United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 15-1558
Issued: April 13, 2017

Case Submitted on the Record

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

JURISDICTION
On July 13, 2015 appellant filed a timely appeal from an April 6, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.2
ISSUE
The issue is whether appellant has met his burden of proof to establish that he has more
than 14 percent permanent impairment of each upper extremity for which he previously received
schedule awards.
1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its April 6, 2015 decision. The
Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 57-year-old training technician, has an accepted occupational disease claim
(Form CA-2) for bilateral carpal tunnel syndrome, which arose on or about January 11, 2010.
He underwent OWCP-approved right and left carpal tunnel releases on January 18 and April 28,
2011, respectively.
Additional accepted conditions include brachial neuritis/radiculitis,
cervicalgia, aggravation of cervical intervertebral disc displacement, bilateral shoulder/upper arm
sprain, and bilateral shoulder region disorder of bursae and tendons.
By decision dated July 11, 2012, OWCP granted a schedule award for four percent
bilateral upper extremity permanent impairment under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2009). The
award covered a period of 24.96 weeks, from February 23 to August 15, 2012. OWCP based the
award on a report of a district medical adviser (DMA) who utilized the diagnosis-based
impairment (DBI) method based for the diagnosis of bilateral compression neuropathy median
nerve computerized tomography scan under Table 15-23, Entrapment/Compression Neuropathy
Impairment, A.M.A., Guides 449 (6th ed., 2009). In a January 9, 2013 decision, it denied
modification of its July 11, 2012 bilateral upper extremity schedule award.
On February 28, 2013 appellant underwent left shoulder arthroscopic surgery, which
OWCP had authorized. Additionally, OWCP further expanded the claim to include bilateral
ulnar nerve lesion, bilateral medial epicondylitis, bilateral brachial plexus lesion, lumbar sprain,
lumbar/lumbosacral intervertebral disc degeneration, and lumbar spinal stenosis.
In October 2013, appellant returned to work in a part-time, limited-duty capacity.3
On February 11, 2014 appellant filed a claim for an increased schedule award (Form
CA-7).
In a January 16, 2014 report, Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon,
provided examination findings and opined that appellant reached maximum medical
improvement (MMI). He found 31 percent left upper extremity permanent impairment and 7
percent right upper extremity permanent impairment. The left upper extremity impairment
included 17 percent for spinal nerve (C6, C7) extremity impairment, 11 percent shoulder range
of motion (ROM) impairment, 5 percent for carpal tunnel syndrome, and 2 percent elbow
(medial epicondylitis) impairment. With respect to appellant’s right upper extremity, Dr. Shade
similarly found five percent for carpal tunnel syndrome and two percent elbow (medial
epicondylitis) impairment.
On March 18, 2014 Dr. Ronald Blum, a Board-certified orthopedic surgeon and OWCP
DMA, reviewed the medical record, including Dr. Shade’s January 16, 2014 report. The DMA
identified what he perceived to be inconsistencies in the medical findings and consequently,
recommended that OWCP refer appellant for a second opinion evaluation.

3

By May 2014 appellant resumed his regular, full-time duties without restrictions.

2

OWCP subsequently referred appellant to Dr. Marvin E. Van Hal, a Board-certified
orthopedic surgeon, who examined appellant on May 22, 2014.4 In his June 2, 2014 report,
Dr. Van Hal noted that he reviewed appellant’s medical records, a statement of accepted facts,
and performed his own physical examination. He advised that appellant reached MMI as of
January 16, 2014, when Dr. Shade last examined appellant. Dr. Van Hal noted that appellant’s
elbow did not show any significant ROM deficits and there were no imaging studies of either
elbow to confirm any abnormality. Dr. Van Hal further indicated that appellant already received
a rating of four percent bilateral upper extremity permanent impairment due to carpal tunnel
syndrome, which did not appear to require reassessment or further documentation.
As for other conditions affecting appellant’s upper extremities, Dr. Van Hal noted that
ROM methodology was the best technique to utilize for determining impairment of the shoulder.
Under Table 15-34, shoulder ROM, A.M.A., Guides 475 (6th ed., 2009), he indicated that
appellant had 10 percent left upper extremity permanent impairment. This was comprised of
three percent impairment for forward flexion (130 degrees), one percent impairment for
extension (30 degrees), three percent impairment for abduction (130 degrees), one percent
impairment for adduction (20 degrees), zero percent impairment for external rotation
(70 degrees), and two percent impairment for internal rotation (70 degrees). For the right
shoulder, Dr. Van Hal found three percent impairment for flexion (150 degrees), one percent
impairment for extension (30 degrees), three percent impairment for abduction (140 degrees),
one percent impairment for adduction (20 degrees), zero percent impairment for external rotation
(80 degrees), and two percent impairment for internal rotation (70 degrees). He indicated that no
adjustment to the bilateral shoulder ROM impairments was indicated as appellant was
functioning at regular duty.
For the bilateral elbow, Dr. Van Hal found that no impairment was necessary or
appropriate as the diagnosis was not confirmed symptomatically, there was no magnetic
resonance imaging (MRI) scan of an epicondylitis condition, or any documentation of an
ongoing ulnar neuritis. For the cervical spine he found no basis for permanent impairment as no
objective neurological deficit was found on clinical examination. Dr. Van Hal indicated that
appellant’s reflexes were symmetrical and his strength was normal except for the supraspinatus,
which was related to his shoulder surgery and not due to his neck. Thus, he opined that appellant
had zero percent permanent impairment of the C6 and C7 nerve roots. Dr. Van Hal concluded
that the only impairment rating warranted was 10 percent each for the right and left upper
extremities based on loss of shoulder ROM.
On July 23, 2014 Dr. Blum, the DMA, reviewed the medical record, including Dr. Van
Hal’s June 2, 2014 report. He indicated that MMI was achieved January 16, 2014. The DMA
agreed with Dr. Van Hal that there was no need to reassess the previous four percent bilateral
upper extremity permanent impairment rating for carpal tunnel syndrome. For loss of motion of
the shoulders, Dr. Blum used Dr. Van Hal’s clinical findings and similarly found 10 percent
bilateral upper extremity impairment under Table 15-34, A.M.A., Guides 475 (6th ed., 2009).

4

As part of his second opinion evaluation, Dr. Van Hal obtained additional x-rays and referred appellant for a
functional capacity evaluation, which was performed on May 23, 2014.

3

By decision dated September 2, 2014, OWCP granted appellant a schedule award for an
additional 10 percent permanent impairment of each upper extremity, for a total bilateral upper
extremity impairment of 14 percent. The award covered a 62.4-week period from May 23, 2014
to August 2, 2015.
On December 16, 2014 appellant requested reconsideration.
He submitted a
September 29, 2014 report from Dr. Shade who indicated that contrary to Dr. Van Hal’s finding
of no cervical-related or bilateral elbow impairment, there was diagnostic testing and medical
reports of record that confirmed elbow diagnoses and found impairment. Dr. Shade
recommended that appellant be referred for an impartial medical evaluation.
OWCP also received additional progress reports from Dr. Shade, a March 29, 2014
cervical MRI scan, and an August 5, 2014 report from Dr. Benjamin C. Dagley, an osteopath
specializing in physiatry, who provided ROM measurements for appellant’s left shoulder.
Additionally, it received a September 19, 2014 left elbow MRI scan.
By decision dated April 6, 2015, OWCP denied modification of its September 2, 2014
schedule award.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.5 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.6 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.7
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.

5

See 20 C.F.R. §§ 1.1-1.4.

6

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
7

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

4

5 U.S.C.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).8 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
ANALYSIS
The issue on appeal is whether appellant has met his burden of proof to establish that he
has greater than 14 percent permanent bilateral upper extremity impairment. The Board finds
that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.10
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.11 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.12
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the April 6, 2015 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10

T.H., Docket No. 14-0943 (issued November 25, 2016).

11

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

12

Supra note 10.

5

CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 13, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bay City, MI, Employer
__________________________________________

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

Docket No. 08-1782
Issued: January 16, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 10, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 1, 2008 merit decision denying modification of its prior decisions
dated September 14, 2007 and January 7, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the evidence establishes that appellant sustained an injury in the
performance of duty on February 5, 2004.
FACTUAL HISTORY
On September 25, 2006 appellant, a custodian/laborer, filed a Form CA-1, traumatic
injury claim, for an injury to his right wrist that occurred when he “fell on ice at a curb” on
February 5, 2004 immediately following his work shift.
The employing establishment controverted appellant’s claim, stating that his injury did
not occur in the performance of duty because the injury occurred off the clock and off agency

premises. The employing establishment explained that it did not own, maintain or control the
sidewalk where appellant was injured, but that the sidewalk was maintained by the city of Bay
City, Michigan.
By decision dated February 23, 2007, the Office found that the evidence submitted did
not establish that appellant was injured in the performance of duty. Appellant thereafter
requested a hearing before an Office hearing representative.
The Office received a March 21, 2007 letter from the employing establishment which
stated that “the sidewalk in question by [appellant] would not be an area that I would make the
employees maintain. It is city of Bay City property and is beyond the entrance to the USPS
[U.S. Postal Service] vehicle parking lot.” At a hearing held July 27, 2007, appellant testified
that his injury occurred two minutes after clocking out, as he was walking to his personal vehicle
from the postal service building. He testified that his personal vehicle was parked on the public
street because it was the closest parking space he could find. Appellant testified that, although
the city of Bay City owned the sidewalk surrounding the USPS parking lot, pursuant to Bay City
ordinance, the adjoining property owner, USPS, was responsible for snow removal.
Appellant also submitted a copy of Bay City Code § 94-7, entitled “Ice and snow -Clearing of sidewalks by owner or occupant of adjoining property.” The ordinance imposes
upon owners and occupants of adjacent property a duty to remove ice and snow from sidewalks
and make them safe for persons walking upon them.
By decision dated September 14, 2007, the Branch of Hearings and Review affirmed the
Office’s February 23, 2007 decision, stating that the evidence of record did not establish that
appellant’s injury occurred in the performance of duty. The hearing representative found that
appellant fell on a public sidewalk, not one owned by the employing establishment. Moreover,
the fact that the postal service was responsible, under local law, for keeping the sidewalk clear of
ice and snow was not sufficient, of and by itself, to deem the sidewalk part of the employing
establishment’s premises under the proximity rule.
Appellant requested reconsideration and submitted a letter dated July 18, 2007 from the
National Association of Letter Carriers. This letter stated that employing establishment
maintenance employees were responsible for snow removal on all of the sidewalks surrounding
the post office building, walks to the postal parking lots and the parking lot itself. The
association asserted that on numerous occasions the letter carriers had taken the issue of snow
removal to management and that the outcome of these meetings was always to have the
maintenance crew remove the snow.
Appellant also submitted a hand-annotated copy of a survey map of the parking lot.
Unlike the previously submitted hand-annotated map, on this map, he noted a different location
for his injury: west of where he previously alleged his injury occurred. Appellant also submitted
two three-page letters, photos, excerpts from a collection of state and federal workers’
compensation cases and an Office memorandum.
By letter dated December 21, 2007, the employing establishment controverted appellant’s
claim, asserting that it maintains the city sidewalk only to the entrance of its parking lot, no

2

further. Furthermore, the employer stated that the area of the sidewalk upon which appellant fell
was not an area maintained by the employer.
By decision dated January 7, 2008, the Office denied appellant’s request to modify the
previously rendered decisions of February 23 and September 14, 2007, because the evidence
submitted failed to establish how a public sidewalk was part of the USPS premises.
By letter dated February 1, 2008, appellant again requested reconsideration. He alleged
that he was not in fact parked on a public road but “on an indent, next to this public road.”
Appellant stated that the public road is a no parking area and that the “indent” upon which he
was parked is part of the parking lot where the USPS does snow removal for the benefit of its
employees. He also submitted written statements from two different USPS employees alleging
that the USPS performed snow removal activities at the corner of Third and Boutell Place.
By decision dated May 1, 2008, the Office denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to establish that he was injured in the
performance of duty.
LEGAL PRECEDENT
The Federal Employee’s Compensation Act1 provides for the payment of compensation
for the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
arising out of and in the course of employment.3
The Board has recognized as a general rule that off-premises injuries sustained by
employees having fixed hours and place of work, while going to or coming from work, are not
compensable as they do not arise out of and in the course of employment.4 Rather, such injuries
are merely the ordinary, nonemployment hazards of the journey itself, which are shared by all
travelers.5 However, many exceptions to the rule have been declared by courts and workmen’s
compensation agencies. One such exception almost universally recognized is the premises rule:
an employee going to or coming from work is covered under workers’ compensation while on
the premises of the employer.6

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8102(a).

3

Bernard Blum, 1 ECAB 1, 2 (1947); Melvin Silver, 45 ECAB 677, 680 (1994).

4

Julian C. Tucker, 38 ECAB 271, 272 (1986).

5

A. Larson, The Law of Workers’ Compensation § 15.00 (1989); see Melvin Silver, supra note 3 at 681.

6

Jimmie Brooks, 54 ECAB 248, 249 (2002).

3

The premises of the employer, as the term is used in workers compensation law, are not
necessarily coterminous with the property owned by the employer;7 they may be broader or
narrower and are dependent more on the relationship of the property to the employment than on
the status or extent of the legal title.8 The term “premises” as it is generally used in workers’
compensation law is not synonymous with property. The former does not depend on ownership,
nor is it necessarily coextensive with the latter. Moreover, in some cases premises may include
all the property owned by the employer; in other cases, even though the employer does not have
ownership and control of the place where the injury occurred, the place is nevertheless
considered part of the premises.9
The Board also recognizes the proximity exception to the premises rule, which states that
under special circumstances the industrial premises are constructively extended to those
hazardous conditions which are proximate to the premises and may, therefore, be considered as
hazards of the employing establishment.10 Underlying the proximity exception is the principle
that course of employment should extend to an injury that occurred at a point where the
employee was within the range of dangers associated with the employment.11 The most common
ground of extension is that the off-premises location where the injury occurred lies on the only
route or at least on the normal route, which employees must traverse to reach the plant, and that
the special hazards of that route become the hazards of the employment.12 The main
consideration in applying this rule is whether the conditions giving rise to the injury are causally
connected to the employment.13
ANALYSIS
Applying these principles to the situation in the present case, the Board finds that
appellant’s slip and fall on a snow-covered sidewalk on February 4, 2004 did not occur in the
performance of duty.
Appellant had fixed hours of work from 12:30 a.m. to 9:00 a.m. and was injured when he
slipped on a sidewalk adjacent to USPS property at 9:02 a.m. Unless his injury occurred on the
actual or constructive premises of the employing establishment, his injury cannot be considered
as sustained in the performance of duty. The sidewalk where appellant fell, it is agreed, is not
owned by the employing establishment but by the city of Bay City. Statements from him as well
as the employing establishment confirm that this piece of property is not owned by the

7

Id. at 249.

8

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

9

See Jimmie Brooks, supra note 6 at 249; Denise A. Curry, 51 ECAB 158, 160 (1999).

10

See Jimmie Brooks, supra note 6 at 249.

11

Idalaine L. Hollins-Williamson, 55 ECAB 655, 659 (2004).

12

Michael K. Gallagher, 48 ECAB 610, 611 (1997).

13

See Jimmie Brooks, supra note 6 at 249.

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employing establishment. However, the term “premises” as it is used in workers’ compensation
is not exclusively dependent upon ownership.14
The sidewalk where appellant was injured was a public sidewalk. The Board finds that
appellant has not shown that the sidewalk on which he fell was used exclusively or principally by
the employees of the employing establishment for the convenience of the employer.15
Furthermore, there is no evidence to support that the use of the sidewalk was restricted to the
employees of the employing establishment. Thus, appellant’s injury constitutes an ordinary,
nonemployment hazard of the journey itself, shared by all travelers.16 He therefore, has not
established that he was injured on the premises of the employing establishment.17
Moreover, the proximity rule does not apply as the hazard causing the injury, an
encounter with an ice and snow covered curb on a public sidewalk, is a hazard common to all
travelers on the sidewalk and is not causally related to the employment. The injury was caused
by the act of slipping on an ice and snow covered curb, which is an ordinary, nonemployment
hazard of the journey from work itself that is shared by all travelers.18 Even if the sidewalk on
which appellant fell was the customary means of access to the employing establishment for its
employees, this would not alter the public nature of this sidewalk or render it part of the
employing establishment’s premises.19
Finally, although the employing establishment’s responsibility to clear the sidewalk may
be relevant under local law, this is not the issue presented by this appeal. The Board has
previously rejected appellant’s reasoning that the employing establishment’s responsibility under
local law to clear a sidewalk of snow or ice renders the sidewalk part of the employing
establishment’s premises or brings the sidewalk within the proximity rule.20
Based on this, appellant has not met his burden of proving he sustained an injury in the
performance of duty because the evidence establishes that appellant’s injury did not occur on the
premises of the employing establishment, as his injury occurred while he was walking on city
property.
CONCLUSION
The Board finds appellant has not met his burden of establishing that he sustained an
injury in the performance of duty.
14

Id.

15

See Idalaine L. Hollins-Williamson, supra note 11 at 659; Mary Keszler, 38 ECAB 735, 742 (1987).

16

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

17

See Mark Love, 52 ECAB 490, 492 (2001).

18

See Jimmie Brooks, supra note 6 at 250.

19

Id. at 250.

20

Id. at 248.

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 1, 2008 is affirmed.
Issued: January 16, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, Decatur, GA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 22-0520
Issued: March 22, 2022

Case Submitted on the Record

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

On February 14, 2022 appellant filed an appeal from a December 3, 2020 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 22-0520.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees ’ Compensation
Act.1 For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s
review authority is limited to appeals which are filed within 180 days from the date of issuance
of OWCP’s decision.2
The 180 th day following the December 3, 2020 decision was June 1, 2021. As appellant
did not file an appeal with the Board until February 14, 2022, more than 180 days after the
December 3, 2020 OWCP decision, the Board finds that the appeal docketed as No. 2 2 -052 0 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not
explained her failure to timely file an appeal with supporting documentation sufficient to
1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

2

Id. at § 501.3(e).

establish compelling circumstances. Because there is no final adverse decision issued by OWCP
within 180 days of the filing of the instant appeal, the Board concludes that the appeal docketed
as No. 22-0520, must be dismissed.3 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 22-0520 is dismissed.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

The Board’s decisions and orders are “final upon the expiration of 30 days from the d ate o f t h eir issu an ce. ”
20 C.F.R. § 501.6(d).
3

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY,
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TRANSPORTATION SECURITY
)
ADMINISTRATION, Sacramento, CA, Employer )
__________________________________________ )
J.B., Appellant

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

Docket No. 19-1866
Issued: June 2, 2020

Case Submitted on the Record

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

JURISDICTION
On September 7, 2019 appellant filed a timely appeal from a March 12, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.3

1
Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from March 12, 2019, the date of OWCP’s last decision, was
September 8, 2019. Because using September 12, 2019, the date the appeal was received by the Clerk of the Appellate
Boards, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the FedEx postmark is September 7, 2019, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 12, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $7,577.11, for which she was not at fault, as she
concurrently received Social Security Administration (SSA) age-related retirement benefits while
receiving FECA wage-loss compensation for the period November 1, 2013 through February 2,
2019; (2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $200.00 from appellant’s
continuing compensation payments, every 28 days.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as presented
in the prior appeal are incorporated herein by reference. The relevant facts are set forth below.
On April 23, 2011 appellant, then a 63-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that she twisted her left knee when pushing a suitcase
into an x-ray tunnel while in the performance of duty. OWCP initially accepted the claim for left
knee tendinitis, and subsequently expanded acceptance of the claim to include left patellar
tendinitis; permanent aggravations of tears of the medial and lateral meniscus of the left knee; and
permanent aggravation of arthropathy of the left knee. It paid appellant compensation benefits on
the supplemental rolls as of May 17, 2013 and on the periodic rolls as of August 25, 2013.
In EN1032 forms dated December 18, 2013 through November 20, 2018, appellant
indicated that she did not receive SSA benefits as part of an annuity for federal service. She
explained on forms dated November 28, 2017 and November 20, 2018 that she was in receipt of
“regular Social Security.”
On December 3, 2018 OWCP provided SSA with a Federal Employees Retirement System
(FERS)/SSA dual benefits calculation form. On January 15, 2019 SSA submitted the completed
form, which showed SSA benefit rates with a FERS offset and without a FERS offset from
November 2013 through December 2018. Beginning November 2013, the SSA rate with FERS
was $1,011.00 and without FERS was $902.90. Beginning December 2013, the SSA rate with
FERS was $1,027.00 and without FERS was $916.40. Beginning December 2014, the SSA rate
with FERS was $1,053.00 and without FERS was $931.90. Beginning December 2016, the SSA
rate with FERS was $1,056.00 and without FERS was $934.60. Beginning December 2017, the
SSA rate with FERS was $1,077.00 and without FERS was $953.20. Beginning December 2018,
the SSA rate with FERS was $1,107.00 and without FERS was $979.80. The SSA noted that
appellant received SSA disability benefits from September through October 2013.
A FERS offset calculation worksheet dated January 30, 2019 noted each period of
overpayment and provided calculations, which resulted in a total overpayment of $7,577.11 during
the period November 1, 2013 through February 2, 2019.
In a preliminary determination dated February 1, 2019, OWCP informed appellant that she
received an overpayment of compensation in the amount of $7,577.11 because the SSA/FERS
4

Docket No. 17-0934 (issued September 1, 2017).

2

offset was not applied to payments for the period November 1, 2013 through February 2, 2019. It
advised that she was without fault in the creation of the overpayment, because she had relied on
misinformation provided to her in writing by OWCP and there was no evidence in the case file to
substantiate that she knew or should have known the proper course of action to be followed. With
the preliminary determination, OWCP included a copy of SSA’s completed January 15, 2019
FERS/SSA dual benefits calculation form, as well as its January 30, 2019 FERS offset calculation
worksheet. It advised appellant that she could request a waiver of recovery of the overpayment.
OWCP requested that she submit a completed Overpayment Recovery Questionnaire (Form
OWCP-20) and it requested financial information, including copies of income tax returns, bank
account statements, bills, pay slips, and any other records to support income and expenses. It
advised appellant that it would deny waiver if she failed to furnish the requested financial
information within 30 days. OWCP further notified her that, within 30 days of the date of the
letter, she could request a telephone conference, a final decision based on the written evidence, or
a prerecoupment hearing, by completing the Overpayment Action Request Form.
On February 21, 2019 appellant contested the overpayment as to the fact and amount, and
requested waiver of recovery. However, she did not exercise her appeal rights.
By decision dated March 12, 2019, OWCP finalized the preliminary overpayment
determination. It found that appellant had received an overpayment of compensation in the amount
of $7,577.11 because the SSA/FERS offset was not applied to FECA wage-loss compensation
payments for the period November 1, 2013 through February 2, 2019. OWCP further found that
she was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment, because she had not completed and returned OWCP’s overpayment recovery
questionnaire (Form OWCP-20) and had not submitted accompanying financial records.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.6
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA benefits that are attributable to federal service of the
employee.7 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.8

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (February 3, 1997).

3

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $7,577.11 as she concurrently received SSA age-related
retirement benefits while receiving FECA wage-loss compensation benefits for the period
November 1, 2013 through February 2, 2019.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation for wageloss and SSA age-related retirement benefits attributable to federal service for the same period.9
The information provided by SSA accurately indicated that appellant had received SSA age-related
retirement benefits that were attributable to her federal service from November 1, 2013 through
February 2, 2019. Thus, the record establishes that she received an overpayment of FECA wageloss compensation.10
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. The Board finds that OWCP properly
determined the amount of the overpayment. The SSA provided appellant’s SSA benefit rate with
FERS and without FERS during the applicable period. OWCP determined that the difference of
the portion of SSA benefits attributed to her federal service needed to be offset against her OWCP
compensation benefits. This amount differed for each period beginning November 2013. OWCP
calculated that the lack of offset from November 1, 2013 through February 2, 2019 resulted in an
overpayment total of $7,577.11.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $7,577.11, thus creating an overpayment of
compensation in that amount, for the period November 1, 2013 through February 2, 2019.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”11 Section 10.438 of OWCP’s regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.12

9

Supra note 7. See also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued
February 21, 2019).
10

Id.

11

5 U.S.C. § 8129.

12

20 C.F.R. § 10.438.

4

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.13 Appellant,
however, had the responsibility to provide the appropriate financial information and
documentation to OWCP.14
In its preliminary determination dated February 1, 2019, OWCP clearly explained the
importance of providing the completed overpayment questionnaire and financial information,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. It advised appellant that it would deny waiver if she
failed to furnish the requested financial information within 30 days. Appellant, however, did not
submit a completed Form OWCP-20 or submit sufficient financial information necessary for
OWCP to determine if recovery of the overpayment would defeat the purpose of FECA or if
recovery would be against equity and good conscience.
Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, which was necessary to determine her eligibility for waiver, the
Board finds that OWCP properly denied waiver of recovery of the overpayment.15
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.16 Section
10.441(a) of the regulations17 provides:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”18

13

Id. at § 10.436.

14

Id. at § 10.438.

15

See T.E., Docket No. 19-0348 (issued December 11, 2019).

16
See C.A., Docket No. 18-1284 (issued April 15, 2019); Albert Pineiro, 51 ECAB 310 (2000); Lorenzo Rodriguez,
51 ECAB 295 (2000).
17

20 C.F.R. § 10.441(a).

18

Id.

5

ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$200.00 from appellant’s continuing compensation payments every 28 days.
OWCP provided appellant a Form OWCP-20 with the February 1, 2019 preliminary
determination. Appellant did not complete the overpayment recovery questionnaire or provide the
necessary financial information to support her income and expenses prior to the final March 12,
2019 overpayment decision. The overpaid individual is responsible for providing information
about income, expenses, and assets as specified by OWCP.19 When an individual fails to provide
requested financial information, OWCP should follow minimum collection guidelines designed to
collect the debt promptly and in full.20 As appellant did not submit the financial documentation to
OWCP as requested, the Board finds that there is no evidence of record to establish that OWCP
erred in directing recovery of the $7,577.11 overpayment at the rate of $200.00 every 28 days from
her continuing compensation payments.21
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$7,577.11 for the period November 1, 2013 through February 2, 2019, for which she was without
fault, as she concurrently received FECA wage-loss compensation benefits and SSA age-related
retirement benefits without an appropriate offset. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment, and properly required recovery of the overpayment
by deducting $200.00 every 28 days from her continuing compensation payments.

19

Supra note 12.

20

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.3
(September 2018).
21

See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

6

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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

Docket No. 13-2059
Issued: March 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 9, 2013 appellant, through her attorney, filed a timely appeal from a
July 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed
carpal tunnel syndrome causally related to factors of her federal employment.
FACTUAL HISTORY
On April 23, 2012 appellant, then a 56-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that she sustained bilateral carpal tunnel syndrome in the
performance of duty. She first became aware of her condition on August 9, 2010 and of its
1

5 U.S.C. § 8101 et seq.

relationship to her employment on March 8, 2012. Appellant explained that years of repetitive
motion with her arms, hands and fingers, including casing mail and repetitively handling large
bundles, had contributed to her bilateral carpal tunnel syndrome. The employing establishment
noted that she was not currently working due to another unrelated injury.
Appellant noted, in a March 13, 2012 statement, that she had worked at the employing
establishment since October 31, 1983. She described duties of her employment requiring
repetitive motion, such as grabbing large bundles of mail and rapidly using a keyboard and
asserted that she performed these duties for six to seven days per week for ten to twelve hours
per day. Appellant stated that she had worked in this capacity until August 19, 2010.
Dr. David A. Doward, a Board-certified physician of physical medicine and
rehabilitation, diagnosed appellant on April 5, 2012 with mild right-sided carpal tunnel
syndrome. He noted that she also had left-sided carpal tunnel syndrome.
Dr. Garry S. Kitay, a Board-certified orthopedist, diagnosed appellant on April 20, 2012
with left moderate to severe and right mild carpal tunnel syndrome. He noted that she was a
distribution clerk and that she had numbness and tingling in all fingers. The diagnosis of left
carpal tunnel syndrome was based on an electrodiagnostic study from March 8, 2012.2
Dr. Kitay further recommended in a note of April 25, 2012 that appellant could return to
modified duty on April 20, 2012, with work restrictions of lifting no more than 15 pounds and
taking a 5-minute break for every 20 minutes of repetitive activity.
The employing establishment challenged appellant’s claim. It stated that she had not
submitted sufficient medical documentation to support her claim and noted that she had been on
the periodic rolls for disability since April 27, 2011 due to another work-related injury.
On May 14, 2012 OWCP requested additional factual and medical evidence from
appellant. It noted that she had not submitted factual evidence to support that she was injured in
the performance of duty or medical evidence to support a causal relationship between her
claimed injury and employment activities. OWCP afforded her 30 days to submit additional
evidence and respond to its inquiries. It also requested details of appellant’s duties from the
employing establishment.
Dr. Doward submitted a May 15, 2012 report diagnosing bilateral carpal tunnel
syndrome. On examination, he noted a positive carpal tunnel Tinel’s sign, a positive Phalen’s
sign, a negative carpal compression test and a negative Finkelstein’s test. Dr. Doward
recommended that appellant be evaluated for fibromyalgia.
The employing establishment noted that, according to payroll records, appellant had
worked only 0.76 hours of overtime since January 1, 2008, in contrast to her assertion that she
had worked six to seven days per week for 10 to 12 hours per day for the past 28 years. It stated
that, as of April 27, 2011, she was on the periodic rolls for a bilateral foot condition and that she
had been assigned to numerous locations before that time due to difficulty in finding limited-duty
2

This electrodiagnostic study does not appear in the case record.

2

positions within her physical restrictions. The employing establishment noted that appellant first
became aware of her condition on August 9, 2010 and accepted a modified job offer within her
physical restrictions for a bilateral foot condition on August 11, 2010. Appellant’s diagnosis of
carpal tunnel syndrome came nearly a year after her last workday.
By decision dated July 17, 2012, OWCP denied appellant’s claim. It found that she had
not established that her diagnosed condition was causally related to her federal employment,
noting that she had not worked in a federal position since April 27, 2011 and that there was no
medical evidence prior to April 5, 2012 supporting that she had carpal tunnel syndrome.
Appellant, through her representative, requested an oral telephonic hearing before an
OWCP hearing representative and submitted additional medical evidence.
Dr. Kitay noted that appellant had full range of motion in her wrists and fingers with no
evidence of weakness, instability or tenderness. His April 20, 2012 report observed negative
Tinel’s and median nerve compression tests on examination. Dr. Kitay told appellant that a
steroid injection could be instructive for treatment and that if it provided her with relief it could
support a diagnosis of carpal tunnel syndrome, as she did not have localizing findings on
examination. Appellant was not interested in this course of treatment and continued using her
brace. Dr. Kitay did not recommend an operative approach to treatment.
Dr. Kitay reiterated his finding on May 24, 2012 and noted that appellant thought her
pain was related to working at the employing establishment since 1983. Appellant noted that she
performed repetitive activities such as casing mail and using a machine to make packages and
that she had been out of work for a year. Dr. Kitay noted that appellant stated that her pain
began about a year ago. He told her that he could not say with certainty what the source of her
symptoms was for several reasons: he was not certain of the source of her pain, her condition
did not improve when she stopped performing repetitive activities and it was not clear that carpal
tunnel syndrome was the source of her symptoms or caused by prior use. On examination,
Dr. Kitay observed that both Tinel’s and median nerve compression tests were negative.
Appellant testified at the telephonic hearing on November 12, 2012 that she used to
perform mail sorting on an old letter sorting machine (LSM), on which she would key in
thousands of ZIP codes on any given day. After these machines were retired, she used a flat
sorter to key in 5,000 pieces of mail per day. Appellant noticed that, when she was casing mail,
her hands and fingers would cramp up and that sometimes her fingers would tingle at night. She
noted that Dr. Kitay was reluctant to give a statement of causal relationship and that she had
requested such a statement several times. The hearing representative held the record open for 30
days for submission of additional evidence.
By letter of November 18, 2012, appellant submitted a description of her duties at the
employing establishment since October 31, 1983. As an LSM clerk, she would use a piano-like
keyboard for an hour at a time, then load the machine for 15 minutes and begin using the
keyboard again, for 8 to 10 hours per day. As a manual letter clerk, appellant would grab mail
with one hand and put mail in a holdout with another, processing over 1,000 pieces of mail per
day. As a manual flat clerk, she would do the same duties as a manual letter clerk, but with
magazines and large envelopes. As a flat sorting machine clerk, appellant would use a keyboard

3

for 45 minutes to an hour at a time and, along with five other clerks, she would enter 45,000 to
50,000 pieces of mail per day. As a small parcels and bundles system clerk, she would work at a
conveyor belt, positioning packages with her left hand and entering information with her right
hand and lift packages of up to 70 pounds.
The hearing representative denied appellant’s claim, by decision dated February 1, 2013,
finding that she had failed to establish that her claimed carpal tunnel syndrome was caused by
factors of her federal employment. The hearing representative noted that OWCP had not
received a reasoned medical opinion from a qualified physician supporting a causal relationship
between her work duties and her claimed condition.
Appellant, through her representative, requested reconsideration on May 16, 2013.
In a report dated April 23, 2013, Dr. William C. Daniels, a Board-certified orthopedist,
reviewed appellant’s medical records and provided an opinion on the cause of her condition. He
noted that while there were no definitive physical findings consistent with bilateral carpal tunnel
syndrome, the objective electrophysiologic study supported the diagnosis. Dr. Daniels stated
that appellant had an appropriate symptomatic history of carpal tunnel syndrome, that not all
cases involving this condition resulted in symptoms identifiable by clinical examination and that
her condition was of this type. He noted that she had worked for the employing establishment
for 29 years, keying in codes and handling 1,000 pieces of mail per day. Dr. Daniels opined that
“in the absence of other causative factors, it is, to a reasonable degree of medical certainty, most
probably, that the etiology of [appellant’s] bilateral carpal tunnel syndrome is consistent with her
on job, postal/clerical duties of 29+ years.”
By decision dated July 24, 2013, OWCP affirmed its prior decision denying appellant’s
claim. It stated that, while Dr. Daniels had provided an affirmative statement on the issue of
causal relationship, it was of little probative value, because it had merely been based on a
presumption that other possible causes could not be identified.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
3

Gary J. Watling, 52 ECAB 278, 279 (2001); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Michael E. Smith, 50 ECAB 313, 315 (1999).

4

statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.5 An award of
compensation may not be based on appellant’s belief of causal relationship. Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. 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.8 The weight of
medical evidence is determined by its reliability, its probative value, its convincing quality, the
care of analysis manifested and the medical rationale expressed in support of the physician’s
opinion.9
ANALYSIS
Appellant alleged that she sustained carpal tunnel syndrome as a result of duties of her
employment as a mail processor. OWCP denied her claim, finding that the medical evidence
was insufficient to support that her condition was caused or aggravated by factors of
employment. The Board finds that appellant failed to meet her burden of proof to establish an
injury as a result of factors of her federal employment.
Appellant submitted reports from Drs. Kitay and Doward dated from April 5 through
May 24, 2012. The Board has held that medical evidence that does not opine as to the causal
relationship between an appellant’s injury and specified work-related factors is of diminished

5

Roma A. Mortenson-Kindschi, 57 ECAB 418, 428 n.37 (2006); Katherine J. Friday, 47 ECAB 591, 594 (1996).

6

P.K., Docket No. 08-2551 (issued June 2, 2009); Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

7

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117, 123 (2005).

8

Leslie C. Moore, 52 ECAB 132, 134 (2000).

9

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

5

probative value on the issue of causal relationship.10 The reports from Drs. Kitay and Doward
contain diagnoses of bilateral carpal tunnel syndrome, but lack opinions supporting a causal
relationship between these diagnoses and specific work-related factors. The report of Dr. Kitay
dated May 24, 2012 discusses causation, but clearly states that he could not render an opinion
with any degree of certainty regarding the cause of appellant’s condition. Therefore, these
reports were not sufficient to establish a causal connection between her duties as a mail
processor and her carpal tunnel syndrome.
In support of her request for reconsideration, appellant submitted a report regarding
causation from Dr. Daniels dated April 23, 2013. Dr. Daniels stated that appellant had an
appropriate symptomatic history of carpal tunnel syndrome and that not all cases involving this
condition resulted in symptoms identifiable by clinical examination. He asserted that appellant’s
case was of this variety. Dr. Daniels noted that she had worked for the employing establishment
for 29 years, keying in codes and handling 1,000 pieces of mail per day. Regarding appellant’s
history of injury, he noted that her symptoms began in 2011 approximately one year before she
sought treatment with other medical providers.
The Board notes that appellant has explained that she worked in her capacity as a mail
processor until August 19, 2010 and then worked light duty until she was placed on the periodic
rolls for another injury on April 27, 2011. Dr. Daniels offered no explanation as to why her
carpal tunnel condition would only have required diagnosis and medical treatment in 2012, if in
fact she last performed her repetitive mail processor duties in 2010. He opined that “in the
absence of other causative factors, it is, to a reasonable degree of medical certainty, most
probably, that the etiology of [appellant’s] bilateral carpal tunnel syndrome is consistent with her
on job, postal/clerical duties of 29+ years.”
As noted, appellant must submit medical evidence with a rationalized opinion on the
causal relationship between a diagnosed condition and the identified employment factors. To be
rationalized, the opinion of a 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.11 The Board finds that
Dr. Daniels did not explain with a complete factual and medical background the nature of the
relationship between appellant’s carpal tunnel syndrome and specific employment factors.
Dr. Daniels’ April 23, 2013 report noted duties of her federal employment, reviewed her
complete medical records regarding the claimed condition and stated that despite a lack of
findings supportive of a diagnosis of carpal tunnel syndrome on examination, the objective
electrophysiologic study established the existence of her condition. However, he did not explain
in detail how appellant’s noted duties caused or aggravated her condition. The Board has held
that the fact that a condition manifests itself or worsens during a period of employment12 or that
work activities produce symptoms revelatory of an underlying condition does not raise an
10

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

11

Leslie C. Moore, supra note 8.

12

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

inference of causal relationship between a claimed condition and employment factors.13
Therefore, Dr. Daniels’ April 23, 2013 report does not establish appellant’s claim for workrelated carpal tunnel syndrome.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s conditions became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.14 As she did not submit medical evidence in support of
her claim containing a physician’s rationalized opinion that she developed carpal tunnel
syndrome as a result of identified employment factors, she has not met her burden of proof to
establish a causal relationship between her condition and work-related duties.
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 did not establish that she sustained carpal tunnel syndrome
causally related to factors of her federal employment.

13

B.B., Docket No. 13-256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

14

See D.U., Docket No. 10-144 (issued July 27, 2010); D.I., 59 ECAB 158, 162 (2007); Robert Broome, 55
ECAB 339, 341 (2004).

7

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8


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

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Appearances:
Jeffery Fultz, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0947
Issued: March 8, 2018

Case Submitted on the Record

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

JURISDICTION
On March 28, 2017 appellant, through her representative, filed a timely appeal from a
February 21, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the February 21, 2017 decision. However,
since the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt,
57 ECAB 126 (2005).

ISSUE
The issue is whether appellant met her burden of proof to establish a right knee condition
causally related to accepted factors of her federal employment.
FACTUAL HISTORY
On January 10, 2017 appellant, then a 59-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that she sustained severe pain, limitation of her right knee,
and inability to walk normally as a result of her work duties. She first became aware of her
condition on June 29, 2009 and first realized its relation to her federal employment on
February 13, 2015. The claim form did not indicate whether appellant stopped work. Appellant
explained that she had multiple treatments and was able to return to full duty with few or no
restrictions, but after a period of returning to normal duties, the aggravation and pain returned
and worsened each time.
In an undated narrative statement, appellant explained that she had worked as a letter
carrier since October 1988. She related that the majority of her routes were “park and loop,”
which required being on her feet for 8 to 12 hours per day while walking long distances between
houses, climbing stairs, and carrying a satchel weighing as much as 35 pounds. Appellant
indicated that when she moved to Las Vegas, NV her route involved walking across rocks and
desert landscaping. She noted that she also worked “over the curb” routes, which involved
mounting and dismounting her vehicle hundreds of times a day. Appellant related that she
experienced occasional trip and falls at work, but she always recovered from these injuries. She
reported that she had two right knee surgeries in 2009 and 2010 for a meniscus tear. Appellant
explained that after intense therapy she was able to return to work after both surgeries. She
indicated that she continued to have “flare-ups” of pain and had periodic visits to a physician to
help reduce the swelling. Appellant related that in February 2015 she sustained a bad fall on the
job. She explained that she did not report it immediately because she thought it was a simple
injury. Appellant noted that the pain began to worsen and she developed an embarrassing limp.
She indicated that in April 2015 she fell down again and sustained injuries to her right knee and
back. Appellant recounted the medical treatment that she had received. She alleged that
carrying mail was most certainly making her knee worse. Appellant explained that, as mail
volumes increased, the stress on her right knee also increased as the loads of mail she had to
carry got heavier and heavier. She noted that she could barely walk after carrying mail during an
eight-hour day.
Appellant provided a detailed description of her employment duties. She indicated that
she cased mail for an average of two hours per day, which required squatting to lift mail trays
from the floor to the ledge and twisting from the left to the right. Appellant then placed the
cased mail in trays weighing as much as 20 to 30 pounds and loaded them into a hamper for
delivery. She noted that the hampers weighed as much as 450 pounds. Appellant explained that
pushing the hamper to her delivery vehicle required going up a steep ramp and involved her
having to brace her legs. She related that to load her delivery vehicle she had to partially squat,
lift, and push the mail and parcels into the vehicle. Appellant reported that she stepped down
2 to 10 steps approximately 46 times per day, walked 7,200 paces per hour or 43,200 per day,

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climbed steps from her vehicle approximately 244 times per day, bent over 45 times per day with
various weights, and squatted and stooped at least 55 times per day.
In a May 12, 2009 letter, Dr. Randall E. Yee, an osteopath specializing in orthopedic
surgery, related appellant’s complaints of right knee pain, which had aggravated her for two
weeks. He noted that she denied any specific injuries or trauma. Upon physical examination of
appellant’s right knee, Dr. Yee reported medial joint tenderness, crepitation, and a small
effusion. He indicated that x-ray examination reports showed right knee early degenerative joint
disease and possible meniscus tear.
Dr. Xin Nick Liu, an osteopath specializing in orthopedic surgery and sports medicine,
also treated appellant. In letters dated June 29 to July 27, 2009, he indicated that she was given a
cortisone injection to the right knee during her last visit and experienced two to three days of
relief, but the pain returned within the last week or so. Upon physical examination of appellant’s
right knee, Dr. Liu reported minimal effusion, medial joint line tenderness, and positive
McMurray’s test. Range of motion was 0 to 130 degrees. Neurovascular examination was
normal. Dr. Liu related that a right knee magnetic resonance imaging (MRI) scan showed a
posterior root tear of the medial meniscus and a ganglion cyst at the medial head of the
gastrocnemius area. He diagnosed right knee pain and questionable tear of the posterior horn of
the medial meniscus.
In a June 29, 2009 work status form, Dr. Liu indicated that appellant was able to return to
sedentary work for two weeks.
Appellant submitted a June 30, 2009 letter from C.C., acting postmaster, offering her a
light-duty assignment for the period June 29 to July 7, 2009.
Dr. Michael Todd, a diagnostic radiologist, provided various diagnostic reports of
appellant’s right knee. In a July 6, 2009 MRI scan report, he noted a medial meniscal root tear
and complex ganglion cyst associated with the medial head of the gastrocnemius. In a July 6,
2009 ultrasound report, Dr. Todd indicated an unremarkable examination of appellant’s right
lower extremity.
In an October 27, 2009 right knee MRI scan report, Dr. Keir Hales, a Board-certified
diagnostic radiologist, noted internal development of probable osteochondral defects and body
edema within the medial femoral condyles and medial tibial plateau, interval development of a
large joint effusion, increased signal abnormality within the medial collateral ligament, definite
meniscal tear, and stable complex ganglion cyst.
On November 17, 2009 appellant underwent right knee arthroscopy surgery.
Appellant provided several reports from Dr. Liu dated November 30, 2009 to
March 8, 2010. Dr. Liu noted that she was treated for follow-up of right knee surgery and
complaints of continued right knee pain and swelling. Upon physical examination of appellant’s
right knee, he reported +2 effusion and range of motion of 0 to 120 degrees. Dr. Liu noted no
instability to varus or valgus stress at 0 to 30 degrees and negative Lachman and anterior and
posterior drawer test. He diagnosed right knee pain, Grade 2-3 arthritis, and post-partial
meniscectomy. In the March 8, 2010 report, Dr. Liu related that a right knee MRI scan showed
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an extensive retear of appellant’s medial meniscus and bone contusion at the medial tibia
plateau. He diagnosed right knee pain, moderate arthritis, and retear of the medial meniscus.
In a March 4, 2010 right knee MRI scan interpretation report, Dr. Donald L. Resnick, a
Board-certified radiologist, noted status post knee arthroscopy, diffuse areas of high-grade
cartilage loss of the weight bearing surfaces of the medial femorotibial compartment, moderategrade chondral fissuring of the medial facet of the patella, and large joint effusion.
Dr. Liu also provided work status notes dated March 3 to 9, 2010, which indicated a
diagnosis of right knee pain and related that appellant was unable to work until March 29, 2010.
On March 9, 2010 appellant underwent another right knee surgery.
Appellant submitted various medical reports dated March 22 to June 14, 2010 by Dr. Liu
who indicated that she was seen for follow-up examination of right knee pain, arthritis, and
postoperation right knee arthroscopy. Upon physical examination of appellant’s right knee,
Dr. Liu reported minimum effusion and no instability to varus or valgus stress test.
Neurovascular examination was normal. Range of motion was 0 and 30 degrees. Dr. Liu
diagnosed status post right knee arthroscopy, chondroplasty, right knee pain, and arthritis. He
also provided work status notes dated May 21 to July 2, 2010, which indicated that appellant
could return to work with restrictions.
In reports dated April 25, 2012 to March 18, 2013, Dr. Liu noted that appellant was
examined for follow-up of right knee pain and arthritis. In an August 20, 2012 report, he related
that she fell about a week ago on steps and began to experience right knee swelling and pain.
Upon physical examination of appellant’s right knee, Dr. Liu reported positive medial and lateral
joint line pain. McMurray’s, Lachman’s, and anterior and posterior drawer tests were negative.
Dr. Liu indicated no atrophy, deformity, effusion, instability, or varus or valgus stress at 0 to 30
degrees. Range of motion was 0 to 130 degrees. Dr. Liu diagnosed right knee pain and arthritis.
He provided work status notes dated April 25 and October 22, 2012, which indicated that
appellant could return to work with restrictions.
Dr. Liu continued to treat appellant. In reports dated May 23 and June 6, 2013, he noted
that she was examined for right calf pain and minimal swelling. Upon physical examination of
appellant’s right calf, he reported minimal tenderness and no pain with range of motion.
Neurovascular examination was normal. Dr. Liu diagnosed improving right calf strain. He
provided a May 28, 2013 work status note, which indicated that appellant could work a sit
down/standing job for one week.
On May 24, 2013 appellant was offered a temporary light-duty assignment.
In an October 17, 2013 report, Dr. Liu related appellant’s complaints regarding her right
knee pain. Upon physical examination of her right knee, he reported positive medial and lateral
joint line pain. Dr. Liu reported right knee degenerative joint disease. He recommended right
knee injections. Dr. Liu provided a work status note, which indicated that appellant could return
to work on October 18, 2013 with restrictions of limited stair climbing.

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In reports dated April 6 to 29, 2015, Dr. Michael Trainor, an osteopath specializing in
orthopedic surgery, related that on April 2, 2015 appellant was pushing a metal cart at work
when she slipped and fell down on asphalt. He noted that she began to experience back pain, but
did not complain of any lower extremity numbness, tingling, or weakness. Dr. Trainor
diagnosed low back pain, status post recent fall at work, age-appropriate lumbar spondylosis, and
acute L1 compression deformity to rule out acute fracture.4
Dr. Liu related in a May 7, 2015 report that appellant had received a cortisone injection
during her previous examination, but the pain had now returned. Upon physical examination of
her right knee, he reported positive medial and lateral joint line pain and tenderness. Dr. Liu
noted no atrophy, deformity, effusion, or instability to varus or valgus stress at 0 to 30 degrees.
He related that a right knee x-ray examination showed moderate-to-severe arthritis. Dr. Liu
diagnosed right knee pain and arthritis.
Appellant received treatment from Megan Ripoll, a certified physician assistant, who
indicated in a June 18, 2015 report, appellant’s complaints of left knee pain. Upon physical
examination of appellant’s left knee, she reported no atrophy, deformity, effusion, or instability
to varus or valgus stress. Ms. Ripoll noted medial and lateral joint line pain. She diagnosed left
knee arthritis. The report included a handwritten note, which indicated: “this should be ‘right
knee.’”
In reports dated June 1 to 18, 2015, Dr. Liu related that appellant was seen for follow-up
of right knee pain and arthritis. Upon physical examination of her right knee, he reported
minimum effusion and medial and lateral joint line tenderness. Dr. Liu noted no instability to
varus or valgus stress test at 0 and 30 degrees and normal neurovascular examination. He
diagnosed right knee pain and arthritis. Dr. Liu administered a right knee injection.
In a June 25, 2015 report, Dr. Liu related appellant’s complaints of right knee pain and
arthritis. Upon physical examination of her right knee, he reported minimum effusion and
medial and lateral joint line tenderness. Range of motion was 0 to 130 degrees with no
instability to varus or valgus stress at 0 to 30 degrees. Dr. Liu diagnosed right knee pain and
arthritis.
Dr. Liu indicated in an October 15, 2015 report that appellant had three injections in her
last visit, but still had difficulty walking. Upon physical examination, he reported minimum
effusion and medial and lateral joint line tenderness. Neurovascular examination was normal.
Dr. Liu noted range of motion of 0 to 130 degrees and no instability to varus or valgus. He
diagnosed right knee pain and severe arthritis. Dr. Liu indicated that he discussed all the
treatment options with appellant and that she elected to proceed with right knee surgery. He
provided a work status note, which authorized that she return to work with restrictions of no stair
climbing.
In a November 17, 2016 report, Dr. Liu related appellant’s complaints of progressively
worsening right knee pain and severe arthritis. He indicated that x-rays of her right knee showed
4
OWCP continued to receive medical reports from Dr. Trainor detailing his treatment of appellant’s lumbar
condition following the April 2, 2015 slip and fall.

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bone on bone arthritis and no fracture, dislocation, or acute bony abnormalities.
diagnosed right knee pain and bone on bone arthritis.

Dr. Liu

In a letter dated January 18, 2017, OWCP advised appellant that the evidence submitted
was insufficient to establish her occupational disease claim. It requested that she complete the
attached development questionnaire to substantiate the factual elements of her claim and provide
medical evidence to establish a diagnosed condition as a result of her federal employment.
Appellant was afforded 30 days to submit the requested information.
Appellant provided a letter dated January 25, 2017. She noted that she had previously
submitted a five-page statement describing the employment factors she believed contributed to
her condition. Appellant resubmitted her undated statement. She also alleged that she submitted
a physician’s opinion that her condition was caused or aggravated by her work. Appellant
resubmitted Dr. Liu’s November 17, 2016 report.
In a February 14, 2017 report, Dr. Liu listed the medical reports that he reviewed dated
from May 2009 to October 2015. He related that he first examined appellant on May 12, 2009
for complaints of left knee pain for the past two weeks. Dr. Liu reviewed the medical treatment
that she had received, including the right knee surgeries on November 17, 2009 and
March 9, 2010. He indicated that appellant continued to receive follow-up medical treatment
from him due to increasing right knee pain after multiple falls at work. Dr. Liu diagnosed right
knee primary osteoarthritis. He recommended a total knee arthroplasty.
Dr. Liu reviewed appellant’s employment duties and noted that the duties required
twisting from the left to right while sorting mail, squatting to lift and load mail trays into
vehicles, pushing hampers up an incline, and walking over uneven terrain while delivering mail.
He reported that: “after reviewing [appellant’s] detailed job description, this repetitive high
impact, and load bearing activity contributes to aggravating her diagnosis of severe knee
arthritis. This permanent aggravation was caused by repetitive years of walking, standing,
climbing stairs, and squatting with a loaded satchel.” Dr. Liu explained that, as the knee flexes,
the instant center of rotation moves posteriorly. He further related that the tibiofemoral joint
reaction force was three times the body weight when walking and four times the body weight
when climbing. Dr. Liu also indicated that squat activity was stressful to the knee and created
patella femoral joint reaction force 7.6 times the body weight. He reported that walking,
climbing, and squatting especially with the carrying of additional weight could cause an
aggravation to cartilage deficiencies and increased speed of cartilage deterioration. Dr. Liu
concluded that the “large number of hours spent walking, climbing, carrying a loaded satchel,
and heavy packages across uneven terrain, and up and down ramps and stairs [had] caused a
permanent aggravation and increased speed of cartridge deterioration of [appellant’s] right knee
arthritis.”
On February 15, 2017 OWCP received appellant’s response to its development letter.
Appellant explained that the injury she was claiming was a near total deterioration of cartilage in
her right knee. She described the employment activities which she believed contributed to her
condition as long periods of standing, walking, squatting, and lifting of thousands of pounds of
mail and parcels on a continuous basis, walking on uneven surfaces, previous stair climbing and
current stepping up and down with loads daily, and twisting and turning while carrying loads.

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Appellant indicated that she performed these activities daily and on a full-time basis of 8 hours
per day, 40 to 48 hours per week. She also noted that she had numerous falls over the years and
two surgeries, but the condition continued to resurface in the course of her job duties. Appellant
asserted that she had not engaged in sports or strenuous athletics other than her job.
OWCP denied appellant’s claim by decision dated February 21, 2017. It accepted her
employment duties as a mail carrier and a diagnosed right knee condition, but denied the claim
because the medical evidence of record was insufficient to establish that her right knee condition
was causally related to the accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence5 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.6 In an occupational disease claim, an employee’s burden
requires submission of the following: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
Appellant alleged that she sustained a right knee condition as a result of her federal
employment duties. OWCP accepted her duties as a letter carrier and that she suffered from a
diagnosed right knee condition. It denied appellant’s claim, however, because it found that the
medical evidence of record was insufficient to establish that her right knee condition was

5

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

6
M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
7

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

8

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

9

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

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causally related to factors of her employment. The Board finds that the case is not in posture for
decision.
Appellant submitted various reports by Dr. Liu dated June 29, 2009 to February 14, 2017.
In the February 14, 2017 report, Dr. Liu reviewed her employment history and duties and opined
that her severe right knee arthritis was caused by repetitive years of walking, standing, climbing
stairs, and squatting with a loaded satchel. He explained how the center of rotation of the knee
moved when flexing and described the various reaction forces the knee absorbs when walking,
climbing, and squatting. Dr. Liu reported that these repetitive duties caused an aggravation to
cartilage deficiencies and increased speed of cartilage deterioration. The Board notes that,
although these reports do not provide medical rationale explaining how appellant’s employment
duties caused or contributed to a permanent aggravation of her right knee arthritis, they strongly
suggest and support a causal relationship between factors of her employment and her right knee
condition.10
The Board finds that, while the reports from Dr. Liu do not contain rationale sufficient to
completely discharge appellant’s burden of proof, they are not contradicted by any substantial
medical or factual evidence of record and are sufficient to require OWCP to further develop the
medical evidence of record.11 It is well-established that proceedings under FECA are not
adversarial in nature and OWCP is not a disinterested arbiter.12 While the claimant has the
burden of proof to establish entitlement to compensation, OWCP shares responsibility in the
development of the evidence and to see that justice is done.13 Thus, the Board will remand the
case to OWCP for further development to obtain a rationalized medical opinion as to whether
appellant’s right knee condition is causally related to factors of her federal employment and issue
a de novo decision on whether she sustained a right knee condition causally related to the
accepted factors of her federal employment.
CONCLUSION
The Board finds that this case is not in posture for decision.

10
See G.C., Docket No. 16-0666 (issued March 17, 2017); see also L.F., Docket No. 14-1906 (issued
August 13, 2015).
11

Richard E. Simpson, 55 ECAB 490, 500 (2004); John J. Carlone, 41 ECAB 354, 360 (1989).

12

See Vanessa Young, 56 ECAB 575 (2004).

13
Donald R. Gervasi, 57 ECAB 281, 286 (2005); Jimmy A. Hammons, 51 ECAB 219 (1999); William J. Cantrell,
34 ECAB 1233, 1237 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 8, 2018
Washington, DC

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

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

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

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