United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Harlingen, TX, Employer
__________________________________________

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

Docket No. 19-1249
Issued: November 22, 2019

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 May 16, 2019 appellant filed a timely appeal from an April 11, 2019 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 April 11, 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

ISSUE
The issue is whether appellant has met his burden of proof to establish a right ear condition
causally related to the accepted February 20, 2019 employment incident.
FACTUAL HISTORY
On February 25, 2019 appellant, then a 43-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on February 20, 2019 he developed constant ringing and a
“plugged feeling” in his right ear due to a loud high radio frequency in his service vehicle while
in the performance of duty. On the reverse side of the claim form the employing establishment
indicated that appellant was injured in the performance of duty.
In a development letter dated March 5, 2019, OWCP noted that no evidence had been
submitted with his claim. It advised him of the type of factual and medical evidence required to
establish his claim. OWCP afforded appellant 30 days to provide the necessary evidence.
The record contains duty status forms (Form CA-17) dated March 5 and 14, 2019, noting
a date of injury of February 20, 2019 and diagnoses of acoustic right ear trauma and tinnitus.3
In a March 6, 2019 report, Dr. Thomas Martens, an osteopathic physician specializing in
family medicine, diagnosed right ear tinnitus and noise effects due to a February 20, 2019
employment incident. He noted that on February 20, 2019 appellant was in a work vehicle when
the radio blasted into his right ear after it had been turned on, which caused immediate discomfort
and ringing in the right ear. Dr. Martens noted that, since February 20, 2019, appellant had
experienced right ear vibration, difficulty hearing low-pitched noises and sounds, and constant
ringing in his right ear, including when going to sleep and waking up.
By decision dated April 11, 2019, OWCP accepted that the alleged incident occurred, as
alleged, but denied appellant’s claim, finding that the medical evidence was insufficient to
establish a diagnosis causally related to the accepted incident. It noted that tinnitus was not a
medical diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 of FECA,5 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

3

The signatures of the providers on the forms are illegible.

4

Supra note 1.

5
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

2

the employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 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 evidence, generally in the form of medical evidence, to establish that the
employment incident caused a personal injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.12
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.13
Regarding tinnitus, the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) provides that tinnitus is not a disease, but
rather a symptom that may be the result of a disease or injury.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right ear
condition causally related to the accepted February 20, 2019 employment incident.

6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8
R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 8.
11

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

13

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

14

D.L., Docket No. 19-0987 (issued October 23, 2019); A.M.A., Guides 249 (6th ed. 2009).

3

In his March 6, 2019 report, Dr. Martens noted that appellant experienced tinnitus and
noise effects in his right ear. He indicated that appellant developed right ear discomfort and ringing
due to being subjected to the radio blasting into his right ear after turning it on in a work vehicle.
However, a medical report is of no probative value if it does not provide a firm diagnosis of a
particular medical condition, or offer a specific opinion as to whether the accepted employment
incident caused or aggravated the claimed condition.15 The Board has previously explained that
tinnitus is not a disease, but rather is a symptom that may be the result of a disease or injury. As
Dr. Martens did not offer a rationalized medical opinion establishing a diagnosed condition
causally related to the accepted employment incident, his report is insufficient to establish
appellant’s claim.16
Appellant also submitted CA-17 forms dated March 5 and 14, 2019, which contained an
illegible signature. The Board has held that reports that bear illegible signatures cannot be
considered probative medical evidence because they lack proper identification that the author is a
physician.17 Therefore, this evidence is of no probative value.
As appellant has not submitted rationalized medical evidence establishing a diagnosed right
ear condition causally related to the February 20, 2019 employment incident, he has not met his
burden of proof to establish his claim.18
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 a right ear
condition causally related to the accepted February 20, 2019 employment incident.

15

See L.E., Docket No. 19-0470 (issued August 12, 2019).

16

M.B., Docket No. 19-0828 (issued September 17, 2019); K.L., Docket No. 18-1029 (issued January 9, 2019).

17

J.P., Docket No. 19-0197 (issued June 21, 2019).

18

K.L., supra note 16.

4

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 22, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, KILMER
PROCESSING & DISTRIBUTION CENTER,
Edison, NJ, Employer
__________________________________________

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

Docket No. 19-0664
Issued: November 19, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On February 4, 2019 appellant filed a timely appeal from a December 20, 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.
ISSUE
The issue is whether appellant has greater than 37 percent permanent impairment of his
right lower extremity, for which he previously received schedule award compensation.
FACTUAL HISTORY
On April 18, 2007 appellant filed a notice of recurrence (Form CA-2a) alleging that on
March 2, 2007 he sustained a recurrence of a medical condition causally related to his July 22,
1

5 U.S.C. § 8101 et seq.

1992 employment injury.2 He noted that he stopped work on March 6, 2007 due to right knee pain
and loss of range of motion (ROM). On July 17, 2007 OWCP accepted appellant’s claim for
recurrence of a medical condition, post-traumatic arthropathy right lower extremity.
On December 3, 2007 Dr. James M. Lee, an orthopedic surgeon and appellant’s attending
physician, performed a second right knee arthroscopy.3
In a March 22, 2008 letter, OWCP informed appellant that his April 18, 2007 claim should
have been developed as a new traumatic injury claim, and that he was entitled to 45 days of
continuation of pay.
On November 19, 2010 Dr. Lee performed an additional right knee arthroscopy.
On February 2, 2011 appellant filed a schedule award claim (Form CA-7). By decision
dated December 28, 2012, OWCP granted him a schedule award for 30 percent permanent
impairment of the right lower extremity due to his accepted right knee conditions. The period of
the award was from September 30, 2011 through May 26, 2013.
On November 1, 2013 Dr. Lee recommended a total right knee replacement, which was
performed on May 14, 2014 by Dr. Louis C. Almekinders, a Board-certified orthopedic surgeon.
In a report dated October 20, 2014, he found that appellant had reached maximum medical
improvement (MMI). On October 27, 2014 appellant filed an additional schedule award claim
(Form CA-7).4
In a report dated March 29, 2016, Dr. Almekinders found that as a result of the total knee
replacement appellant had 31 percent permanent impairment of the right lower extremity. On
June 6, 2017 OWCP referred Dr. Almekinders’ March 29, 2016 report to the district medical
adviser (DMA), Dr. Michael M. Katz, a Board-certified orthopedic surgeon, for review and
application of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5 In a June 6, 2017 report, Dr. Almekinder determined
that appellant had 25 percent permanent impairment of his right lower extremity due to his total
knee replacement and therefore was not entitled to an additional schedule award.

2

Appellant has a previously accepted claim under OWCP File No. xxxxxx054 for right knee contusion, left wrist
and hand contusion, and right leg traumatic arthropathy sustained when he tripped over a coworker while in the
performance of duty on July 22, 1992.
3

Appellant first underwent right knee arthroscopy on January 4, 1993.

4

On October 3, 2015 appellant filed a notice of recurrence (Form CA-2a) alleging that on March 3, 2015 he
sustained a recurrence of disability causally related to his March 2, 2017 employment injury. He alleged that the
employing establishment failed to provide him with modified duty in keeping with his employment-related work
restrictions. On November 27, 2015 appellant accepted a modified-duty position at the employing establishment. By
decision dated February 23, 2016, OWCP determined that appellant’s modified-duty position as a manager of
distribution operations fairly and reasonably represented his wage-earning capacity. It reduced his wage-loss
compensation benefits to zero based on his actual earnings in this position.
5

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

2

By decision dated September 21, 2017, OWCP denied appellant’s claim for an additional
schedule award finding that he had no more than 30 percent permanent impairment of his right
knee for which he had previously received a schedule award.
On August 15, 2018 appellant requested reconsideration of the September 21, 2017
schedule award denial.
On September 26, 2018 OWCP referred appellant for a second opinion evaluation with
Dr. Lawrence N. Larabee, Jr., a Board-certified orthopedic surgeon, and requested that he evaluate
appellant’s permanent impairment for schedule award purposes in accordance with the A.M.A.,
Guides. In his October 24, 2018 report, Dr. Larabee described appellant’s history of injury and
listed his right knee surgeries. He described appellant’s findings on physical examination
including an audible “pop” of the iliotibial (IT) band as it rubbed across the prosthesis. Appellant
reported that this was painful and caused him to stop walking after 200 yards. He was unable to
fully extend his right knee by 10 degrees and exhibited flexion of 110 degrees, internal rotation 5
degrees, and external rotation 5 degrees based on three ROM tests. In his left, unaffected knee,
appellant had full extension as well as hyperextension of 5 degrees and flexion of 130 to 135
degrees. Dr. Larabee diagnosed status post right knee arthroplasty and multiple knee surgeries
with loss of ROM of the right knee. He reported that appellant’s date of MMI was
October 20, 2014.
Dr. Larabee provided a November 20, 2018 addendum report utilizing the diagnosis-based
impairment (DBI) method to determine impairment and found that appellant had 37 percent
permanent impairment of the right lower extremity pursuant to the A.M.A., Guides. Under Table
16-3, Knee Regional Grid, page 511 of the A.M.A., Guides, Dr. Larabee identified the diagnosis
of fair result of the total knee replacement a class 3 impairment with a default rating of 37 percent.
He assigned grade modifier of 3 for functional history (GMFH) under Table 16-6, page 516 due
to appellant’s difficulty walking. Under Table 16-7, page 517, Dr. Larabee assigned a grade
modifier 3 for physical examination (GMPE) based on appellant’s loss of range of motion. He
assigned grade modifier 3 for clinical studies (GMCS) in accordance with Table 16-8, page 591 as
the clinical studies confirmed the diagnosis of severe pathology. Using the net adjustment formula
of (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), he calculated that appellant had a net
adjustment of 0, which equaled a grade C or 37 percent impairment rating.
On November 27, 2018 OWCP referred Dr. Larabee’s report to the DMA. In a report dated
November 27, 2018, the DMA agreed with Dr. Larabee’s impairment rating for total knee
replacement with a fair result and a default value of 37 percent permanent impairment.6 He found
that Dr. Larabee accurately determined appellant’s GMFH7 and GMCS at 3.8 The DMA further
noted that the GMPE was not applicable as it was used to rate the class of the total knee
replacement.9 After applying the net adjustment formula, he determined that appellant had 37
6

A.M.A., Guides 511, Table 16-3.

7

Id. at 516, Table 16-6.

8

Id. at 519, Table 16-8.

9

Id. at 521.

3

percent permanent impairment of his right lower extremity entitling him to a schedule award. As
appellant had previously received schedule awards totaling 30 percent of the right lower extremity
due to his right knee conditions, the DMA found that appellant was entitled to an additional award
of 7 percent permanent impairment of the right lower extremity. He determined that the date of
MMI was October 24, 2018 the date of Dr. Larabee’s examination upon which impairment was
based.
By decision dated December 20, 2018, OWCP granted appellant a schedule award for a
total of 37 percent impairment of his right lower extremity which constituted an additional 7
percent increase to his previous schedule awards of 30 percent permanent impairment of the right
lower extremity.
LEGAL PRECEDENT
The schedule award provisions of FECA10 and its implementing federal regulations11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member, function,
or organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.12 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.13 As of May 1, 2009, schedule awards are
determined in accordance with the sixth edition of the A.M.A., Guides (2009).14 The Board has
approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage
loss of use of a member of the body for schedule award purposes.15
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.16 After the class of diagnosis
(CDX) is determined from the Knee Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

J.H., Docket No. 18-1207 (issued June 20, 2019); K.P., Docket No. 18-0777 (issued November 13, 2018);
Ausbon N. Johnson, 50 ECAB 304, 311 (1999).
13

Id.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700,
Exhibit 1 (January 2010).
15

Id.; Isidoro Rivera, 12 ECAB 348 (1961).

16

A.M.A., Guides 509-11 (6th ed. 2009).

4

adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).17 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 37
percent permanent impairment of his right lower extremity, for which he previously received
schedule award compensation.
In a November 20, 2018 report, Dr. Larabee, OWCP’s second opinion physician, found
that appellant had 37 percent impairment of his right lower extremity due to a fair result of his
total knee replacement. He utilized the DBI method for rating appellant’s permanent impairment.
Under Table 16-3, Knee Regional Grid, page 511 of the A.M.A., Guides, Dr. Larabee identified
the diagnosis of total knee replacement as a class 3 impairment with default rating of 37 percent.
He applied GMFH, GMPE, and GMCS of 3 to the net adjustment formula, which resulted in a net
adjustment of 0, which equaled 37 percent permanent impairment of the right lower extremity.
On November 27, 2018 Dr. Katz, a DMA, noted appellant’s accepted conditions and
reviewed the medical record, including the clinical findings of Dr. Larabee. He agreed with
Dr. Larabee’s 37 percent right lower extremity impairment rating, but noted an error in the
application of the net adjustment formula in that GMPE should not have been included as it was
used to rate the class of the total knee replacement.19 This error did not impact the final grade of
the impairment.
The DMA determined that MMI was October 24, 2018 the date of Dr. Larabee’s
examination upon which the impairment rating was based. On appeal appellant contested the date
of MMI asserting that it should be October 20, 2014 and that compensation be recalculated to
reflect the period of award from October 20, 2014. It is well settled that MMI arises at the point
at which an injury has stabilized and will not improve further.20 The Board has also noted a
reluctance to find a date of MMI which is retroactive to the award, as retroactive awards often
result in a payment of less compensation benefits.21 The determination of whether MMI has been
reached is based on the probative medical evidence of record and is usually considered to be the
date of the medical evaluation which is accepted as definitive by OWCP.22 Payment of an
increased award based on additional impairment may be considered at a later date.23 Dr. Larabee’s
17

Id. at 515-22.

18

Id. at 23-28.

19

Id. at 521.

20

Supra note 13 at Chapter 3.700.3.1.a(1)(b).

21

R.M., Docket No. 18-1313 (issued April 11, 2019); Mark A. Halloway, 55 ECAB 321, 325 (2004).

22

Id.; supra note 13 at Chapter 2.808.7.b.

23

Supra note 19.

5

report formed the basis of the most recent definitive permanent impairment rating. The Board
therefore finds that appellant reached MMI for the calculation of this award on October 24, 2018
and that he has not met his burden of proof to establish entitlement to an increased schedule
award.24
Appellant may request a schedule award or increased schedule award at any time 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 has not met his burden of proof to establish greater than 37
percent permanent impairment of his right lower extremity, for which he previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the December 20, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 19, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

24

Supra note 20.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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

Docket No. 20-0115
Issued: September 4, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 17, 2019 appellant filed a timely appeal from a September 30, 2019 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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$1,792.81 overpayment of compensation for the period January 16 through February 2, 2019
because she continued to receive wage-loss compensation following her return to work; and
(2) whether OWCP properly found that appellant was at fault in the creation of the overpayment,
thereby precluding waiver of recovery of the overpayment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 16, 2017 appellant, then a 45-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained a right knee condition causally related to
factors of her federal employment. She noted that she first became aware of the condition on
September 12, 2017, but did not realize the connection to her federal employment until
October 10, 2017. Appellant stopped work on September 21, 2017. OWCP accepted the claim
for right knee meniscal derangement due to an old tear and authorized right knee arthroscopic
surgery, which occurred on March 16, 2018. It paid wage-loss compensation on the supplemental
rolls for temporary total disability beginning November 17, 2017, and on the periodic rolls
effective April 1, 2018.
In a letter dated April 20, 2018, OWCP advised appellant that she had been placed on the
periodic rolls, outlined her entitlement to compensation benefits, and advised her of her
responsibility to return to work in connection with the accepted injury. In an attached EN1049
form, it provided:
“OVERPAYMENTS: To minimize the possibility of an overpayment of
compensation, NOTIFY THIS OFFICE IMMEDIATELY WHEN YOU GO
BACK TO WORK. If you receive your compensation payments via paper check,
the payment shows the period for which payment is made. If you have worked for
any portion of this period, return the payment to this office, even if you have already
advised OWCP that you are working. For payments sent by electronic funds
transfer (EFT), a notification of the date and amount of payment appears on the
statement from your financial institution. You are expected to monitor your EFT
deposits carefully, at least every two weeks. If you have worked for any portion of
the period for which a deposit was made, advise OWCP immediately so that the
overpayment can be collected.” (Emphasis in the original.)
In a letter dated January 25, 2019, appellant noted that she had gone back to work on
January 17, 2019, in a light-duty assignment which accommodated her doctor’s restrictions.
A Form CA-3 worksheet dated February 12, 2019, signed by an employing establishment
injury compensation specialist, indicated that on January 25, 2019 appellant accepted a January 21,
2019 limited-duty job offer working full time with restrictions.
On February 13, 2019 OWCP noted on a fiscal form that appellant had returned to work
on January 25, 2019, but that on February 2, 2019 it had paid her compensation for the period
January 25 through February 2, 2019. It calculated that appellant had been overpaid in the amount
of $1,008.68 for the nine days she received compensation following her return to work on
January 25, 2019.
In an e-mail dated June 11, 2019, OWCP requested that the employing establishment
clarify the date appellant returned to work. It noted that the employing establishment’s Form CA3 worksheet indicated that she accepted the job offer on January 25, 2019, but she submitted
correspondence indicating that she returned to work on January 17, 2019.

2

In a responsive e-mail dated July 2, 2019, the employing establishment responded to
OWCP noting that appellant worked 3.5 hours on January 16, 2019, which was overtime as it was
her day off. Appellant worked a full day on January 17, 2019, therefore her back to work date was
January 17, 2019. She was presented a job offer on January 21, 2019, which she signed on
January 25, 2019.
In a July 31, 2019 preliminary overpayment determination, OWCP advised appellant that
she had been overpaid $1,792.81 for the period January 16 through February 2, 2019 because she
returned to a limited-duty job on January 16, 2019, but continued to receive compensation for
temporary total disability through February 2, 2019. It explained that during the period January 6
through February 2, 2019 she had been paid a net total of $2,788.81, which divided by 28 days,
equaled a daily rate of $99.60. Since appellant was not entitled to compensation for 18 days from
January 16 to February 2, 2019, the daily rate of $99.60 multiplied by 18 totaled the overpayment
amount of $1,792.81. OWCP also determined that she was at fault in the creation of the
overpayment because she had accepted payment that she knew or reasonably should have known
to be incorrect. It informed appellant that she had the right to submit evidence or argument if she
disagreed with its findings. OWCP also informed her that she had a right to a prerecoupment
hearing before an OWCP hearing representative. Additionally, it instructed appellant to complete
an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit supporting
financial documentation. There was no response from appellant.
By decision dated September 30, 2019, OWCP finalized its preliminary determination that
appellant received an overpayment of compensation in the amount of $1,792.81 for the period
January 16 through February 2, 2019. It determined that she was at fault in the creation of the
overpayment2, and therefore, was not entitled to waiver of recovery of the overpayment. OWCP
required recovery in full within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of 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.3 Section 8116(a) of FECA provides that, while an employee is receiving
compensation or if he or she 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,
the employee may not receive salary, pay, or remuneration of any type from the United States,
except in limited specified instances.4 OWCP’s procedures provide that an overpayment of

2

It is unclear from the case record whether appellant’s compensation payments were made by electronic funds
transfer.
3

Id. at § 8102(a).

4

Id. at § 8116(a).

3

compensation is created when a claimant returns to work, but continues to receive wage-loss
compensation.5
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation for the period January 16 through February 2, 2019.
The evidence of record establishes that appellant returned to limited-duty work working
overtime for the employing establishment for 3.5 hours on January 16, 2019 as that was a
nonscheduled workday, and full-time work as of January 17, 2019, but she continued to receive
wage-loss compensation through February 2, 2019. As noted above, a claimant is not entitled to
receive compensation for total disability during a period in which she had actual earnings.
Therefore, an overpayment of compensation was created in this case.6
The Board further finds, however, that this case is not in posture for decision with regard
to the amount of overpayment. In the July 31, 2019 preliminary notice, OWCP determined the
overpayment to be $1,792.81 for the period January 16 through February 2, 2019, based upon a
finding that appellant had worked 18 full days from January 16 through February 2, 2019, and that
she was therefore overpaid at the rate of $99.60 for each of these days. However, appellant has
indicated that she returned to full-time work on January 17, 2019 and the employing establishment
has indicated that she worked 3.5 hours on January 16, 2019 and full-time work as of
January 17, 2019.
OWCP did not adequately explain the amount of the overpayment in this case as the Board
is unable to determine the proper overpayment for January 16, 2019 as appellant had worked only
3.5 hours that day. A claimant is entitled to an overpayment decision that clearly explains how
the amount was calculated.7 The Board therefore finds that OWCP has not established the amount
of the overpayment in question.
The case will be remanded to OWCP for recalculation of the amount of the overpayment,
to be followed by a new preliminary notice of overpayment and a de novo overpayment decision.

5

See E.R., Docket No. 19-1365 (issued December 23, 2019); J.L., Docket No. 18-1266 (issued February 15, 2019);
K.E., Docket No. 18-0687 (issued October 25, 2018); B.H., Docket No. 09-0292 (issued September 1, 2009); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.1(a)
(September 2018).
6

Id.

7
See M.M., Docket No. 17-0560 (issued August 23, 2017); R.H., Docket No. 08-2025 (issued July 20, 2009); see
also O.R., 59 ECAB 432 (2008).

4

CONCLUSION
The Board finds that OWCP properly determined that an overpayment of compensation
was created. The Board further finds, however, that the case is not in posture for decision regarding
the amount of the overpayment.8
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: September 4, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8
In light of the Board’s findings regarding the amount of overpayment, it is premature to address the issue of fault
in the creation of the overpayment of compensation.

5


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

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Appearances:
Raquell Krueger-Denio, for the appellant
Office of Solicitor, for the Director

Docket No. 09-2079
Issued: May 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 13, 2009 appellant filed a timely appeal from a May 11, 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 the Office met its burden of proof to terminate compensation
effective June 14, 2007 with respect to appellant’s accepted orthopedic injuries.
FACTUAL HISTORY
On February 4, 2002 appellant, then a 35-year-old distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that he sustained an upper back injury while lifting and
carrying a parcel on January 27, 2002. The Office accepted the claim for lumbosacral and
thoracic strains. Appellant returned to modified-duty work, reduced his work load to four hours
a day on January 17, 2003 and stopped work on March 8, 2004.

The Office further developed the medical evidence with respect to appellant’s
employment-related condition. Appellant was referred to Dr. Harlan Bleeker, an orthopedic
surgeon, for a second opinion examination. In a report dated February 11, 2003, Dr. Bleeker
diagnosed L4-5 and L5-S1 mild degenerative changes with disc bulge. He stated that an L5-S1
annular tear appeared to have healed and a lumbar discogram was not indicated. By report dated
April 7, 2003, Dr. James Thomas, an attending physician, opined that the annular tear had not
healed and recommended a transforaminal epidural block.
The Office found a conflict in medical opinion existed under 5 U.S.C. § 8123(a)
regarding the diagnosis and the need for specific treatment. Appellant was referred to
Dr. Domenick Sisto, a Board-certified orthopedic surgeon. In a report dated September 5, 2003,
Dr. Sisto opined that appellant “does have disability related to his work injury as he has
tenderness in the lumbar spine as well as evidence of degenerative disc disease.” He advised that
appellant had reached a medical plateau, with further improvement of symptoms not expected.
Dr. Sisto noted that appellant had “undergone a long period of treatment, which has been
appropriate, but at this time no further treatment is indicated as there is no other care that will
resolve his complaints.”
In a report dated December 9, 2004, Dr. Thomas stated that appellant underwent
neurological testing showing an S1 radiculopathy. He opined that the presence of radiculopathy
indicated appellant did not have strain syndrome and was a candidate for discography and
endoscopic laser treatment. Dr. Thomas concluded that appellant was totally disabled.
On March 30, 2006 the Office determined that a conflict existed between Dr. Thomas and
Dr. Sisto regarding the period of total disability, the nature and extent of current employmentrelated disability and the need for surgery. Appellant was referred to Dr. David Heskiaoff, a
Board-certified orthopedic surgeon, selected as the impartial medical specialist.
In a report dated July 28, 2006, Dr. Heskiaoff reviewed a history of injury and results on
examination. He diagnosed myofascial sprains of the dorsal and lumbar spine and multiple
lumbar disc protrusions. Dr. Heskiaoff noted that appellant’s symptoms did not seem to respond
to any sort of treatment. He stated, “I believe that enough time has passed and that this man
should be left alone and no further treatment should be given to him. No surgery is indicated.”
According to Dr. Heskiaoff, appellant should be limited to light duty with a 10-pound lifting
restriction. He concluded there were degenerative processes and he apportioned 70 percent to
“work activities and work-related trauma.”
By letter dated August 23, 2006, the Office requested clarification from Dr. Heskiaoff. It
asked him to discuss whether the accepted strains had resolved and whether the January 27, 2002
injury aggravated the degenerative disc disease.
In a November 10, 2006 report, Dr. Heskiaoff stated that appellant’s myofascitis had
resolved, but he continued to have degenerative disc disease. He opined that the January 27,
2002 work injury temporarily aggravated the degenerative disc disease, but this should have
ceased when he stopped work in 2004. By letter dated December 11, 2006, the Office asked the
physician to discuss whether the accepted strains had resolved and whether any work restrictions
were due to the underlying degenerative disc condition or a work-related condition. On

2

December 21, 2006 Dr. Heskiaoff responded that the dorsal-lumbar sprain probably resolved
when appellant returned to work at the beginning of 2003. With regard to any work restrictions,
Dr. Heskiaoff advised they were due to the underlying degenerative disc disease.
By letter dated May 14, 2007, the Office advised appellant that it proposed to terminate
compensation related to orthopedic conditions based on the medical evidence. In a separate
letter dated May 14, 2007, the Office stated that the claim was accepted for a consequential
dysthymic reaction.
In a decision dated June 14, 2007, the Office terminated appellant’s compensation
benefits for any orthopedic or back condition.1
On June 19, 2007 the Office received a March 12, 2007 report from Dr. Albert Simpkins,
an orthopedic surgeon, who opined that, in light of appellant’s S1 radiculopathy and back pain
with annular tears, he was a candidate for surgical intervention.
Appellant requested a review of the written record. By decision dated April 9, 2008, an
Office hearing representative affirmed the June 14, 2007 decision. The hearing representative
found that the weight of medical opinion was represented by Dr. Heskiaoff.
In a letter dated January 28, 2009, appellant’s representative requested reconsideration.
Appellant argued that the Office did not meet its burden of proof to terminate compensation, as
Dr. Heskiaoff’s reports were not rationalized or based on an accurate background. In June 27
and August 8, 2008 report, Dr. Serge Obukhoff, a neurologist, diagnosed disc herniations at L4-5
and L5-S1, lumbar stenosis, bilateral radiculopathy, back pain syndrome, degenerative disc
disease, lumbar spondylosis and musculoligamentous injury to the thoracic spine with disc
protrusion at T7-8. He stated that appellant sustained additional injury to his back when he
returned to work after the 2002 injury. Dr. Obukhoff noted appellant’s job duties from 2003 to
2004, stating: “the additional development of this patient’s condition was produced by the
continued and repeated duties performed between 2003 and 2004.” He opined that the work
duties caused a permanent aggravation of appellant’s “preexisting work-related lumbar injury.”
By decision dated May 11, 2009, the Office denied modification of the April 9, 2008
decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to his employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.2
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability. To terminate authorization for medical treatment, the Office must
1

The record indicates that appellant continued to receive wage-loss compensation every 28 days.

2

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

3

establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.3
The Federal Employees’ Compensation Act provides that, if 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 the examination.4 The
implementing regulations state that if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case.5
It is well established that, when a case is referred to an impartial medical specialist for the
purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and
based on a proper factual and medical background, must be given special weight.6
ANALYSIS
The May 11, 2009 decision on appeal was limited to the issue of a termination of benefits
for the accepted orthopedic conditions as of June 14, 2007. The Office accepted a consequential
dysthymic reaction, and the record indicates appellant continues to receive compensation for
wage loss based on this condition.
With respect to the continuing treatment for appellant’s back condition, the Office found
a conflict in the medical opinion evidence. Dr. Thomas, an attending physician, found that
appellant had an S1 radiculopathy requiring treatment such as discography and endoscopic laser
treatment, and was totally disabled. Dr. Sisto, who had been selected as a referee physician
regarding other issues,7 advised that appellant had reached a plateau and did not require any
additional medical treatment. To resolve the conflict appellant was referred to Dr. Heskiaoff.
In reports dated July 28, November 10 and December 21, 2006, Dr. Heskiaoff found that
the accepted conditions of lumbosacral and thoracic strains had resolved. He also found that,
while appellant sustained a temporary aggravation of degenerative disc disease,8 this resolved in
3

Furman G. Peake, 41 ECAB 361 (1990).

4

5 U.S.C. § 8123.

5

20 C.F.R. § 10.321 (1999).

6

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

7

Dr. Sisto was selected as a referee on such issues as the necessity for acupuncture and physical therapy. He
would be considered a second opinion referral physician for issues outside the scope of the original conflict. See
Leanne E. Maynard, 43 ECAB 482 (1992).
8

Dr. Heskiaoff’s opinion is sufficient to establish a temporary aggravation of degenerative disc disease and the
condition should be accepted by the Office.

4

2004 when appellant stopped work. The referee physician concluded appellant did not need
additional medical treatment for his accepted conditions.
The Board finds that Dr. Heskiaoff provided a rationalized medical opinion on the issue
presented. Appellant contends that Dr. Heskiaoff did not have a complete factual background, as
the statement of accepted facts did not discuss his work duties from 2002 through 2004, but the
issue before the impartial specialist was continuing residuals of the January 27, 2002
employment injury. Dr. Heskiaoff provided a detailed history and his opinion was based on a
complete and accurate background. As noted, an impartial referee’s rationalized opinion based
on a complete factual and medical background is entitled to special weight. The Board finds
Dr. Heskiaoff’s report is entitled to special weight and establishes that residuals of appellant’s
accepted orthopedic conditions resolved prior to June 14, 2007. The Office met its burden of
proof.
Following the termination decision, appellant submitted additional evidence, including an
August 8, 2008 report from Dr. Obukhoff, who opined that appellant continued to have
employment-related back conditions. Dr. Obukhoff provided a number of diagnoses, such as
disc herniations and lumbar stenosis, which were never accepted as employment related. It is
appellant’s burden of proof to establish a specific condition as employment related9 with respect
to accepted conditions, it is his burden of proof to establish continuing residuals or disability
after a proper termination.10 Dr. Obukhoff did not provide a rationalized medical opinion with
respect to the January 27, 2002 injury. He discussed appellant’s work duties after the
January 27, 2002 injury. To the extent appellant is claiming injuries from these work duties, this
would be a new claim for an occupational disease or illness.11
On appeal, appellant’s representative contends that appellant still has residuals of the
accepted lumbar and thoracic spine conditions and that the referee’s reports were not sufficient to
support the termination of benefits. As noted, the Board finds that the weight of the medical
evidence establishes that the accepted strains causally related to the January 27, 2002
employment injury had resolved by June 14, 2007. The Office met its burden of proof to
terminate compensation with respect to these orthopedic conditions.
CONCLUSION
The Board finds the Office met its burden of proof in determining that appellant’s
employment-related back conditions had resolved by June 14, 2007.

9

See, e.g., Willie J. Clements, Jr., 43 ECAB 244 (1991).

10

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

11

An occupational disease or illness is a condition produced by the work environment over a period longer that a
single workday or shift. 20 C.F.R. § 10.5(q).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2009 is affirmed.
Issued: May 3, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., 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. 07-1471
Issued: October 12, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 8, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 26, 2006 and April 20, 2007 merit decisions denying her
claim that she sustained an employment injury on July 1, 2006. 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 her burden of proof to establish that she sustained a
left arm injury in the performance of duty on July 1, 2006.
FACTUAL HISTORY
On July 28, 2006 appellant, then a 43-year-old letter carrier, filed an occupational disease
claim alleging that she sustained an injury on July 1, 2006 when she “pulled something” in her
left arm on that date.1 On August 22, 2006 the Office requested that she submit additional
1

Appellant stopped work on July 7, 2006 and later performed limited-duty work.

factual and medical evidence and informed appellant of the difference between a claim for a
traumatic injury and a claim for an occupational disease.2 On August 22, 2006 appellant filed a
traumatic injury claim alleging that she sustained a strain to her left arm when she “pulled
something” at work on July 1, 2006. She later stated that she injured her arm on July 1, 2006
when she lifted mail buckets and her symptoms worsened.
In notes dated July 7, 28 and September 15, 2006, Dr. Ali R. Berenji, an attending Boardcertified orthopedic surgeon, provided work restrictions. On July 7, 2006 he stated that appellant
“has suffered work injury to left elbow.” On July 18, 2006 he indicated that she “seems to have
work injury to left elbow” and provided a diagnosis of diffuse strain of the pronator teres. In the
September 15, 2006 note, Dr. Berenji stated that appellant had lateral and medial epicondylitis of
her left elbow. The findings of July 17, 2006 magnetic resonance imaging (MRI) scan testing of
appellant’s left elbow showed mild diffuse intramuscular edema of the pronator teres consistent
with a muscle strain (associated with common flexor tendinitis). No medial or lateral collateral
ligament tears were found.
In a September 26, 2006 decision, the Office denied appellant’s claim that she sustained
an employment-related injury on July 1, 2006. The Office accepted that appellant established an
employment factor in the form of lifting mail buckets on July 1, 2006. However, she did not
submit sufficient medical evidence to establish that she sustained injury due to this incident.
In an October 12, 2006 report, Dr. Berenji stated that appellant reported that she felt an
ache, pulling sensation and tightness over her left elbow and arm regions on July 1, 2006 when
carrying a bucket containing postal materials. The pain at that time was mostly over the lateral
side of the elbow but extended upward as well as all the way down to her wrist. He described
appellant’s work duties and noted that the mail buckets she carried tended to weigh 30 to 40
pounds. Dr. Berenji stated that examination of appellant’s left elbow showed swelling over the
pronator teres and flexor group of the medial aspect and serious pain on the radial neck and
articular surface of the lateral aspect. She exhibited limited range of motion of her left elbow
and diminished left grip strength. Dr. Berenji described appellant’s treatment options, including
possible surgery and provided work restrictions. He stated:
“After reviewing the MRI [scan] report and comparing [appellant’s] clinical
findings, there is no doubt that [she] has a clinical picture in favor of lateral
epicondylitis of the left elbow. That usually indicates a partial tear of the extensor
carpi radialis brevis. There is no doubt that [appellant] has irritation of the
superficial radial nerve on the supinator tunnel called the arcade of Frohse. There
is a strong possibility that [appellant] has injury to the lateral joint component
including the radial head or the capitular’s articular surface.”3
2

A traumatic injury refers to injury caused by a specific event or incident or series of incidents occurring within a
single workday or work shift whereas an occupational disease refers to an injury produced by employment factors
which occur or are present over a period longer than a single workday or work shift. 20 C.F.R. §§ 10.5(ee), (q);
Brady L. Fowler, 44 ECAB 343, 351 (1992).
3

The record also contains November 9, 2006 and January 18, 2007 form reports in which Dr. Berenji diagnosed
lateral epicondylitis of the left elbow.

2

Appellant requested a hearing before an Office hearing representative. At the hearing,
held on February 8, 2007 she testified that her injury occurred solely on July 1, 2006 due to
lifting mail buckets and carrying them to her case. Appellant provided further description of the
history of her medical condition.
In an April 20, 2007 decision, an Office hearing representative affirmed the
September 26, 2006 decision.4
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of 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 timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.6 These are the essential
elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the “fact of injury” has been
established. There are two components involved in establishing the fact of injury. First, the
employee must submit sufficient evidence to establish that she actually experienced the
employment incident at the time, place and in the manner alleged.8 Second, the employee must
submit evidence, in the form of medical evidence, to establish that the employment incident
caused a personal injury.9 The term “injury” as defined by the Act, refers to some physical or
mental condition caused by either trauma or by continued or repeated exposure to, or contact
with, certain factors, elements or conditions.10
ANALYSIS
Appellant alleged that she sustained a left arm injury on July 1, 2006 due to lifting
buckets filled with mail and carrying them to her case. The Board notes that she established an
4

Appellant submitted additional evidence after the Office’s decision, but the Board cannot consider such evidence
for the first time on appeal. See 20 C.F.R. § 501.2(c).
5

5 U.S.C. §§ 8101-8193.

6

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

Delores C. Ellyett, 41 ECAB 992, 998-99 (1990); Ruthie M. Evans, 41 ECAB 416, 423-27 (1990).

8

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
9

John J. Carlone, 41 ECAB 354, 356-57 (1989); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact
of Injury, Chapter 2.803.2a (June 1995).
10

Elaine Pendleton, supra note 6; 20 C.F.R. § 10.5(a)(14).

3

employment incident in the form of lifting and carrying mail buckets on July 1, 2006. However,
appellant did not submit sufficient medical evidence to establish that she sustained injury due to
this employment factor.
On July 7, 2006 Dr. Berenji, an attending Board-certified orthopedic surgeon, stated that
appellant “has suffered work injury to left elbow.” In a July 28, 2006 note, he indicated that she
“seems to have work injury to left elbow” and diagnosed diffuse strain of the pronator teres. In a
September 15, 2006 note, Dr. Berenji stated that appellant had lateral and medial epicondylitis of
her left elbow. These reports, however, are of limited probative value on the relevant issue of the
present case in that they do not contain an opinion on causal relationship.11 The brief treatment
records do not provide a full history or medical background of appellant’s left elbow. Dr. Berenji
did not provide a clear opinion that she sustained an employment injury on July 1, 2006. He
appears to merely report appellant’s belief regarding the cause of her condition rather than provide
his own opinion on causal relationship. Dr. Berenji did not record a history that an incident
occurred on July 1, 2006 or make any mention of the employment factor implicated by appellant,
i.e., lifting and carrying mail buckets on July 1, 2006.
On October 12, 2006 Dr. Berenji stated that appellant reported that she felt an ache,
pulling sensation and tightness over her left elbow and arm regions on July 1, 2006 when she
was carrying a bucket containing postal materials. He stated that appellant indicated that the
pain at that time was mostly over the lateral side of the elbow, but extended upward as well as all
the way down to her wrist. Dr. Berenji noted that she had a clinical picture in favor of left lateral
epicondylitis, that she had irritation of the superficial radial nerve on the supinator tunnel and
that there was a strong possibility that appellant had injury to the lateral joint component.
Although Dr. Berenji did provide a brief description of the employment factor implicated by
appellant, he did not adequately address how the lifting or carring of a bucket would cause or
contribute to the diagnosed condition. Appellant did not submit any reports which indicated that
her claimed condition was related to the July 1, 2006 employment factor and the Office properly
denied her claim.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a left arm injury in the performance of duty on July 1, 2006.

11

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).

4

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 20, 2007 and September 26, 2006 decisions are affirmed.
Issued: October 12, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
ENVIRONMENTAL HEALTH SERVICES,
Research Triangle Park, NC, Employer
__________________________________________

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

Docket No. 10-1444
Issued: March 2, 2011

Case Submitted on the Record

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

JURISDICTION
On April 30, 2010 appellant filed an appeal from a March 29, 2010 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 sustained a recurrence of total disability on August 8, 2009
causally related to the accepted bilateral carpal tunnel syndrome and enthesopathy of the wrists.
FACTUAL HISTORY
On January 11, 2006 appellant, then a 44-year-old writer/editor, filed an occupational
disease claim, alleging that the repetitive motion in computer work caused flexor tendinitis and
carpal tunnel syndrome. The Office accepted the conditions of bilateral carpal tunnel syndrome
and bilateral enthesopathy of the wrist/carpus (flexor tendinitis) as employment related.

Appellant stopped work on April 25, 2006 and was placed on the periodic compensation rolls.
On April 12, 2007 Dr. James Urbaniak, Board-certified in orthopedic surgery, performed
bilateral carpal tunnel releases. In a June 14, 2007 report, he advised that there were no
complications of appellant’s April 27, 2007 surgery and that she could return to work by June 15,
2007 but should limit her activities until approximately July 1, 2007 when he anticipated that she
would reach maximum medical improvement. Dr. Urbaniak stated that a voice-activated
dictation system would be of help but that the surgery might not relieve all her symptoms.
The Office continued to develop the claim and in March 2008 referred appellant to
Dr. William A. Somers, a Board-certified orthopedist, for a second opinion evaluation. In an
April 24, 2008 report, Dr. Somers noted her work history, the work-related injury and that she
had a history of fibromyalgia of over 10 years. He described her chief complaint of bilateral
hand and forearm pain and medication regimen and provided physical examination findings
including a positive Phalen’s test. Dr. Somers diagnosed fibromyalgia, controlled; carpal tunnel
syndrome, status post release; possible antebrachial cutaneous nerve impingement at the lacertus
fibrosus, left greater than right; mild carpometacarpal (CMC) degenerative joint disease of the
left thumb; and tenosynovitis, possible small cyst, right, flexor carpi ulnaris region. He advised
that appellant’s fibromyalgia and CMC degenerative joint disease were both aggravated by her
working conditions and that she did not suffer significant residuals of carpal tunnel syndrome but
continued to have evidence of flexor tenosynovitis, degenerative joint disease of the CMC joints
and fibromyalgia and therefore could no longer produce the volume required as a writer-editor,
stating that repetitive use of her hands and wrists provoked significant pain and thus she could
not constantly use her hands on a computer keyboard or mouse due to the pain. Dr. Somers
advised that she could not return to work without significant modifications, stating that, if she
were allowed to work at home, she could probably work a 4-hour day over 8 to 10 hours, which
would allow significant rest periods for her hands and arms between writing sessions. He stated
that a voice recognition system would significantly decrease the use of appellant’s hands and
arms which could conceivably get her back to full-time work on a regular eight-hour day because
she would not have to type every word on the screen and opined that this would allow her to
return to work on a regular basis. Dr. Somers suggested that she return to see Dr. Urbaniak
regarding the forearm pain as there could be nerve compression at the lacertus fibrosus at the
elbow region producing some of appellant’s forearm pain and also advised that it was possible
that injections of the CMC joints of the thumbs could significantly decrease her base of thumb
and palmar pain and that if these two problems were controlled, she could return to some
limited-duty work. In an attached work capacity evaluation, Dr. Somers advised that she could
not return to her usual job because she could not use her hands that long but could work four
hours a day at home by resting her hands and could probably work full time with a voice
recognition system. He provided restrictions that appellant could not push, pull, lift or climb and
should have 30-minute breaks every 4 hours.
In a June 16, 2008 report, Dr. Urbaniak advised that he had reviewed Dr. Somers’
evaluation and agreed with his findings and recommendations. A June 25, 2008 magnetic
resonance imaging (MRI) scan of the right wrist demonstrated a volar ganglion, prominent fluid
collections, mild extensor tenosynovitis and no ligamentous injury.
Appellant was referred to Kristen Fountain, a rehabilitation counselor, for vocational
rehabilitation, who arranged a meeting with Lynn Deese of the North Carolina Assistive Program

2

where voice recognition software was demonstrated to appellant and an assessment completed
with recommendations for appellant’s return to work. On May 22, 2009 a meeting was held with
employing establishment representatives, including appellant’s supervisor Christine Flowers,
Ms. Deese, Ms. Fountain and appellant. The recommended assistive devices were discussed at
length and appellant’s office space assessed. The devices were to be ordered and an employing
establishment ergonomic representative would assist her.1 Appellant returned to modified duty
on June 8, 2009, working four hours a day the first week, six hours a day during the second and
returned to full-time employment on June 22, 2009. On August 7, 2009 she called Ms. Fountain
reporting that she was doing more than four hours of keyboarding daily and that the voice
recognition system was not helping with e-mailing, spreadsheets and databases. Ms. Fountain
telephoned Ms. Deese who advised that appellant might need more training and offered to go to
the work site to better understand what was going on.
Appellant stopped work on August 8, 2009 and filed a recurrence claim, stating that she
had to be at the computer all day to type and make telephone calls, all repetitive motions and that
the position did not accommodate the four-hour limit on computer use. She stated that working
four hours a day was okay but that driving to and from work also aggravated the burning and
aching pain in both forearms and hands and finger numbness. Ms. Flowers establishment noted
that appellant was provided voice recognition software, was given specialized training and a
customized keyboard, chair and tape recorder and reported that appellant recently had a dog bite
wound on her left forearm.
By letter dated August 20, 2009, the Office advised appellant of the type evidence needed
to support her recurrence claim and asked about the dog bite injury. Appellant submitted a
July 28, 2009 report, in which Dr. Robert A. Harrell, III, Board-certified in internal medicine and
rheumatology, advised that she had difficulty with her hands and arms after she returned to work
and that she had been bitten by a pit bull on her right forearm four nights previously. Dr. Harrell
stated that he did not examine the right arm because it was wrapped, but that the flexor tendons
in her left hand were thickened with compression tenderness in the left forearm, tender left
lateral and medial epicondyles and moderate fibromyalgia trigger points. He concluded that a
“difficult situation and her work situation” were not helping matters.
In a September 9, 2009 statement, appellant asserted that the job she returned to in 2009
was not limited duty but was the same job she had in 2006 with a nearly identical workload. She
stated that she was provided voice recognition software and an ergonomic chair and that a
forearm support had been ordered, but that the position was incompatible with the use of voiceactivated software because by using it she could not meet her deadlines and continue to generate
the same high quality and quantity of work she performed in 2006. Appellant stated that she
struggled to work but had pain even with part-time computer use. She reported that on July 25,
2009 she was bitten on the right forearm by a pit bull, requiring stitches and antibiotics and that
this forced her to use only the voice recognition software, which did not allow her to complete
the requirements of her job and that on August 4, 2009, her supervisor advised her that her job
duties had increased.
1

Appellant was initially offered a modified position in March 2009 that she refused. By letter dated April 2,
2009, the Office informed her that the position was suitable and advised her of the penalty provisions of section
8106 of the Federal Employees’ Compensation Act.

3

In an October 2, 2009 report, Dr. Harrell noted that appellant stopped work on August 8,
2009 due to severe pain in the hands and forearms. He stated that her job was very similar to
what she was doing previously and described her medications and advised that the dog bite
seemed to have largely healed but there was some residual ulnar nerve damage. Dr. Harrell
provided physical examination findings, stating that there was still thickening of the flexor
tendons of appellant’s hands with tenderness along the flexor aspect of the right wrist and the left
lateral and medial epicondyles and no synovitis. He stated that she had severe flexor tendinitis
that had worsened due to her recent attempt to go back to work at her job that required
considerable use of a computer keyboard and advised that she not work, stating that he did not
think she would be able to return to a typing job.
By decision dated October 29, 2009, the Office denied appellant’s recurrence claim on
the grounds that the medical evidence did not establish that she could not perform the duties of
the modified position. On November 5, 2009 appellant, through her attorney, requested a
hearing and on November 10, 2009, she returned to modified position.2 In a November 14, 2009
statement, she again described her job duties after her return to work in June 2009, stating that
she could not complete the work using voice activation software and stopped work in
August 2009, because the pain was so horrendous that she could barely move her hands.
In reports dated from July 29 to August 31, 2009, Dr. J. Mack Aldridge, III, a Boardcertified hand surgeon, stated that appellant had multiple superficial dog bites and evidence of a
neuropraxic injury of the ulnar nerve with a sensory deficit only, which had healed nicely by
August 31, 2009 with a little residual numbness in the little and ulnar column of her hand. At
that time he noted a strong history of fibromyalgia and hand problems. Dr. Aldridge provided
examination findings, noting full shoulder and elbow motion and a negative Tinel’s sign at the
elbow with no muscular atrophy in either upper extremity and decreased sensibility subjectively
over the dorsal aspect of the metacarpophalangeal joints of both hand with intact sensibility in
the median and ulnar dermatomes and decreased sensibility in the dorsoradial aspects of her
hands. He diagnosed complete healing of dog bite and multifactorial, nonanatomic sensory
complaints involving both upper extremities and recommended evaluation by a spine surgeon.
At the hearing, held telephonically on February 1, 2010, appellant testified that she had
an 18-year history of fibromyalgia and began working as a writer/editor at the employing
establishment in 2000, that she returned to the same job in June 2009 and that Dr. Harrell
recommended that she stop work. She stated that the voice recognition software did not work
well with her job, that it took too long and prevented her from meeting deadlines and would have
affected her job performance, so that she would turn it off and that she got to the point that she
hurt all the time.
On February 25, 2010 Ms. Flowers reported that appellant returned to work on June 7,
2009 and was provided with prescribed assistive technologies and that she was given a two-week
adjustment period, beginning full-time work on June 21, 2009. She stated that appellant first
notified her of difficulty on June 26, 2009 and that during this time appellant had no formal
2

On November 14, 2009 appellant filed an occupational disease claim for flexor tendinitis, carpal tunnel
syndrome and fibromyalgia, stating that her work duties aggravated these conditions. The Office adjudicated this
claim as a new case.

4

assignments other than to practice using her assistive technologies and that during July 2009 she
had a very light workload with only one writing assignment, a two-page press release.
Ms. Flowers stated that appellant requested a four-hour workday, that was not accommodated
and that on August 3, 2009 appellant informed her that she intended to transition to medical
retirement. She noted that, when appellant stopped work, appellant had not completed the one
assignment she had been given and that after her return to work on November 10, 2009, she was
apparently working with assistive software and other accommodating devices and was able to
perform her assigned tasks successfully.
By decision dated March 29, 2010, an Office hearing representative affirmed the
October 29, 2009 decision, finding that the case file contained no convincing evidence, either
medical or factual, that appellant’s restrictions were not met, that she was worked outside her
restrictions or that she suffered a disabling recurrence of her accepted conditions such that she
was unable to work beginning August 8, 2009.3
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.5
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition or a change in the nature and extent of the light-duty requirements.6

3

By decision dated February 9, 2010, the Office found that appellant’s employment, effective November 10,
2009, fairly and reasonably represented her wage-earning capacity with zero loss. Appellant requested a hearing
and in an October 22, 2010 decision, an Office hearing representative affirmed the February 9, 2010 decision. She
has not filed an appeal with the Board of the October 22, 2010 decision.
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Id.

6

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

5

ANALYSIS
The Board finds that appellant has not established a recurrence of total disability on
August 8, 2009 causally related to the accepted bilateral carpal tunnel syndrome and ensopathy
of the wrists because she did not establish that the nature and extent of her injury-related
condition changed on August 8, 2009 so as to prevent her from continuing to perform her
limited-duty assignment. The Office accepted her January 11, 2006 claim and she underwent
bilateral carpal tunnel releases on April 12, 2007. Appellant also has a long-standing history of
fibromyalgia that is not employment related.
Dr. Somers, an Office referral orthopedist, provided an April 24, 2008 report in which he
advised that appellant had residuals of the employment injury and could not return to her
previous job without modifications including voice recognition software. He stated that, without
the modifications, she would need to take significant rests between writing and typing
assignments but that she could probably work full time with the voice recognition software.
Appellant thereafter was referred to Ms. Fountain, a vocational rehabilitation counselor, who
arranged an assessment with Ms. Deese of the state assistive program. A meeting was held at the
employing establishment where the recommendations for assistive devices were discussed and
voice recognition software and other devices were ordered.7 Appellant returned to modified duty
on June 8, 2009. Ms. Flowers, her supervisor, described her modified duties after her return to
work, stating, the prescribed assistive technologies were provided, she was given a two-week
adjustment period and when she began full-time work on June 21, 2009, she had no formal
assignments other than to practice using her assistive technologies. During July 2009, she was
only assigned one 2-page, writing project, which she did not finish before she stopped work on
August 8, 2009.
The Board has held that a partially disabled claimant who returns to a light-duty job has
the burden of proving that he or she cannot perform the light duty, if a recurrence of total
disability is claimed.8 The issue of whether an employee has disability from performing a
modified position is primarily a medical question and must be resolved by probative medical
evidence.9 A claimant’s burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and supports that conclusion with

7

These consisted of an ergonomic chair, keyboard and mouse. An arm rest was on order when appellant stopped
work.
8

See William M. Bailey, 51 ECAB 197 (1999). The Board notes that in this case appellant returned to work for a
period of just under two months before claiming a resumption of total disability. There is a presumption that this
return to work constitutes a successful return to work and appellant has not submitted the necessary evidence to
rebut that presumption in this case. See Office (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.6 (January 1995); compare Elaine Sneed, 56 ECAB 373 (2005) (The Board found that, a return to work of
two weeks was successfully rebutted because, following a return to work, appellant sought medical advice for
additional restrictions after one day of work and continued to seek medical treatment which resulted in additional
restrictions).
9

Cecelia M. Corley, 56 ECAB 662 (2005).

6

sound medical rationale. Where no such rationale is present, the medical evidence is of
diminished probative value.10
In a July 28, 2009 report, Dr. Harrell, an attending rheumatologist, advised that appellant
had difficulty with her hands and arms after she returned to work. He also noted that she had
been bitten on the right arm by a pit bull four nights previously. Dr. Harrell provided
examination findings and concluded that appellant’s work situation was not helping. In an
October 2, 2009 report, he noted that she had stopped work on August 8, 2009 due to severe pain
in her hands and forearms. Dr. Harrell stated that appellant’s job was very similar to her
previous position and required considerable use of a computer keyboard and advised her to stop
work. He did not acknowledge that she had been working in a modified position where she had
been provided assistive devices including voice recognition software and an ergonomic chair,
mouse and keyboard and did not demonstrate knowledge of the specific requirements or
assignments of the position or provide a rationalized explanation as to why she could not
perform the modified work. Moreover, Dr. Harrell did not discuss the significance of the dog
bite, an intervening injury that was not employment related. His reports are therefore insufficient
to establish that appellant sustained a recurrence of total disability on August 8, 2009.
Dr. Aldridge merely discussed his treatment of the dog bite which had healed by August 31,
2009 and stated that she had multifactorial, nonanatomic sensory complaints involving both
upper extremities and recommended evaluation by a spine surgeon. As he provided no opinion
regarding appellant’s work capabilities, his reports are insufficient to meet her burden to
establish that she sustained a recurrence on August 8, 2009.
The Board has long held that medical conclusions unsupported by rationale are of
diminished probative value and insufficient to establish causal relationship.11 It is appellant’s
burden of proof to submit the necessary medical evidence to establish a claim for a recurrence.
A mere conclusion without the necessary medical rational explaining how and why the physician
believes that a claimant’s accepted exposure would result in a diagnosed condition is not
sufficient to meet the claimant’s burden of proof. The medical evidence must also include
rationale explaining how the physician reached the conclusion he or she is supporting.12 The
record in this case does not contain a medical report providing a reasoned medical opinion that
appellant’s claimed recurrence of disability was caused by the accepted conditions.13 Appellant
also failed to establish that she was working outside her restrictions. Ms. Flowers explained that
appellant was provided the recommended assistive devices and she was given few assignments
prior to stopping work on August 8, 2009. Appellant provided no witness statements to support
her contention that she had to work outside her restrictions or to describe the duties that she
stated that she performed. Thus, the record contained no credible evidence substantiating that
she had a change in the nature and extent of her light-duty requirements or was required to

10

Mary A. Ceglia, 55 ECAB 626 (2004).

11

See Albert C. Brown, 52 ECAB 152 (2000).

12

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

13

Cecelia M. Corley, supra note 9.

7

perform duties that exceeded her medical restrictions.14 Appellant therefore did not meet her
burden of proof to establish that she sustained a recurrence of total disability on August 8, 2009.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a recurrence of disability on August 8, 2009 causally related to her accepted bilateral
upper extremity conditions.15
ORDER
IT IS HEREBY ORDERED THAT the March 29, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Richard A. Neidert, 57 ECAB 474 (2006).

15

Appellant also filed a schedule award claim that is under development by the Office.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Lompoc, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0188
Issued: July 27, 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 October 31, 2019 appellant filed a timely appeal from an October 22, 2019 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
ISSUE
The issue is whether appellant has met his burden of proof to establish that he reached
maximum medical improvement (MMI) for schedule award purposes.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 22, 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.

FACTUAL HISTORY
On August 3, 2018 appellant, then a 46-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained left thigh and knee injuries when
running to respond to a call for assistance. He felt a pop in his left thigh and leg which buckled,
causing him to fall while in the performance of duty. Appellant accepted an August 22, 2018
modified job offer and returned to work on August 24, 2018. OWCP accepted the claim for left
thigh fascia and tendon strain, and lumbar ligament sprain.
In an October 5, 2018 report, Dr. James C. Kasper, a Board-certified orthopedic surgeon,
noted appellant’s history of injury. He reported that appellant’s physical examination revealed
some tenderness on palpation about the middle third to distal third anteriorly, muscle atrophy
throughout the thigh, and pain on flexion. Dr. Kasper concluded that appellant had after effects of
a severe muscle strain of his rectus femoris quadriceps muscle. He recommended physical therapy.
In an October 31, 2018 report, Dr. John W. Gainor, a Board-certified orthopedic surgeon,
noted appellant’s history of injury. He reported that appellant had been diagnosed with a left
quadriceps muscle tear, and that appellant had been participating in physical therapy, which was
allowing his injury to heal spontaneously. Dr. Gainor noted that appellant felt stronger, no longer
had a limp, and wanted to return to his regular work duties.
In a November 28, 2018 report, Dr. Gainor provided examination findings and diagnosed
left quadriceps muscle tear. He noted that appellant had returned to his regular job and that his
left leg got tired sooner than his right leg. Dr. Gainor also noted that, while appellant did not have
an immediate problem, he would have a long-term problem with weakness. Dr. Gainor referred
appellant for a permanent impairment rating and determination of whether he had reached MMI.
On February 12, 2019 Dr. Steven Dosch, a Board-certified occupational medicine
physician, noted appellant’s history of injury and medical treatment, and reviewed appellant’s
prior medical records, magnetic resonance imaging scans as well as Dr. Gainor’s October 31 and
November 28, 2018 reports. He reported that appellant had completed left thigh muscle tear
treatment although he continued to have mild-to-moderate left thigh pain. Dr. Dosch diagnosed
healed minor lumbar sprain and torn rectus femoris tendon of the left thigh quadriceps complex.
He noted that, if appellant had flare-ups, he should be allowed to return to Dr. Gainor for treatment.
Based on Dr. Gainor’s November 28, 2018 report, he determined that appellant had reached MMI
and on February 12, 2019 he provided a permanent impairment rating of three percent of the left
lower extremity.
In a report dated February 14, 2019, Dr. Gainor reviewed and concurred with the
February 12, 2019 permanent impairment rating provided by Dr. Dosch.
On April 1, 2019 appellant filed a claim for a schedule award (Form CA-7).
On April 8, 2019 OWCP referred appellant’s case to Dr. Eric M. Orenstein, a Boardcertified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It requested
that he review the medical evidence of record, including Dr. Dosch’s February 12, 2019

2

impairment rating report, and provide an opinion as to the extent of appellant’s permanent
impairment.
In an April 14, 2019 report, the DMA noted that he had reviewed the medical evidence
provided and determined that it was unclear whether appellant had reached MMI3 and, thus, a
permanent impairment rating for a schedule award was premature. He noted that Dr. Gainor’s
reports were not included for his review and there was no documentation regarding appellant’s
gait or muscle strength in his left versus right thigh. The DMA recommended authorization of
physical therapy and noted that, once physical therapy was completed, appellant should undergo a
new permanent impairment evaluation.
By decision dated May 21, 2019, OWCP denied appellant’s schedule award claim, finding
that the evidence of record, as represented by the DMA’s report, was insufficient to establish that
he had reached MMI.
Following the denial of his schedule award claim, appellant submitted a May 17, 2019
report from Dr. Dosch. In this report, Dr. Dosch reviewed and addressed the issues identified by
the DMA in his April 14, 2019 report. Appellant’s physical examination findings revealed a
normal gait, left mid-thigh circumference measured 44 cm, right mid-thigh circumference
measured 47 centimeters, left quadriceps 4/5 weakness and right quadriceps 5/5. Dr. Dosch
advised that appellant had completed a course of physical therapy, while under Dr. Gainor’s care,
and that his February 12, 2019 report remained unchanged.
On July 26, 2019 appellant requested reconsideration. He argued that he had filed his
schedule award claim after his physicians indicated that he had reached MMI. Appellant noted
that he had undergone physical therapy, as recommended by Dr. Gainor, and that his gait was now
normal, but he had 4/5 weakness in his left quadriceps from his accepted employment injury.
By decision dated October 22, 2019, OWCP denied modification, finding that the medical
evidence of record was insufficient to establish that appellant had reached MMI.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs, or functions of the body.4 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards set
forth in the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).5

3

The DMA erroneously identified Dr. Chen as the author of the February 12, 2019 impairment rating when the
author of the document was in fact Dr. Dosch.
4

Supra note 1 at 8107.

5

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (March 2017).

3

The Board has explained that permanent impairment may only be rated according to the
A.M.A., Guides after MMI has been achieved.6 An impairment should not be considered
permanent until a reasonable time has passed for the healing or recovery to occur.
The period covered by a schedule award commences on the date that the employee reaches
MMI from the residuals of the injury. The question of when MMI has been reached is a factual
one that depends upon the medical findings in the record. The determination of such date is to be
made in each case upon the basis of the medical evidence in that case.7 The date of MMI is usually
considered to be the date of the medical examination that determined the extent of the permanent
impairment.8
ANALYSIS
The Board finds that this case is not in posture for decision.
On April 1, 2019 appellant filed a claim for a schedule award and submitted a report from
Dr. Dosch dated February 12, 2019. Dr. Dosch opined that appellant’s condition was permanent
and stationary as of Dr. Gainor’s November 28, 2018 report. Therefore, appellant was found to
be at MMI. Dr. Dosch then provided a permanent impairment rating of appellant’s left lower
extremity, under the A.M.A., Guides. He concluded that appellant had three percent permanent
impairment of the left lower extremity pursuant to the A.M.A., Guides.
On February 14, 2019 Dr. Gainor reviewed Dr. Dosch’s impairment rating and concurred
with his findings. The Board finds that these reports are not contradicted by substantial evidence
of record.9 While the DMA in his April 14, 2019 found the evidence insufficient to establish MMI,
his opinion was not based upon a complete review of the medical record. Furthermore, while the
DMA related that appellant should undergo physical therapy prior to an MMI determination,
Dr. Dosch explained that appellant had completed his course of physical therapy.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter.10 While the claimant has the responsibility to establish entitlement
to compensation, OWCP shares responsibility in the development of the evidence. It has the

6

See M.J., Docket No. 18-0425 (issued September 7, 2018); A.D., Docket No. 17-1996 (issued March 5, 2018);
see B.C., Docket No. 16-2062 (issued November 18, 2016).
7

S.M., Docket No. 18-0837 (issued January 11, 2019); see D.S., Docket No. 15-1244 (issued August 24, 2015).

8

See A.D., supra note 6; W.S., Docket No. 16-0344 (issued April 4, 2016).

9

See D.B., Docket No. 19-0504 (issued July 22, 2020); S.T., Docket No. 17-1292 (issued February 8, 2018); E.J.,
Docket No. 20-1482 (issued February 19, 2010).
10

B.W., Docket No. 19-0965 (issued December 3, 2019); Vanessa Young, 55 ECAB 575 (2004).

4

obligation to see that justice is done.11 Once OWCP undertakes development of the record, it must
procure medical evidence that will resolve the relevant issues in the case.12
Therefore, the Board finds that the evidence of record establishes that appellant reached
MMI based upon the reports of his treating physicians. This case must be remanded to OWCP for
further development regarding the degree of appellant’s permanent impairment of the left lower
extremity. On remand OWCP should refer appellant, together with the case record and a statement
of accepted facts, to an appropriate specialist for an examination to determine the extent and degree
of appellant’s left lower extremity permanent impairment and his entitlement to a schedule award
pursuant to 5 U.S.C. § 8107.
After such further development as it deems necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

B.W., id.; Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

12

B.W., id.; Peter C. Belkind, 56 ECAB 580 (2005); Ayanle A. Hashi, 56 ECAB 234 (2004).

5

ORDER
IT IS HEREBY ORDERED THAT the October 22, 2019 decision of the Office of
Workers’ Compensation Programs are set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: July 27, 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

6