playground. She believed
that she would feel better the following morning, but indicated that her injury did not improve.
Appellant then visited her doctor’s office where Dr. Mickey Tseng, a Board-certified orthopedic
surgeon, informed her that she had strained and pulled a tendon in her left knee.
In a May 18, 2017 development letter, OWCP informed appellant of the factual and
medical deficiencies of her claim and afforded her 30 days to submit the necessary evidence.
In a May 21, 2017 response to OWCP’s development questionnaire, appellant explained
the circumstances of her claimed April 27, 2017 injury. She also noted that she had previously
injured her left knee in 2011. 3
By decision dated June 28, 2017, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence of record did not establish that her right leg injury was causally related
to the accepted April 27, 2017 employment incident.
On February 28, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated March 9, 2018, a hearing representative denied appellant’s request for a
review of the written record, finding that it was untimely filed as it was not postmarked within 30
days of the issuance of the June 28, 2017 decision. After exercising her discretion, the hearing
representative further found that the merits of the claim could equally well be address ed through
the reconsideration process.
On April 24, 2018 appellant requested reconsideration of OWCP’s June 28, 2017 decision.
By decision dated September 13, 2018, OWCP denied modification of its June 28, 2017
decision.
In medical reports dated March 1 and 7, 2019, Dr. Brandon Shirai, Board-certified in
emergency medicine, evaluated appellant for pain she was experiencing in her right knee due to
the April 27, 2017 employment incident and also referenced her August 2000 right knee injury
resulting in a medial meniscus repair and her February 7, 2011 left knee injury resulting in another
medial meniscus repair. He opined to the “highest degree of medical probability” that appellant’s
2

Appellant previously filed a traumatic injury claim on August 8, 2000 that was accepted for a right knee meniscus
tear under OWCP File No. xxxxxx785. On September 20, 2002 OWCP granted her a schedule award for two percent
permanent impairment of the right lower extremity for the period October 2 to November 11, 2001.
3

OWCP previously accepted a February 10, 2011 traumatic injury claim for a contusion of the left knee under
OWCP File No. xxxxxx844. On June 26, 2018 OWCP expanded acceptance of her cla im to include a permanent
aggravation unilateral primary osteoarthritis, left knee; an old bucket handle tear of medial meniscus, left; and a tear
of medial meniscus of knee, current, left.

2

April 27, 2017 injury aggravated her August 2000 right knee injury. Dr. Shirai also opined that
the acute injury to her right knee was consistent with a repeat meniscus tear, given the mechanism
of weight bearing on the right knee rotation, subsequent buckling and popping and sharp localized
pain occurring at the onset of her injury.
On an appeal request form dated July 23, 2019, postmarked September 9, 2019, and
received by OWCP until September 16, 2019, appellant requested reconsideration of OWCP’s
September 13, 2018 decision. 4 In an attached statement, she requested that she be placed back on
workers’ compensation due to her right knee condition and explained that her right knee gradually
weakened due to having to overcompensate following her left knee injury.
By decision dated October 1, 2019, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The Board has duly considered the matter and concludes that this case is not in posture for
decision. OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 5 For
example, if a new injury case is reported for an employee who previously filed an injury claim for
a similar condition or the same part of the body, doubling is required. 6 Herein, appellant has an
accepted claim for a right knee meniscus tear under OWCP File No. xxxxxx785. She also claimed
that she was forced to rely more on her right leg to compensate for a previously accepted left knee
contusion, a permanent aggravation of unilateral primary osteoarthritis, left knee, an old bucket
handle tear of medial meniscus, left and a tear of medial meniscus of the knee, current, left under
OWCP File No. xxxxxx844. However, the evidence pertaining to OWCP File Nos. xxxxxx785
and xxxxxx844 are not a part of the case record presented before the Board. 7
For a full and fair adjudication, the case must be returned to OWCP to administratively
combine the current case record with OWCP File Nos. xxxxxx785 and xxxxxx844 so it can
properly determine whether appellant has submitted sufficient evidence to demonstrate clear
evidence of error. Following this and other such further development as OWCP deems necessary,
it shall issue an appropriate decision. Accordingly,

4

The Board notes that appellant’s reconsideration request was postmarked as mailed on September 9, 2019, but
was not “received” into the case record until a full seven days later on September 16, 2019. Due to this unexplained
seven-day delay, appellant’s reconsideration request was deemed untimely filed.
5

See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
6

Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019); K.T.,
Docket No. 17-0432 (issued August 17, 2018).
7

See Order Remanding Case, S.C., Docket No. 19-1771 (issued April 28, 2020).

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IT IS HEREBY ORDERED THAT the October 1, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4