United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1065
Issued: December 14, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 17, 2017 appellant, through counsel, filed a timely appeal from a March 13,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days has elapsed from the last merit decision, dated July 14, 2016, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the claim.
On appeal, counsel contends that OWCP wrongly denied a merit review of new, relevant
evidence accompanying a timely request for reconsideration.
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.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 20, 2013 appellant, then a 49-year-old federal air marshal, participated in a
physical training test and pistol qualification exercise when he started having trouble
manipulating his firearm. He had pain in his right shoulder area, elbow, forearm, and hand.
OWCP accepted post-traumatic nerve compression syndrome, right and mononeuritis of upper
limb, right.3 Appellant performed light duty following the injury. He remained under medical
treatment. OWCP paid wage-loss compensation for work absences due to medical and physical
therapy appointments. Appellant returned to full duty on October 22, 2013. He continued to
participate in physical and occupational therapy.
On January 15, 2016 appellant claimed a schedule award (Form CA-7) for permanent
impairment of the right upper extremity. In support of his claim, he provided an October 28,
2015 impairment rating of Dr. Neil Allen, an attending Board-certified neurologist and internist.
Dr. Allen found 17 percent permanent impairment of the right upper extremity according to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter, A.M.A., Guides), seven percent for compression neuropathy of the
posterior interosseous (radial) nerve, five percent for a labral injury in the right shoulder joint,
and five percent for median nerve impairment at the right wrist, based on objective
electrodiagnostic evidence of median nerve entrapment and objective signs of carpal tunnel
syndrome on physical examination.
In a July 14, 2016 report, an OWCP medical adviser concurred with Dr. Allen’s radial
neuropathy permanent impairment rating of seven percent, and five percent permanent
impairment for labral injury. He opined, however, that median nerve impairment should not be
included in the assessment because it was not an accepted condition, and that OWCP’s
acceptance of mononeuritis would only apply to the radial nerve. The medical adviser found 12
percent permanent impairment of the right upper extremity.
By decision dated July 14, 2016, OWCP granted appellant a schedule award for 12
percent permanent impairment of the right upper extremity, based on OWCP’s medical adviser’s
review of Dr. Allen’s clinical findings and impairment rating.

3

OWCP accepted two prior right upper extremity injuries under separate claims. Under File No. xxxxxx152,
OWCP accepted that on January 31, 2012, appellant sustained a right shoulder and upper arm sprain with a right
rotator cuff tear. Under File No. xxxxxx940, OWCP accepted that on April 16, 2012, appellant sustained a right
shoulder and upper arm sprain, superior right glenoid labrum lesion, and right biceps tendon tear. Appellant
underwent right shoulder arthroscopy authorized by OWCP under File No. xxxxxx152. All of appellant’s claims are
combined under Master File No. xxxxxx152.

2

In a letter received on November 17, 2016, appellant, through counsel, requested
reconsideration.4 He submitted a November 9, 2016 addendum report from Dr. Allen,
explaining why it was fully appropriate to include median nerve mononeuritis in appellant’s
impairment rating. Dr. Allen pointed out that it was important to rate each injured nerve
individually, as “the median nerve and posterior interosseous nerve provide unique, essential
function(s) to the limb. The median nerve branches directly off of the brachial plexus while the
posterior interosseous nerve is a branch of the radial nerve.” Dr. Allen emphasized that the two
nerves had “essentially opposite functions and therefore would produce unrelated impairment.”
By decision dated March 13, 2017, OWCP denied reconsideration, finding that
Dr. Allen’s November 9, 2016 addendum report was irrelevant to the claim, because OWCP had
not accepted median nerve mononeuropathy.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,5
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.6 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant’s application for review must
be received by OWCP within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
OWCP accepted that appellant sustained post-traumatic nerve compression syndrome,
and mononeuritis of upper limb, right. He claimed a schedule award on January 15, 2016.
Dr. Allen, an attending Board-certified neurologist and internist, provided an October 28, 2015
impairment rating assessing 17 percent permanent impairment of the right arm, seven percent
due to compression neuropathy of the radial nerve, five percent for a labral injury, and five
percent for median nerve impairment. In a July 14, 2016 report, an OWCP medical adviser
concurred with the ratings for radial nerve compression and labral injury, but excluded the five
percent for median nerve impairment as it was not an accepted condition. He therefore
concluded that appellant had only 12 percent permanent impairment of the right upper extremity.
4

Counsel submitted March 2 and March 6, 2017 status requests, inquiring why OWCP had not yet acted on the
November 17, 2016 reconsideration request.
5 U.S.C. §§ 8128(a). Under section 8128 of FECA, “[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

6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

3

On that basis, OWCP issued a schedule award on July 14, 2016 for 12 percent permanent
impairment of the right arm.
Appellant, through counsel, requested reconsideration by letter received on
November 17, 2016. In support of his request, appellant submitted a new report from Dr. Allen
dated November 9, 2016. Dr. Allen indicated that he had reviewed Dr. Slutsky’s report and
offered extensive rationale, based on a detailed explanation of upper extremity innervation, as to
why inclusion of objectively demonstrated median nerve impairment was crucial to an accurate
impairment rating. He explained that the median and radial nerves served “essentially opposite
functions and therefore would produce unrelated impairment.” OWCP denied reconsideration by
decision dated March 13, 2017, finding that Dr. Allen’s November 9, 2016 report was irrelevant
to the claim as OWCP had not accepted a median neuropathy. The Board, however, finds that
OWCP improperly denied reconsideration.
In denying appellant’s request for a review of his claim on the merits, OWCP found
Dr. Allen’s November 9, 2016 report was irrelevant, as it addressed a condition not explicitly
accepted by OWCP. However, the standards for evaluation of permanent impairment of an
extremity under the A.M.A., Guides are based on all factors that prevent a limb from functioning
normally, such as pain, sensory deficit, and loss of strength.9 Also, it is axiomatic that in
determining entitlement to a schedule award, preexisting impairment to the scheduled member is
to be included.10
The Board finds that appellant submitted medical evidence directly addressing the
deficiencies of the claim as identified in OWCP’s July 14, 2016 merit decision. Dr. Allen’s
November 9, 2016 report addresses OWCP’s contention that median nerve neuropathy should
not have been considered in calculating the appropriate percentage of permanent impairment.
The Board finds that the report constitutes pertinent new, and relevant evidence not previously
considered by OWCP.11 Therefore, the submission of this evidence requires reopening of
appellant s claim for merit review.12
The case shall be remanded to OWCP. After any further development deemed necessary,
it shall conduct a merit review of appellant’s claim, pursuant to 5 U.S.C. § 8128(a), and issue an
appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a). The case will be remanded to OWCP for
9

E.B., Docket No. 10-0670 (issued October 5, 2010); Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).
10

C.K., Docket No. 16-1294 (issued January 13, 2017); P.W., Docket No. 16-0684 (issued October 3, 2016); J.C.,
Docket No. 15-1780 (issued March 17, 2016); Peter C. Belkind, 56 ECAB 580 (2005).
11

20 C.F.R. § 10.606(b)(3).

12

See D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

4

additional development, including a merit review of appellant’s claim and issuance of a merit
decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 13, 2017 is set aside, and the case remanded for additional
development consistent with this opinion.13
Issued: December 14, 2017
Washington, DC

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

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

13

Colleen Duffy Kiko, Judge, participated in the original decision but was no longer a member of the Board
effective December 11, 2017.

5


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

)
)
)
)
)
)
)
)

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

Docket No. 14-750
Issued: November 13, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 18, 2014 appellant filed a timely appeal from a February 5, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate compensation for
wage-loss and medical benefits effective July 28, 2013; and (2) whether appellant has established
an employment-related condition or disability after July 28, 2013.
FACTUAL HISTORY
On June 5, 2012 appellant, then a 42-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that she sustained a low back injury in a motor vehicle accident (MVA) on
1

5 U.S.C. § 8101 et seq.

May 31, 2012 while in the performance of duty. OWCP accepted the claim for an acute lumbar
strain on June 13, 2012. Appellant stopped working and received compensation for wage loss.
The record contains a May 31, 2012 lumbar x-ray report from Dr. Gregory Berberian, a
radiologist, stating that no acute fracture or malalignment was seen. By report dated
June 21, 2012, attending physician, Dr. Thomas Hicks, Board-certified in family and
occupational medicine, noted appellant had a prior history of “back pain/injury/surgery.” He
diagnosed acute lumbar strain and stated there was “no evidence of disc pathology. Probable
muscular etiology.”
In a report dated October 23, 2012, Dr. Hicks indicated that appellant continued to report
low back pain. He reported that she should remain out of work.
OWCP prepared a statement of accepted facts and referred appellant to Dr. Steven Silver,
a Board-certified orthopedic surgeon and second opinion physician. In a report dated
November 29, 2012, Dr. Silver provided a history and results on examination. He opined that
appellant had sustained a lumbosacral strain and a temporary exacerbation of her mild
degenerative disc disease. Dr. Silver further opined:
“It is my opinion that the claimant does not continue to suffer from the residuals
of the work-related injury. There is no clinical or radiological evidence to
substantiate the basis for [appellant’s] difficulties at the present time.
It is my opinion that a period of approximately three months of total disability
from the time of [appellant’s] initial injury would be termed as reasonable. It is
my opinion this would have ceased on or about August 31, 2012.
It is my opinion the claimant is capable of returning to her job as a letter carrier
on a gradual basis. I do not feel that she should be returned back to work
immediately but should be returned gradually over the course of the next three
months.”
Dr. Silver stated that he had no further recommendations for treatment and reiterated that
appellant did not have residuals of an employment-related condition.
In a letter to Dr. Hicks dated December 18, 2012, OWCP requested that he advise it as to
whether he concurred with Dr. Silver. The record indicates that appellant began receiving
treatment from a chiropractor, Dr. Leeann Berard, as of January 23, 2013. In a report of that
date, Dr. Berard indicated that x-rays had been taken and she diagnosed lumbosacral joint
disorder, lumbar disc degeneration, lumbar region subluxation and sacrum/illium subluxation.2
A January 28, 2013 report from him indicates appellant complained of right hip pain.

2

There is a separate January 23, 2013 report, prepared by a nurse, which contains a history of the May 31, 2012
injury and notes x-rays were taken.

2

By report dated April 2, 2013, Dr. Silver stated that his recommendation that appellant
return to work over a three-month period was a result of her not having worked over a long
period of time. He stated that he felt she was probably deconditioned from not working.
In an attending physician’s form report (Form CA-20) dated April 24, 2013, Dr. Hicks
diagnosed chronic low back pain and chronic pain in the right hip and groin. He checked a box
“yes” that the conditions were employment related.
In a report dated April 29, 2013, Dr. Berard indicated that appellant continued to report
right sacral and hip pain. She completed an attending physician’s report (Form CA-20) dated
April 29, 2013, with a history that appellant was rear-ended in a motor vehicle accident. The
diagnoses were lumbosacral joint disorder, lumbar intervertebral dis disorder with myelopathy,
lumbar disc degeneration and subluxation of the sacrum/illium. Dr. Berard checked a box “yes”
the conditions were causally related to employment.
By letter dated June 6, 2013, OWCP advised appellant that it proposed to terminate her
compensation for wage-loss and medical benefits based on the reports of Dr. Silver. Appellant
was advised to submit evidence or argument within 30 days if she disagreed with the proposed
termination.
In a letter dated June 19, 2013, appellant stated that she had not recovered from her work
injury and disagreed with Dr. Silver. She stated that she disagreed with the x-rays dated May 31
and August 21, 2012, as these were “horizontal” x-rays and it had been proven that “vertical”
x-rays taken while standing are more accurate. Appellant discussed her medical treatment and
argued that she did have medical evidence showing a work-related injury/disability. She
submitted treatment reports from Dr. Berard through May 31, 2013.
By decision dated July 17, 2013, OWCP terminated compensation for wage-loss and
medical benefits effective July 28, 2013. It found the weight of the evidence was represented by
Dr. Silver.
Appellant requested a hearing before an OWCP hearing representative, which was held
on November 20, 2013. In a statement dated December 6, 2013, she indicated that she remained
in constant pain. Appellant submitted reports dated June 26, July 9 and 26, 2013 from
Dr. Kenneth Harling, a chiropractor and associate of Dr. Berard, who diagnosed piriformis
syndrome. In a brief report dated August 29, 2013, Dr. Sabitha Gopalswamy, an internist, stated
that an electromyogram was normal except for mild prolonged reflex on the left suggestive of
possible S1 pinched nerve. In a brief report dated November 26, 2013, he stated that appellant
was diagnosed with S1 radiculopathy.
By decision dated February 5, 2014, an OWCP hearing representative affirmed the
termination of compensation. He found the weight of the evidence was represented by
Dr. Silver.

3

LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.3 OWCP may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.4 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition that require further medical treatment.5
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value and its convincing quality. The factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested and the medical rationale expressed is support of the physician’s
opinion.6 Medical rationale is a medically sound explanation for the opinion offered.7
ANALYSIS
In the present case, OWCP terminated compensation for wage-loss and medical benefits
effective July 28, 2013. The accepted condition was acute lumbar strain. It is OWCP’s burden
of proof to establish that the accepted condition had resolved. OWCP referred appellant to
Dr. Silver for a second opinion examination with respect to a continuing condition or disability
causally related to the May 31, 2012 MVA. Dr. Silver provided a complete report that reviewed
the history, medical records and provided results on examination. He found that the MVA had
resulted in a lumbar strain and temporarily aggravated an underlying lumbar degenerative disc
disease. Dr. Silver opined that appellant no longer had residuals of the employment injury and
she could return to work at her date-of-injury position. While he initially stated in his
November 29, 2012 report that she should return gradually over three months, he explained in
his April 2, 2013 that this was a prophylactic measure due to her long absence from work.
The Board finds that Dr. Silver provided an opinion based on a complete background that
appellant no longer had any employment-related residuals. As to the reports from attending
physicians, none of these reports provide probative medical evidence establishing a continuing
employment-related condition. Dr. Hicks provided an opinion in a form report dated
April 24, 2013 that chronic low back pain, right hip and groin pain were employment related.
These are not accepted conditions and it is appellant’s burden of proof to establish any additional

3

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

Frederick Justiniano, 45 ECAB 491 (1994).

6

Gary R. Sieber, 46 ECAB 215 (1994).

7

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).

4

conditions as employment related.8 The checking of a box “yes” is of little probative value on
causal relationship without additional explanation.9 OWCP had asked Dr. Hicks for a narrative
report addressing Dr. Silver’s report, but it does not appear that Dr. Hicks responded. The Board
finds that Dr. Hicks’ reports are of diminished probative value on the issue presented.
As to the reports from the chiropractor, Dr. Berard, the Board notes under FECA 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.”10 OWCP found in its proposed termination letter that
Dr. Berard was not a physician because the May 31 and August 21, 2012 x-rays showed no
subluxations. The prior x-rays do not preclude a finding that Dr. Berard was a physician.
Dr. Berard indicated that x-rays were taken at the time of the January 23, 2013 initial evaluation,
and she diagnosed subluxations. The evidence therefore supports a finding that she is a
physician under FECA. The Board notes, however, that any opinion relating the subluxations to
the MVA would have to discuss the prior x-rays in order to be a rationalized medical opinion
based on a complete background. Dr. Berard did not provide a report that included an accurate
medical and factual background and a rationalized medical opinion on causal relationship
between a subluxation and the employment incident. The April 29, 2013 form report checking a
box “yes” is, as noted above, of little probative value. This is particularly true in the present
case, which includes a history of prior back problems and x-ray reports that did not show “disc
pathology” as noted by Dr. Hicks in his June 21, 2012 report.
Appellant did submit reports from another chiropractor, Dr. Harling, that were dated prior
to the termination of benefits on July 28, 2013. The reports diagnosing a piriformis condition are
of no probative value since, as noted above, a chiropractor is a physician under FECA only to the
extent of diagnosing a subluxation as demonstrated by x-ray.
For the above reasons, the Board finds the weight of the medical evidence was
represented by Dr. Silver, who provided a complete, rationalized medical opinion that appellant
had no continuing residuals of the May 31, 2012 employment injury. OWCP met its burden of
proof in this case.
On appeal, appellant discussed the medical evidence and stated that she still has an
employment-related condition and she disagrees with Dr. Silver. The issues on appeal are
medical issues that must be resolved by the probative medical evidence. The Board has
reviewed the medical evidence of record and finds OWCP met its burden of proof in this case.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of benefits clearly warranted on the basis of the evidence
the burden for reinstating compensation benefits shifts to appellant. In order to prevail, appellant
8

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

9

See Barbara J. Williams, 40 ECAB 649, 656 (1989).

10

5 U.S.C. § 8101(2).

5

must establish by the weight of the reliable, probative and substantial evidence that she had an
employment-related disability which continued after termination of compensation benefits.11
ANALYSIS -- ISSUE 2
As the Board has affirmed the July 17, 2013 termination decision, the burden now shifts
to appellant to establish an employment-related condition or disability. The reports from
Dr. Gopalswamy are very brief and of little probative value. The August 29, 2013 report notes a
possible pinched nerve. The November 26, 2013 report simply states that appellant was
diagnosed with an S1 radiculopathy. Dr. Gopalswamy does not provide a history, results on
examination or a medical opinion supported by sound medical rationale on the issue presented.
The Board accordingly finds that appellant has not established an employment-related
disability after July 28, 2013. Appellant may submit new evidence or argument with a written
request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate compensation effective
July 28, 2013. Appellant did not establish a continuing employment-related condition or
disability after July 28, 2013.

11

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

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 5, 2014 is affirmed.
Issued: November 13, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
INSTALLATIONS, San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Howard L. Graham, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-1685
Issued: June 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 5, 2015 appellant, through counsel, filed a timely appeal from a May 29, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish that he was totally
disabled for the period commencing April 20, 2014, causally related to his employment injuries.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its May 29, 2015 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

On appeal, counsel contends that OWCP’s decision was not well rationalized as two of
appellant’s treating physicians provided letters with contemporaneous chart notes indicating that
he could not work due to his accepted employment-related conditions.
FACTUAL HISTORY
OWCP accepted that appellant, a 53-year-old management analyst, sustained a closed
dislocation of the right lumbar vertebra and sacrum on May 20, 2013 due to a slip and fall on a
wet bathroom floor in the performance of duty. On June 13, 2013 appellant’s physician
Dr. Andrew Hamilton, a Board-certified family practitioner, indicated that appellant could
perform light-duty work since the date of injury. Appellant resigned on October 2, 2014.
Appellant, through counsel, filed claims for compensation (Forms CA-7) for periods of
disability commencing April 20, 2014. He submitted reports dated April 9 through August 27,
2014 from his chiropractor, Dr. Thomas W. Holt, who diagnosed lumbar subluxation,
subluxation sacrum, lumbar intervertebral disc (IVD) disorder with myelopathy, cervical
subluxation, cervical brachial syndrome (diffuse), thoracic subluxation, abnormal posture, and
segmental dysfunction of the lower extremity.3 On June 2, 2014 Dr. Holt asserted that appellant
had “an exacerbation” and an “episodic marked deterioration of [appellant’s] condition due to
acute flare-ups of the presenting conditions.” On June 4, 2014 he noted an increase in pain in the
following cervical or lumbodorsal planes of motion: right cervical rotation, left cervical rotation,
and cervical extension. A pinwheel test was performed to search for sensory dermatome deficits
caused by neural blockages and hyperesthesia was found at left L4, L5, and S1. Lasegue’s test
was positive bilaterally at 40 percent. Braggard’s and Patrick’s testing was positive bilaterally.
On July 23, 2014 Dr. Holt performed a reexamination of appellant and found that manual
palpation of his spine and extremities revealed the following areas of subluxations: left sacrum,
left pelvis, left L5, L2, T7, left C7, left C6, left C5, C4, and C2. These areas exhibited abnormal
motion, misalignment, as well as taut, and tender fibers.
In addition, x-rays were taken consisting of anterior and posterior and lateral views of the
cervical, thoracic, and lumbar spines. An increase in pain was noted in the following cervical or
lumbosacral planes of motion: right lateral cervical flexion, right cervical rotation, and
lumbodorsal extension. The painful areas were: left sacroiliac, left hip, right cervical, and right
cervical dorsal at 75 percent. Based upon the findings of the examination, postural evaluation,
and x-ray analysis, Dr. Holt recommended treatment three times per week for the next 12 weeks.
In a September 25, 2014 report, Dr. Hamilton reviewed appellant’s medical history
including his chronic low back pain, chronic left foot pain, chronic kidney disease, mild
persistent asthma, chronic right hand pain, chronic right foot/ankle pain, atrial fibrillation, and
accepted conditions of right closed dislocation of the lumbar vertebra and sacrum. He opined
that the May 20, 2013 employment injury “appeared to aggravate the existing multiple pain
problems noted above since [appellant’s] pain medication requirements have markedly increased
since the injury.” Dr. Hamilton asserted that appellant was unable to perform the duties of his
job due to his ongoing and still poorly controlled pain problems and by side effects of the
3

Dr. Holt indicated that he reviewed x-rays in reaching his diagnoses.

2

medications and treatments being used to try to control the pain. In a June 30, 2014 work excuse
note, he “excused [appellant] from work due to disabling medical problems partly attributed to
fall at work May 20, 2013” for the period March 4 through June 30, 2014.
In an October 28, 2014 letter, OWCP requested additional medical evidence establishing
appellant’s disability from work during the claimed period and afforded him 30 days to respond
to its inquires.
Appellant submitted progress reports dated December 8 and 10, 2014 from Dr. Holt and a
December 10, 2014 physical therapy note from a licensed massage practitioner.
By decision dated February 3, 2015, OWCP denied appellant’s claim for disability for the
period commencing April 20, 2014, finding that the medical evidence submitted was not
sufficient to support disability due to the employment injury.
Subsequent to the February 3, 2015 decision, OWCP received a January 30, 2015 report
by Dr. Hamilton who opined that appellant’s accepted employment injuries contributed to his
inability to work since April 21, 2014.
OWCP referred appellant to Dr. Aleksandar Curcin, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine the nature and extent of his employmentrelated conditions. In a February 27, 2015 report, Dr. Curcin reviewed a statement of accepted
facts and appellant’s medical records, and reported the findings of his physical examination. He
found no medical records or imaging studies that documented the existence of a preexisting
condition. Dr. Curcin pointed out that “the mechanism of a ground level fall would not be
expected to pathologically and substantially aggravate any preexisting condition.” He concluded
that there was no objective pathology resulting from the May 20, 2013 employment injury and
that appellant was capable of performing his regular duties.
On May 7, 2015 appellant, through counsel, requested reconsideration and submitted an
April 8, 2015 narrative statement and a July 29, 2014 magnetic resonance imaging (MRI) scan of
the lumbar spine.
Appellant submitted a voluminous amount of medical documentation dated April 15,
2014 through April 15, 2015 regarding the course of his treatment with Dr. Hamilton, including
diagnostic testing results. He also submitted progress reports dated March 17, 2014 through
March 12, 2015 from Dr. Holt who reiterated his diagnoses and opinions. On December 13,
2014 Dr. Holt stated that OWCP had accepted a closed dislocation lumbar vertebra and closed
dislocation sacrum and opined that the resulting left lower buttocks and left hip pain continued,
and contributed to appellant’s inability to work since April 13, 2014. He concluded that
appellant’s chronic pain disorder was caused by his accepted injuries.
By decision dated May 29, 2015, OWCP denied modification of its prior decision.

3

LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability for work.6
For each period of disability claimed, the employee has the burden of proving that he or she was
disabled for work as a result of the accepted employment injury.7 Whether a particular injury
caused an employee to be disabled for employment and the duration of that disability are medical
issues which must be proved by the preponderance of the reliable probative and substantial
medical evidence.8
Disability is not synonymous with physical impairment, which may or may not result in
an incapacity to earn wages. An employee who has a physical impairment causally related to his
or her federal employment, but who nonetheless has the capacity to earn the wages he or she was
receiving at the time of injury, has no disability as that term is used under FECA, and is not
entitled to compensation for loss of wage-earning capacity. The Board will not require OWCP to
pay compensation for disability in the absence of any medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he was
totally disabled for the period commencing April 20, 2014, causally related to his employment
injuries. While OWCP accepted that he sustained a closed dislocation of the right lumbar
vertebra and sacrum on May 20, 2013 appellant bears the burden to establish through medical
evidence that he was disabled during the claimed time periods and that his disability was
causally related to the accepted injuries.10 The Board finds that appellant has submitted no
rationalized medical evidence explaining how the accepted conditions materially worsened or
aggravated any preexisting lumbar or sacrum conditions causing disability for work for the
period commencing April 20, 2014.

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f); see also William H. Kong, 53 ECAB 394 (2002).

6

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

9

Id.

10

See supra notes 7 and 8. See also V.P., Docket No. 09-337 (issued August 4, 2009).

4

In his February 27, 2015 second opinion report, Dr. Curcin found no medical records or
imaging studies that documented the existence of a preexisting condition, point out that a fall at
ground level “would not be expected” to aggravate a preexisting condition and concluded that
there was no objective pathology resulting from the May 20, 2013 employment injury. He
opined that appellant was capable of performing his regular duties. Dr. Curcin found no
residuals from appellant’s accepted injuries.
Appellant submitted medical documentation dated April 15, 2014 through April 15, 2015
regarding the course of his treatment with Dr. Hamilton for his chronic low back pain, chronic
left foot pain, chronic kidney disease, mild persistent asthma, chronic right hand pain, chronic
right foot/ankle pain, atrial fibrillation, and accepted conditions of right closed dislocation of the
lumbar vertebra and sacrum. In the June 30, 2014 note, Dr. Hamilton “excused [appellant] from
work due to disabling medical problems partly attributed to fall at work May 20, 2013” for the
period March 4 through June 30, 2014. He opined that the May 20, 2013 employment injury
“appeared to aggravate the existing multiple pain problems noted above since [appellant’s] pain
medication requirements have markedly increased since the injury.” Dr. Hamilton asserted that
appellant was unable to perform the duties of his job due to his ongoing and still poorly
controlled pain problems and due to side effects of the medications and treatments being used to
try to control the pain. In the January 30, 2015 report, he opined that appellant’s accepted
employment injuries contributed to his inability to work since April 21, 2014. Although
Dr. Hamilton opined that appellant was totally disabled from work, his opinion is conclusory in
nature, and fails to explain in detail how the accepted medical conditions were responsible for
appellant’s disability and why he could not perform his federal employment.11 Consequently,
the Board finds that Dr. Hamilton’s reports are insufficient to establish appellant’s claim that he
was totally disabled for the period commencing April 20, 2014 causally related to his
employment injuries.
Appellant also submitted reports from his chiropractor, Dr. Holt. Before this evidence
can be considered for its probative value, Dr. Holt must be established as a physician under
FECA. Under section 8101(2) of FECA, chiropractors are only considered physicians, and their
reports considered medical evidence, to the extent that they treat spinal subluxations as
demonstrated by x-ray to exist.12 OWCP regulations at 20 C.F.R. § 10.5(bb) have defined
subluxation as an incomplete dislocation, off-centering, misalignment, fixation, or abnormal
spacing of the vertebrae which must be demonstrable on any x-ray film to an individual trained
in the reading of x-rays.13 In appellant’s case, Dr. Holt noted reviewing x-rays and diagnosed a
lumbar subluxation and noted that OWCP accepted a closed dislocation of the right lumbar
vertebra and sacrum. Therefore, to the extent that Dr. Holt provides an opinion with respect to
the accepted dislocation, the Board finds that he is a physician under FECA.14
11

See J.J., Docket No. 15-1329 (issued December 18, 2015).

12

5 U.S.C. § 8101(2); see also Jack B. Wood, 40 ECAB 95, 109 (1988).

13

20 C.F.R. § 10.5(bb); see also Bruce Chameroy, 42 ECAB 121, 126 (1990).

14

See K.C., Docket No. 12-1970 (issued March 13, 2013) (where OWCP accepted dislocations of the lumbar
vertebra and sacrum, the Board found that, to the extent that the claimant’s chiropractor provided an opinion with
respect to the accepted dislocations, he would be considered a physician under FECA).

5

In his reports, Dr. Holt diagnosed lumbar subluxation, subluxation sacrum, lumbar IVD
disorder with myelopathy, cervical subluxation, cervical brachial syndrome (diffuse), thoracic
subluxation, abnormal posture, and segmental dysfunction of the lower extremity based on
x-rays. He opined that appellant had “an exacerbation” and an “episodic marked deterioration of
[appellant’s] condition due to acute flare-ups of the presenting conditions.” On December 13,
2014 Dr. Holt stated that OWCP had accepted a closed dislocation of the lumbar vertebra and
sacrum and opined that the resulting left lower buttocks and left hip pain continued and
contributed to appellant’s inability to work since April 13, 2014. He listed a number of
diagnosed conditions which have not been accepted by OWCP as related to the May 20, 2013
work injury. Dr. Holt did not address causal relationship and thus his reports do not establish
that appellant’s conditions were work related.15 He also briefly referred to an exacerbation and
acute flare-ups, but did not provide any additional detail. The Board finds that, although
Dr. Holt found appellant disabled from work, he failed to provide a probative medical opinion
explaining how appellant’s accepted conditions caused him to be disabled for employment on the
dates at issue.16 Thus, appellant has not met his burden of proof to establish that he was totally
disabled for work due to the employment injuries for the period claimed.
The July 29, 2014 MRI scan of the lumbar spine is diagnostic in nature and has limited
probative medical value because it does not specifically address whether appellant was totally
disabled as a result of his employment injuries.17 Thus, the Board finds that this evidence is
insufficient to meet his burden of proof.
Appellant further submitted a physical therapy note dated December 10, 2014. This
document does not constitute competent medical evidence because a physical therapist is not a
“physician” as defined under FECA.18 As such, this evidence is also insufficient to meet
appellant’s burden of proof.
On appeal, counsel contends that OWCP’s decision was not well rationalized because
two of appellant’s treating physicians provided letters with contemporaneous chart notes
indicating that he could not work due to his accepted employment-related conditions. The Board
finds, however, that appellant’s physicians have not provided sufficiently rationalized medical
opinion evidence establishing that he was disabled during the period commencing April 20, 2014
due to the accepted conditions. Thus, appellant has not met his burden of proof to establish that
he is entitled to compensation for total disability.

15

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).
16

See J.G., Docket No. 12-1348 (issued February 25, 2013).

17

See K.L., Docket No. 15-1504 (issued April 4, 2016); G.M., Docket No. 14-2057 (issued May 12, 2015).

18

5 U.S.C. § 8101(2); Jennifer L. Sharp, 48 ECAB 209 (1996) (physical therapists). See also Gloria J.
McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue such as causal
relationship can only be resolved through the submission of probative medical evidence from a physician).

6

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he was
totally disabled for the period commencing April 20, 2014 causally related to his employment
injuries.
ORDER
IT IS HEREBY ORDERED THAT the May 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 14, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
U.S. POSTAL SERVICE, KINGSTOWNE POST
OFFICE, Alexandria, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0264
Issued: April 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On November 23, 2015 appellant filed a timely appeal from a November 5, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish back and left knee
injuries causally related to a September 11, 2015 employment incident.
On appeal, appellant contends that he submitted medical evidence to establish his workrelated back and knee injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 28, 2015 appellant, then a 56-year-old customer services supervisor, filed
a traumatic injury claim (Form CA-1) alleging that on September 11, 2015 he injured his back
and knees as a result of standing on concrete at work.2 In an undated narrative statement, he
related that due to standing for prolonged periods with considerable back and left knee pain, at
approximately 5:30 a.m. on September 30, 2015 his back and left knee completely gave out.
Appellant lost his balance and started to fall, but was able to catch himself on a chair. He related
that Walter Daniels, Jr., witnessed this incident and offered to assist him. Appellant refused
Mr. Daniels’ help as he was able to get back up even though he was in a lot of pain.
In a September 17, 2015 medical report, Dr. Janice Soliven, an attending Board-certified
family practitioner, related that appellant had been her patient since March 26, 2015 and he had
been otherwise seen in her medical practice since 2005. She was following and treating his
chronic medical conditions which included degenerative joint disease of the knees and
degenerative disc disease. Dr. Soliven noted that appellant had registered disabilities for these
conditions with the Department of Veterans Affairs (VA). Given these conditions, appellant had
certain restrictions which included an inability to stand for prolonged periods of time without
experiencing significant pain and limitation of motion. Dr. Soliven strongly recommended that
he have access to a desk at work to allow him to fulfill his responsibilities to the best of his
ability. In a September 30, 2015 note, she advised that appellant could not return to work at that
time. Dr. Soliven recommended that he stay off work for approximately one month to
completely heal and lessen the chance for further exacerbation of his health.
A form medical report and Inova Alexandria Hospital emergency care center discharge
instructions dated September 25, 2015 noted appellant’s date of injury as September 11, 2015
and indicated that care was provided by Dr. Bonita Banerjee, a physician Board-certified in
emergency medicine, with a discharge diagnosis of left lumbar degenerative disc disease,
sciatica, and low back pain. In a September 25, 2015 report, Dr. Banerjee indicated that
appellant presented to the hospital emergency department with worsening chronic lower back
pain. She provided a history that an employing establishment postmaster removed desks which
forced him to stand while working. Appellant related to Dr. Banerjee that his back pain had
worsened since being forced to stand at work. He informed his boss of the situation and had a
note from his primary care physician which indicated that he should be allowed to sit on a chair
at work. Appellant claimed that he still had not been provided a chair. Dr. Banerjee provided
his medical, family, and social background. She reported findings on physical examination and
reviewed Dr. Djamil Fertikh, a Board-certified radiologist’s, lumbar x-ray results. Dr. Banerjee
provided a clinical impression of lumbar degenerative disc disease and left sciatica. In a
prescription note of the same date, Dr. Banerjee ordered medication to treat his pain.

2

Appellant had a prior appeal, under OWCP File No. xxxxxx522, before the Board. In that appeal, the Board, in
a November 6, 2015 decision, affirmed a June 4, 2015 OWCP decision denying his occupational disease claim for
an emotional or physical condition. The Board found that appellant had failed to establish a compensable
employment factor. File No. xxxxxx522 is not presently before the Board. Docket No. 15-1600 (issued
November 6, 2015).

2

By letter dated September 30, 2015, the employing establishment controverted
appellant’s claim. It contended that degenerative disc disease did not occur from a single
incident. Rather, it occurred over a period of time. The employing establishment also contended
that the medical evidence indicated that appellant had filed a prior VA claim for knee and back
injuries. It cited Board precedent and contended that he had failed to establish fact of injury.
In an October 14, 2015 letter, OWCP notified appellant of the deficiencies of his claim
and afforded him 30 days to submit additional medical and factual evidence. It also requested
that the employing establishment submit medical evidence, if he had been treated at its medical
facility.
In an undated letter, appellant related that on September 11, 2015 his desk and chair were
removed from his office and replaced with an all-purpose container (APC) which had a computer
and telephone on top of it. He had to stand at this piece of equipment to complete all of his
work. Appellant informed his manager that he would not be able to stand due to his back and
knee issues. He submitted paperwork from his physician regarding his September 16, 2015
office visit which informed the employing establishment about these issues. Nothing changed
and appellant’s problems worsened from standing on a hard floor all day. He noted that he was
an 80 percent disabled veteran due to, among other things, these issues. Appellant went to a
hospital emergency room on September 25, 2015 due to back pain that went down to his left leg.
In another undated letter, he noted that a physician at Inova Alexandria Hospital
recommended that he return to limited-duty work on September 28, 2015 with no prolonged
standing. Appellant submitted the paperwork to his manager, Joe Rudden, who did not follow
the physician’s orders. He had to continue standing while working at his APC, which he
contended was not safe due to a risk of electric shock.
In a lumbar x-ray report dated September 25, 2015, Dr. Djamil Fertikh, a Board-certified
radiologist, provided an impression of facet degenerative changes of the lower lumbar segments.
By letter dated October 29, 2015, Dr. Soliven indicated that appellant had a significant
and prolonged medical history of back and knee pain. She noted that on September 30, 2015 he
sustained a fall at work. Dr. Soliven also noted her prior recommendation that appellant stay off
work for one month. She extended his time off for an additional month, totaling two months.
In a November 5, 2015 decision, OWCP accepted that the September 11, 2015 incident
occurred as alleged. However, it denied appellant’s claim and determined that the medical
evidence did not establish that a medical condition was diagnosed in connection with the
accepted employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial

3

Supra note 1.

3

evidence4 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.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment incident is insufficient to establish a causal relationship.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury caused by the accepted September 11, 2015 employment incident.
Appellant failed to submit sufficient medical evidence to establish back and left knee injuries
causally related to the accepted employment incident.
Dr. Soliven’s reports diagnosed degenerative joint disease of the knees and degenerative
disc disease, found that he was disabled for work for two months, and provided his work
restrictions. She did not provide an opinion relating his diagnosed conditions and resultant
disability to the accepted September 11, 2015 employment incident. The Board has held that
medical evidence which does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.11 Further, while
Dr. Soliven, in an October 29, 2015 report, provided a history that on September 30, 2015
appellant sustained a fall at work, the Board notes that the alleged accepted employment incident
4

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

5

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

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

11

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).

4

occurred on September 11, 2015, not September 30, 2015. This inaccurate history of injury
further reduces the probative value of her reports.12
Dr. Banerjee’s hospital discharge instructions, reports, and prescription found that
appellant had left lumbar degenerative disc disease, sciatica, and low back pain. While she
provided a history that his back pain worsened after being forced to stand while performing his
work duties, she did not provide an opinion addressing whether his diagnosed conditions were
caused or aggravated by the accepted employment incident. Thus, Dr. Banerjee’s hospital
discharge instructions, reports, and prescription are of limited probative value.13
Similarly, the September 25, 2015 report relative to x-ray results from Dr. Fertikh are of
limited probative value. Dr. Fertikh addressed appellant’s lumbar condition, but failed to
provide an opinion addressing whether his diagnosed lumbar condition was caused or aggravated
by the accepted September 11, 2015 employment incident.14
Therefore, the Board finds that there is insufficient medical evidence to establish that
appellant sustained back and left knee injuries causally related to the accepted September 11,
2015 employment incident.
On appeal, appellant contends that he submitted medical evidence to establish his workrelated back and knee injuries. As found above, while the record supports the incident occurred
on September 11, 2015, the record contains no medical evidence of record at the time of
OWCP’s November 5, 2015 decision to establish that the accepted employment incident caused
or aggravated a diagnosed medical condition.
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 failed to meet his burden of proof to establish back
and left knee injuries causally related to a September 11, 2015 employment incident.

12

See John A. Ceresoli, Sr., 40 ECAB 305 (1988) (a medical opinion must be based on a complete factual and
medical background with an accurate history of the employment injury).
13

Supra note 11.

14

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the November 5, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 14, 2016
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1285
Issued: November 13, 2013

Case Submitted on the Record

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

JURISDICTION
On May 7, 2013 appellant filed a timely appeal of the April 16, 2013 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 the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received a
$3,384.40 overpayment of compensation for the period January 2 to February 9, 2013; and
(2) whether OWCP properly determined that appellant was at fault in creating the overpayment
of compensation, thereby precluding waiver of recovery.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 20, 2011 appellant, then a 42-year-old full-time letter carrier, filed a claim
that he injured his left index finger and left shoulder when he was bitten by a dog on January 14,
2011 while delivering mail. OWCP accepted his claim for contusion of the left shoulder, left
shoulder strain and open wound of the left index finger, healed. Appellant stopped work on
January 15, 2011.
In a letter dated April 15, 2011, OWCP advised that appellant had been placed on the
periodic rolls and outlined his entitlement to compensation benefits and his responsibility to
return to work in connection with the accepted injury. In an attached EN-1049 OWCP provided:
“In order to avoid an overpayment of compensation, NOTIFY THIS OFFICE
IMMEDIATELY WHEN YOU GO BACK TO WORK. Each payment made
through the Office’s automated system will include the period for which payment
is made. If you have worked for any portion of this period, you must return the
check to this Office. Otherwise, an overpayment of compensation may result.”
In a telephone log dated January 2, 2013, OWCP contacted appellant and noted that a
November 20, 2013 medical report advised that he could return to work without restrictions after
January 1, 2013. In a telephone log dated March 5, 2013, the employing establishment advised
that he had returned to full-time work on January 2, 2013. In a compensation termination sheet
dated March 5, 2013, OWCP noted that appellant returned to work on January 2, 2013.
In a March 11, 2013 letter, OWCP informed appellant that it had made a preliminary
determination of a $5,823.95 overpayment of compensation from January 2 to March 9, 2013
because he received compensation benefits for temporary total disability from January 2 to
March 9, 2013 after he returned to work full time on January 2, 2013. It explained that he was
paid $5,823.95 in compensation from January 2 to March 9, 2013.2 OWCP noted that appellant
was not entitled to any wage-loss compensation during this period. It found that he was at fault
in creating the overpayment because he accepted payments that he knew or reasonably should
have known to be incorrect. OWCP found that appellant was issued checks, which clearly listed
the dates of the payment on the check and therefore he should have known he was overpaid
compensation after he returned to work on January 2, 2013. Additionally, it noted that the
amount of the checks was the same as previous disability checks, so he should have known that
he was not entitled to be paid disability for the whole 28-day period. OWCP also noted that
appellant accepted two more checks for the time periods from January 13 to February 9, 2013

2

OWCP calculated this amount by taking the net compensation paid from December 16, 2012 to January 12,
2013, $2,447.60, dividing this by the 28 calendar days that are in a compensation period, which equals $87.41 a day
and multiplying this by the 11 days for which appellant received compensation while he also worked, which yielded
$961.56. It further noted that, for the payment cycle beginning January 13 to March 9, 2013, he was paid
compensation at the net amount of $2,422.60 every 28 days. Appellant was paid through March 9, 2013, which is
two periodic rolls payment cycles totally 56 calendar days. Dividing $2,442.84 by 28 calendar days, which equals
$86.53 a day and multiplying this by 56 days for which he received compensation while also working, which
yielded $4,845.68, plus a $16.71 cost-of-living increase that took effect March 1, 2013, for an overpayment
of $5,823.95.

2

and from February 10 to March 9, 2013. It informed him of his review rights and instructed him
to complete an enclosed overpayment recovery form and submit supporting documentation.
On March 14, 2013 appellant requested a review of the written record and waiver of the
overpayment. He disagreed that an overpayment occurred, disputed the amount of the
overpayment and disagreed that he was at fault in the creation of the overpayment. Appellant
acknowledged that he returned to work on January 2, 2013 and referenced telephone records in
which he called OWCP informing it of his return to work. He submitted an overpayment
questionnaire dated March 14, 2013, which noted total monthly income of $3,400.00 and total
monthly expenses of $4,400.00. Appellant submitted bank statements from Chase dated
November 30 to December 21, 2012 and January 31 to February 21, 2013. He stated that he
called OWCP and informed his supervisors that he would be returning to work in the beginning
of 2013. Appellant asserted that an OWCP representative advised him that, by swiping his time
card, he would automatically trigger the return-to-work process. He contended that his
supervisors should have prepared the proper return-to-work paperwork. Appellant noted that he
was informed that, after he returned to work, OWCP would issue a final payment. He noted that
he did not receive a third check in March 2013 as noted in the preliminary overpayment notice
argued and that the total amount of overpayment was incorrect. Appellant asserted that it would
be a hardship for him to repay the overpayment as his home is in foreclosure.
In an e-mail dated April 5, 2013, OWCP requested that a tracer be placed on appellant’s
compensation check for the period February 10 to March 9, 2013, with an issue date of March 9,
2013 in a net amount of $2,439.55. In a report dated April 9, 2013, it cancelled the
compensation check for the period February 10 to March 9, 2013.
In a decision dated April 16, 2013, OWCP amended the overpayment amount and found
that appellant received a $3,384.40 overpayment of compensation from January 2 to February 9,
2013, for which he was at fault. The overpayment occurred because he returned to work full
time for eight hours a day on January 2, 2013 but continued to receive compensation for total
disability until February 9, 2013. OWCP explained that appellant was paid $5,823.95 in
compensation from January 2 to March 9, 2013. It noted that the check for the period
February 10 to March 9, 2013, $2,439.55, was not cashed and was cancelled. The amount of the
cancelled check, $2,439.55, was deducted from the total overpayment amount that included for
the period January 2 to March 9, 2013. It found that appellant was at fault in creating the
overpayment because he reasonably knew or should have known that he was not entitled to
compensation benefits for total disability while working full time. OWCP noted that he was
issued checks in the mail, which clearly stated the period dates of the payments on the checks.
Therefore, appellant should have known that he was overpaid compensation when he received
the checks in the mail after he returned to work. OWCP also noted that he accepted one more
check for the time periods from January 13 to February 9, 2013. It directed appellant to repay
$89.00 a month until the overpayment was collected or contact OWCP to make other
arrangements.

3

LEGAL PRECEDENT -- ISSUE 1
A claimant is not entitled to receive temporary total disability and actual earnings for the
same period. OWCP’s procedures provide that an overpayment in compensation is created when
a claimant returns to work but continues to receive wage-loss compensation.3
ANALYSIS -- ISSUE 1
The record establishes that appellant returned to work full time, eight hours a day, at the
employing establishment on January 2, 2013. He received wage-loss compensation for total
disability through February 9, 2013. As noted, appellant is not entitled to receive compensation
for total disability after he has returned to work. Thus, an overpayment occurred.
The evidence indicated that appellant returned to full-time work without wage loss on
January 2, 2013. He was not entitled to total disability compensation beginning that date.
OWCP calculated that, from January 2 to February 9, 2013, he received $3,384.40 in total
disability compensation but was not entitled to compensation during this period. It explained
how the overpayment occurred and provided this information to appellant with the preliminary
notice. There is no evidence that the overpayment did not occur as found by OWCP. The Board
finds that OWCP properly determined that appellant received an overpayment of compensation
in the amount of $3,384.40 for the period January 2 to February 9, 2013.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA provides as follows:
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.”4
No waiver of an overpayment is possible if the claimant is at fault in creating the
overpayment.5
On the issue of fault, 20 C.F.R. § 10.433(a) provides that an individual is with fault in the
creation of an overpayment who: (1) made an incorrect statement as to a material fact which the
individual knew or should have known to be incorrect; (2) failed to furnish information which
the individual knew or should have known to be material; or (3) with respect to the overpaid

3

Danny E. Haley, 56 ECAB 393 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial
Overpayment Actions, Chapter 6.200.2(a) (May 2004).
4

5 U.S.C. § 8129(b).

5

Gregg B. Manston, 45 ECAB 344 (1994).

4

individual only, accepted a payment which the individual knew or should have been expected to
know was incorrect.6
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide that whether or not OWCP determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances surrounding the
overpayment. The degree of care expected may vary with the complexity of those circumstances
and the individual’s capacity to realize that he or she is being overpaid.7
Section 10.430(a) of OWCP’s regulations advise that OWCP includes on each periodic
check a clear indication of the period for which payment is being made. A form is sent to the
recipient with each supplemental check which states the period for which payment is being
made. Section 10.430(b) notes that, by these means, OWCP puts the recipient on notice that a
payment was made and the amount of the payment.8
ANALYSIS -- ISSUE 2
OWCP applied the third standard in determining that appellant was at fault in creating the
overpayment. For it to establish that he was at fault in creating the overpayment of
compensation, OWCP must establish that, at the time he accepted the compensation checks in
question, he knew or should have known the payments were incorrect.9
As noted, OWCP erroneously issued wage-loss compensation for total disability for the
period January 2 to February 9, 2013. Appellant was not entitled to disability compensation for
this period as he returned to work at full salary. Even if the overpayment resulted from
negligence on the part of OWCP, this does not excuse him from accepting payments which he
knew or should have known to be incorrect.10 On April 15, 2011 OWCP advised appellant: “In
order to avoid an overpayment of compensation, NOTIFY THIS OFFICE IMMEDIATELY
WHEN YOU GO BACK TO WORK. Each payment made through the Office’s automated
system will include the period for which payment is made. If you have worked for any portion
of this period, you must return the check to this Office. Otherwise, an overpayment of
compensation may result.”
In response to the preliminary overpayment notice, appellant stated that he called OWCP
and his supervisors and informed them that he would be returning to work in the beginning of
2013. He asserted that an OWCP representative advised him that, by swiping his time card, he
would automatically trigger the return to work process. Appellant also contended that his
supervisors should have prepared the proper return to work paperwork. He advised it would be a
6

20 C.F.R. § 10.433(a). See Kenneth E. Rush, 51 ECAB 116 (1999).

7

Id. at § 10.433(b).

8

J.R., Docket No. 08-1107 (issued June 15, 2009). 20 C.F.R. § 10.430.

9

See Claude T. Green, 42 ECAB 174, 278 (1990).

10

See Russell E. Wageneck, 46 ECAB 653 (1995).

5

hardship for him to repay the overpayment. The Board notes that OWCP includes on each
periodic check a clear listing of the period for which payment is being made. By doing this,
OWCP puts the recipient on notice that a payment was made and the amount of the payment.11
This, together with the strongly worded August 15, 2011 warning, establishes that appellant
should have known that he was not entitled to accept wage-loss compensation for total disability
for any period after he returned to work.
For these reasons, OWCP properly found that appellant accepted wage-loss
compensation from January 2 to February 9, 2013, which he knew or should have known was
incorrect. As appellant was at fault under the third fault standard, outlined above, recovery of
the $3,384.40 overpayment of compensation may not be waived.12
On appeal, appellant reiterated that he called OWCP and his supervisors and informed
them that he would be returning to work in the beginning of 2013, he indicated that he was
advised by swiping his time card the return-to-work process would automatically be triggered
and that he expected to receive a final compensation payment. He further asserted that it would
be a hardship for him to repay the overpayment. However, as noted above, even though the
overpayment may have resulted from negligence on the part of OWCP, this does not excuse
appellant from accepting payment to which he knew or should have known that he was not
entitled.13 While appellant returned to work he did not return the compensation as OWCP had
previously instructed. The evidence supports that he knew or should have known that he
accepted an incorrect amount.
CONCLUSION
The Board finds that appellant received an overpayment of compensation from January 2
to February 9, 2013 and that he was at fault in creating the overpayment.

11

See J.R., supra note 8.

12

As OWCP did not direct recovery of the overpayment from continuing compensation payments, the Board does
not have jurisdiction over the recovery of the overpayment. See Desiderio Martinez, 55 ECAB 245 (2004).
13

See Russell E. Wageneck, supra note 10.

6

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1436
Issued: December 20, 2012

Case Submitted on the Record

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

JURISDICTION
On June 26, 2012 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs (OWCP) dated January 5, 2012. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a traumatic injury in the
performance of duty on December 6, 2008, as alleged.
FACTUAL HISTORY
On December 6, 2008 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim alleging that on that date she slipped on black ice and injured the right side of her shin,
buttock and lower back.
1

5 U.S.C. § 8101 et seq.

In a December 6, 2008 emergency room report, a physician’s assistant noted that
appellant fell on ice that day and injured her lower back. In December 6, 2008 emergency room
reports, the physician’s assistant and Jaime Meade, a nurse practitioner, diagnosed low back
contusion. Appellant was seen for injuries sustained as the result of her slipping and falling on a
patch of ice that day. It noted that she injured her lower right buttock, right shin and right lower
back as the result of the fall.
A December 6, 2008 x-ray interpretation by Dr. Sathyajit M. Kulasingham, a Boardcertified diagnostic radiologist, diagnosed moderate lower lumbar spine discogenic degenerative
changes.
In a December 9, 2008 provider report from Community Health Partners Occupational
Health, appellant was diagnosed with lumbar contusion and cervical sprain. It noted that she
injured herself when she fell, landed on her buttocks and hit her right leg. An injury date of
December 6, 2008 was listed and a check mark was made that it was job related.
2

A December 16, 2008 provider treatment record form3 noted that appellant sustained an
employment injury on December 6, 2008 and noted a diagnoses of back contusion and cervical
sprain.
In a December 16, 2008 duty status Form CA-17, appellant was diagnosed with lumbar
and cervical sprain and she was released to full-duty work on December 17, 2008.4 The date of
injury was listed as December 6, 2008.
In a November 21, 2011 letter, OWCP noted the evidence submitted by appellant and
informed her that it was insufficient to support her claim. Appellant was advised as to the
medical and factual evidence required to support her claim and given 30 days to provide the
requested information.
By decision dated January 5, 2012, OWCP denied appellant’s claim on the grounds that
she failed to establish fact of injury. It found that she failed to submit any medical evidence
diagnosing a medical condition as a result of the accepted December 6, 2008 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
2

The signature on the form is illegible and there is no indication that the individual was a physician.

3

The signature on the form is illegible and there is no indication that the individual was a physician.

4

There was no signature on the form, but the specialty was noted as occupational medicine.

5

Supra note 1.

2

disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.8
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.9 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.10
ANALYSIS
Appellant filed a traumatic injury claim on December 6, 2008 alleging that on that day
she sustained injuries to her buttocks, lower back and right leg as a result of slipping and falling
on ice. OWCP accepted that this incident occurred as alleged. However, it found that appellant
had not submitted sufficiently detailed medical evidence to establish a causal relationship
between her accepted employment incident and a diagnosed medical condition. The Board finds
that appellant failed to meet her burden of proof as she failed to submit any rationalized medical
opinion evidence explaining how her back contusion and cervical sprain were causally related to
the employment incident.
In support of her claim, appellant submitted medical reports signed by a nurse and a
physician’s assistant. Neither a nurse nor physician’s assistant are considered a physician under
FECA.11 As these reports were not signed by the physician they have no probative value in
establishing appellant’s claim.
Appellant also submitted December 9 and 16, 2008 reports and duty status reports
diagnosing low back contusion, lumbar and cervical sprains. The signatures on the reports are
illegible and there is no indication that individuals authoring these reports were physicians.
Thus, these reports do not constitute probative medical opinion evidence. The Board has found
that reports lacking proper identification, such as reports with illegible signatures, do not
constitute probative medical evidence.12

6

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

7

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

8

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 6.

9

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 6.
11

5 U.S.C. § 8101(2). See E.H., Docket No. 08-1862 (issued July 8, 2009); Roy L. Humphrey, 57 ECAB
238 (2005).
12

See R.M., 59 ECAB 690 (2008) (medical reports lacking proper identification, such as an illegible signature or

3

The only medical document submitted by appellant signed by a physician was the x-ray
report from Dr. Kulasingham. This x-ray interpretation did not provide a history of injury or the
cause of the diagnosed condition. Thus, this report does not provide probative medical evidence
in support of appellant’s 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 failed to establish that she sustained an injury in the
performance of duty on December 6, 2008, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 5, 2012 is affirmed.
Issued: December 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

unsigned notes, do not constitute probative medical evidence). See also 5 U.S.C. § 8101(2).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Fresno, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-177
Issued: March 22, 2007

Case Submitted on the Record

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

JURISDICTION
On October 5, 2006 appellant timely appealed an October 3, 2006 merit decision of the
Office of Workers’ Compensation Programs, which terminated his compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
and medical benefits effective October 1, 2006.
FACTUAL HISTORY
On August 24, 2005 appellant, then a 48-year-old housekeeping aide, sustained an injury
at work when he tripped over a floor buffer and struck his left knee on the buffer as he fell. The

Office accepted his claim for left knee lateral meniscus tear.1 Appellant performed light-duty
work for approximately five months following his injury. However, he stopped work on
January 31, 2006. On March 29, 2006 appellant underwent a left knee arthroscopic procedure,
which the Office authorized.2 The Office placed appellant on the periodic compensation rolls
effective March 5, 2006.
In a July 13, 2006 letter, Dr. Kwock, the attending orthopedic surgeon, advised that
appellant’s bilateral knee condition had been treated and stabilized to the point that no further
active treatment surgically was anticipated. He indicated that appellant was permanently
disabled from work requiring any substantial walking or being on his legs for any prolonged
periods of time lifting, pushing or the like. Appellant was limited to sedentary-type jobs.
Dr. Alice M. Martinson, a Board-certified orthopedic surgeon and Office referral
physician, examined appellant on July 31, 2006. She diagnosed cardiac rhythm disturbance by
history and post-traumatic arthritis in both knees, right worse than left.3 Dr. Martinson noted that
recent x-rays from June 2006 revealed severe three compartment osteoarthritis of the right knee
with mild to moderate osteoarthritis of the lateral and patellofemoral compartments of the left
knee. When compared with earlier x-rays, she indicated that there had been substantial
progression of the right knee arthritis since 2003 and only minimal progression in the left knee
during the same time frame. Dr. Martinson stated that the surgery performed on March 29, 2006
did not reveal any new intraarticular changes that had not been present at the time of appellant’s
previous arthroscopy in February 2005. She was of the opinion that the August 24, 2005 injury
did not permanently aggravate appellant’s left knee condition either by altering his anatomy or
by changing the natural history of his osteoarthritis. Dr. Martinson stated that appellant’s
disability was the consequence of the combination of severe and progressive bilateral knee
osteoarthritis and his nonindustrial cardiac condition.
By decision dated October 3, 2006, the Office terminated appellant’s wage-loss
compensation and medical benefits effective October 1, 2006.4
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.5 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
1

Appellant had a preexisting bilateral knee condition and had undergone left knee arthroscopic surgery for
internal derangement on February 2, 2005.
2

Dr. John F. Kwock, a Board-certified orthopedic surgeon, performed both the February 2, 2005 and March 29,
2006 left knee arthroscopic procedures.
3

During the spring of 2006 appellant was hospitalized for arrhythmia, which required cardioversion. He advised
Dr. Martinson that his cardiac problem began in September 2005.
4

The Office issued a notice of proposed termination of benefits on August 22, 2006.

5

Curtis Hall, 45 ECAB 316 (1994).

2

employment.6 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.7 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.8
ANALYSIS
In a July 13, 2006 letter, Dr. Kwock indicated that appellant was permanently disabled
from work requiring any substantial walking or standing for prolonged periods. He
recommended that appellant be limited to performing sedentary-type jobs. What Dr. Kwock did
not indicate, however, is whether appellant’s current disability was a consequence of the
August 24, 2005 left knee injury or a result of appellant’s preexisting bilateral knee condition. In
contrast, Dr. Martinson clearly explained that appellant’s current disability was unrelated to his
accepted employment injury. She noted that appellant was primarily disabled by his
nonindustrial right knee condition. Dr. Martinson also explained that the August 24, 2005
employment injury did not result in a permanent alteration of appellant’s anatomy or otherwise
hasten the progression of his preexisting osteoarthritis. The Board finds that Dr. Martinson’s
opinion establishes that appellant no longer has employment-related disability or residuals due to
his August 24, 2005 accepted employment injury. Accordingly, the Office properly terminated
appellant’s wage-loss compensation and medical benefits.
CONCLUSION
Appellant no longer has residuals of his August 24, 2005 employment injury. The
Office, therefore, met its burden to terminate appellant’s wage-loss compensation and medical
benefits.

6

Jason C. Armstrong, 40 ECAB 907 (1989).

7

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

8

Calvin S. Mays, 39 ECAB 993 (1988).

3

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 22, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, SOUTH SHORE
ANNEX, Staten Island, NY, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-13
Issued: August 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On October 1, 2010 appellant filed a timely appeal from an August 30, 2010 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3 the Board has jurisdiction over the
merits of this case.
This case has been before the Board on prior appeal.2 Appellant, a 54-year-old mail
handler, injured himself in the performance of duty on May 16, 2006. OWCP accepted his
traumatic injury claim for right groin strain, lumbar sprain and herniated lumbar disc, and paid
appropriate wage-loss compensation. Effective February 6, 2008, it terminated appellant’s
wage-loss compensation and medical benefits.3 The February 6, 2008 decision was subsequently
affirmed by the Branch of Hearings & Review. By decision dated July 1, 2009, the Board

1

5 U.S.C. § 8101 et seq.

2

Docket No. 08-2460 (issued July 2, 2009).

3

OWCP based its decision to terminate compensation and medical benefits on the November 8, 2007 report of
Dr. Stanley Soren, a Board-certified orthopedic surgeon and impartial medical examiner, who found that appellant’s
accepted conditions had resolved and appellant was capable of resuming his regular duties as a mail handler.

similarly affirmed OWCP’s termination of benefits effective February 6, 2008 (Docket
No. 08-2460).4
On June 25, 2010 appellant’s attorney timely requested reconsideration. Counsel’s
request was premised on the June 20, 2010 report of Dr. William N. Grant, a Board-certified
internist, who attributed appellant’s ongoing lower back and groin pain to his May 16, 2006
employment injury.
In a decision dated August 30, 2010, OWCP reviewed the claim on the merits but denied
modification of its prior decision terminating compensation and medical benefits. It found that
Dr. Grant’s June 20, 2010 report was insufficient to overcome the weight of the medical
evidence as represented by Dr. Soren’s November 8, 2007 referee examination.
Counsel timely filed the instant appeal on October 1, 2010.
As noted, the Board previously affirmed OWCP’s decision to terminate benefits effective
February 6, 2008. The Board’s July 1, 2009 decision noted that the record at the time included
evidence received after the Branch of Hearings & Review issued its August 19, 2008 decision
affirming the termination of benefits. Because this evidence was received after the final decision
had been issued, the Board advised that it could not consider evidence for the first time on
appeal.5
OWCP’s August 30, 2010 merit decision did not specifically address any of the other
evidence received since the August 19, 2008 decision, but instead focused entirely on
Dr. Grant’s June 20, 2010 report. The additional evidence included treatment notes dating back
to July 22, 2008, attending physician’s reports (Form CA-20), work capacity evaluations (Form
OWCP-5c), other narrative reports and even a recent report from the district medical adviser.
OWCP should not have limited its review to the newly submitted evidence highlighted by
appellant’s counsel.
As the Board’s decisions are final with regard to the subject matter appealed, it is crucial
that all relevant evidence that was properly submitted to OWCP prior to the time of issuance of
its final decision be addressed by OWCP.6 In this instance, OWCP failed to consider relevant
medical evidence it received prior to the issuance of the August 30, 2010 decision. Whether
OWCP receives relevant evidence on the date of the decision or several days prior, such
evidence must be considered.7 As OWCP failed to address all relevant evidence before it at the
time, the case is remanded for a proper review of the evidence and issuance of an appropriate
final decision.

4

The Board’s prior decision is incorporated herein by reference.

5

See 20 C.F.R. § 501.2(c).

6

20 C.F.R. § 501.6(d); see William A. Couch, 41 ECAB 548, 553 (1990).

7

Willard McKennon, 51 ECAB 145 (1999).

2

IT IS HEREBY ORDERED THAT the August 30, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this order of the Board.
Issued: August 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3