United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
U.S. POSTAL SERVICE, WEST BILOXI
STATION, Biloxi, MS, Employer
__________________________________________

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

Docket No. 07-2209
Issued: June 23, 2008

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 August 29, 2007 appellant filed a timely appeal from the August 2, 2007 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than one percent permanent impairment of her
right upper extremity and more than five percent impairment of her left upper extremity, for
which she received schedule awards.
FACTUAL HISTORY
On January 10, 1997 appellant, then a 47-year-old letter carrier, filed an occupational
disease claim for burning, numbness and tingling from her left elbow to her fingers due to factors
of her federal employment. The Office accepted the claim for left wrist and elbow tendinitis and
later expanded it to include bilateral carpal tunnel syndrome. In May, September and

December 2000, respectively, appellant underwent bilateral carpal tunnel releases and right wrist
and a transposition of the left ulnar nerve near her elbow.
On February 24, 2003 appellant filed a claim for a schedule award. On May 21, 2003 her
treating physician, Dr. Robert Hillier, a Board-certified orthopedic surgeon, placed her on total
disability. On June 30, 2003 the Office requested that Dr. Hillier determine the extent of
appellant’s permanent impairment using the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed., 2001).
In a July 24, 2003 report, Dr. Hillier reported that appellant had reached maximum
medical improvement for her upper extremity conditions. He noted that her bilateral wrist scars
and left elbow scar were well healed, but that she had decreased light-touch sensation over her
median nerves, weakness in the intrinsic muscles and decreased sensation in the ulnar nerve
distribution. Using Table 16-10 in the A.M.A., Guides, Dr. Hillier found that appellant’s
bilateral carpal tunnel syndrome caused a Grade 2, 70 percent, sensory deficit of the median
nerve below the forearm of each arm. This resulted in a 28 percent impairment of each upper
extremity when combined with the maximum 39 percent impairment allowed under Table 16-15.
Dr. Hillier found a Grade 4, 20 percent, motor deficit on Table 16-11 related to weakness in each
hand. Under Table 16-15, this motor weakness yielded 2 percent upper extremity impairment
based on the 10 percent maximum allowed. Dr. Hillier opined that appellant had 30 percent
permanent impairment in each upper extremity related to her carpal tunnel syndrome. Using a
similar method to evaluate appellant’s bilateral ulnar cubital condition, he found Grade 2,
70 percent, sensory deficit and Grade 4, 20 percent, motor deficit in both upper extremities.
Dr. Hillier stated that this resulted in 14 percent permanent impairment in each arm. Using the
combined values table, he found that appellant had 40 percent permanent impairment in each
upper extremity because of her carpal tunnel and cubital tunnel syndromes.
On September 2, 2003 the Office provided Dr. Hillier’s report to the Office medical
adviser to determine whether appellant was entitled to a schedule award. The medical adviser
recommended a second opinion examination because the impairment rating approved excessive
for the accepted conditions. On September 23, 2003 the Office referred appellant for a second
opinion examination.
On November 14, 2003 Dr. Tim Jackson, a Board-certified orthopedic surgeon, reviewed
appellant’s medical records and conducted a physical examination. He noted that appellant had
full range of motion in her elbows and wrists. There was mild pain at the wrists with maximum
extension and flexion, but no tenderness with pronation or supination. Dr. Jackson found intact,
but subjectively diminished, light-touch sensation in all fingers. He noted no muscle atrophy, a
5/5 intrinsic opposition strength in the wrists and 4/5 grip strength bilaterally. Dr. Jackson noted
that Dr. Hillier had found moderate recurrent slowing of appellant’s left median nerve through
the carpal tunnel based on a May 6, 2003 electromyogram (EMG) study. He did not review the
nerve conduction results himself. Dr. Jackson referred appellant for a functional capacity
evaluation with a hand specialist.
On December 16, 2003 Joseph Church, a certified hand therapist, conducted an upper
extremity evaluation. He tested range of motion and strength in all of appellant’s upper
extremity joints. Mr. Church noted mild deficits in active range of motion at the left wrist and

2

elbow that yielded a left upper extremity impairment rating of one percent. He stated that he did
not include grip strength as a factor in the rating because it was “inconsistently low.”
In a supplemental report dated January 26, 2004, Dr. Jackson stated that he had reviewed
Mr. Church’s findings. He stated that appellant had reached maximum medical improvement as
of December 16, 2003, with residual sensory and strength deficits. Dr. Jackson reported that
appellant’s active flexion was normal at both wrists and right elbow and limited to 130 degrees at
the left elbow. Appellant’s active extension was normal at her left wrist and limited to
60 degrees on the right. Dr. Jackson stated that appellant had two percent impairment of
function in each arm due to sensory deficit, pain or loss of strength. He recommended an
impairment rating of two percent for each upper extremity.
Dr. James Dyer, a Board-certified orthopedic surgeon acting as an Office medical
adviser, reviewed the medical records and stated that appellant had reached maximum medical
improvement on July 24, 2003. He stated that appellant’s condition was similar to the second
scenario in the A.M.A., Guides section on carpal tunnel syndrome, page 495, in which
impairment ratings are limited to five percent when an individual has normal sensibility and
opposition strength and abnormal EMG testing. Dr. Dyer found that a two percent left upper
extremity impairment rating would be appropriate given appellant’s abnormal nerve conduction
study combined with her minimal symptoms. At the Office’s instruction, Dr. Dyer provided no
right arm rating.
On June 30, 2004 the Office provided Dr. Jackson’s reports and Dr. Dyer’s
recommendation to Dr. Hillier for his comments. It requested that he state whether he concurred
with the findings and, if he did not, that he provide rationale for his rating. Dr. Hillier did not
respond.
By decision dated August 18, 2004, the Office granted appellant a schedule award for
two percent of her left upper extremity. Appellant was compensated for 6.24 weeks, from
July 24 to September 5, 2003.
On September 15, 2004 appellant requested an oral hearing. By decision dated
March 29, 2005, the Office hearing representative determined that appellant’s case was not in a
posture for a hearing. She vacated the August 18, 2006 decision and remanded the case to the
Office for further development. The Office hearing representative found that Dr. Jackson’s
report appeared internally inconsistent and provided no rationale or citations from the A.M.A,
Guides to support his assessment. She stated that the Office erroneously instructed Dr. Dyer to
provide only a left arm rating. The Office hearing representative also noted that Dr. Dyer did not
provide adequate rationale for his rating.
On July 11, 2005 the Office requested that Dr. Dyer conduct another review of the
medical record and provide a rationalized opinion in accordance with the Office hearing
representative’s decision. On July 12, 2005 Dr. Dyer stated that he was in full agreement with
Dr. Jackson’s recommendation of two percent impairment for each upper extremity. He
indicated that Dr. Hillier failed to correctly combine the A.M.A., Guides Table 16-15 with
Tables 16-10 and 16-11 to rate the motor and sensory losses of the median and ulnar nerves.

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By decision dated August 5, 2005, the Office amended appellant’s schedule award to
include compensation for two percent impairment of her right arm. Appellant was compensated
for the period September 6 to October 19, 2003. On August 15, 2005 he requested a review of
the written record.
By decision dated November 14, 2005, the Office hearing representative vacated the
August 5, 2005 decision. She found that there was a conflict between the impairment ratings of
Dr. Hillier and Dr. Dyer. The Office hearing representative remanded the case and ordered
referral to an impartial medical examiner for an examination and an opinion on the level of
appellant’s permanent impairment.
On November 29, 2005 the Office referred appellant’s medical record to Dr. Byron
Jeffcoat, a Board-certified orthopedic surgeon, selected as an impartial medical specialist. In a
report dated December 14, 2005, Dr. Jeffcoat concurred with Dr. Dyer’s rating. He stated that
his opinion was based on appellant’s medical history and the A.M.A., Guides section on
“Impairment of the Upper Extremities Due to Peripheral Nerve Disorders,” pages 480-96.
Dr. Jeffcoat noted that the most recent examination report, dated April 7, 2005, indicated that
appellant had pain in the median nerve distribution and left elbow.
By decision dated January 23, 2006, the Office denied an increase in appellant’s schedule
award. It found that Dr. Jeffcoat’s report was entitled to the weight of the medical opinion
evidence because it was not vague, speculative or equivocal and was supported by substantial
medical reasoning.
On January 31, 2006 appellant requested an oral hearing. On April 4, 2007 the Office
hearing representative stated that appellant had telephoned him prior to the hearing to inform him
that she had additional medical information to submit. He gave her 30 days to do so and notified
her that she did not need to appear at the hearing.
By decision dated May 23, 2007, the Office hearing representative vacated the
January 23, 2006 decision on the grounds that the Office erred in failing to refer appellant for an
examination by the impartial medical examiner. On June 21, 2007 the Office referred appellant
to Dr. Jeffcoat for an examination in accordance with the Office hearing representative’s
decision.
On July 19, 2007 Dr. Jeffcoat reviewed appellant’s medical history and conducted a
physical examination. He found full range of motion in all of appellant’s upper extremity joints,
including full extension and flexion of her elbows and wrists. Dr. Jeffcoat found decreased
sensation over the voler surface of the third finger and the dorsal surface of her left hand and
over her right little finger. He noted normal strength in her hands and wrists, negative Tinel’s
signs at both wrists and elbows, and negative Phalen’s tests bilaterally. Dr. Jeffcoat stated that
Table 16-15, page 492, of the A.M.A., Guides listed sensory deficit of the ulnar palmar nerve of
the little finger as a three percent upper extremity impairment. He opined that appellant’s level
of impairment was consistent with Grade 4, 25 percent, on Table 16-10, page 482, which would
give her a 0.75 percent impairment of the right arm. Dr. Jeffcoat stated that her decreased
sensation over the dorsum and middle finger of the left hand were consistent with Grade 3,
50 percent, deficit on Table 16-10, page, 482. Noting that appellant did not have any decreased

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sensation of her forearms on either side, the doctor reported that ulnar palmar and radial palmar
digitals decreased sensation had a maximum upper extremity impairment of 9 percent of the left
upper extremity based on Table 16-15, which when multiplied by 50 percent of Grade 3, yielded
a 4.5 percent of the left upper extremity.1 Dr. Jeffcoat found that appellant reached maximum
medical improvement by July 18, 2007.
On July 30, 2007 an Office medical adviser reviewed Dr. Jeffcoat’s report. He concurred
with the finding that appellant had one percent impairment of her right upper extremity and five
percent of her left upper extremity.
By decision dated August 2, 2007, the Office granted appellant an additional three
percent for her left arm or a total of five percent and one percent of her right arm. Appellant was
compensated for the period October 20 to December 24, 2003.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss should
be determined. For consistent results and to ensure equal justice under the law for all claimants,
the Office has adopted the A.M.A., Guides as the uniform standards applicable to all claimants.4
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.5
The standards for evaluation of the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.6 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.7

1

The Board notes that Dr. Jeffcoat’s report revealed a maximum of 90 percent impairment for the ulnar palmar
and radial palmar digitals’ decreased sensation. The Board notes that this is an apparent typographical error as the
maximum impairment for both when added together is nine percent. See A.M.A., Guides 492, Table 16-15.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

See Paul A. Toms, 28 ECAB 403 (1987).

7

A.M.A., Guides 433-521, Chapter 16, The Upper Extremities, (5th ed. 2001).

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Section 8123(a) of the Act provides, in pertinent part: “If there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make an examination.”8 In
situations where there are opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.9
ANALYSIS
The Office granted appellant a schedule award for one percent of her right upper
extremity and five percent of her left upper extremity. The issue to be determined is whether she
has established that her upper extremity impairment was greater than that for which she received
compensation.
On July 24, 2003 Dr. Hillier, a Board-certified orthopedic surgeon, found that appellant
had 40 percent impairment in each upper extremity based on 70 percent sensory and 20 percent
motor deficits in the median nerve below the forearm and the cubital nerve. On January 26,
2004 Dr. Jackson, a Board-certified orthopedic surgeon, opined that appellant had two percent
impairment in each upper extremity due to sensory deficit, pain or loss of strength in the median
nerve. On July 11, 2005 Dr. Dyer a Board-certified orthopedic surgeon acting as an Office
medical adviser, concurred with Dr. Jackson’s opinion and found that Dr. Hillier did not
accurately utilize the A.M.A., Guides. The Office hearing representative correctly found that
there was a conflict between the reports of Dr. Hillier and Drs. Jackson and Dyer, which were of
equal weight.
Dr. Jeffcoat, a Board-certified orthopedic surgeon, was selected as an impartial medical
examiner to resolve the conflict in the medical evidence. On July 19, 2007 he reviewed
appellant’s medical records and conducted a physical examination. Dr. Jeffcoat found that
appellant had a full range of motion in all the joints in her upper extremities, including her
elbows and wrists. He noted decreased sensation over the voler surface of the left third finger,
the dorsal surface of the left hand and right little finger. Dr. Jeffcoat reported that appellant had
normal strength in her hand and wrists, as well as negative Tinel’s signs and Phalen’s tests
bilaterally. He stated that Table 16-15, page 492, of the A.M.A., Guides limited sensory deficit
of the ulnar palmar nerve of the little finger to a maximum of three percent upper extremity
impairment. Dr. Jeffcoat opined that the sensory deficit in appellant’s right little finger was
Grade 4, 25 percent, on Table 16-10, page 482, which resulted in a 0.75 percent impairment of
the right arm. He stated that the decreased sensation over the dorsum and middle finger of her
left hand were consistent with Grade 3, 50 percent, deficit on Table 16-10, page, 482.
Dr. Jeffcoat further stated that appellant did not show any decreased sensation of her forearms on
either side and noted that ulnar palmar and radial palmar digital decreased sensation is a
maximum of nine percent upper extremity impairment per Table 16-15. He found that, by
multiplying the 9 percent impairment by Grade 3 or 50 percent impairment, appellant had a
8

5 U.S.C. § 8123(a).

9

Roger Dingess, 47 ECAB 123 (1995); Nathan L. Harrell, 41 ECAB 401, 407 (1990).

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4.5 percent permanent impairment of her left upper extremity. Dr. Jeffcoat found that appellant
reached maximum medical improvement by July 18, 2007. The Board finds that the medical
opinion of Dr. Jeffcoat is entitled to the special weight of the medical evidence because it is well
rationalized and based on a proper factual background.
The Board finds that the Office properly relied on Dr. Jeffcoat’s report in granting
appellant a schedule award for one percent of her right arm and five percent of her left arm.10
The Office medical adviser found that Dr. Jeffcoat correctly utilized the A.M.A., Guides to
determine appellant’s level of impairment. A.M.A., Guides Table 16-15, page 492, provides that
a sensory deficit of the ulnar palmar nerve of the little finger has a maximum upper extremity
impairment of 3 percent. When multiplied by the Grade 4, 25 percent, deficit in appellant’s right
little finger, as determined by Table 16-10, page 482, the result is 0.75 percent impairment of the
right arm. Table 16-15 states that an ulnar palmar digital deficit of the middle finger has a
maximum impairment of four percent and that a radial palmar digital deficit of the middle finger
has a maximum of five percent upper extremity impairment. Together, they have up to nine
percent upper extremity impairment. This percentage is then multiplied by the degree of deficit
according to Table 16-10, page 482. The decreased sensation over the dorsum and middle finger
of her left hand was found to be Grade 3, 50 percent, which yields a 4.5 percent permanent
impairment in appellant’s left arm.
The Board notes that appellant has not presented medical evidence to overcome the
weight of Dr. Jeffcoat’s opinion.
CONCLUSION
The Board finds that appellant does not have more than one percent permanent
impairment of her right upper extremity and five percent impairment of her left upper extremity.

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The Board notes that the Office properly rounded Dr. Jeffcoat’s impairment ratings of 0.75 and 4.5 percent to 1
and 5 percent, respectively, because its policy is to round the calculated percentage of impairment to the nearest
whole number. See Robert E. Cullison, 55 ECAB 570 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 2, 2007 is affirmed.
Issued: June 23, 2008
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Springfield, MO, Employer
__________________________________________

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

Docket No. 12-135
Issued: May 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 24, 2011 appellant filed a timely appeal from the August 16, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) suspending his
compensation. 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 OWCP properly suspended appellant’s compensation, effective
August 28, 2011, for failure to fully report earnings and work activity.
FACTUAL HISTORY
OWCP accepted that prior to October 1982 appellant, then a 60-year-old physician,
sustained a work-related unspecified personality disorder. He stopped work and received
compensation for periods of disability.
1

5 U.S.C. §§ 8101-8193.

In a July 6, 2011 letter, OWCP sent appellant a (Form EN-1032) and requested that he
complete the form and return it within 30 days of the date of the letter. The form, which
consisted of six pages, contained questions pertaining to his employment and income for the
prior 15 months.2 OWCP advised appellant that if he did not submit the form within 30 days his
compensation would be suspended under section 10.528 of OWCP’s regulations.
On August 5, 2011 OWCP received pages two through five of a Form EN-1032 which
had been completed by appellant. Pages one and six of the form were missing.3
In an August 16, 2011 decision, OWCP suspended appellant’s compensation effective
August 28, 2011 on the grounds that he did not fully complete and return the provided EN-1032
form within the allotted time. It noted that his response was incomplete as neither the first or last
page of the EN-1032 form was received. OWCP advised appellant that if he completed and
returned the missing pages (pages one and six) of the EN-1032 form his compensation would be
restored retroactively to the date it was suspended.4
LEGAL PRECEDENT
Section 10.528 of OWCP’s regulations provide:
“OWCP periodically requires each employee who is receiving compensation
benefits to complete an affidavit as to any work or activity indicating an ability to
work, which the employee has performed for the prior 15 months. If an employee
who is required to file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage loss under 5 U.S.C. [§] 8105
[total disability] or 8106 [partial disability] is suspended until OWCP receives the
requested report. At that time, OWCP will reinstate compensation retroactive to
the date of suspension if the employee remains entitled to compensation.”5
ANALYSIS
The record establishes that appellant was directed on July 6, 2011 to complete and return
an EN-1032 form which asked for information about his employment and income for the prior
15 months. Appellant did not fully complete and return the form within the 30 days allotted by
OWCP. On August 5, 2011 OWCP received pages two through five of a EN-1032 form, which
had been completed by him, but pages one and six were missing. Appellant had been informed
of the consequences, including suspension of compensation, for not fully completing and

2

Page six of the form required the employee to provide his or her signature and certify that the answers were true,
complete and correct to the best of his or her knowledge and belief.
3

As page six of the form was missing, the submitted pages did not contain a signature.

4

Appellant submitted additional evidence after OWCP’s August 16, 2011 decision, including additional completed
pages of a EN-1032 form.
5

20 C.F.R. § 10.528.

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submitting the form in a timely manner.
compensation effective August 28, 2011.6

Therefore, OWCP properly suspended his

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 properly suspended appellant’s compensation, effective
August 28, 2011, for failure to fully report earnings and work activity.
ORDER
IT IS HEREBY ORDERED THAT the August 16, 2011 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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In its August 16, 2011 decision, OWCP advised appellant that if he completed and returned the missing pages
(pages one and six) of the EN-1032 form his compensation would be restored retroactively to the date it was
suspended. Appellant submitted additional evidence after OWCP’s August 16, 2011 decision, including additional
completed pages of a EN-1032 form. However, the Board cannot consider such evidence for the first time on appeal.
See 20 C.F.R. § 501.2(c).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-672
Issued: January 13, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 21, 2010 appellant, through his representative, filed a timely appeal from the
December 23, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly exercised its discretion in denying
authorization for surgery; and (2) whether OWCP properly terminated appellant’s compensation
benefits effective August 30, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 15, 2005 appellant, a 45-year-old federal air marshal, sustained an injury in
the performance of duty when he slipped and fell down stairs. OWCP accepted his claim for
lumbar sprain/strain, lumbar disc compromise and disc herniation at L4-5 and L5-S1 with
degenerative disc changes. Appellant received compensation for total disability on the periodic
rolls.
Dr. G. Michael Elkanich, the attending Board-certified orthopedic surgeon, found that
appellant was not capable of performing his usual job but could return to light duty. He
reviewed DVDs showing appellant coaching a little league baseball team, but he remained of the
opinion that appellant had an internal disc disruption at L4-5 and L5-S1 and was a candidate for
anterior and posterior lumbar reconstructive surgery based on complaints of symptomatology
and severe pain at those levels.
Dr. Gary J. La Tourette, a Board-certified orthopedic surgeon and OWCP referral
physician, opined that appellant’s total disability ceased by May 9, 2008, the date he was
observed meeting the physical demands of his coaching duties. Based on this observed
functional capacity, he found that anterior and posterior lumbar fusion surgery was not currently
warranted. Dr. La Tourette was sure that appellant continued to suffer residual pain from the
accepted injury, and he noted that physical impairments precluded appellant from performing a
number of physical activities required of a federal air marshal.2 Later, however, he agreed with
the recommendation of a functional capacity evaluation that appellant be returned to his
preaccident job position, given his inconsistent effort and invalid test results, unless there was
any medical evidence to the contrary.
OWCP found a conflict on the issues of surgery and disability for the date-of-injury
position. It referred appellant, together with the case record and a statement of accepted facts, to
Dr. Anthony B. Serfustini, a Board-certified orthopedic surgeon, for an impartial medical
evaluation. Dr. Serfustini reviewed appellant’s history of injury and medical records. He noted
appellant’s current symptomatology and findings on physical examination. Dr. Serfustini
offered the accident-related diagnoses of acute lumbosacral sprain/strain, contusion and
transitory aggravation to degenerative disc disease L4-5 and L5-S1. Nonaccident diagnoses
included degenerative disc and facet disease L4-5 and L5-S1, pain behavior and symptom
magnification.
Dr. Serfustini noted that soft-tissue injuries resolved approximately four months
postinjury. He added that the physical therapy program was quite successful, achieving a 90
2

On a Practical Exercise Performance Requirements form, Dr. La Tourette indicated that appellant could not
employ the following defensive tactics: use rapid and coordinated body movements to control an adversary or
defend against physical attack; have joint structures that are completely flexible and free from any abnormalities;
participate fully, both offensively and defensively, in all course requirements (i.e., throws, being thrown, takedowns,
and restraint applications); strike repeatedly a hand-held bag using feet, knees, hands and elbows for 20 seconds.
Dr. La Tourette also indicated that appellant could participate in the following aircraft tactical training: move
swiftly from a seated position to a position of cover and then strategically maneuver inside commercial single and
wide-body aircraft; control an adversary physically using takedowns and restraint techniques within the confines of
single and wide-body aircraft; and have joint structure that are completely free from any abnormalities.

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percent improvement rate, which allowed appellant to move to a home exercise program.
Further, no less than five orthopedic consultations failed to reveal any significant neurological
deficit or finding. Dr. Serfustini was of the opinion that appellant’s activities of daily living, as
well as his capacity to perform the activities attendant to coaching little league baseball, clearly
indicated a level that would be compatible with work activities. Dr. Serfustini concluded that
appellant should be capable of performing his regular duties as a federal air marshal and was not
a candidate for any type of pain management or surgical intervention for the lumbosacral spine.
There was no objective evidence of residuals of the December 15, 2005 injury. The scientific
basis of this, Dr. Serfustini explained, was that appellant had no neurological deficits, no muscle
atrophy or fasciculations. Appellant was described as well muscled in spite of his stating that he
did not currently work out in a gym. Further, surveillance videos demonstrated normal physical
activities, including climbing an 8-foot chain link fence and standing for 2.5 hours at a time.
OWCP terminated appellant’s compensation benefits effective August 30, 2009. It found
that the weight of the medical evidence, represented by the opinion of the impartial medical
specialist, Dr. Serfustini, established that appellant had no objective findings to support
continuing residual of the accepted injury and was capable of performing his full work duties.
Further, this evidence established that surgical intervention was not warranted.
An OWCP hearing representative affirmed finding that OWCP met its burden when it
terminated compensation and medical benefits on the grounds that appellant no longer had
residuals of his accepted work injury. The hearing representative found that the weight of the
medical evidence rested with Dr. Serfustini, whose opinion as an impartial medical specialist
was entitled to special weight. The hearing representative noted that although Dr. Elkanich
continued to support continuing injury-related conditions and the need for surgical intervention,
he did not provide adequate reasoning as to why Dr. Serfustini’s opinions were incorrect.
Appellant requested reconsideration and submitted a new functional capacity evaluation.
He argued that Dr. Serfustini did not base his opinion on a complete and accurate factual and
medical history, as he questioned the acceptance of appellant’s displaced intervertebral disc and
did not review appellant’s job description. Also, he argued that Dr. La Tourette’s rationale for
work restrictions was incomplete.
In a decision dated December 23, 2010, OWCP reviewed the merits of appellant’s case
and denied modification of its prior decision. It found that the body of the medical evidence
substantiated that the work injury was an aggravation of the underlying degenerative condition
rather than an occurrence by direct cause. OWCP found that the weight of the medical opinion
evidence rested with Dr. Serfustini and noted that appellant submitted no medical report from a
qualified physician interpreting the new functional capacity evaluation.
On appeal, appellant argues that OWCP did not meet its burden of proof to justify the
termination of his compensation benefits. He makes substantially the same arguments raised in
his request for reconsideration: Dr. Serfustini did not base his opinion on a complete and
accurate factual and medical history; his opinion on residuals was not entitled to special weight,
as there was no conflict on the issue of continuing residuals; he did not review the job
description; Dr. La Tourette did not explain how an invalid functional capacity evaluation

3

established that appellant could perform the full range of his air marshal duties; and the
functional capacity evaluation used by Dr. La Tourette and Dr. Serfustini was invalid.
LEGAL PRECEDENT -- ISSUE 1
FECA furnishes to an employee who is injured while in the performance of duty the
services, appliances and supplies prescribed or recommended by a qualified physician that the
Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of any
disability or aid in lessening the amount of any monthly compensation.3 OWCP must therefore
exercise discretion in determining whether the particular service, appliance or supply is likely to
affect the purposes specified in FECA.4 The only limitation on OWCP’s authority is that of
reasonableness.5
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.6 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
A conflict in medical opinion arose on the need for surgery. Dr. Elkanich, the attending
orthopedic surgeon, found that appellant suffered from an internal disc disruption at L4-5 and
L5-S1 and was a candidate for anterior and posterior lumbar reconstructive surgery based on
complaints of symptomatology and severe pain at those levels. Dr. La Tourette, the secondopinion orthopedic surgeon disagreed. Having observed appellant’s activities as a little league
baseball coach, he found that appellant had a functional capacity that would not warrant the
proposed surgery currently. Also, appellant did not use frequent narcotic medications and only
occasionally used anti-inflammatory medication. OWCP properly referred appellant to
Dr. Serfustini, a Board-certified orthopedic surgeon, to resolve the conflict.
OWCP provided Dr. Serfustini with appellant’s case record and a statement of accepted
facts so he could base his opinion on a proper factual and medical history. Dr. Serfustini
concluded that appellant was not a candidate for any type of surgical intervention for the
lumbosacral spine. He noted that no less than five orthopedic consultations failed to reveal any
significant neurological deficit or finding. Dr. Serfustini also noted appellant’s activities of daily
3

5 U.S.C. § 8103(a).

4

See Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of the
Act and must exercise that discretion to achieve the objectives of section 8103).
5

Daniel J. Perea, 42 ECAB 214 (1990).

6

5 U.S.C. § 8123(a).

7

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

4

living and his demonstrated activities coaching little league baseball. His opinion on the need for
surgery appears sound and rational and is entitled to special weight in resolving the conflict.
Dr. Elkanich’s continuing opinion on the need for surgery only reinforced the conflict that
OWCP selected Dr. Serfustini to resolve; it did not create a conflict with the impartial medical
specialist. As the weight of the evidence supported that appellant was not currently a candidate
for surgical intervention, the Board finds that OWCP properly exercised its broad discretion
under FECA to deny authorization for the proposed surgery and affirms the December 23, 2010
decision.
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.
Appellant argues that Dr. Serfustini did not follow the statement of accepted facts, which
accepted a displaced disc. To be accurate, the statement of accepted facts stated that OWCP
expanded its acceptance of appellant’s claim to include lumbar disc compromise and disc
herniation at L4-5 and L5-S1 with degenerative changes. Dr. Serfustini based his opinion on the
number of orthopedic consultations that had failed, notwithstanding the accepted medical
conditions, to reveal any significant neurological deficit or findings, and on appellant’s capacity
to perform activities of daily living and activities related to coaching little league baseball.
LEGAL PRECEDENT -- ISSUE 2
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.8 Once OWCP accepts a claim, it has the
burden of proof to justify terminating or modifying compensation benefits.9 After it has
determined that an employee has disability causally related to federal employment, OWCP may
not terminate compensation without establishing that the disability has ceased or that it is no
longer related to the employment.10
ANALYSIS -- ISSUE 2
OWCP asked Dr. Serfustini to resolve a conflict on the issue of disability for work but
the Board finds no true conflict on that issue between Dr. Elkanich and Dr. La Tourette.
Dr. Elkanich found that appellant was not capable of performing his usual job. Initially,
Dr. La Tourette agreed. He found that physical impairments precluded appellant from
performing a number of specific physical activities required of a federal air marshal. But, in a
supplemental report, he decided to support the recommendation of a functional capacity
evaluation that appellant be returned to his preaccident job because of inconsistent effort. This
change of opinion raised two problems. The functional capacity evaluation recommended
8

5 U.S.C. § 8102(a).

9

Harold S. McGough, 36 ECAB 332 (1984).

10

Vivien L. Minor, 37 ECAB 541 (1986); David Lee Dawley, 30 ECAB 530 (1979); Anna M. Blaine, 26 ECAB
351 (1975).

5

appellant’s return to duty “unless there is any medical evidence to the contrary.” Dr. La Tourette
provided that evidence on the Practical Exercise Performance Requirements Form when he
found that appellant could not employ certain defensive tactics or perform in certain aircraft
tactical training maneuvers required of the preinjury job. Also, Dr. La Tourette did not explain
how appellant’s inconsistent effort on the latest functional capacity evaluation meant that
appellant could now meet all the practical exercise performance requirements. His supplemental
report made no mention of those requirements.
Because Dr. La Tourette did not provide sufficient rationale for his change of opinion on
the issue of disability for work, the Board finds that his opinion was of diminished probative
value and was insufficient to create a true conflict warranting referral to an impartial medical
specialist.11
This meant that, when OWCP referred appellant to Dr. Serfustini for an opinion on
disability, Dr. Serfustini did not serve in the capacity of an impartial medical specialist. He was,
for purposes of that issue, another second-opinion referral physician. Dr. Serfustini found that
appellant’s activities of daily living, as well as his capacity to perform the activities attendant to
coaching little league baseball, clearly indicated a level that would be compatible with work
activities. Although this generally supported OWCP’s termination of disability compensation,
Dr. Serfustini did not address the practical exercise performance requirements of appellant’s
federal air marshal position. The requirements were a matter of record, and Dr. La Tourette had
indicated that appellant could not perform a number of the specific physical requirements.
Instead of vaguely referring to work activities, Dr. Serfustini should have addressed the
requirements directly. When he did not, he left some doubt whether he based his opinion on a
proper factual background. The Board therefore finds that his opinion on the issue of disability
for work is of diminished probative value and does not carry the weight of the medical opinion
evidence.12
For this reason, the Board finds that OWCP did not meet its burden of proof to justify the
termination of appellant’s disability compensation.
The Board will reverse OWCP’s
December 23, 2010 decision on the issue of disability for work and will remand the case for a
proper reinstatement of compensation benefits.
On the issue of entitlement to medical benefits, the Board finds no conflict between
Dr. Elkanich and Dr. La Tourette. Both reported that appellant suffered painful residuals of the
accepted employment injury. So once again, when OWCP asked Dr. Serfustini for an opinion on
residuals, he was not serving in the capacity of an impartial medical specialist but of a secondopinion referral physician. Dr. Serfustini found no objective evidence of residuals: no
neurological deficits, no muscle atrophy or fasciculations, appellant was well muscled and had
demonstrated normal physical activities. Notwithstanding OWCP’s acceptance of lumbar disc
compromise, Dr. Serfustini offered sound rationale for his conclusion. The Board finds that his
opinion created a conflict with Dr. Elkanich, who continued to support injury-related residuals.
11

Ceferino L. Gonzales, 32 ECAB 1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

12

See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing factors that bear on the probative value of
medical opinions).

6

But as the conflict remains unresolved, the weight of the medical opinion evidence does not
justify the termination of appellant’s medical benefits. The Board finds that OWCP has not met
its burden of proof on this issue. The Board will reverse OWCP’s December 23, 2010 decision
on the issue of medical benefits and will remand the case for proper reinstatement of benefits for
the accepted medical conditions.
CONCLUSION
The Board finds that OWCP properly exercised its discretion in denying authorization for
surgery. The Board also finds that OWCP improperly terminated appellant’s compensation
benefits.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed in part and reversed in part. The case record is
returned to OWCP for further action consistent with this opinion.
Issued: January 13, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Durham, NC, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 22-0103
Issued: March 21, 2022

Case Submitted on the Record

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

JURISDICTION
On October 29, 2021 appellant, through counsel, filed a timely appeal from a
September 21, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty as
alleged.

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.

FACTUAL HISTORY
On December 18, 2020 appellant, then a 38-year-old food service worker, filed an
occupational disease claim (Form CA-2) alleging that he experienced difficulties with his hand
and wrist due to factors of his federal employment including repeatedly wiping down food carts.
He attributed his condition to “systemic infection, repeated stress or strain or conditions of the
work environment.” Appellant noted that he first became aware of his condition and its
relationship to his federal employment on January 20, 2020.3
In a development letter dated December 23, 2020, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence needed and
provided a questionnaire for his completion. By separate development letter of even date, OWCP
also requested additional information from the employing establishment, including a description
of the repetitive tasks that appellant performed as part of his work duties. It afforded both parties
30 days to respond.
In an undated response, appellant related that his date of injury was September 25, 2019,
even though he was not diagnosed until January 20, 2020. He advised that on September 25, 2019
he had sustained pain and numbness in his right hand that was subsequently diagn osed as carpal
tunnel syndrome. Appellant advised that he experienced the symptoms of carpal tunnel syndrome
when wiping down food carts and noted that he had worked 20 years for the employing
establishment.
By decision dated March 12, 2021, OWCP denied appellant’s occupational disease claim.
It found that he had not submitted sufficient evidence to establish that the work factors occurred
as alleged and further had not submitted any medical evidence containing a diagnosis in connection
with the claimed work events.
On March 22, 2021 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Thereafter, OWCP received a March 13, 2020 report from Dr. Timothy Andrews Ashley,
Board-certified in internal medicine, who evaluated appellant for pain and weakness of the right
hand and noted that an orthopedist had diagnosed carpal tunnel syndrome by clinical examination
and electromyogram (EMG). He related, “Carpal tunnel syndrome is frequently a result of
repetitive gripping or vibratory movements, and in this case is apparently related to his work. The
injury [on] September 25, 2019 appears to have triggered this pain episode.”
An EMG and nerve conduction velocity (NCV) study performed on January 8, 2020 for
Dr. Emeka Nwoko Okechukwu, a Board-certified orthopedic surgeon, showed mild-to-moderate
right carpal tunnel syndrome.
A telephonic hearing was held on July 14, 2021. Appellant’s representative advised that
he had a prior claim accepted for a right-hand contusion and when his condition failed to improve
3

OWCP assigned the present claim OWCP File No. xxxxxx951. Appellant has a prior claim under OWCP File
No. xxxxxx590, which OWCP accepted for a September 25, 2019 contusion to his right hand. The employing
establishment removed appellant from employment effective November 13, 2019.

2

he had an EMG, which demonstrated carpal tunnel syndrome. Appellant explained that his work
duties included daily cleaning of tool carts inside and out. He also performed general cleaning
duties, including wiping off sinks and removing food from the trays on a conveyor belt. Appellant
additionally had performed meal preparation prior to his hand contusion. He returned to work on
December 5, 2019 after his hand contusion, but was told that he had been terminated from
employment due to misconduct for failing to follow leave procedures. OWCP’s hearing
representative requested that appellant provide a written statement in response to the development
letter responding to the specific questions and providing a description of his work duties. She
further requested supporting medical evidence.
By decision dated September 21, 2021, OWCP’s hearing representative affirmed the
March 12, 2021 decision. She found that OWCP should double the current claim with other claims
involving appellant’s right hand.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA, 5 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational diseas e.7
In an occupational disease claim, appellant’s burden of proof requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical

4

Supra note 2.

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

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

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

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certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant. 10
ANALYSIS
The Board finds that appellant has established that the claimed employment factors
occurred as alleged..
Appellant described the work factors to which he attributed his condition during the
hearing. He related that he cleaned tool carts, wiped off sinks, and removed food from trays on a
conveyor belt. The employing establishment has not disputed that he performed the described
duties. An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong and persuasive evidence.11 The
Board thus finds that appellant has met his burden of proof to establish that he cleaned carts daily,
wiped off sinks, and removed food from trays on a conveyor belt as part of his employment duties.
As appellant has established the identified employment factors, OWCP must base its
decision on an analysis of the medical evidence. OWCP, in its September 21, 2021 decision,
reviewed the medical evidence of record and found that he had not submitted medical evidence
sufficient to show a medical condition causally related to the identified employment factors.
In a March 13, 2020 report, Dr. Ashley discussed appellant’s complaints of right hand pain
and weakness and indicated that an orthopedist had diagnosed carpal tunnel syndrome. He related
that “Carpal tunnel syndrome is frequently a result of repetitive gripping or vibratory movements,
and in this case is apparently related to his work. The injury [on] September 25, 2019 appears to
have triggered this pain episode.” His opinion that carpal tunnel syndrome is frequently a result
from repetitive work duties and that an injury on September 24, 2019 appeared to have caused
appellant’s pain is speculative in nature and, thus, of diminished probative value. 12 Consequently,
Dr. Ashley’s report is insufficient to meet his burden of proof. 13
Appellant further submitted the results of electrodiagnostic testing. The Board has held
that diagnostic reports, standing alone, lack probative value on the issue of causal relationship as
they do not provide an opinion as to whether the accepted employment incident caused a diagnosed
condition.14 This evidence, therefore, is also insufficient to establish appellant’s claim.
As the medical evidence of record is insufficient to establish a medical condition causally
related the accepted employment injury, the Board finds that appellant has not met his burden of
proof.

10

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

11

See R.W., Docket No. 19-0339 (issued July 12, 2019).

12

See C.A., Docket No. 21-0601 (issued November 15, 2021); L.F., Docket No. 20-1021 (issued July 30, 2021).

13

Id.

14

S.W., Docket No. 21-1105 (issued December 17, 2021); W.L., Docket No. 20-1589 (issued August 26, 2021).

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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 established that the claimed employment factors
occurred as alleged. The Board further finds, however, that appellant has not met his burden of
proof to establish a hand and/or wrist condition causally related to factors of his federal
employment.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2021 decision of Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 21, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bloomington, IL, Employer
__________________________________________

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

Docket No. 18-1352
Issued: February 4, 2019

Case Submitted on the Record

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

JURISDICTION
On June 25, 2018 appellant filed a timely appeal from an April 25, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar condition
causally related to the accepted January 18, 2018 employment incident.
FACTUAL HISTORY
On March 6, 2018 appellant, then a 27-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that, on January 18, 2018, she suffered a back injury when
lifting magazines and carrying them up stairs while in the performance of duty. OWCP assigned

1

5 U.S.C. § 8101 et seq.

the claim OWCP File No. xxxxxx203.2 Appellant stopped work on January 19, 2018.3 On the
reverse of the Form CA-1, her immediate supervisor indicated that the employing establishment
was controverting her claim because it was filed more than 30 days after the date of the claimed
January 18, 2018 injury.
Appellant submitted a March 6, 2018 duty status report (Form CA-17) from Dr. David A.
Braun, an attending Board-certified occupational medicine physician, who listed the date of injury
as January 18, 2018, provided a diagnosis “due to injury” of lumbar strain, and recommended work
restrictions, including lifting no more than 25 pounds.4 In a March 6, 2018 work status discharge
report, Dr. Braun listed the date of injury as January 18, 2018, diagnosed low back pain and lumbar
strain, and indicated that appellant should work under restrictions as of March 6, 2018.
In a March 19, 2018 development letter, OWCP requested that appellant submit additional
evidence in support of her claim, including a physician’s opinion supported by a medical
explanation as to how the reported January 18, 2018 work incident caused or aggravated a medical
condition. It requested that she complete and return an attached questionnaire which posed various
questions regarding her back condition prior to January 18, 2018 and the circumstances of the
January 18, 2018 employment incident. OWCP afforded appellant 30 days to respond.
Appellant subsequently submitted a January 22, 2018 duty status report from Dr. Braun
who listed the date of injury as January 18, 2018, provided a diagnosis “due to injury” of lumbar
strain, and recommended work restrictions, including lifting no more than 20 pounds. In a
January 22, 2018 work status discharge report, Dr. Braun listed the date of injury as January 18,
2018, diagnosed low back pain, and indicated that appellant should work under restrictions as of
January 22, 2018.5
In a February 13, 2018 duty status report, Dr. Braun listed the date of injury as
November 24, 2017, provided a diagnosis “due to injury” of lumbar strain, and recommended work
restrictions, including lifting no more than 10 pounds. In a February 13, 2018 work status
discharge report, he listed the date of injury as November 24, 2017, diagnosed low back pain, and
indicated that appellant should work under restrictions as of February 13, 2018.
In a March 21, 2018 duty status report, Dr. Braun listed the date of injury as January 18,
2018, provided a diagnosis “due to injury” of lumbar strain, and recommended work restrictions,
including lifting no more than 20 pounds on a continuous basis and no more than 30 pounds on an
2

Appellant previously injured her back in the performance of duty on November 24, 2017, which OWCP accepted
for lumbar strain under OWCP File No. xxxxxx533.
3

On January 18, 2018 appellant had been working in her regular-duty position for the employing establishment.

4
Dr. Braun described appellant’s clinical findings as tender lumbar back and limited range of motion. He noted
“muscle spasm” in response to the text, “Describe how the injury occurred and state parts of the body affected.”
Appellant also submitted a March 6, 2018 administrative document detailing Dr. Braun’s referral of her for physical
therapy.
5
Appellant also submitted a January 31, 2018 notice of recurrence (Form CA-2a) listing January 18, 2018 as the
date of her original injury and January 19, 2018 as the date she stopped work “after recurrence.” OWCP took no
action on this claim as appellant submitted it prior to the issuance of a final decision regarding her claim for a
January 18, 2018 employment injury.

2

intermittent basis. In a March 21, 2018 work status discharge report, he listed the date of injury
as January 18, 2018, diagnosed low back pain and lumbar strain, and indicated that appellant
should work under restrictions as of March 21, 2018. OWCP added other documents from OWCP
File No. xxxxxx533 to the present case file, including narrative and form reports dated
December 18, 2017 to March 21, 2018. In a February 13, 2018 narrative report, Dr. Braun listed
the date of injury as January 18, 2018 and diagnosed low back pain. In a January 23, 2018 report,
Dr. Larry Pinter, an attending Board-certified emergency medicine physician, indicated that
appellant was seen four days prior with increased pain due to lifting heavy boxes at work and he
diagnosed appellant with back paresthesias and back pain. In reports dated between December 18,
2017 and January 9, 2018, Dr. Glenn W. Payton, an attending chiropractor, diagnosed subluxation
of L4 and L5 lumbar vertebrae.
In a January 22, 2018 narrative report from OWCP File No. xxxxxx533, Dr. Braun noted
that appellant reported presenting for “new injury evaluation” after carrying a 60-pound bag filled
with boxes of magazines up some stairs at work. He advised that he recently saw appellant for a
“similar issue,” and indicated that she “appears to have another acute exacerbation of chronic back
issues.” Dr. Braun noted that appellant had been back to work for over a week and reported “doing
fine until this new injury occurred.” He diagnosed “low back pain.”
By decision dated April 25, 2018, OWCP denied appellant’s claim for a January 18, 2018
employment injury. It determined that she had established that a January 18, 2018 employment
incident occurred in the form of lifting and carrying magazines up stairs, but further found that the
medical evidence of record was insufficient to establish that her lumbar strain/sprain was causally
related to the accepted January 18, 2018 employment incident. OWCP noted that, in reaching this
determination, it had reviewed medical evidence found in OWCP File No. xxxxxx533. It advised
that, in a January 18, 2018 report found in the file for that claim, Dr. Braun had corroborated
appellant’s account of the January 18, 2018 employment incident, but had referenced a history of
“chronic back issues” and provided a diagnosis of “low back pain.”6 OWCP indicated that,
although Dr. Braun diagnosed lumbar sprain on March 13, 2018, he did not explain whether the
lumbar sprain was causally related to the January 18, 2018 employment incident.7
LEGAL PRECEDENT
An employee seeking benefits under FECA8 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any disability or specific condition for which compensation is claimed is causally related

6

The case record does not contain a medical report dated January 18, 2018. OWCP appears instead to refer to the
January 22, 2018 medical report of Dr. Braun.
7

The case record does not contain a March 13, 2018 report of Dr. Braun. The case record does contain March 6
and 21, 2018 narrative reports in which Dr. Braun listed the date of injury as January 18, 2018 and diagnosed low
back pain and strain of muscle, fascia, and tendon of lower back.
8

See supra note 1.

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to the employment injury.9 These are the essential elements of each compensation claim regardless
of whether the claim is predicated upon a traumatic injury or an occupational disease.10
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged.11 Second, the employee must submit evidence, in
the form of medical evidence, to establish that the employment incident caused a personal injury.12
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted January 18, 2018 employment incident.
In a January 22, 2018 narrative report, Dr. Braun, an attending physician, noted that
appellant reported presenting for “new injury evaluation” after carrying a 60-pound bag filled with
boxes of magazines up some stairs at work. He advised that he recently saw appellant for a “similar
issue,” and indicated that she “appears to have another acute exacerbation of chronic back issues.”
Dr. Braun noted that appellant had been back to work for over a week and reported “doing fine
until this new injury occurred.” He provided a diagnosis of low back pain. The Board finds that
the submission of this report does not establish appellant’s claim for a January 18, 2018
employment injury because the report is devoid of an opinion relating a diagnosed medical
condition to the accepted January 18, 2018 employment incident. The Board has held that pain
alone is a symptom, not a medical diagnosis.14 Findings of pain or discomfort alone do not satisfy
the medical aspect of the fact of injury medical determination.15 Moreover, as the report does not
9

B.G., Docket No. 18-0784 (issued November 9, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

10

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989). A traumatic injury refers to injury caused
by a specific event or incident or series of incidents occurring within a single workday or work shift whereas an
occupational disease refers to an injury produced by employment factors which occur or are present over a period longer
than a single workday or work shift. 20 C.F.R. §§ 10.5 (q), (ee); Brady L. Fowler, 44 ECAB 343, 351 (1992).
11

Julie B. Hawkins, 38 ECAB 393 (1987).

12

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

13

See I.J., 59 ECAB 408 (2008); Donna Faye Cardwell, 41 ECAB 730 (1990).

14

See F.U., Docket No. 18-0078 (issued June 6, 2018).

15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).

4

offer an opinion addressing causal relationship it is of no probative value on the issue of causal
relationship.16
In a January 22, 2018 duty status report, Dr. Braun listed the date of injury as January 18,
2018, provided a diagnosis “due to injury” of lumbar strain, and recommended work restrictions,
including lifting no more than 20 pounds. Although this report contains an actual medical
diagnosis, i.e., lumbar strain, it is of limited probative value relative to the underlying issue of the
present case because it does not contain a rationalized medical opinion relating this diagnosed
condition to the accepted January 18, 2018 employment incident. The Board has held that a report
is of limited probative value regarding causal relationship if it does not contain medical rationale
explaining how an employment activity could have caused or aggravated a medical condition.17
Dr. Braun did not describe the January 18, 2018 employment incident in any detail or explain the
medical process through which carrying magazines up stairs would have caused the diagnosed
condition.18
In a January 22, 2018 work status discharge report, Dr. Braun listed the date of injury as
January 18, 2018 and indicated that appellant should work under restrictions as of
January 22, 2018. In a February 13, 2018 narrative report, he listed the date of injury as
January 18, 2018 and diagnosed low back pain. However, these reports are of no probative value
on the underlying issues of this case because Dr. Braun only diagnosed low back pain, which the
Board has held is a symptom and not an actual diagnosis.19
In a January 23, 2018 report, Dr. Pinter indicated that appellant was seen four days prior
with increased pain due to lifting heavy boxes at work and he diagnosed appellant with back
paresthesias. However, this report is of limited probative value on the underlying issue of this case
because Dr. Pinter failed to provide a clear, detailed description of the accepted January 18, 2018
employment incident and he did not otherwise provide a rationalized medical opinion relating a
diagnosed medical condition to this accepted employment incident.20
In March 6 and 21, 2018 narrative reports, Dr. Braun listed the date of injury as January 18,
2018 and diagnosed low back pain and strain of muscle, fascia, and tendon of lower back. In
March 6 and 21, 2018 duty status reports, he listed a date of injury of January 18, 2018, provided
a diagnosis “due to injury” of lumbar strain, and recommended work restrictions. In March 6
and 21, 2018 work status discharge reports, Dr. Braun listed the date of injury as January 18, 2018,
diagnosed low back pain and lumbar strain, and indicated that appellant should work under
16

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

17

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

18

In a February 13, 2018 duty status report, Dr. Braun listed the date of injury as November 24, 2017, provided a
diagnosis “due to injury” of lumbar strain, and recommended work restrictions. In a February 13, 2018 work status
discharge report, he listed the date of injury as November 24, 2017, diagnosed low back pain, and indicated that
appellant should work under restrictions as of February 13, 2018. However, the matter of the November 24, 2017
employment injury under OWCP File No. xxxxxx533 is not currently before the Board and none of these reports are
relevant to appellant’s present claim for a January 18, 2018 employment injury.
19

See supra notes 14 and 15.

20

See supra note 14.

5

restrictions. However, these reports also are of limited probative value in establishing appellant’s
claim for a January 18, 2018 employment injury because Dr. Braun failed to provide a rationalized
medical opinion on causal relationship.21 Dr. Braun again failed to describe the January 18, 2018
employment incident in any detail or explain the medical process through which it would have
been competent to cause a diagnosed back condition.22
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a lumbar
condition causally related to the accepted January 18, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the April 25, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 4, 2019
Washington, DC

Patricia H. Fitzgerald, Deputy 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

21

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

22
Appellant also submitted a number of reports of medical providers, including those of an attending chiropractor,
which were dated December 18, 2017 to January 9, 2018. However, because these reports predate the January 18,
2018 employment incident, they are irrelevant and therefore insufficient to establish appellant’s claim.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.T., Appellant
and
U.S. POSTAL SERVICE, JOHN T. BUCHANAN
POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 08-2261
Issued: May 11, 2009

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 August 15, 2008 appellant filed a timely appeal of the July 7, 2008 merit decision of
the Office of Workers’ Compensation Programs, finding that she received an overpayment in the
amount of $2,044.06 for which she was at fault. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,044.06 from April 9 through May 10, 2008 after she returned to work and
continued to receive wage-loss compensation for total disability; and (2) whether the Office
properly found that she was at fault in creating the overpayment and, therefore, ineligible for
waiver.
FACTUAL HISTORY
On May 10, 2007 appellant, then a 39-year-old letter carrier, filed an occupational disease
claim alleging that on May 1, 2007 she became aware of the tingling sensation in her left index

finger, thumb and arm which she attributed to her federal employment. Appellant stopped work
on May 10, 2007. By letter dated July 24, 2007, the Office accepted appellant’s claim for left
carpal tunnel syndrome (CTS) and aggravation of degenerative disc disease at C5-6 and C6-7.
On April 9, 2008 appellant returned to limited-duty work at the employing establishment.
On May 6, 2008 the Office issued a compensation check for total disability in the amount
of $3,859.65 for the period March 22 through May 10, 2008 by direct deposit. By letter dated
May 22, 2008, it notified appellant of the periodic payments she would receive, including the
$3,859.65 payment for March 22 through May 10, 2008. Appellant was advised to notify the
Office immediately when she returned to work to avoid an overpayment of compensation and
that, if she worked during any period covered by a compensation payment, she must return the
payment to it. She was also advised of the penalties for accepting compensation payments to
which she was not entitled.
On June 5, 2008 the Office made a preliminary determination that appellant received an
overpayment in the amount of $2,044.06 from April 9 through May 10, 2008 because she knew
or should have known that she was not entitled to wage-loss compensation for total disability
after her return to limited-duty work. A May 29, 2008 overpayment worksheet noted that
appellant received a periodic payment in the amount of $3,859.64 for the period March 22
through May 10, 2008. As she returned to full-time limited-duty work on April 9, 2008, she
should have only received compensation in the amount of $1,467.54 from March 22 through
April 8, 2008. During the period April 9 through May 10, 2008 appellant received compensation
in the amount of $2,392.11, which was reduced by a $348.05 refund she made for duplicate
deductions of her health benefits and basic and optional life insurance premiums made from her
compensation. This resulted in an overpayment of compensation in the amount of $2,044.06.
Appellant was advised that she could request a telephone conference, a final decision based on
the written evidence only or a hearing within 30 days of the date of the letter if she disagreed that
the overpayment occurred, if she disagreed with the amount of the overpayment and if she
believed that recovery of the overpayment should be waived. The Office requested that
appellant complete an accompanying overpayment recovery questionnaire (Form OWCP-20) and
submit financial documents in support thereof within 30 days. Appellant did not respond.
By decision dated July 7, 2008, the Office found that appellant was at fault in the creation
of an overpayment in compensation in the amount of $2,044.06 for the period April 9 through
May 10, 2008. It directed appellant to repay the overpaid amount in full within 30 days.1
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act2 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
1

Following the issuance of the Office’s July 7, 2008 decision, it received additional evidence. The Board may
not consider evidence for the first time on appeal which was not before the Office at the time it issued the final
decision in the case. 20 C.F.R. § 501.2(c). Appellant can submit this evidence to it and request reconsideration.
5 U.S.C. § 8128; 20 C.F.R. § 10.606.
2

5 U.S.C. §§ 8101-8193.

2

employee resulting from personal injury sustained while in the performance of his duty.3 Section
8116 of the Act defines the limitations on the right to receive compensation benefits. This
section of the Act provides that, while an employee is receiving compensation, he or she may not
receive salary, pay or remuneration of any type from the United States, except in limited
circumstances.4
Section 10.500 of the Office’s regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $2,044.60. The record supports that she returned to work on April 9, 2008 and worked
through May 10, 2008. Appellant received wage-loss compensation for the period March 22
through May 10, 2008. As she was not entitled to compensation for the period after she returned
to work, the compensation she received from April 9 through May 10, 2008 represents an
overpayment of compensation.6 Appellant received a check in the net amount of $3,859.65. The
Office determined that she should have been paid $1,467.54. Subtracting what appellant should
have been paid for this period, $1,467.54 and her refund of $348.05 for duplicate deductions for
health and insurance premiums, from what she was paid $3,859.65, equals an overpayment of
$2,044.06. There is no contrary evidence regarding the fact and the amount of the overpayment.
The Board finds that an overpayment occurred in the amount of $2,044.06 as appellant returned
to work but received wage-loss compensation from April 9 to May 10, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act7 provides that an overpayment of compensation shall be
recovered by the Office unless incorrect payment has been made to an individual who is without
fault and when adjustment or recovery would defeat the purpose of the Act or would be against
equity and good conscience.8 Thus, it may not waive the overpayment of compensation unless
appellant was without fault.9 Adjustment or recovery must, therefore, be made when an
incorrect payment has been made to an individual who is with fault.10
3

Id. at § 8102(a).

4

Id. at § 8116(a); see Danny E. Haley, 56 ECAB 393 (2005).

5

20 C.F.R. § 10.500.

6

W.F., 57 ECAB 705 (2006).

7

5 U.S.C. § 8129(b).

8

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

9

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

10

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

3

On the issue of fault, section 10.433 of the Office’s regulations provide that an individual
will be found at fault if he or she has done any of the following:
“(1) made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect;
“(2) failed to provide information which he or she knew or should have known to
be material; or
“(3) accepted a payment which he or she knew or should have known was
incorrect.”11
With respect to whether an individual is without fault, section 10.433(b) of the Office’s
regulations provide in relevant part:
“Whether or not [the Office] determines that an individual was at fault with
respect to the creation of an overpayment depends on the circumstances
surrounding the overpayment. The degree of care expected may vary with the
complexity of those circumstances and the individual’s capacity to realize that he
or she is being overpaid.”12
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. In order for it to establish that appellant was at fault in creating the
overpayment of compensation, the Office must establish that, at the time she received the
compensation check in question, she knew or should have known that the payment was
incorrect.13
Based on the circumstances of this case, the Board finds that appellant is not with fault in
creating the overpayment. The Office found that appellant should have known that she received
an incorrect payment for total temporary disability because she had been advised to return any
money she received after returning to work. The Board has found a claimant to be at fault in
cases where he or she is receiving compensation checks through direct deposit which involve a
series of payments over several months with clear knowledge that the payments were incorrect.14
It is not appropriate, however, to make a finding that a claimant has accepted an overpayment by
direct deposit until such time as a reasonable person would have been aware that an overpayment
had occurred. This awareness may be established either through documentation such as a bank

11

20 C.F.R. § 10.433(a).

12

Id. at § 10.433(b); Diana L. Booth, supra note 10.

13

Diana L. Booth, supra note 10.

14

See Karen K. Dixon, 56 ECAB 145 (2004).

4

statement or notification from the Office or where a reasonable period of time has passed during
which a claimant could have reviewed independent confirmation of the incorrect payment.15
In this case, appellant received an overpayment of compensation in the amount of
$2,044.06 by direct deposit. Since Office regulations define fault by what the claimant knew or
should have known at the time of acceptance, one of the consequences of electronic fund
transfers is that in many cases the claimant will not be at fault for accepting the first incorrect
payment because the requisite knowledge is lacking at the time of deposit.16 Appellant had no
reason to suspect at the time the $2,044.06 overpayment was deposited into her checking account
that the Office had issued an incorrect payment.17 As the funds were deposited directly into her
bank account, she was not in a position to immediately decline acceptance of the amount paid by
the Office. The Board finds that appellant was not at fault in creating the overpayment of
$2,044.06 for the period April 9 through May 10, 2008.18
Since the Board has determined that appellant was without fault in the creation of the
overpayment, the Office may only recover the overpayment in accordance with section 8129(b)
of the Act19 if a determination has been made that recovery of the overpayment would neither
defeat the purpose of the Act nor be against equity and good conscience.20 The case will be
remanded to the Office for further development with respect to whether appellant is entitled to
waiver of the $2,044.06 overpayment. After such further development as it may find necessary,
it should issue an appropriate decision on the issue of whether the overpayment should be
waived.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $2,044.06, during the period April 9 through May 10, 2008, because she incorrectly received
temporary total disability compensation after she returned to work. The Board, however, finds
the Office improperly found that appellant was at fault in creating the overpayment.

15

See K.H., Docket No. 06-191 (issued October 30, 2006).

16

See Karen K. Dixon, supra note 14.

17

See Tammy Craven, 57 ECAB 689 (2006).

18

Id.

19

5 U.S.C. § 8129(b).

20

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

5

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2008 decision of the Office of Workers’
Compensation Programs is affirmed in part with respect to fact and amount of overpayment and
is set aside and the case remanded for further proceedings consistent with this decision of the
Board with respect to fault in the creation of the overpayment.
Issued: May 11, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Callicoon, NY, Employer
__________________________________________

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

Docket No. 10-1974
Issued: June 13, 2011

Case Submitted on the Record

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

JURISDICTION
On July 27, 2010 appellant, through counsel, filed a timely appeal from a merit decision
of the Office of Workers’ Compensation Programs, dated June 23, 2010 concerning whether he
sustained a back condition in the performance of duty causally related to his employment.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his herniated disc with radiculopathy
was sustained in the performance of duty causally related to his employment duties.
FACTUAL HISTORY
This case has previously been before the Board. On March 14, 2008 appellant, then a 50year-old rural carrier, filed an occupational disease claim alleging that his C7 herniated disc with
1

5 U.S.C. § 8101 et seq.

radiculopathy was employment related. He contended that his duties of repetitive twisting and
reaching across the mail vehicle to serve boxes on the right side were the cause of his condition.
Following a denial of his claim on June 1, 2009 appellant filed an appeal with the Board. On
March 26, 2010 the Board issued an order remanding case for proper consideration of all the
evidence of record.2 The Board noted that the case record did not contain all of appellant’s
claims and requested that the Office double the current claim with his other claims.
The relevant medical evidence is as follows. In attending physician’s reports (Form CA20) dated December 10, 2007 and February 15, 2008, Dr. Paul D. Salzberg, a treating Boardcertified family practitioner, diagnosed cervical herniated disc with radiculopathy and checked
the box “yes” in response to the question of whether the condition was employment related. He
explained on the December 10, 2007 form that his condition was a result of appellant’s repetitive
work duties of reaching, sorting mail and carrying mail. Dr. Salzberg, in an April 29, 2008 note,
diagnosed a herniated C7 disc with nerve involvement or radiculopathy and that appellant was
unable to lift or case with his arm. He related that repetitive motion of the neck and right arm
aggravated this condition.
In an August 28, 2008 report, Dr. Saeed A. Bajwa, a treating Board-certified neurological
surgeon, diagnosed right C7 radiculopathy. He stated that he reviewed appellant’s work duties
and found “his current symptoms are consistent with a repetitive work-related injury,”
particularly as there were no other reported injuries and due to appellant’s long work history with
the employing establishment.
Dr. Salzberg, in a November 19, 2008 report, diagnosed cervical radiculopathy and neck
pain which he attributed to appellant’s work duties.
In a May 4, 2009 report, Joseph Andusko, a physician’s assistant, reported that appellant
had been treated by Dr. Bajwa for right C7 radiculopathy with right triceps muscle weakness and
atrophy. He reiterated Dr. Bajwa’s opinion that this condition more likely than not had been
caused by appellant’s employment duties as there had been no trauma or prior injuries of the
neck.
By decision dated June 23, 2010, the Office denied modification.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated

2

Docket No. 09-1653 (issued March 26, 2010).

2

differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.3
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.4 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.5 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
conditions and the specific employment factors identified by the employee.
ANALYSIS
Appellant filed an occupational disease claim alleging that he sustained a C7 herniated
disc with radiculopathy as a result of repetitive motion associated with the delivery of mail. The
Office accepted and the evidence establishes that he performed the duties of a letter carrier. The
issue, therefore, is whether the medical evidence establishes a causal relationship between the
claimed C7 herniated disc with radiculopathy and the identified employment factors. However,
the Office found that the medical evidence did not establish a medical condition arising from
these employment factors.
The Board finds that the record contains medical evidence indicating that there is a causal
relationship between appellant’s employment activities and his diagnosed back condition. In
December 10, 2007 and February 15, 2008 CA-20 reports, Dr. Salzberg diagnosed cervical
herniated disc with radiculopathy. He explained on the December 10, 2007 form that this
condition was related to appellant’s repetitive work duties of reaching, sorting mail and carrying
mail. On April 29, 2008 Dr. Salzberg opined that appellant’s C7 herniated disc with
radiculopathy had been aggravated by the repetitive motion of his neck and right arm. In a
November 19, 2008 report, he attributed appellant’s cervical radiculopathy and neck pain to his
work duties.
Similarly, Dr. Bajwa also attributed appellant’s right C7 radiculopathy to his repetitive
employment duties. On August 28, 2008 he noted that he had reviewed appellant’s work duties
and found that appellant’s symptoms were consistent with an injury caused by repetitive work.
Dr. Bajwa opined that, due to appellant’s long work history with the employing establishment
and lack of any other reported injury, appellant’s repetitive work duties were the most probable
cause of his right C7 radiculopathy.

3

D.D., 57 ECAB 734 (2006); Donna L. Mims, 53 ECAB 730 (2002).

4

David Apgar, 57 ECAB 137 (2005); I.R., Docket No. 09-1229 (issued February 24, 2010).

5

G.G., 58 ECAB 389 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

3

The remaining evidence submitted in support of appellant’s request consists of a May 4,
2009 report from Mr. Andusko, a physician’s assistant. This report does not constitute
competent medical evidence because Mr. Andusko is not a physician as defined in FECA.6
The Board finds that these reports, while not individuals sufficient to warrant further
development, are sufficient to require further development of the case record by the Office.7 The
reports from two different physicians, related appellant’s condition to work duties which were
specifically described as repetitive in nature. Proceedings under FECA are not adversarial in
nature, nor is the Office a disinterested arbiter. While the claimant has the burden to establish
entitlement to compensation, the Office shares responsibility in the development of the evidence
to see that justice is done.8 Additionally, the Board notes that in this case the record contains no
evidence to contradict the repetitive motion of appellant’s duties or any medical evidence to the
contrary. The case will be remanded for the Office to refer appellant for a second opinion
examination to determine causal relationship. Following this and such further development as
the Office deems necessary, an appropriate decision should be issued
CONCLUSION
The Board finds this case is not in posture for decision as to whether or not appellant’s
C7 herniated disc with radiculopathy was sustained in the performance of duty causally related to
factors of his employment.

6

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as a physician under section 8101(2) of FECA. Thus, the reports of a physician’s
assistant are entitled to no weight as a physician’s assistant is not a “physician” as defined by section 8101(2) of
FECA. See J.M., 58 ECAB 303 (2007); Roy L. Humphrey, 57 ECAB 238 (2005).
7

Felix Flescha, 52 ECAB 268 (2001); John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB
820 (1978).
8

R.E., 59 ECAB 323 (2008); Peter C. Belkind, 56 ECAB 580 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 23, 2010 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: June 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5