United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 20-0547
Issued: December 11, 2020

Case Submitted on the Record

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

JURISDICTION
On January 13, 2020 appellant filed a timely appeal from a December 27, 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 December 27, 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 an injury on
November 8, 2019 while in the performance of duty, as alleged.
FACTUAL HISTORY
On November 11, 2019 appellant, then a 54-year-old legal aid specialist, filed a traumatic
injury claim (Form CA-1) alleging that at 7:20 a.m. on November 8, 2019 he injured his left
shoulder, ribs, left foot, lower back, and left knee when the bus he was taking to work made a
sudden stop that propelled him towards the windshield, causing impact to the front inside of the
bus while in the performance of duty. He did not stop work. On the reverse side of the claim form
the employing establishment contended that appellant was not in the performance of duty. It noted
appellant was injured when riding a bus to work and that his regular work hours were from 8:00
a.m. to 4:30 p.m.
In support of his claim, appellant submitted a November 8, 2019 after visit summary,
wherein Dr. Alexander Daves, an emergency medicine specialist, indicated that appellant was seen
following a motor vehicle accident (MVA).
In a November 13, 2019 development letter, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and attached a questionnaire for his completion to determine whether he was in the
performance of duty at the time of his injury. OWCP afforded appellant 30 days to submit the
necessary evidence.
In a letter dated November 13, 2019, the employing establishment controverted the claim.
It contended that the incident occurred at 7:20 a.m. while appellant was commuting on a bus to
work, noting that appellant’s tour of duty began at 8:00 a.m. The employing establishment argued
that appellant was, therefore, not in the performance of duty when injured.
Appellant subsequently submitted a November 14, 2019 report from Ms. Lindsey Kantura,
a physical therapy assistant, who indicated that appellant had an accident on November 8, 2019
while he was on a public bus and fell into the windshield when the driver slammed on the brakes.
In a November 22, 2019 work capacity evaluation (Form OWCP-5c), Dr. Jared Levin, a
Board-certified orthopedic surgeon, noted that appellant sustained a left shoulder injury on
November 8, 2019 and required a magnetic resonance imaging (MRI) scan to determine the extent
of his shoulder injury. In an attending physician’s report (Form CA-20) of even date, Dr. Levin
diagnosed left shoulder strain. He provided a history of injury that appellant was on a bus when it
stopped suddenly and he was thrown back while walking to his seat. Dr. Levin diagnosed left
shoulder strain. He checked a box marked “Yes” indicating his belief that appellant’s injury was
caused by employment activity. Dr. Levin further noted that he believed appellant “was on the
bus transportation supplied by the Department of Labor” when injured.

2

In a narrative report dated November 22, 2019, Dr. Levin reiterated his diagnosis and
assertion that appellant was on a bus when it suddenly stopped and he was thrown into the
windshield while walking to his seat.
Appellant also submitted diagnostic testing and physical therapy reports in support of his
claim.
By decision dated December 27, 2019, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that his injury arose in the performance of duty on
November 8, 2019, as alleged.3 It noted that he reported that his injury occurred on a public bus
and not on property or equipment owned, managed, or operated by the employing establishment.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.4
FECA provides for the payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.5 The phrase sustained
while in the performance of duty in FECA is regarded as the equivalent of the commonly found
requisite in workers’ compensation law of arising out of and in the course of employment.6 To
arise in the course of employment, an injury must occur at a time when the employee may
reasonably be said to be engaged in the master’s business, at a place where he may reasonably be
expected to be in connection with the employment, and while he was reasonably fulfilling the
duties of his employment or engaged in doing something incidental thereto.7
For an employee with fixed hours and a fixed workplace, an injury that occurs on the
employing establishment premises when the employee is going to or from work, before or after
working hours or at lunch time is compensable.8 The course of employment for such employees
includes acts which minister to their personal comfort within the time and space limits of their
3

By letter dated February 10, 2020, OWCP determined that it had created two separate cases for the same injury
and, therefore, deleted File No. xxxxxx594 and moved the documents in that case record to the current File No.
xxxxxx568.
4

T.H., 59 ECAB 388, 393 (2008); see Steven S. Saleh, 55 ECAB 169, 171-72 (2003); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
5

5 U.S.C. § 8102(a).

6

Valerie C. Boward, 50 ECAB 126 (1998).

7

R.A., 59 ECAB 581 (2008); Mary Keszler, 38 ECAB 735 (1987).

8

Roma A. Mortenson-Kindschi, 57 ECAB 418, 423-24 (2006).

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employment.9 However, the same employee with fixed hours and fixed workplace would
generally not be covered when an injury occurs off the employing establishment premises while
traveling to or from work.10 The reason for the distinction is that the later injury is merely a
consequence of the ordinary, nonemployment hazard of the journey itself, which are shared by all
travelers.11
The employing establishment premises may include all the property owned by the
employer.12 The premises of the employer, as the term is used in workers’ compensation law, are
not necessarily coterminous with the property owned by the employer;13 they may be broader or
narrow and are dependent more on the relationship of the property to the employment than on the
status or extent of the legal title.14 In some cases, premises may include all the property owned by
the employer; in other cases, though the employee does not have ownership and control of the
place where the injury occurred, the place is nevertheless considered part of the premises.15
The Board recognizes exceptions to the premises rule. Underlying some of these
exceptions is the principle that course of employment should extend to any injury that occurred at
a point where the employee was within the range of dangers associated with the employment.16
The most common ground of extension is that the off-premises point at which the injury occurred
lies on the only route, or at least on the normal route, which employees must traverse to reach the
premises and that, therefore, the special hazards of that route become the hazards of the
employment.17 This exception contains two components. The first is the presence of a special
hazard at the particular off-premises point. The second is the close association of the access route
with the premises, so far as going and coming are concerned.18 The main consideration in applying
this rule is whether the conditions giving rise to the injury are causally connected to the
employment.19

9

D.K., Docket No. 11-1029 (issued February 1, 2012).

10

Idalaine L. Hollins-Williamson, 55 ECAB 655, 658 (2004).

11

Id.

12

Denise A. Curry, 51 ECAB 158, 160 (1999).

13

Jimmie Brooks, 22 ECAB 318, 321 (1971); see also D.C., Docket No. 08-1782 (issued January 16, 2009).

14

Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

15

Denise A. Curry, supra note 12.

16

R.O., Docket No. 08-2088 (issued February 18, 2011).

17

Shirley Borgos, 31 ECAB 222, 223 (1979).

18

M.L., Docket No. 12-0286 (issued June 4, 2012).

19

Id.; see also Jimmie Brooks, supra note 13.

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury on
November 8, 2019 while in the performance of duty, as alleged.
The record reflects that appellant was injured while commuting to work on a public bus at
7:20 a.m. on November 8, 2019 when the bus stopped suddenly, causing appellant to propel
forward into the windshield. At the time of his injury, appellant had a fixed workplace and fixed
work hours from 8:00 a.m. to 4:30 p.m.
To be covered, an injury must occur at a time when the employee may reasonably be said
to be engaged in his master’s business, at a place where he may reasonably be expected to be in
connection with his employment, and while he was reasonably fulfilling the duties of his
employment or engaged in doing something incidental thereto.20 As a general rule, off premises
injuries sustained by employees having fixed hours and places of work while going to or coming
from work, are not compensable as they do not arise out of and in the course of employment. Such
injuries are merely the ordinary, nonemployment hazards of the journey itself which are shared by
all travelers.21
The evidence of record establishes that appellant had a fixed workplace with fixed hours
and the injury occurred outside of his regular tour of duty. Further, appellant was not fulfilling
any duties incidental to his employment when injured. The Board finds that the public bus where
the accident occurred does not constitute a special hazard or an access route closely associated
with the employing establishment.22 The accident occurred on a means of public transportation.
The Board finds that appellant has not established that the public bus where the accident occurred
was used exclusively or principally by employees of the employing establishment for the
convenience of the employer. There is no evidence that the bus was restricted to the employees of
the employing establishment. The evidence reflects that the injury occurred on public
transportation. The Board has consistently held that an employee with fixed hours and fixed
workplace will generally not be covered when an injury occurs off the employing establishment
premises while traveling to or from work.23 For these reasons, the Board finds that appellant’s
injury occurred while he was exposed to an ordinary, off-premises nonemployment hazard of the
journey shared by all travelers.24

20

Supra note 7.

21

Jon Louis Van Alstine, Docket No. 03-1600 (issued November 1, 2004).

22

See supra note 17 and 18.

23

See supra note 9; Mary Keszler, supra note 7.

24
On return of the case record, OWCP should consider administratively combining the present claim with
OWCP File Nos. xxxxxx723, xxxxxx315, and xxxxxx677.

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on November 8, 2019, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gainesville, GA, Employer
__________________________________________

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

Docket No. 11-1276
Issued: January 18, 2012

Case Submitted on the Record

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

JURISDICTION
In an appeal postmarked April 27, 2011 and received by the Board on May 2, 2011,
appellant requested review of a November 18, 2010 decision of the Office of Workers’
Compensation Programs (OWCP), denying her application for reconsideration without merit
review of the claim. The record also contains an October 12, 2010 OWCP decision denying
modification of a wage-earning capacity determination. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, a notice of appeal must be
filed within 180 days from the date of issuance of an OWCP final decision. Although appellant
dated her appeal April 11, 2011 on the Board’s application for review (Form AB-1), the appeal
was not postmarked until April 27, 2011 and delivered on May 2, 2011. The Board’s procedures
state that if the notice of appeal is sent by United States Mail or commercial carrier and the date
of delivery would result in loss of appeal rights, then the date of the postmark is used.2 The date
of the appeal is therefore April 27, 2011. Since this is also more than 180 days after the
October 12, 2010 OWCP decision, the Board does not have jurisdiction over this decision.
1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether OWCP properly found that appellant’s application for
reconsideration was insufficient to warrant review of the merits of her claim.
FACTUAL HISTORY
Appellant submitted a February 5, 2003 claim for compensation (Form CA-2) alleging
that she sustained a back injury causally related to her duties as a rural mail carrier. OWCP
accepted the claim for aggravation of a herniated lumbar disc. Appellant returned to work in a
modified position in August 2004, underwent lumbar surgery on June 2005 and stopped
working.
On February 6, 2006 appellant again returned to work in a modified position at four hours
per day. As of April 1, 2006, she returned to a full-time modified position. By decision dated
November 15, 2006, OWCP determined that actual earnings in the modified position fairly and
reasonably represented appellant’s wage-earning capacity pursuant to 5 U.S.C. § 8115(a). It
found that she had no loss of wage-earning capacity.
On August 10, 2009 OWCP received a claim for recurrence of disability (Form CA-2a)
dated July 27, 2009. Appellant stated that on February 6, 2009 she received a letter from her
postmaster that work was no longer available.
By decision dated October 12, 2010, OWCP denied the claim for compensation. It found
that appellant had not met the criteria for modifying a wage-earning capacity determination.
Appellant requested reconsideration on November 10, 2010 by submitting an appeal
request form. She resubmitted a copy of a September 21, 2010 limited-duty job offer and a
September 21, 2010 supervisor letter regarding the job offer.3
By decision dated November 18, 2010, OWCP determined
reconsideration request was insufficient to warrant merit review of the claim.

that

appellant’s

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that OWCP erroneously applied or interpreted a specific point
of law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent evidence not previously considered by OWCP.”5 Section
3

These documents had previously been submitted on September 27, 2010.

4

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application).”
5

20 C.F.R. § 10.606(b)(2).

2

10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by OWCP without review of the merits
of the claim.6
ANALYSIS
As explained in the jurisdiction statement, the Board does not have jurisdiction over the
October 12, 2010 OWCP decision. The issue is whether OWCP properly denied appellant’s
application for reconsideration without merit review of the claim.
The Board notes that while there is no time limit for a claimant to request modification of
a wage-earning capacity determination,7 a claimant must support the request with new evidence
or argument.8 Even if appellant’s reconsideration request is characterized as a request to modify
the wage-earning capacity determination, she still must meet the criteria noted above to require
OWCP to review the merits of the wage-earning capacity modification issue.
In this case, appellant did not provide a new and relevant argument on the issue or show
that OWCP erroneously applied or interpreted a specific point of law. Appellant did not provide
any argument with respect to the issue. As to the third standard, the submission of new, relevant
and pertinent evidence, appellant did not meet this criterion. She resubmitted a September 21,
2010 job offer and informational letter that were before OWCP at the time of the October 12,
2010 final decision. Appellant therefore did not submit new evidence.
The Board accordingly finds that the record does not establish that appellant was entitled
to a merit review of the claim. Appellant did not show that OWCP erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by OWCP or submit relevant and pertinent evidence not previously considered by OWCP.
Therefore, OWCP properly declined to review the merits of the claim.
On appeal, appellant argues that she should be entitled to compensation because the
employing establishment had no position within her work restrictions. As the above discussion
illustrates, the Board does not have jurisdiction over the merits of the modification of wageearning capacity issue on this appeal. The Board reiterates, however, that there is no time
limitation to request modification of an existing wage-earning capacity determination. Appellant
may pursue the issue by submitting new and relevant evidence or argument to OWCP.
CONCLUSION
The Board finds that OWCP properly determined that a review of the merits of the wageearning capacity issue was not warranted.

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

7

See L.C., Docket No. 10-827 (issued March 4, 2011).

8

See Z.J., Docket No. 10-2285 (issued August 11, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 18, 2010 is affirmed.
Issued: January 18, 2012
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lake Charles, LA, Employer
__________________________________________

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Appearances:
Kevin Card, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1885
Issued: September 17, 2018

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 September 6, 2017 appellant, through her representative, filed a timely appeal from an
August 29, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record on appeal includes evidence received after OWCP issued its August 29, 2017 decision. The Board’s
jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board is
precluded from considering this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On October 22, 2015 appellant, then a 52-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed cervical and lumbar disc disease, as well
as right shoulder pain due repetitive casing of mail, loading packages, pulling trays, loading her
long life vehicle (LLV), walking, and carrying her mailbag. She alleged that she first became
aware of her claimed conditions and their relationship to her federal employment on
September 17, 2015. In an accompanying narrative statement, appellant indicated that,
approximately 15 years prior to filing the claim, she had begun seeing a chiropractor a few times
a year to keep her back healthy and relieve tightness.
In a May 27, 2015 light-duty work release, an unidentified chiropractor set forth permanent
work restrictions for low back pain, mid-back pain, and cervical pain.
In a November 23, 2015 letter, OWCP advised appellant that the evidence submitted was
insufficient to establish her occupational disease claim. It requested that she complete the attached
development questionnaire to substantiate the factual elements of her claim and provide medical
evidence from a physician which provided a comprehensive report on how her diagnosed
conditions resulted from her federal employment duties. OWCP afforded appellant 30 days to
submit the requested information.
Medical reports from Dr. Todd Peavy, a Board-certified family practitioner, were received.
In his October 5, 2015 report, he indicated that x-rays and magnetic resonance imaging (MRI)
scans of appellant’s cervical and lumbar spine revealed degenerative disc disease and that she felt
that those conditions were aggravated by her work. Dr. Peavy diagnosed lumbar and cervical
degenerative disc disease, and shoulder pain.
In a December 22, 2015 letter, then counsel, related that appellant’s employment injury
was separate from the chiropractic services she received.
By decision dated January 7, 2016, OWCP denied appellant’s claim, finding that the
medical evidence submitted was insufficient to establish that the claimed medical conditions were
causally related to the established employment duties.
On February 4, 2016 appellant requested a review of the written record before OWCP’s
Branch of Hearings and Review.
In a December 23, 2015 report, Dr. Peavy noted that appellant had been under his medical
care since September 2, 2015 and had reported a three and a half year history of neck, right
shoulder, and low back pain. He noted that objective testing revealed cervical disc disease, lumbar
disc disease, and degenerative changes of her right shoulder. Dr. Peavy concluded that, based on
review of appellant’s medical record, radiographs, MRI scans, and physical examination, it was
his medical opinion that her diagnoses of cervical disc disease, lumbar disc disease, and right
2

shoulder pain were aggravated by her repetitively casing mail, loading packages, pulling trays,
walking 10 miles daily, carrying a mailbag, pushing, pulling, lifting, twisting, and bending.
In a January 27, 2016 duty status report (Form CA-17), Dr. William Lowry, a Boardcertified orthopedic surgeon, opined that appellant had cervical stenosis, lumbar, and cervical
degenerative disc disease, and was unable to work. In January 27 and March 3, 2016 reports, he
related that she was unable to return to work due to lumbar and cervical pain.
By decision dated June 30, 2016, an OWCP hearing representative affirmed OWCP’s
January 7, 2016 decision, finding the medical evidence of record was insufficient to establish
causal relationship.
On February 13, 2017 appellant’s representative requested reconsideration.4
In July 1 and August 2, 2016 reports, Dr. Lowry indicated that appellant was unable to
return to work until further evaluated. He indicated that she saw him as needed for pain and that
restrictions were in place until further notice. Dr. Lowry did not identify appellant’s work
restrictions.
In an August 23, 2016 report, Dr. Peavy indicated that appellant had been under his
medical care since September 2, 2015 and that her MRI scans supported the diagnoses of cervical
disc disease, lumbar disc disease, and shoulder pain. He indicated that she was unable to return to
work in any capacity. Dr. Peavy noted that appellant was scheduled to undergo neurosurgical
evaluation. He indicated that neurosurgery was likely her only option for symptomatic relief and
that it would be at least three months before any return to work could be expected.
November 3, 2016 electromyogram (EMG) and nerve conduction velocity (NCV) tests
were interpreted as revealing moderate bilateral median neuropathy at the right wrist.
In notes dated November 30, 2016, and January 3 and 31, 2017, Tara C. Barnes, a nurse
practitioner, indicated that appellant was seen those days and requested that she be excused from
work.
In a January 3, 2017 Form CA-17, Dr. Erich W. Wolf, a neurosurgeon, diagnosed disc
extrusion at C5-6 with narrowing. He opined that appellant was unable to work. In a January 31,
2017 report, Dr. Wolf presented examination findings and diagnosed cervical disc disorder with
radiculopathy, mid-cervical region; spinal stenosis, cervical region; and bilateral carpal tunnel
syndrome. He indicated that appellant had continued complaints of neck and low back pain and
noted that she was previously seen for neck complaints only. With respect to the neck, Dr. Wolf
opined that, based upon appellant’s MRI scan, EMG, and physical examinations, the diagnosed
C5-6 and C6-7 degenerative disc disease, radiculopathy, and bilateral carpal tunnel syndrome were
aggravated by her letter carrier duties; specifically, repetitive casing of mail, loading packages,

4
The record contains letters from appellant and her former counsel pertaining to the termination of her legal
representation and letters from appellant subsequently authorizing her representative.

3

pulling trays, loading the LLV, and walking while carrying heavy loads of mail. He opined that
she was unable to return to work in her previous occupation.
In a March 8, 2017 note, Dr. Wolf reported that appellant was unable to work.
By decision dated April 17, 2017, OWCP denied modification of its June 30, 2016
decision. It noted that there was no medical narrative of record that contained a complete history
of injury, a diagnosis or a well-reasoned medical opinion supported by objective findings which
explained how appellant’s federal employment duties caused or aggravated the diagnosed
conditions.
On June 30, 2017 appellant’s representative again requested reconsideration. In a June 30,
2017 statement, appellant described the work duties of the positions held while working for the
employing establishment. She indicated that the lifting, extending, bending, twisting, turning,
stooping, and reaching above the level of her shoulder affected her neck, shoulders, arms, hands,
as well as her back, and legs. Appellant related that she received chiropractic treatment from
Dr. Damon Cormier. She noted that, in December 2010, she began working as a city carrier.
However, by 2013, the chiropractic treatments and physical therapy did not relieve appellant’s
neck and lower back pain, as such, she sought treatment from Dr. Peavy, her general practitioner,
who referred her to pain management in September 2015.
In a May 18, 2017 report, Dr. Wolf noted that appellant reported that her pain was
exacerbated on September 11, 2015 after work-related repetitive casing of mail, loading packages
daily, pulling trays, loading the LLV, and walking while carrying heavy loads of mail. He noted
that those job duties increased pressure on and affect her neck, shoulders, and arms which may
contribute to inflammation. Dr. Wolf noted that appellant also reported being off work since
reporting the alleged injury. He indicated that a functional capacity evaluation was reviewed.
Dr. Wolf opined that, based upon the MRI scan, EMG, and physical examination, that the C5-6
and C6-7 degenerative disc disease and right carpal tunnel syndrome were aggravated by
appellant’s letter carrier duties as outlined above. He also suspected that she was symptomatic
from pathology at the C5-6 and C6-7 level and right carpal tunnel syndrome. Dr. Wolf has
discussed various surgical options. He opined that appellant was unable to return to work in her
previous occupation.
In a June 22, 2017 letter, Dr. Clark A. Gunderson, a Board-certified orthopedic surgeon,
reported that appellant was examined on June 20, 2017 and that he reviewed medical reports and
an April 8, 2016 MRI scan she had provided. He indicated that she continued to have neck and
bilateral upper extremity complaints and lower back and bilateral lower extremity complaints
related to the on-the-job injury of September 17, 2015. Dr. Gunderson indicated appellant’s
medical course, the results of objective testing, and reviewed a December 12, 2016 functional
capacity evaluation. He opined that the cervical radiculopathy and carpal tunnel syndrome were
accelerated by her letter carrier duties of repetitive casing of mail, loading packages, pulling trays,
and loading her vehicle, as well as walking with heavy loads. Dr. Gunderson advised that the
mechanical mechanism of injury was repetitive lifting, reaching, and carrying, which placed
pressure on appellant’s cervical spine and increased the inflammation in the neck shoulders arms
hands, and back. He recommended surgical intervention. Dr. Gunderson also opined that
appellant was unable to perform gainful employment.

4

In a June 29, 2017 letter, Dr. Damon L. Cormier, a chiropractor, noted that he had not
provided care to appellant after her work-related injury on September 17, 2015. He also noted that
he had no knowledge of cervical or lumbar disc disease.
In a July 18, 2017 note, Dr. Gunderson opined that appellant was unable to work.
By decision dated August 29, 2017, OWCP denied modification of its prior decision. It
found that the medical documentation of record failed to provide a well-reasoned explanation as
to how the diagnosed conditions were causally related to the accepted factors of appellant’s federal
employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence6 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.7
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.10

5

Supra note 2.

6

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

7
M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB
1143, 1145 (1989).
8

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

9

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

10

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

5

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.
Appellant alleges that she sustained cervical, lumbar, and right shoulder conditions as a
result of her repetitive federal employment duties as a city carrier. OWCP accepted that she had
repetitive job duties and that she was diagnosed with several medical conditions. However, it
denied appellant’s claim because the medical evidence submitted failed to establish that her
medical conditions were causally related to her employment.
In support of her claim, appellant submitted medical reports from Dr. Peavy which
diagnosed lumbar disc disease, cervical disc disease, and shoulder pain. In his initial reports, as
well as in his August 23, 2016 report, Dr. Peavy did not offer any opinion regarding the cause of
her conditions and therefore these reports are of limited probative value on the issue of causal
relationship.11 Additionally, the Board has consistently held that pain is a symptom, rather than a
compensable medical diagnosis.12
In his December 23, 2015 report, Dr. Peavy did offer an opinion regarding causal
relationship. However, he opined, without any medical rationale, that appellant’s diagnosis of
cervical disc disease, lumbar disc disease, and right shoulder pain were aggravated by her
repetitively casing mail, loading packages, pulling trays, walking 10 miles daily, carrying a mail
bag, pushing, pulling, lifting, twisting, and bending. The Board has held that a medical opinion
that is not fortified by rationale is of diminished probative value.13 Moreover, since the diagnostic
studies revealed a degenerative condition of the lumbar and cervical spine, it was especially
important that Dr. Peavy discuss whether appellant’s preexisting degenerative condition which had
progressed beyond what might be expected from the natural progression of that condition.14 As
such, Dr. Peavy’s reports are insufficient to establish appellant’s claim.
In a January 27, 2016 duty status report, Dr. Lowry opined that appellant had cervical
stenosis, lumbar and cervical degenerative disc disease, and was unable to work. However, he did
not offer an opinion regarding the cause of her conditions. Therefore, Dr. Lowry’s report is of
limited probative value on the issue of causal relationship.15
In reports dated January 31 and May 18, 2017, Dr. Wolf diagnosed cervical disc disorder
with radiculopathy, mid-cervical region, spinal stenosis, cervical region, and bilateral carpal tunnel
syndrome and opined that appellant was unable to return to work in her previous occupation. In
his January 31, 2017 report, he opined that the diagnosed C5-6 and C6-7 degenerative disc disease,
11

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

C.F., Docket No. 08-1102 (issued October 10, 2008).

13

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

14

R.E., Docket No. 14-0868 (issued September 24, 2014).

15

See C.B., supra note 11.

6

radiculopathy and bilateral carpal tunnel syndrome conditions were aggravated by her letter carrier
duties of repetitive casing of mail, loading packages, pulling trays, loading the LLV, and walking
while carrying heavy loads of mail. However, Dr. Wolf failed to address how the specific
employment duties physiologically caused and/or aggravated her conditions. In his May 18, 2017
report, he noted that appellant reported that her pain was exacerbated after the above work-related
repetitive activities and explained that those job duties increased pressure on and affect her neck,
shoulders, and arms which may contribute to inflammation. Dr. Wolf’s use of the term “may”
renders his opinion speculative in nature.16 Furthermore, he failed to provide a sufficient
explanation as to the mechanism of injury, namely how the identified work duties would cause or
aggravate appellant’s cervical disc disorder with radiculopathy, mid-cervical region; spinal
stenosis, cervical region; and bilateral carpal tunnel syndrome.17 As such, Dr. Wolf’s reports are
of limited probative value and insufficient to meet her burden of proof.18
In his June 22, 2017 report, Dr. Gunderson indicated that appellant had neck and bilateral
upper extremity complaints and lower back and bilateral lower extremity complaints related to the
on-the-job injury of September 17, 2015 and that she was unable to work. He opined that the
cervical radiculopathy and carpal tunnel syndrome were accelerated by her letter carrier duties of
repetitive casing of mail, loading packages, pulling frays, and loading the vehicle, as well as
walking with heavy loads. Dr. Gunderson advised that the mechanism of injury was repetitive
lifting, reaching, and carrying, which placed pressure on appellant’s cervical spine and increased
the inflammation in the neck, shoulders, arms, hands, and back. While he provided a declarative
statement of causal relationship, he did not discuss the objective examination findings or the
diagnostic studies, which revealed a preexisting degenerative condition of the cervical spine. As
previously noted, a well-rationalized opinion is particularly warranted when there is a history of a
preexisting condition.19 Thus, Dr. Gunderson failed to provide a fully-rationalized opinion to
explain how appellant’s diagnosed conditions were causally related to her accepted work factors.
The remaining evidence is of limited probative value. The diagnostic reports, which
included a September 11, 2015 cervical MRI scan and a November 3, 2016 EMG/NCV study,
provided a medical diagnosis, but no opinion on the cause of the condition.20 Diagnostic studies
are of limited probative value as they do not address whether the employment incident caused any
of the diagnosed conditions.21

16

L.R. (E.R.), 58 ECAB 369 (2007); D.D., 57 ECAB 734 (2006); M.W., 57 ECAB 710 (2006); Ceclia M. Corley,
56 ECAB 662 (2005).
17

S.W., Docket 08-2538 (issued May 21, 2009).

18
See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
19

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

20

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

21

See J.S., Docket No. 17-1039 (issued October 6, 2017).

7

The chiropractic reports of May 27, 2015 and July 18, 2017 reports are of limited probative
value as neither chiropractor diagnosed a spinal subluxation based on results of an x-ray.22
Therefore, neither chiropractor is considered a physician as defined under 5 U.S.C. § 8101(2).
Similarly, the work excuse notes from a nurse practitioner lack probative value as healthcare
providers such as physician assistants, physical therapists, or nurse practitioners, are not
considered physicians as defined under FECA.23
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation.24 Such a relationship must be
shown by rationalized medical evidence of causal relation based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.25 Because appellant has not submitted such rationalized medical evidence in this case,
the Board finds that she has not met her burden of proof to establish her occupational disease claim.
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 her burden of proof to establish an occupational
disease causally related to the accepted factors of her federal employment.

22

5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. The term physician includes chiropractors only to the extent that their reimbursable services are limited
to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the secretary. See Merton J. Sills, 39 ECAB 572, 575 (1988).
23

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. See 5 U.S.C. § 8102(2);
David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as nurses, physician assistants and physical therapists
are not competent to render a medical opinion under FECA). See also M.M., Docket No. 16-1617 (issued
January 24, 2017).
24

See D.R., Docket No. 16-0528 (issued August 24, 2016).

25

Patricia J. Bolleter, 40 ECAB 373 (1988).

8

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 17, 2018
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Nashville, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0104
Issued: July 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 21, 2016 appellant filed a timely appeal from an October 4, 2016 merit
decision and a June 30, 2016 nonmerit 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 appellant received a $2,859.01 overpayment of compensation
for the period June 19 through August 7, 2015; (2) whether OWCP abused its discretion in
denying waiver of recovery of the overpayment; and (3) whether OWCP properly determined
that appellant had abandoned her request for a prerecoupment hearing.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on May 4, 2015 appellant, then a 28-year-old city carrier assistant,
sustained a lumbar sprain when her work vehicle was struck from behind. She stopped work on
the date of injury and received wage-loss compensation and medical benefits. Appellant
returned to modified duty on July 11, 2015 working in a part-time capacity.2
On July 21, 2015 appellant filed a claim for compensation (Form CA-7) for leave without
pay for the period June 19 through July 10, 2015. Her time analysis form (Form CA-7a)
indicated 16 days of wage-loss compensation amounting to 6 hours of leave for each full day
worked. Appellant also filed CA-7 forms for the period July 11 through August 7, 2015 for
intermittent wage loss.
On August 25, 2015 the employing establishment clarified that appellant was a
temporary, part-time employee and that she had been employed for less than 11 months during
the previous year. It submitted further information which indicated that, as a part-time employee
appellant received $15.68 per hour as a city carrier assistant, worked five days per week, and
averaged 32 hours weekly as she was on a rotating or irregular schedule.
In a September 10, 2015 initial payment memorandum, appellant was reported as
working an average of 6.4 hours per day, 5 days per week, resulting in 32 hours of work weekly.
Appellant’s hourly rate at $15.68 was multiplied by 6.4 hours to calculate a daily rate of
$100.35.3 The daily rate was multiplied by 260 to determine average annual earnings pursuant to
5 U.S.C. § 8114(d)(1)(B), then divided by 52 to calculate a new weekly pay rate of $501.76.4
On October 13, 2015 OWCP issued a preliminary determination that appellant received
an overpayment of compensation in the amount of $2,859.01 for the period June 19 through
August 7, 2015 because she was paid at an incorrect pay rate. It found that she was not at fault
in the creation of the overpayment, making her eligible for waiver of recovery of the
overpayment. OWCP explained that when appellant initially filed the July 21, 2015 claim for
wage loss, her pay had been based on a temporary pay rate while her true pay rate was being
developed. It noted that her pay rate was corrected once it had received information and
calculated the rate of $501.76 weekly. Appellant’s average work hours were 6.4 hours per day, 5
days per week. OWCP explained that from June 19 through July 10, 2015, appellant received
2

On March 24, 2016 OWCP notified appellant of a proposal to terminate her wage-loss compensation benefits
based on the report of her attending physician which found no further disability connected to the employment injury.
By decision dated April 28, 2016, it terminated her wage-loss compensation benefits finding that the weight of the
medical evidence established that she was no longer disabled from work as a result of the May 4, 2015 work injury.
OWCP noted that appellant’s medical benefits were not terminated and would remain open if treatment was needed
for the accepted condition.
3

OWCP had originally been provided payroll information reflecting an average daily wage rate of $100.35.
Using 5 U.S.C. § 8114(d)(3), it calculated the weekly pay rate at $289.47 for an average of 32 hours a week.
4

The average annual earnings are the product obtained by multiplying her daily wage for the particular
employment or the average thereof if the daily wage has fluctuated, by 300 if she was employed on the basis of a 6day workweek, 280 if employed on the basis of a 5½-day workweek, and 260 if employed on the basis of a 5-day
workweek. 5 U.S.C. § 8114(d).

2

$926.34 for 16 days of leave when she should have received $1,204.22.5 For the period July 11
through 24, 2015, appellant received payment in the amount of $2,026.36 for 44.8 hours of
leave; however, she should have only received pay for this period in the amount of $362.21 for
30.8 hours of leave at $15.68 an hour and 75 percent compensation rate. From July 25 through
August 7, 2015, appellant had received $1,990.18 for 44 hours of leave when she should have
received $517.44 for those 44 hours (44 hours times $15.68 an hour times 75 percent). It
concluded that for the period June 19 through August 7, 2015, appellant was paid $4,942.88
when she should have been paid $2,083.87, resulting in a $2,859.01 overpayment.
OWCP provided appellant with an overpayment recovery questionnaire (Form OWCP20) and advised that she could request a prerecoupment hearing if she wished to challenge the
fact of overpayment or to request waiver of recovery of the overpayment. If she claimed a
waiver of recovery, she was advised to submit supporting financial information and a completed
overpayment recovery questionnaire within 30 days.
On October 20, 2015 appellant requested a prerecoupment hearing arguing that the
overpayment should be waived because it occurred through no fault of her own. She reported
that she had submitted the CA-7 and CA-7a forms on time and her manager was to file the
remaining information. Appellant contended that she had never been told of any overpayment.
She submitted a completed overpayment recovery questionnaire indicating that she had two
dependent children, a monthly income of $217.00 from earnings, monthly expenses of $810.59,
and $187.00 in her bank account. No supporting financial documentation was submitted.
In a May 12, 2016 notice, OWCP’s Branch of Hearings and Review scheduled a
prerecoupment hearing for 9:30 a.m. Eastern Standard Time (EST) on June 14, 2016. It
provided appellant with a toll-free number and passcode for the telephone hearing. OWCP
advised appellant that postponement of the hearing would only be permitted upon receipt of
documentation showing her nonelective hospitalization or that the death of a spouse, parent, or
child prevented her attendance. The notice was mailed to appellant’s address of record.
On June 14, 2016 appellant failed to participate in the telephone prerecoupment hearing.
By decision dated June 30, 2016, an OWCP hearing representative found that appellant
failed to appear at the prerecoupment hearing and had therefore abandoned her request. The
hearing representative found no evidence of record establishing that appellant had contacted
OWCP prior to or subsequent to the scheduled hearing.
By decision dated October 4, 2016, OWCP finalized its preliminary overpayment
decision. It found that appellant had received an overpayment of compensation in the amount of
$2,859.01 for the period June 19 through August 7, 2015. It further found that she was not at
fault in the creation of the overpayment. OWCP determined that the overpayment was not
subject to waiver of recovery, however, because appellant had failed to submit the requested
financial information to support the figures provided in her OWCP-20 form. Thus, there was no
evidence of record that recovery of the overpayment would defeat the purpose of FECA or be
5

As appellant had dependents, her compensation rate was at 75 percent. ($100.35 @ day times 16 days equals
$1,605.60 times 75 percent equals $1,204.22).

3

against equity and good conscience. OWCP requested repayment be made 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 his duty.6 Section 8129(a) of FECA provides, in pertinent part: When an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled.7
An employee is paid compensation for total disability equal to a percentage of his or her
monthly pay.8 To calculate monthly pay, the initial issue is the determination of the specific time
when the employee’s monthly pay will be calculated. Under 5 U.S.C. § 8101(4), the monthly
pay is determined at the time of injury, the time disability begins, or the time compensable
disability recurs, if the recurrence begins more than six months after a return to regular full-time
employment.9
Once the proper time period is determined, the pay rate is determined under 5 U.S.C.
§ 8114(d). This section provides a specific methodology for determining pay rate:
(1) If the employee worked in the employment in which she was employed at the
time of her injury during substantially the whole year immediately preceding the
injury and the employment was in a position for which an annual rate of pay-(A) was fixed, the average annual earnings are the annual rate of pay; or
(B) was not fixed, the average annual earnings are the product obtained by
multiplying his daily wage for particular employment, or the average
thereof if the daily wage has fluctuated, by 300 if she was employed on
the basis of a 6-day workweek, 280 if employed on the basis of a 5 1/2day week, and 260 if employed on the basis of a 5-day week.
(2) If the employee did not work in employment in which she was employed at
the time of her injury during substantially the whole year immediately preceding
the injury, but the position was one which would have afforded employment for
substantially a whole year, the average annual earnings are a sum equal to the
average annual earnings of an employee of the same class working substantially
the whole immediately preceding year in the same or similar employment by the
6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8106(c).

9

Id. at § 8101(4).

4

United States in the same or neighboring place, as determined under paragraph
(1) of this subsection.
(3) If either of the foregoing methods of determining the average annual earnings
cannot be applied reasonably and fairly, the average annual earnings are a sum
that reasonably represents the annual earning capacity of the injured employee in
the employment in which she was working at the time of the injury having regard
to the previous earnings of the employee in federal employment, and of other
employees of the United States in the same or most similar employment in the
same or neighboring location, other previous employment of the employee, or
other relevant factors. However, the average annual earnings may not be less than
150 times the average daily wage the employee earned in the employment during
the days employed within one year immediately preceding her injury.
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $2,859.01 for the period June 19 through August 7, 2015.
Appellant was employed as a city carrier assistant, in a part-time, temporary position.
She had not worked in this position for 11 months prior to injury. Pursuant to 5 U.S.C.
§ 8114(d) since appellant had not worked in the employment in which she was employed at the
time of injury during substantially the whole year prior to the injury, but the employing
establishment did not dispute that the position was one which would have afforded employment
for substantially a whole year, pursuant to 5 U.S.C. § 8114(d)(2) the pay rate calculation
properly reverted back to 5 U.S.C. § 8114(d)(1). As appellant’s annual earnings were not fixed,
and she was employed on the basis of a 5-day week, OWCP utilized the daily rate multiplier of
260 under 5 U.S.C. § 8114(d)(1)(B).10
OWCP determined that she worked on average 6.4 hours daily, 5 times per week. Based
on her hourly rate of $15.68, OWCP properly determined that appellant’s average daily wage
amounted to $100.35. Appellant’s average annual earnings were calculated by multiplying her
daily wage by 260, as she was employed on the basis of a 5-day week, which was then divided
by 52 to calculate a weekly pay rate of $501.76.11

10

See T.M., Docket No. 15-149 (March 9, 2015) wherein the Board explained that the evidence from the
employing establishment confirmed that the claimant had not worked in her position for substantially one whole
year prior to the date of injury on September 7, 2013. Therefore the next step under 5 U.S.C. § 8114(d) was to
determine if the position was one which would have afforded employment for substantially a whole year. As noted
above, if the position would have afforded employment for substantially the whole year, then the pay rate is the
earnings of a claimant of the same class working substantially the whole immediately preceding year in the same or
similar employment by the United States in the same or neighboring place. OWCP applied 5 U.S.C. § 8114(d)(3),
which required that the pay rate be no less than 150 times the average daily wage. This section was only to be used
if 5 U.S.C. § 8114(d)(2) could not be applied reasonably and fairly. In the current case, OWCP originally had used
5 U.S.C. § 8114(d)(3). It later determined that 5 U.S.C. § 8114(d)(1)(B) was the proper method.
11

5 U.S.C. § 8114(d).

5

For the period June 19 through July 10, 2015, appellant’s pay rate had been based on an
incorrect rate of pay and she received $926.34 for 16 days of wage loss. She should have
received $1,204.22 for the 16 days of wage loss at the daily rate of $100.35 (times 75 percent).
With respect to the period July 11 through 24, 2015, appellant was incorrectly paid
$2,026.36. Based on the Form CA-7a, she worked a total of seven days for two hours on each
day. As she typically worked 6.4 hours daily, appellant was entitled to leave without pay for the
remaining 4.4 hours of each day worked. Thus, OWCP properly determined that she was only
entitled to 30.8 hours for the 7 days, resulting in $362.21 of wage-loss compensation for the
period July 11 through 24, 2015 at the hourly rate of $15.68 (times 75 percent).
For the period July 25 through August 7, 2015, appellant was paid $1,990.18, but, based
on the hourly pay rate of $15.68 for 44 hours of leave without pay (times 75 percent), OWCP
properly determined that appellant was entitled to $517.44 for the period July 25 through
August 7, 2015.
The Board finds that OWCP properly found that appellant should have received
$2,083.87 for the period June 19 to August 7, 2015 rather than the $4,942.88 she received.12
Appellant has not submitted any evidence disputing the fact and amount of the overpayment.
The Board will therefore affirm OWCP’s finding of an overpayment of compensation in the
amount of $2,859.01.13
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.14 These statutory
guidelines are found in section 8129(b) of FECA which states: Adjustment or recovery of an
overpayment by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of
this subchapter or would be against equity and good conscience.15 If OWCP finds a claimant to
be without fault in the matter of an overpayment, then, in accordance with section 8129(b),
OWCP may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of FECA nor be against equity and good conscience.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary needs substantially all of her
income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by

12

$4,942.88 - $2,083.87 = $2,859.01. See L.M., Docket No. 16-0144 (issued March 22, 2016).

13

B.A., Docket No. 15-1171 (issued December 21, 2015).

14

See Robert Atchison, 41 ECAB 83, 87 (1989).

15

5 U.S.C. § 8129(b).

6

OWCP from data provided by the Bureau of Labor Statistics.16 According to 20 C.F.R.
§ 10.437, recovery of an overpayment is considered to be against equity and good conscience
when an individual who received an overpayment would experience severe financial hardship
attempting to repay the debt and when an individual, in reliance on such payments or on notice
that such payments would be made, gives up a valuable right or changes his position for the
worse.17 To establish that a valuable right has been relinquished, it must be shown that the right
was in fact valuable, that it cannot be regained, and that the action was based chiefly or solely in
reliance on the payments or on the notice of payment.18
Section 10.438 of OWCP’s regulations provide that the individual who received the
overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. This
information will also be used to determine the repayment schedule, if necessary. Failure to
submit the requested information within 30 days of the request shall result in denial of waiver,
and no further request for waiver shall be considered until the requested information is
furnished.19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment of
compensation.20
As appellant was found to be without fault in the creation of the overpayment in
compensation, waiver must therefore be considered, and repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience.
In its preliminary notice of overpayment dated October 13, 2015, OWCP requested that
appellant provide supporting financial information and a completed overpayment recovery
questionnaire. While she submitted the overpayment recovery questionnaire, appellant failed to
submit any financial information outlining her income, expenses, and assets for OWCP to
determine whether waiver of the overpayments was appropriate. Further, she made no argument
that she gave up a valuable right or changed her position for the worse in reliance on the
16

20 C.F.R. § 10.436. An individual is deemed to need substantially all of her monthly income to meet current
and ordinary living expenses if monthly income does not exceed monthly expenses by more than $50.00. Desiderio
Martinez, 55 ECAB 245 (2004). OWCP procedures provide that assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (June 2009).
17

Id. at § 10.437(a), (b).

18

Id. at § 10.437(b)(1).

19

Id. at § 10.438.

20

R.H., Docket No. 15-0392 (issued February 3, 2016).

7

overpaid compensation prior to the issuance of OWCP’s October 4, 2016 decision. As appellant
failed to submit complete financial information, the evidence before OWCP was insufficient to
determine whether recovery of the overpayment would defeat the purpose of FECA or would be
against equity or good conscience.21 Accordingly, as required by section 10.438 of its
regulations, appellant was not entitled to a waiver.22 The Board therefore finds that OWCP
properly denied waiver of recovery of the overpayment of compensation in the amount of
$2,859.01.23
On appeal, appellant argues that she did not know she was being overpaid and should not
be responsible for repayment caused by someone else’s mistake. Although OWCP found that
appellant was without fault in the matter of the overpayment, repayment is still required unless
adjustment or recovery of the overpayment would defeat the purpose of FECA or be against
equity and good conscience.24
With respect to recovery of the overpayment of compensation, the Board’s jurisdiction is
limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.25 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.26
LEGAL PRECEDENT -- ISSUE 3
Section 10.622(f) of OWCP’s regulations and Chapter 2.1601.6(g) of OWCP’s
procedures provide that failure of appellant to appear at the scheduled hearing, failure to request
a postponement, and failure to request a new hearing in writing within 10 days after the date of
the scheduled hearing shall constitute abandonment of the request for a hearing.27 Under these
circumstances, the Branch of Hearings and Review will issue a formal decision finding that the
claimant has abandoned her request for a hearing and return the case to the district office. In
cases involving prerecoupment hearings, the Branch of Hearings and Review will also issue a
final decision on the overpayment, based on the available evidence, before returning the case to
the district office.28

21

20 C.F.R. § 10.438(a) (in requesting waiver, the overpaid individual has the responsibility for providing
financial information).
22

J.V., Docket No. 15-0140 (issued November 25, 2015).

23

M.S., Docket No. 11-96 (issued August 17, 2011).

24

See Wade Baker, 54 ECAB 198 (2002).

25

Cheryl Thomas, 55 ECAB 610 (2004).

26

Id.

27

20 C.F.R. § 10.622(f); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the
Written Record, Chapter 2.1601.6(g) (October 2011).
28

Id.

8

ANALYSIS -- ISSUE 3
In a letter dated May 12, 2016, OWCP advised appellant of a scheduled telephonic
prerecoupment hearing with the hearing representative at a specific time on June 14, 2016. The
evidence establishes that it mailed appropriate notice to appellant at her last known address. The
record also reveals that appellant failed to request postponement, failed to appear for the
scheduled hearing, and failed to provide any notification for such failure within 10 days of the
scheduled date of the hearing. As this meets the condition for abandonment of a hearing as
specified by OWCP’s regulations and procedure manual, the Board finds that OWCP properly
found that appellant abandoned her request for a prerecoupment hearing before an OWCP
hearing representative and properly issued a final decision on the overpayment of
compensation.29
CONCLUSION
The Board finds that appellant received a $2,859.01 overpayment of compensation for the
period June 19 through August 7, 2015. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment and properly determined that appellant abandoned her
request for a prerecoupment hearing.

29

T.M., Docket No. 15-0147 (issued November 13, 2015); M.G., Docket No. 14-1917 (issued January 22, 2015).

9

ORDER
IT IS HEREBY ORDERED THAT the October 4 and June 30, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: July 17, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Needham, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John L. Whitehouse, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0146
Issued: September 9, 2016

Case Submitted on the Record

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

JURISDICTION
On November 2, 2015 appellant, through counsel, filed a timely appeal from an
October 14, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an aggravation of his
preexisting back condition consequential to his accepted employment injury.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel contends that OWCP erroneously found that the medical reports of
Dr. Stanley Hom, a Board-certified orthopedic surgeon, constituted the weight of the medical
evidence as his reports were speculative, conclusory, and unrationalized.
FACTUAL HISTORY
On May 17, 2010 appellant, then a 51-year-old custodian, filed a traumatic injury claim
(Form CA-1) claiming that on that date while climbing a ladder, he felt a sharp pain from his
heel to his ankle. He stopped work on the date of injury. On August 23, 2010 OWCP accepted
appellant’s claim for a small plantar calcaneal spur of the left heel. On September 20, 2010 it
expanded the claim to include acceptance for tibialis tendinitis.
Appellant received
compensation benefits on the periodic rolls commencing July 2, 2010 until June 3, 2011.
In an August 25, 2010 report, Dr. Eric J. Woodard, appellant’s treating Board-certified
neurosurgeon, noted back pain status post foot injury causing strain on his back. In a
September 1, 2010 medical report, he noted that he has been following appellant for many years
for his lumbar spine disease and subsequent surgery. Dr. Woodard indicated that appellant
recently injured his foot at work and that this had dramatically altered his gait and that due to the
change in gait and balance he was experiencing an exacerbation of his lumbar symptoms. He
recommended physical therapy to treat appellant’s lumbar spine symptoms and opined that these
symptoms were directly related to his foot injury.
On December 1, 2010 OWCP referred appellant to Dr. Stanley Hom, Board-certified in
orthopedic and hand surgery, for a second opinion. In a December 22, 2010 report, Dr. Hom
diagnosed left foot plantar fasciitis. He also noted magnetic resonance imaging (MRI) scan
findings consistent with peroneus longus and posterior tibial tendinopathy (chronic tendinitis).
Dr. Hom further diagnosed chronic low back condition, by history and lumbar degenerative disc
disease, status post failed disc implant, and subsequent lower lumbar fusion. He explained that
he would not consider the history of injury a major or predominant cause of appellant’s current
left foot and ankle symptoms. Dr. Hom further found that the history of injury was unrelated to
appellant’s current low back condition, which he believed that was more related to his chronic
underlying low back condition. He opined that, based on appellant’s diagnosis of left foot
chronic plantar fasciitis and his chronic low back condition, he could return to work in a
modified capacity. In conclusion, Dr. Hom related that appellant’s left foot plantar fasciitis
reached maximum medical improvement seven months following his injury. In a January 25,
2011 supplemental report, he opined that appellant’s left foot plantar fasciitis and the MRI scan
findings suggestive of peroneus longus and posterior tibial tendinopathy were not currently
related to the history of injury dated May 17, 2010.
In a May 16, 2011 decision, OWCP terminated appellant’s compensation and medical
benefits because the medical evidence established that he no longer had any residuals or
disability due to his accepted work injury.
On June 9, 2011 appellant requested a hearing before an OWCP hearing representative.
At the hearing held on September 20, 2011 he testified that on May 17, 2010 he was climbing an
unstable ladder to let the air conditioning repairman on the roof when his left foot slipped and he
felt a sharp pain shoot from this left heel up to his left ankle and back to his heel. Appellant

2

noted that once he got to the roof he could not put any weight on his left foot. He indicated that
he first sought medical treatment with his primary care physician on May 19, 2010. Appellant
noted that he saw a podiatrist on May 20, 2010 and that she told him to stay off the foot, stay off
work for 12 weeks, and to wear a boot at all times. He indicated that he wore the boot in June,
July, and maybe into August 2010. Appellant noted that he had lumbar fusion surgery in 2009
and that his physicians told him that the foot injury worsened his back injury. He further noted
that he tried to return to work on September 1, 2011, but his supervisor told him he needed a note
from his physicians to return to work. Appellant obtained releases to return to work, but after
working for two days he could not continue because of back pain. He noted that he did not
perform heavy work those days, but still he aggravated his back and leg pain. Appellant stated
that he worked full time before the injury, but since had been unable to perform his work duties.
OWCP continued to receive medical evidence. In a September 1, 2010 note,
Dr. Woodard indicated that he has followed appellant for many years for his lumbar spine
disease and subsequent surgery. He noted that recently appellant injured his foot at work and
that this dramatically altered his gait. Dr. Woodard opined that due to the change in gait and
balance appellant was experiencing an exacerbation in his lumbar symptoms. He recommended
physical therapy to treat appellant’s lumbar spine symptoms and further opined that these
symptoms were directly related to appellant’s foot injury. In October 13, 2010 progress notes,
Dr. Woodard diagnosed lumbosacral spondylosis without myelopathy. He noted that appellant
was 21 months following his L4-5 posterior fusion and fixation for a failed L4-5 disc
arthroplasty. Dr. Woodard noted that appellant had improved since the surgery, but still
experienced recurrent low back pain. In an October 6, 2011 note, he noted that on May 5, 2014
appellant underwent a L4-5 disc arthroplasty and a subsequent L4-5 interbody lumbar fusion and
hardware fixation on January 26, 2009. Dr. Woodard noted that appellant was doing well and
returned to work, but that while working in May 2010 he injured his foot and was placed in a
foot orthotic. He indicated that while appellant wore this foot orthotic subsequent to a workrelated injury, he aggravated his preexisting lumbar degenerative disc disease for which he had
undergone two surgical procedures. Dr. Woodard noted that since wearing the foot orthotic
appellant experienced progressive worsening back pain. He indicated that the foot injury altered
appellant’s gait and put additional strain on his lumbar spine. Dr. Woodard recommended
lumbar spine physical therapy as an initial treatment option. He opined that appellant had a
consequential injury to his lumbar spine that was essentially an exacerbation of his preexisting
condition. Dr. Woodard further opined that this was directly caused by the foot orthotic
appellant was wearing to treat a work-related injury.
By decision dated December 15, 2011, OWCP’s hearing representative affirmed the
termination of benefits based on the opinion of Dr. Hom. However, he remanded the case for
OWCP to further develop the medical evidence with regard to whether appellant developed an
aggravation of a prior back condition causally related to his accepted foot condition. The hearing
representative determined that, although Dr. Woodard had not provided detailed rationale in
support of his medical opinion with regard to the back injury being related to appellant’s
accepted medical condition, his opinion was sufficient to compel additional development of the
evidence.
In response to questions posed by OWCP on February 24, 2012, Dr. Hom wrote a
supplemental report dated April 9, 2012 wherein he opined that there was sufficient evidence to

3

support of the use of an orthotic boot on appellant’s left foot for eight weeks during the period
June to August 2010 for his suspected diagnosis of plantar fasciitis. However, he further opined
that the use of the prefabricated walking cast did not cause or contribute to a worsening of the
examinees preexisting lumbar degenerative disease and what is described in a computerized
tomography (CT) scan as a nonunion of his L4-5 attempted fusion, or any other condition
affecting the lumbar spine. Dr. Hom also noted that he was unaware of any widely held studies
that correlate use of a prefabricated walking cast with the development of low back symptoms or
worsening of lumbar degenerative disc disease.
In a May 21, 2012 report, Dr. Michael A. Marciello, a Board-certified physiatrist, listed
his impression as chronic lower back pain and combination of stenosis, facet arthropathy,
deconditioning, and a compensatory altered gait pattern and limited mobility. He reviewed a
lumbar MRI scan study from July 2011 and indicated that it revealed extensive degenerative
facet arthropathy and marked L5-S1 disc space narrowing, stenosis at L3-4, with fusion at L4-5,
and multilevel facet arthropathy greatest at the lower lumbar segment. In a July 2, 2012 progress
note, Dr. Marciello listed impressions of discogenic lower back pain, and lumbar stenosis with
diffuse degeneration of the lumbar spine.
By decision dated July 13, 2012, OWCP denied expansion of appellant’s claim as it
determined that the medical evidence of record did not establish that he sustained an injury to his
back as a direct result of his accepted employment injury. It determined that the weight of the
medical evidence was represented by the well-rationalized opinions of Dr. Hom, who as a Boardcertified orthopedic surgeon, possessed expertise and training in a more pertinent medical field
with respect to the appellant’s back condition.
In a June 30, 2013 report, Dr. Woodard noted that appellant was under his care. He noted
that appellant underwent two previous lumbar surgeries for his debilitating mechanical back pain
secondary-to-severe lumbar degenerative disc disease. Dr. Woodard noted that his first surgery
in 2004 was a L4-5 disc arthroplasty, and the second surgery in 2009 was an L4-5 interbody
lumbar fusion with hardware fixation. He noted that, at his subsequent appointment, appellant
had improved and had returned to work full time. Dr. Woodward related appellant’s history of
his employment injury. He noted that subsequently appellant was evaluated by his primary care
physician as well as his podiatrist and asked to remain off his foot. Dr. Woodward noted that
appellant wore a foot orthotic for approximately 12 weeks. He opined that during this time
frame appellant’s gait was completely altered because he was straining his lumbar spine on a
daily basis in favor of the foot injury and boot. Dr. Woodward noted that, in August 2010,
appellant contacted his office with the complaint of increasing leg pain, weakness, and lower
back pain with trouble standing for any length of time. He noted that by this time he had
removed the foot orthotic due to the pain. At the time, Dr. Woodward recommended physical
therapy and foot therapy. He noted that this request was denied by workers’ compensation for
the reason that the lumbar spine issues were not related to his foot injury, and that this was
inaccurate as his symptoms progressively got worse following his foot injury.
Dr. Woodard related that repeat MRI and CT scans were performed on April 9, 2012 and
showed a solid L4-5 fusion and some significant facet arthroscopic subacromial decompression
at L3-4, L5-S1. He noted that appellant had been unable to complete the recommended
treatment due to the denial of his workers’ compensation claim. Dr. Woodard opined that

4

appellant’s continued pain in his lumbar spine as well as his groin pain that radiates into his left
leg was all related to his work injury from May 2010. He noted that appellant was medically
disabled for an appropriate period of time while recovering from both surgeries in 2004 and
2009, and that he was disabled again when injured in May 2010 despite trying to return to work a
few times. Dr. Woodard concluded that appellant’s recovery was hindered due to the denial
from workers’ compensation for continued physical therapy for his spine.
On July 15, 2013 appellant requested reconsideration of the July 13, 2012 decision.
Appellant continued to seek treatment from Dr. Marciello, who continued to submit
progress reports. In a September 19, 2013 report, Dr. Marciello noted that appellant had chronic
discogenic mechanical lower back pain, cervical spondylosis, generalized degenerative joint
disease and focal axial spine degeneration, ongoing deconditioning, and medication dependency.
He noted that appellant got through the workday with frequent rests and activity modification.
By decision dated October 3, 2013, OWCP denied appellant’s request for reconsideration
as it was untimely filed and failed to demontrate clear evidence of error. Appellant appealed to
the Board. However, by decision dated May 12, 2014, the Board set aside the October 3, 2013
decision and remanded the case, finding that appellant’s request for reconsideration was timely
filed and ordered that OWCP review appellant’s request under the proper standard of review for
timely requests for reconsideration.3
By decision dated July 9, 2014, OWCP reviewed the merits of appellant’s case and
denied modification of the July 13, 2012 decision, finding that the additional evidence submitted
on reconsideration was not of sufficient probative value to alter the July 13, 2012 decision. It
determined that the reports of Drs. Woodard and Marciello lacked probative value to establish
causal relationship.
On July 2, 2015 appellant, through counsel, requested reconsideration of OWCP’s July 9,
2014 decision. Counsel listed several studies and articles in support of the proposition that
appellant’s back condition was causally related to his altered gait. He contended that appellant’s
physicians related appellant’s back pathology to the effects of an altered gait due to ambulation
with a walking boot and that there was no contrary competent medical evidence.
In support of the reconsideration request, appellant submitted a May 17, 2015 report
wherein Dr. Sung K. Anderson, a Board-certified internist, noted that appellant has lumbar
degenerative disc disease. Dr. Anderson related that appellant had undergone L4-5 disc
arthroplasty in 2004 and an interbody fusion and hardware fixation at the same level in 2009. He
noted that, after an appropriate recovery, appellant returned to work full time. Dr. Anderson
discussed the May 17, 2015 employment injury, noting that on that date appellant had severe and
sharp pain to the left heel and into the ankle while climbing the rungs of the metal ladder at
work. He noted that appellant was placed in an orthotic cast, which completely altered his gait,
his pelvis, and back resulting in increased back and leg pain. Dr. Anderson further noted that
appellant had mild arthropathy at L3-4 and L5-S1, which never caused him any problems. Due
to appellant’s injury on his left foot, heel, and ankle, these areas on his spine were inflamed and
3

Docket No. 14-0300 (issued May 12, 2014).

5

irritated causing severe back pain. Dr. Anderson explained that, prior to his left heel, foot, and
ankle injury in 2010, appellant had been without any back problems. He noted that the orthotic
boot immobilized appellant’s foot, locking the foot and ankle at a neutral position in the
dorsiflexion/plantar flexion and inversion/eversion planes. Dr. Anderson noted that such
immobility significantly altered appellant’s gait patterns and cadence as well as his knee, hip,
pelvic, and lumbar kinematics. He explained that as appellant’s lumbar spine was already
compromised, he was susceptible to injury and irritation due to use of the orthotic boot on his left
foot and ankle. Dr. Anderson opined, to a reasonable degree of medical certainty, that
appellant’s lumbar spine arthropathy was inflamed and irritated causing severe back pains for
him, and that this was directly due to ambulating with an orthotic boot following his injury of left
foot and ankle on May 17, 2010.
By decision dated October 14, 2015, OWCP denied modification of its prior decisions. It
determined that the weight of the medical evidence was represented by the opinion of Dr. Hom
as he was a Board-certified orthopedic surgeon. It also noted that Dr. Anderson did not provide
a well-rationalized report.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4 With respect to
consequential injuries, it is an accepted principle of workers’ compensation law that, when the
primary injury is shown to have arisen out of and in the course of employment, every natural
consequence that flows from the injury is deemed to arise out of the employment, unless it is the
result of an independent intervening cause which is attributable to employee’s own intentional
conduct.5 The basic rule is that a subsequent injury, whether an aggravation of the original
injury or a new and distinct injury, is compensable if it is the direct and natural result of a
compensable primary injury.6
A claimant bears the burden of proof to establish a claim for a consequential injury.7 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence which relates to a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

7

R.H., Docket No. 15-1785 (issued January 29, 2016).

6

the diagnosed condition and the special employment factors or employment injury.8 Medical
rationale is a medically-sound explanation for the opinion offered.9
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.10 When the case is referred to an
impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based on a proper factual background, must be
given special weight.11
ANALYSIS
In the present case, appellant seeks to expand the conditions accepted as a result of a
May 17, 2010 employment injury. OWCP previously accepted small plantar calcaneal spur of
the left heel and tibialis tendinitis. Appellant alleges an aggravation of a prior back injury as a
result of wearing an orthotic boot for 8 to 12 weeks in the summer of 2010. The Board finds that
the case is not in posture for decision as a conflict exists in the medical opinion evidence.
Dr. Woodard, appellant’s treating Board-certified neurosurgeon, noted that he had
followed appellant for many years with regard to his lumbar spine disease and subsequent
surgery. He indicated that appellant was doing well following his back surgeries until May 2010
when he injured his foot and was placed in a foot orthotic. Dr. Woodard noted that while
appellant wore this foot orthotic his gait was altered and that this aggravated his preexisting
lumbar degenerative disc disease, for which he had two surgical procedures.
Dr. Anderson, appellant’s treating Board-certified internist, explained that when appellant
was placed in an orthotic cast due to his left heel injury on May 17, 2010, the boot immobilized
appellant’s foot, locking the foot and ankle at a neutral position in the dorsiflexion/plantar
flexion and inversion/eversion planes. He further explained that this immobility significantly
altered appellant’s gait patterns, cadence, and his knee, hip, pelvic, and lumbar kinematics.
Since appellant’s lumbar spine was already compromised, he explained that appellant’s spine
was inflamed and irritated.
OWCP determined that the weight of the medical evidence was represented by the
opinion of Dr. Hom, the second opinion physician who is Board-certified in orthopedic surgery.
Dr. Hom opined that appellant’s issues with his back were causally related to his preexisting low
back condition. In his report of April 9, 2012, he noted that the use of the prefabricated walking
cast did not cause or contribute to a worsening of appellant’s preexisting lumbar degenerative
8

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

9

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003).

10

5 U.S.C. § 8123(a); see J.J., Docket No. 09-27 (issued February 10, 2009); Geraldine Foster, 54 ECAB
435 (2003).
11

B.P., Docket No. 08-1457 (issued February 2, 2009); J.M., 58 ECAB 478 (2007); Barry Neutuch, 54 ECAB
313 (2003); David W. Pickett, 54 ECAB 272 (2002).

7

disease or a nonunion of his L4-5 attempted fusion or any other condition affecting the lumbar
spine, but he provided no rationale in support of his opinion. Dr. Hom noted that he was
unaware of any widely held studies that correlate the use of a prefabricated walking cast with the
development of low back symptoms or worsening of lumbar degenerative disc disease.
It is well established that when there are opposing medical reports of virtually equal
probative value between an attending physician and a second opinion physician, 5 U.S.C.
§ 8123(a) requires OWCP refer the case to a referee physician to resolve the conflict.12 The
Board finds that the medical reports of Drs. Woodward and Anderson are in equipoise with the
opinion of Dr. Hom as to whether appellant sustained an aggravation of his preexisting back
condition consequential to his accepted left heel and tibialis injury. Appellant’s treating
physicians provided long-standing medical care for the accepted conditions in this claim and set
forth medical opinions on the relevant issue with equal rationale and clarity as the opinion of the
second opinion physician, Dr. Hom.13 As the opposing medical reports are of virtually equal
weight and rationale, the Board finds that there is an unresolved conflict as to whether appellant
sustained a consequential aggravation of his preexisting back condition.14 On remand OWCP
shall prepare a statement of accepted facts and refer appellant to an impartial medical specialist
for examination and evaluation. After such further development as necessary, OWCP shall issue
a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

See P.C., Docket No. 15-1013 (issued June 15, 2016).

13

See D.E., Docket No. 15-0712 (issued June 23, 2016).

14

Supra note 12.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 14, 2015 is set aside and this case is remanded for further
proceedings consistent with this opinion.
Issued: September 9, 2016
Washington, DC

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

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

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

9