United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
DALLAS VA MEDICAL CENTER, Dallas, TX,
Employer
__________________________________________

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

Docket No. 21-0492
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On February 12, 2021 appellant filed a timely appeal from a January 4, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $74,899.31, compromised to $48,961.60, for
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 4, 2021 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.

which he was without fault, because he concurrently received FECA wage-loss compensation and
Social Security Administration (SSA) age-related retirement benefits for the period June 1, 2006
through July 18, 2020, without an appropriate offset; (2) whether OWCP properly denied waiver
of recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $475.00 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On December 13, 2005 appellant, then a 63-year-old program support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on November 30, 2005 he injured his lower back
when lifting boxes while in the performance of duty. He stopped work on December 1, 2005 and
returned to work on December 12, 2005. OWCP accepted the claim for lumbar sprain/strain,
lumbosacral spondylosis without myelopathy, and degeneration of lumbosacral intervertebral disc.
A February 5, 2006 notification of personnel action (PS Form 50) noted appellant’s retirement
plan as “K” Federal Employees Retirement System (FERS) and Federal Insurance Contributions
Act (FICA). OWCP paid him wage-loss compensation on its supplemental rolls from February 5,
2006 through August 30, 2008 and on its periodic compensation rolls as of August 31, 2008.
On November 7, 2019 OWCP forwarded a FERS/SSA benefits calculation worksheet to
the SSA to obtain information necessary for a determination of whether an offset of compensation
benefits was required.
On November 21, 2019 OWCP received from SSA a November 13, 2019 FERS/SSA dual
benefits calculation form, which indicated that appellant had been in receipt of SSA age-related
retirement benefits since June 2006. The form showed appellant’s SSA benefit rates with and
without a FERS offset as follows: beginning June 2006, the SSA rate with FERS was $1,166.00
and without FERS was $788.60; beginning December 2006, the SSA rate with FERS was
$1,205.00 and without FERS was $814.60; beginning December 2007, the SSA rate with FERS
was $1,232.00 and without FERS was $833.20; beginning December 2008, December 2009, and
December 2010, the SSA rate with FERS was $1,304.00 and without FERS was $881.60;
beginning December 2011, the SSA rate with FERS was $1,351.00 and without FERS was
$913.20; beginning December 2012, the SSA rate with FERS was $1,373.00 and without FERS
was $928.70; beginning December 2013, the SSA rate with FERS was $1,394.00 and without
FERS was $942.60; beginning December 2014 and December 2015, the SSA rate with FERS was
$1,418.00 and without FERS was $958.60; beginning December 2016, the SSA rate with FERS
was $1,422.00 and without FERS was $961.50; beginning December 2017, the SSA rate with
FERS was $1,450.00 and without FERS was $980.70; and beginning December 2018, the SSA
with FERS was $1,491.00 and without FERS was $1,008.10.
On December 19, 2019 OWCP again forwarded a FERS/SSA benefits calculation
worksheet to SSA. On January 17, 2020 it received from SSA a January 10, 2020 FERS/SSA dual
benefits calculation form, which indicated that, beginning December 2019, appellant’s SSA rate
with FERS was $1,515.20 and without FERS was $1,024.20.
OWCP completed a FERS offset calculation worksheet on July 29, 2020. It calculated the
overpayment amount by determining the daily FERS offset amount and multiplying th at amount

2

by the number of days in each period June 1, 2006 through July 18, 2020, resulting in a total
overpayment of $74,899.31. The form indicated that: from June 1 through November 30, 2006,
appellant received an overpayment in the amount of $2,276.84; from December 1, 2006 through
November 30, 2007, appellant received an overpayment in the amount of $4,697.67; from
December 1, 2007 through November 30, 2008, appellant received an overpayment in the amount
of $4,807.07; from December 1, 2008 through November 30, 2011, appellant received an
overpayment in the amount of $15,248.18; from December 1, 2011 through November 30, 2012,
appellant received an overpayment in the amount of $5,282.47; from December 1, 2012 through
November 30, 2013, appellant received an overpayment in the amount of $5,346.25; from
December 1, 2013 through November 30, 2014, appellant received an overpayment in the amount
of $5,431.68; from December 1, 2014 through November 30, 2016, appellant received an
overpayment in the amount of $11,071.04; from December 1, 2016 through November 30, 2017,
appellant received an overpayment in the amount of $5,541.18; from December 1, 2017 through
November 30, 2018, appellant received an overpayment in the amount of $5,647.07; from
December 1, 2018 through November 30, 2019, appellant received an overpayment in the amount
of $5,810.72; and from December 1, 2019 through July 18, 2020, appellant received an
overpayment in the amount of $3,739.15.
On August 20, 2020 OWCP issued a preliminary overpayment determination, finding that
an overpayment of compensation in the amount of $74,899.31 had been created because it had
failed to reduce appellant’s wage-loss compensation payments for the period June 1, 2006 through
July 18, 2020 to offset his SSA age-related retirement benefits that were attributable to federal
service. It also determined that he was without fault in the creation of the overpayment. OWCP
requested that appellant submit a completed overpayment recovery q uestionnaire (Form OWCP20) to determine a reasonable repayment method and advised him that he could request a waiver
of the overpayment. It further requested that he provide supporting financial documentation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. Additionally, OWCP further provided an overpayment
action request form and notified appellant that, within 30 days of the date of the letter, he could
request a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing. Appellant did not respond.
By decision dated January 4, 2021, OWCP finalized the August 20, 2020 preliminary
overpayment determination for the period June 1, 2006 through July 18, 2020.3 It found that
appellant had received an overpayment of compensation in the amount of $74,899.31, which was
reduced to $48,961.60 by compromise. OWCP further found that he was not at fault in the creation
of the overpayment, but denied waiver of recovery of the overpayment as he had not submitted
evidence to substantiate that adjustment or recovery of the overpayment would defeat the purpose
of FECA or be against equity and good conscience. It required recovery by deducting $475.00
every 28 days from appellant’s continuing compensation payments.

3

OWCP erroneously noted the overpayment period as June 1, 2006 through July 19, 2020. The overpayment was
calculated through July 18, 2020, as noted in the preliminary overpayment determination.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) 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 his
or her federal employment. 4 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.5 When an overpayment of compensation has
been made to an individual because of an error of fact or law, adjustment shall be made under
regulations prescribed by the Secretary of Labor by decreasing later payments to which the
individual is entitled.6
Section 10.421(d) of FECA implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-based 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
The determination that the debt has been compromised does not carry the right to a hearing
or to review by the Board. 9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset.
The evidence of record indicates that, while appellant was receiving wage -loss
compensation benefits under FECA, he also was receiving SSA age-related retirement benefits
based upon his federal service. A claimant cannot receive both compensation for wage-loss
compensation benefits under FECA and SSA age-related retirement benefits attributable to federal
service for the same period. 10 The information provided by SSA established that appellant
4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

Id. at § 8129(a).

7

20 C.F.R. § 10.421(d); see T.B., Docket No. 18-1449 (issued March 19, 2019); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (issued February 3, 1997); see M.S., Docket No. 20-0068 (issued May 14, 2021).

9

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.6
(September 2020).
10

Id.

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received SSA age-related retirement benefits that were attributable to federal service during the
period June 1, 2006 through July 18, 2020. Consequently, the fact of overpayment has been
established. 11
To determine the amount of the overpayment, the portion of SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amounts of SSA age-related retirement benefits that were attributable to
federal service. SSA provided its benefit rates with FERS and without FERS for specific periods
June 2006 through December 2019. OWCP provided its calculations for each relevant period
based on the SSA worksheet and properly determined that appellant received an overpayment of
compensation in the amount of $74,899.31, compromised to $48,961.60.
The Board, thus, finds that appellant received an overpayment of compensation in the
amount of $74,899.31, compromised to $48,961.60, for the period Ju ne 1, 2006 through
July 18, 2020.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience. 12
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines. 13
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 14 Additionally, recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment would experience severe financial hardship in attempting to repay the
debt or when an individual, in reliance on such payment or on notice that such payments would be
made, gives up a valuable right or changes his or her position for the worse. 15

11

P.B., Docket No. 20-0862 (issued November 25, 2020); R.C., Docket No. 19-0845 (issued February 3, 2020);
A.F., Docket No. 19-0054 (issued June 12, 2019).
12

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see M.C., Docket No. 19-0699 (issued
February 12, 2020).
13

A.C., Docket No. 18-1550 (issued February 21, 2019); see Robert Atchison, 41 ECAB 83, 87 (1989).

14

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Supra note 9 at Chapter 6.400.4a(2) (September 2020).
15

Id. at § 10.437(a)(b).

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OWCP’s regulations provide that the individual who received the overpayment is
responsible for providing information about income, expenses, and assets as specified by OWCP.
This information is needed to determine whether or not recovery of an overpayment would defeat
the purpose of FECA or be against equity and good conscience. The information is also used to
determine the repayment schedule, if necessary. 16 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and n o further request
for waiver shall be considered until the requested information is furnished. 17
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. 18
In its preliminary overpayment determination dated August 20, 2020, OWCP explained the
importance of providing the completed overpayment questionnaire and supporting financial
documentation, including copies of income tax returns, bank account statements, bills, pay slips,
and any other records to support income, expenses, and assets. Appellant, however, did not
respond and failed to provide any financial information. As he did not submit the information
required under section 10.438 of OWCP’s regulations, which was necessary to determine his
eligibility for waiver, OWCP properly denied waiver of recovery of the overpayment. 19 Appellant
did not establish that adjustment or recovery of the overpayment would defeat the purpose of
FECA or be against equity and good conscience20 Therefore, the Board finds that OWCP properly
denied waiver of recovery of the overpayment.
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. 21

16

Id. at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

17

Id. at § 10.438(b).

18

Id. § 10.436.

19

Supra note 9 M.S.; D.C., Docket No. 19-0118 (issued January 15, 2020); see S.B., Docket No. 16-1795 (issued
March 2, 2017).
20

Id.

21

20 C.F.R. § 10.441; see M.P., Docket No. 18-0902 (issued October 16, 2018).

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Section 10.441(a) of OWCP s regulations 22 provides in pertinent part:
“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.”23
Under OWCP’s procedures, the compromise of all or part of the overpayment and any
charges may be made depending upon the individual claimant’s financial circumstances in order
to set a repayment schedule. Such a determination is made at the time the repayment schedule is
established. 24 Compromise is a matter which rests in the discretion of OWCP and is not subject
to review by the Board. 25
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$475.00 every 28 days from appellant’s continuing compensation payments.
OWCP gave due regard to the financial information submitted, as well as the f actors set
forth in 20 C.F.R. § 10.441, including the compromised overpayment amount, and found that this
method of recovery would minimize resulting hardship. 26 When, as in this case, no response is
received to the preliminary overpayment determination, OWCP should set the rate of repayment
at 25 percent of the 28 days net compensation amount. 27 The record reflects that appellant was
earning $1,902.77 for 28 days of net compensation benefits. OWCP calculated that 25 percent of
the 28-day net compensation amount equates to $475.69. The Board finds that OWCP properly
required recovery of the overpayment by deducting $475.00 every 28 days from appellant’s
continuing compensation benefits.
On appeal appellant requests debt forgiveness be considered. As he did not provide a
completed Form OWCP-20 overpayment recovery questionnaire and supporting financial

22

Id. at § 10.441(a).

23

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

24

Supra note 9 at Chapter 6.500.6 (September 2020).

25

Id.; see supra note 9; M.S., Docket No. 20-0068 (issued May 14, 2021).

26

M.S., id.; M.B., Docket No. 20-1578 (issued March 25, 2021).

27

Supra note 9 at Chapter 6.500.8(c)(1) (September 2018); see D.C., Docket No. 19-0118 (issued
January 15, 2020).

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documentation as requested in OWCP’s August 20, 2020 letter, OWCP properly denied waiver of
recovery of the overpayment. 28
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $74,899.31, compromised to $48,961.60, for which he was
without fault, because he concurrently received FECA wage-loss compensation and SSA agerelated retirement benefits for the period June 1, 2006 through July 18, 2020, without an
appropriate offset, and that OWCP properly denied waiver of recovery of the overpayment. The
Board further finds that OWCP properly required recovery of the ov erpayment by deducting
$475.00 from his continuing compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 23, 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

28

See 20 C.F.R. § 10.438 (in requesting waiver, the overpaid individual has the responsibility for providing
financial information); see also L.K., Docket No. 17-1393 (issued March 20, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 12-1221
Issued: February 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 15, 2012 appellant, through his attorney, filed an appeal from a March 30, 2012
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 OWCP properly modified its wage-earning capacity determination
effective November 21, 2010.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated August 4, 2010, the
Board affirmed July 14 and 20, 2009 OWCP overpayment decisions.2 The Board found that
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-2067 (issued August 4, 2010).

OWCP properly determined that appellant received a $5,032.67 overpayment of compensation
from March 28, 2008 to April 11, 2009 for the underwithholding of health insurance premiums
and a $2,168.57 overpayment from March 14, 2007 to April 11, 2009 for the underwithholding
of life insurance premiums. The Board further found that it properly denied waiver and required
repayment of both overpayments. The facts and circumstances of the case as set out in the
Board’s prior decision are adopted herein by reference.
OWCP accepted that appellant, then a 39-year-old supervisor of distribution operations,
sustained an emotional condition due to his federal employment. It accepted that events
occurring on November 29, 1995 resulted in anxiety; single episode depressive disorder,
temporary aggravation alcoholism and gastritis. OWCP paid wage-loss compensation for
disability and appellant was referred for vocational rehabilitation services after the employing
establishment advised it could not accommodate his restrictions. By decision dated November 2,
2004, it determined that the selected position of administrative clerk represented his
wage-earning capacity and adjusted his compensation, finding a 59 percent capacity to earn
wages. OWCP found that appellant could earn $560.00 a week in the selected position.
On November 25, 2006 appellant was reinstated as supervisor of distributions. He
stopped work on March 14, 2007 and did not return. On April 10, 2010, following a Merit
Service Protection Board settlement, appellant returned to work as a Labor Relations Specialist.
He worked in that position from April 10, 2010 until May 31, 2011, when he retired.
By letter dated October 8, 2010, OWCP advised appellant that it proposed to modify the
wage-earning capacity determination and reduce his wage-loss compensation to zero. It noted
that he had been rehabilitated in his position as a labor relations specialist, with weekly actual
earnings of $1,099.27, as the employing establishment had provided him classroom and
web-based training3 and that his current position paid 25 percent more than the current pay for
his rated job as administrative clerk.4 OWCP applied the Shadrick formula5 to appellant’s actual
earnings as a labor relations specialist and determined that appellant had no wage loss. It
allowed appellant 30 days to submit additional evidence or argument.
In an October 22, 2010 telephone call, appellant advised OWCP that he was an Executive
and Administrative Step (EAS) schedule 17 at the time of injury.
By decision dated November 10, 2010, OWCP modified its November 2, 2004
wage-earning capacity decision based on a finding that appellant had been vocationally
rehabilitated and that his current job as labor relations specialist paid at least 25 percent more
than the current pay rate of the job for which he was previously rated. It reduced his wage-loss
3

The employing establishment provided a position description for appellant’s labor relations specialist position
and submitted records of his training history which showed that between April 22 and July 28, 2010, appellant took
three web-based and two classroom training classes for his job.
4

In a September 25, 2010 labor market survey, a rehabilitation specialist determined that the current weekly wage
rate for an administrative clerk was $624.80 a week. Twenty-five percent of $624.80 is $156.20. These two
numbers added ($624.80 + 156.20) equals $781.00.
5

Albert C. Shadrick, 5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

2

compensation benefits to zero after finding that he had no loss of wage-earning capacity and his
actual earnings fairly and reasonably represented his wage-earning capacity. OWCP noted the
correct payrate was used as appellant was a grade EAS 16, not 17, at the time of injury.6
On November 23, 2010 counsel requested a telephonic hearing, which was held
March 9, 2011. He argued that the labor relations specialist position was an odd lot or makeshift position as it was created specifically for him. Counsel referenced a March 17, 2010 e-mail
which stated a labor relation specialist position was to be created for appellant. Appellant
testified that the MSPB decision directed the employing establishment to place him in a position
in the Oakland District and that he was not provided with a written job description or job offer.
He asserted that he was not assigned to an area in his labor relations specialist position and that
his duties consisted of opening the mail, filing, making labels and answering telephones, tasks
previously done by the five labor relations specialists.
In an April 25, 2011 statement, Eric Thomas, Manager Labor Relations, responded to the
hearing transcript. He stated that the labor relations specialist position was created specifically
for appellant as the MSPB had ordered the employing establishment to have appellant fill a
legitimate position as his restoration rights had been violated. Mr. Thomas explained that when
appellant had applied for labor relations specialist position, there were two vacant positions and
he was not selected for either position. However due to MSPB’s order appellant was working
legitimate duties for the position. Mr. Thomas stated that appellant knew what was involved in
the labor specialist relation job as the application process disclosed the job description and
appellant had to respond to questions regarding experience, knowledge, skills and abilities. He
stated that appellant had protection through the reorganization/restructuring process and if his
position was eliminated, he would still have a job as other positions were usually available
during reductions in force (RIF) or restructuring and postal employees have certain protection
during such process. Mr. Thomas explained that appellant’s job was not makeshift as appellant
had advocated grievances in arbitration, handled grievances for management at step 2 of the
grievance process and provided advice, guidance and counsel to Field and Plant Operations. He
noted that appellant attended advocacy training and grievance and contract training. Mr. Thomas
explained that the tasks performed by appellant were duties shared to some degree by all labor
relations specialists and had been a part of the unit since he first became a member of the labor
relations operations in 1992. He further stated that he had discussed with appellant many times
his intention to assign him to an area when he became more experienced in labor relations.
Mr. Thomas explained that he trained inexperienced labor relations personnel by acclimating
them through the grievance process as it was critical to the success of becoming well rounded
labor relations specialists. The skill of providing accurate labor relations advice to the field can
only be achieved by interacting with three major labor agreements as a step 2 designee.
Mr. Thomas stated that appellant has received training as a step 2 designee and currently handled
grievances and arbitrations.
Also submitted were documents associated with the MSPB settlement agreement. A
copy of the standard position of labor specialist was provided along with a copy of appellant’s
training history.
6

This is confirmed by appellant’s June 19, 1996 occupational disease claim form.

3

By decision dated May 16, 2011, OWCP’s hearing representative remanded the case for
further development. The hearing representative found that clarification was required from the
employing establishment regarding if appellant had been vocationally self-rehabilitated, if he
was performing the full duties of labor relations specialist and if he had training to obtain the
skills to perform the full duties of that position.
On June 6, 2011 OWCP requested additional information from the employing
establishment. In a July 1, 2011 response, Mr. Thomas stated that the labor relations specialist
position was a full-time position that would probably not be filled should appellant vacate it. He
indicated that appellant’s duties and responsibilities were the same as given in his April 25, 2011
statement. Mr. Thomas noted that appellant had retired effective May 31, 2011. He also stated
that the training listed on the April 25, 2011 statement was designed to enable appellant, and
others, to perform the labor relations specialist job.
By decision dated September 15, 2011, OWCP modified its November 2, 2004
wage-earning capacity decision after finding that appellant had been self-rehabilitated such that
he held the labor relations specialist position for an extended period, from April 10, 2010 until
his retirement on May 31, 2011, that he received specific training to perform such position and
that he earned wages more than the previous job for which he was rated on November 2, 2004.
It determined that he had no loss of wage-earning capacity and his actual earnings fairly and
reasonably represented his wage-earning capacity.
On September 25, 2011 counsel requested a telephonic hearing, which was held on
January 11, 2012. He argued that the labor specialist position was “make-work” and that
appellant was basically a clerk, not a labor relations specialist. Counsel contended that the
employing establishment offered training, which appellant signed up for, then cancelled him
from the training and then terminated his position for not attending the training. Appellant
testified that he was not given a private office when he was hired, as were other labor relations
specialists, and sat in the front office at a desk previously occupied by a clerk. He stated that he
did the filing and telephone calls, but was not assigned cases. Appellant attended meetings and
assisted other labor relations specialists, but never handled any cases himself. He attended
training sessions that was offered or required for everyone in the building, but never received any
specific training for his job as a labor relations specialist. Appellant stated that his training for
newly hired labor relations specialists in March or April 2010 was cancelled by his supervisor,
Mr. Thomas, without any reason and that approximately two weeks later, he was told that the
position was being eliminated due to RIF. He retired in May 2011 as he felt he would be fired if
he did not take the early out retirement package.
By decision dated March 30, 2012, OWCP’s hearing representative affirmed the
September 15, 2011 decision.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.7 When an employee cannot return to the date7

5 U.S.C. § 8102(a).

4

of-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s wage-earning
capacity.8
Once the wage-earning capacity is determined, a modification of such determination is
not warranted unless there is a material change in the nature and extent of the injury-related
condition, the employee has been retrained or otherwise vocationally rehabilitated or the original
determination was, in fact, erroneous. These are the customary criteria for modification and the
burden of proof is on the party attempting to show that modification of the determination is
warranted.9
An increase in pay, by itself, is not sufficient evidence that there has been a change in an
employee’s capacity to earn wages.10 Without a showing of additional qualifications obtained by
appellant, it is improper to make a new loss of wage-earning capacity determination based on
increased earnings.11
With respect to modification of wage-earning capacity, OWCP procedure manual
provides:
“c. Increased Earnings. It may be appropriate to modify the rating on the grounds
that the claimant has been vocationally rehabilitated if one of the following two
circumstances applies:
(1) The claimant is earning substantially more in the job for which he or
she was rated. This situation may occur where a claimant returned to parttime duty with the employing [establishment] and was rated on that basis,
but later increased his or her hours to full-time work.
(2) The claimant is employed in a new job (i.e., different from the job for
which he or she was rated) which pays at least 25 percent more than the
current pay of the job for which the claimant was rated....
“d. CE [Claims Examiner] Actions. If these earnings have continued for at least
60 days, the CE should:
(1) Determine the duration, exact pay, duties and responsibilities of the
current job.
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).
9

Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000); Daniel J. Boesen, 38 ECAB
556 (1987).
10

Marie A. Gonzales, 55 ECAB 395, 399 (2004).

11

See Willard N. Chuey, 34 ECAB 1018 (1983).

5

(2) Determine whether the claimant underwent training or vocational
preparation to earn the current salary.
(3) Assess whether the actual job differs significantly in duties,
responsibilities, or technical expertise from the job at which the claimant
was rated.
“e. If the results of this investigation establish that the claimant is rehabilitated or
if the evidence shows that the claimant was retrained for a different job,
compensation may be redetermined using the Shadrick formula.”12
ANALYSIS
Due to residuals of his 1995 emotional condition, appellant was unable to resume his
previous position as a distribution operations supervisor. OWCP issued a November 2, 2004
wage-earning capacity determination based on a constructed position of administrative clerk. As
part of a MSPB settlement, appellant returned to work as a labor relations specialist and worked
in that position from April 10, 2010 until his retirement on May 31, 2011. On September 15,
2011 OWCP modified the November 2, 2004 wage-earning capacity decision to reflect that he
was vocationally rehabilitated as a labor relations specialist and his current earnings fairly and
reasonably represented his wage-earning capacity. It found that appellant’s salary in the labor
relations specialist job exceeded the current pay rate of an administrative clerk job by more than
25 percent, that he had training and held the labor relations specialist job from April 10, 2010
until his May 31, 2011 retirement, and that he was vocationally rehabilitated. OWCP’s hearing
representative affirmed that decision on March 30, 2012.
Appellant claimed that OWCP failed to meet its burden of proof to establish that he was
vocationally rehabilitated permitting modification of the November 2, 2004 wage-earning
capacity determination. The Board disagrees.
The labor relations specialist position was a permanent full-time position which had a job
description, appellant was given work to perform and he was provided training to perform the
position. He was placed in the labor relations specialist position under an MSPB settlement.
The fact that there was no vacancy announcement or vacancy in the department when appellant
was placed in such position or the fact that he did not have a private office does not establish that
it was a makeshift position. The position of labor relations specialist differs from the constructed
position of administrative clerk, which was strictly clerical in nature. Although appellant may
have performed some clerical duties as part of his position as labor relations specialist, the
evidence reflects that those duties were performed to some extent by all the labor relations
specialists and that this work was part of the training process. He also underwent the same
training that was offered for all new labor relations specialists: he attended and completed
training courses, was acclimated through the grievance process and was advised that he would be
assigned a specific workload when he was more experienced. While his training in Washington,
DC, was cancelled, appellant had completed other training courses which were designed to
enable him to perform the labor relations specialist position and had been performing many of
12

Supra note 8 at Chapter 2.814.11(c)-(e) (October 2009).

6

the job duties of a labor relations specialist, including grievances resolutions. Although he
asserted that his position was slated to be “riffed,” he voluntarily chose instead to retire. The fact
that the employing establishment may have eventually eliminated positions, does not, by itself,
establish that the position held for over a year was makeshift or odd-lot work. Appellant’s
manager also noted that new positions were usually found when there were reorganizations.
Thus there is no evidence that appellant was not vocationally rehabilitated as a labor relations
specialist.
The Board finds that OWCP followed accepted procedures and adequately addressed the
relevant factors for determining that appellant was vocationally rehabilitated. Further appellant
has not disagreed and the evidence reflects that his current pay rate had increased significantly
more than the required 25 percent than the administrative clerk job for which he was rated.
Thus, OWCP met its burden of proof to modify his prior wage-earning capacity determination.
It also properly applied the Shadrick formula to the wages received and found there was no
entitlement to continuing wage-loss compensation.
On appeal, counsel argues the decision is contrary to fact and law. However, for the
above reasons, OWCP properly modified its November 2, 2004 wage-earning capacity
determination. Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to modify appellant’s November 2,
2004 wage-earning capacity determination and determined he had no wage loss.

7

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2013
Washington, DC

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

Alec J. Koromilas, 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

_________________________________________
V.Y., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
FACILITIES ENGINEERING COMMAND -STATIONS, San Diego, CA, Employer
_________________________________________

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

Docket No. 14-828
Issued: November 18, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 25, 2014 appellant, through his representative, filed a timely appeal from the
January 10, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which affirmed the termination of appellant’s compensation benefits effective June 2, 2013.
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 on appeal is whether OWCP properly terminated appellant’s wage-loss
compensation effective June 2, 2013.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 19, 1995 appellant, then a 42-year-old pipefitter, was injured in a motor vehicle
accident in the performance of duty. He stopped work on April 22, 1995. OWCP accepted the
claim for a lumbar sprain and a consequential adjustment disorder, which resolved effective
June 4, 1997. Appellant returned to light-duty work on June 19, 1995 and stopped work on
January 16, 1996 because the employing establishment could not accommodate his work
limitations. He underwent vocational rehabilitation but did not obtain employment.2 On May 2,
2002 OWCP found that appellant was no longer totally disabled and reduced his compensation
based upon his abilities to perform the duties of the constructed position of an information clerk.
On June 11, 2003 it granted a schedule award for three percent permanent impairment of the left
leg. Appellant’s wage-loss compensation was reinstated after the schedule award ended on
August 14, 2003. He submitted work capacity evaluation forms from Dr. Antonio V. Yu, Jr., a
Board-certified internist, indicating that he remained partially disabled and could not work more
than two hours a day.
On March 5, 2013 OWCP referred appellant for a second opinion, along with a statement
of accepted facts, a set of questions and the medical record to Dr. Ronald Lampert, a Boardcertified orthopedic surgeon.
In a March 20, 2013 report, Dr. Lampert noted appellant’s history of injury and treatment
and noted his examination of appellant. His findings included that appellant walked with a cane
in his right hand with a left antalgic gait. Dr. Lampert indicated that appellant could not stand on
his heels or toes because of pain in his back. He determined that forward flexion was 5 to 10
degrees and side to side bending was 5 to 10 degrees. Dr. Lampert advised that with “hardly
touching his skin in the low back area he complains of pain in the low back. With minimal,
pressure downward on his shoulders and minimal pressure downward on his head, appellant has
severe pain in the low back area. With his arms at his sides and turning his entire trunk as one to
the left and right he has pain in the low back area.”
Dr. Lampert advised that “straight leg raise in the sitting position is to 90 degrees;
however, in the supine position, straight leg raise bilaterally is to 10 degrees. However,
appellant is able to sit up on the examining table with his knees essentially straight and his hips
flexed at 90 degrees, which is essentially a 90-degree straight leg raise test. Strength of the hip
flexors, knee extensors, hip abductors and hip adductors all have give-way sensation. There is
decreased sensation in the lower extremities anterior, posterior, medial and lateral, less on the
left than the right, however, the right is not normal either. All of the above are not consistent
with a true physiological or organic problem but would be consistent with a symptom
exaggerator.”
Dr. Lampert diagnosed low back pain and radicular pain by history. He opined that he
could find no objective findings to indicate any residuals of a lumbosacral strain. Dr. Lampert
explained that appellant’s symptoms were extremely out of proportion to his physical findings,
2

Appellant has several conditions which were not accepted as work related. They include preexisting chronic
low back pain, chronic leg pain, herniated lumbar disc at L4-5, low back syndrome and cervical and thoracic strain.

2

which were consistent with a symptom exaggerator. He also indicated that appellant could
return to any work that he was qualified to do without restrictions as he was no longer disabled in
any way due to his work injury.
On April 9, 2013 OWCP issued a notice of proposed termination of wage-loss and
medical benefits. It found that the weight of the medical evidence, as represented by the report
of Dr. Lampert established that appellant had no continuing work-related disability or objective
residuals of his April 19, 1995 employment injury.
In an April 15, 2013 statement, appellant indicated that he disagreed with the proposed
termination and argued that his work-related condition continued. He argued that Dr. Lampert’s
examination was flawed, erroneous, speculative and insufficient to establish that he was no
longer disabled. Appellant also provided additional evidence that included a March 19, 2013
report from Dr. Yu who stated that appellant was under his care since 2007. Dr. Yu noted that
besides appellant’s multiple medical problems, he continued to have pain in his lower back, legs,
and feet which he described as knife like and as an electric shock, especially in the standing
position, as well as walking and sitting for prolonged periods. He explained that this interfered
with his sleep and caused him to have mood disorder and depression. Dr. Yu noted that the
examination revealed a limp on his gait, hyperreflexia and noticeable spasticity. He advised that
the magnetic resonance imaging (MRI) scan, revealed bulging and degenerative discs. Dr. Yu
opined that he hoped appellant remained stable and indicated that appellant had permanent nerve
damage with a guarded prognosis.
In an April 24, 2013 report, Dr. Demetri Adarmes, a Board-certified physiatrist, noted
appellant’s history and treatment including the 1995 work injury and a preexisting serviceconnected low back problem from the 1980’s. Findings included normal range of motion of the
hips, knees and ankles bilaterally with no joint or muscular tenderness. For the spine, appellant
had forward flexion to 35 degrees, extension to 10 degrees and 20 degrees of lateral bending.
Appellant had a negative right-seated straight leg raise test and a positive left-seated straight leg
raise test at 60 degrees. He also had pain with facet loading maneuvers and tenderness and
spasm of the lower lumbar paraspinal muscles. Sensation was diminished to pinprick in the
bilateral L4 and L5 dermatomes. March 18, 2013 lumbar x-rays showed mild-to-moderate
bulges from L3 to S1 with mild to moderate degenerative changes. Dr. Adarmes diagnosed
lumbar sprain, preexisting lumbar degenerative disc disease that was permanently aggravated by
the April 19, 1995 incident, and bilateral lower lumbar radicular pain related to the April 19,
1995 incident. He also noted that the main focus of Dr. Lampert’s examination was to elicit
Waddell’s signs. Dr. Adarmes advised that Section 2.56, page 27, of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (6th ed. 2009) (A.M.A., Guides)
explained that “cultural differences between the examiner and the patient can greatly increase the
risk of the examiner misinterpreting the patient’s responses,” that “Waddell’s signs are not valid
in non-Anglo cultures as the reliability has been tested only among English and North American
patients,” and that, “When patients from a different culture have an unexpected response to
treatment of their condition, consider cultural differences.”3

3

The record indicates that appellant was born in the Philippines.

3

Dr. Adarmes opined that “what Dr. Lampert was observing are cultural differences in a
response to pain behavior.” He also noted that Dr. Lampert had material deficits in his
examination as there was no reflex examination, nor did his report note any limb girth
measurements. Dr. Adarmes explained that his examination revealed a deficit to pinprick
sensation, as noted. He stated that, while Dr. Lampert found a global decrease in sensation in
both lower limbs, the method of testing the loss of sensation was not noted. Dr. Adarmes opined
that, with regard to Dr. Lampert’s finding that appellant’s symptoms were “extremely” out of
proportion to physical findings, “indicative of a symptom exaggerator,” this was improper as
Dr. Lampert failed to take appellant’s ethnic background into consideration. He opined that the
April 19, 1995 accident aggravated appellant’s preexisting condition that he developed while in
the Navy. Dr. Adarmes explained that appellant had positive objective examination findings to
show that there was some degree of impairment as a result of his lumbar spine condition.
April 25 and 26, 2013 electromyography (EMG) scan and nerve conduction studies read by
Dr. Adarmes, revealed evidence of lumbar radiculopathy.
On May 16, 2013 OWCP received an undated report from Dr. Yu, who advised that
appellant was under his care since November, 2007 for multiple medical problems. Dr. Yu noted
that appellant was mostly suffering from his back, leg and feet pain coming from spinal
neuropathy and radiculopathy which were severe enough to interfere with his daily living and
quality of life. He related that appellant described “stabbing knife-like and electric shock type
pains while standing, walking, during prolonged sitting and even when lying down in bed at
night. Dr. Yu advised that this caused appellant to have hardly any restful sleep, related mood
problems and depression. He noted that on his most recent visit he decided to reevaluate
appellant’s spinal cord and nerves. Dr. Yu indicated that appellant had an MRI scan which
revealed bulging discs and annular tear on the left at L3-4; focal disc herniation and posterior
annular tear at the left neural foraminal level of L4-5 resulting in contact and impingement upon
the left L4 exiting nerve root out laterally; L5-S1 right focal neural and foraminal disc herniation
which also causes mild impingement upon the right L5 exiting nerve root laterally. Appellant’s
examination showed limping of his gait, hyperreflexia and spastic muscles all consistent with
radiculopathy. Dr. Yu indicated that he hoped that appellant would stabilize, not worsen and
cause permanent damage to his nerves without surgery. However, his overall prognosis
remained guarded and he doubted that appellant would be able to engage in any gainful
occupation.
By decision dated May 17, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 2, 2013. It found that the weight of the medical opinion was
represented by Dr. Lampert, the second opinion physician.
On June 10, 2013 appellant requested a telephonic hearing, which was held on
November 6, 2013. Appellant’s representative argued that an unresolved conflict in medical
opinion existed between Dr. Lampert and Dr. Adarmes. The hearing representative indicated
that appellant was in need of a medical opinion explaining why his preexisting condition
continued to be aggravated by his work-related condition dating back to 1995, and how his workrelated condition continued to cause residuals and or disability causally related to the work
injury.

4

By decision dated January 10, 2014, an OWCP hearing representative affirmed the
May 17, 2013 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.4 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.5
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.6 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.7
ANALYSIS
The Board finds that OWCP did not meet its burden to justify termination of benefits.
OWCP based its decision to terminate appellant’s benefits effective June 2, 2013 on a
March 20, 2013 report by Dr. Lampert, the second opinion physician, who opined that the
original injury had long resolved. Dr. Lampert opined that there were no objective findings of
any residuals of a lumbosacral strain and opined that appellant’s symptoms were extremely out
of proportion to his findings.
Alternatively, appellant provided an April 24, 2013 report from his physician
Dr. Adarmes, who examined him, provided findings and opined that appellant’s accepted lumbar
sprain remained active. Dr. Adarmes also found as well as supporting that the April 19, 1995
work injury caused or aggravated appellant’s radicular symptoms and his preexisting
degenerative lumbar condition. He disagreed with Dr. Lampert’s opinion that appellant
exaggerated his symptoms. Dr. Adarmes also questioned whether Dr. Lampert performed a
comprehensive examination, noting that Dr. Lampert did not report limb girth measurements or
indicate if he performed a reflex examination. In contrast, he explained that his examination
revealed deficits to pinprick sensation in the bilateral L4 and L5 dermatomes. Dr. Adarmes also
4

Curtis Hall, 45 ECAB 316 (1994).

5

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

6

5 U.S.C. § 8123(a); Barry Neutuch, 54 ECAB 313 (2003).

7

20 C.F.R. § 10.321.

5

observed that, while Dr. Lampert found a global decrease in sensation in both lower limbs, he
did not note in his method of testing a loss of sensation. He concluded that appellant’s April 19,
1995 work injury aggravated his preexisting condition and that his examination elicited positive
objective findings to show that there was some degree of impairment as a result of his lumbar
spine condition.
Accordingly, at the time OWCP terminated appellant’s compensation on June 2, 2013
there was an unresolved conflict in the medical opinion evidence as to whether he had residuals
from the accepted employment injury. Both Dr. Lampert and Dr. Adarmes had the opportunity
to examine him and the medical record, but each reached differing conclusions with regard to
whether appellant had residuals from this accepted injury. The Board finds that the relevant and
probative medical evidence is in equipoise. It is well established that where there exists
opposing medical reports of virtually equal weight and rationale, the case should be referred to
an impartial medical specialist for the purpose of resolving the conflict.8 As OWCP failed to
resolve the conflicting medical opinion evidence, the Board finds that it did not meet its burden
of proof to terminate benefits.9
CONCLUSION
The Board finds that OWCP did not meet its burden of proof in terminating appellant’s
compensation benefits effective June 2, 2013.

8

See Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

9

Having issued a formal wage-earning capacity determination on May 2, 2002, such decision remains in place
unless it is modified. See Katherine T. Kreger, 55 ECAB 633 (2004). However, in certain situations, unlike in the
case, if the medical evidence is sufficient to meet OWCP’s burden of proof to terminate benefits, the same evidence
may also negate a loss of wage-earning capacity such that a separate evaluation of the existing wage-earning
capacity determination is unnecessary. See A.P., Docket No. 08-1822 (issued August 5, 2009). As explained, infra,
OWCP has not yet met its burden of proof.

6

ORDER
IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 18, 2014
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF THE ARMY, Fort Polk, LA,
Employer
__________________________________________

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Appearances:
William Hackney, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1492
Issued: June 1, 2007

Case Submitted on the Record

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

JURISDICTION
On June 19, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 30, 2006 denying her claim for an August 2,
2005 work injury.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish that her back
condition was causally related to an August 2, 2005 employment injury as alleged.

1

The record for the present claim, File No. 162099376, also contains a November 14, 2005 decision denying
continuation of pay. As appellant has not appealed this decision, the issue is not before this Board.
2

Under File No. 160311599, with which the present claim is associated, there is a September 7, 2005 merit
decision of the Office terminating appellant’s wage-loss benefits for a February 12, 1995 work injury. As appellant
has not appealed this decision, the issue is not before this Board.

FACTUAL HISTORY
On August 10, 2005 appellant, then a 50-year-old modified materials handler, filed a
traumatic injury claim alleging that on August 2, 2005 she experienced pain from her left
shoulder blade to the left side of her back as a result of squatting and reaching for an item on a
lower shelf. She was taken to an emergency room on August 2, 2005 and diagnosed with an
acute back strain. Appellant has not returned to work.
The record contains documents pertaining to File No. 160311599 for a February 12, 1998
work injury, which the Office accepted for a lumbar strain and lumbar disc displacement.3
Appellant received compensation benefits until she returned to work eight hours a day on
July 27, 2005. She returned to work on that date after an impartial medical specialist opined that
she no longer had residuals from her February 12, 1998 work injury and that her cervical
condition was not work related. The impartial medical specialist further opined that appellant’s
cervical and lumbar conditions were due the natural aging process.
In an August 2, 2005 report, Dr. Kevin E. Gorin, a physiatrist, diagnosed an acute back
strain due to the February 12, 1988 employment injury. He indicated that appellant was able to
return to work part time for four hours per day with restrictions on August 3, 2005 for two days.
In reports dated August 4, 10 and 15, 2005, Dr. Gorin diagnosed leg pain, cervical pain and
lumbar pain and opined that appellant was totally disabled. By placing a check mark in the
appropriate box on the form report, he opined that appellant’s conditions were either due to the
February 12, 1988 employment injury or caused or aggravated by her reaching/squatting work
activities on August 2, 2005.
In an August 29, 2005 report, Dr. Gorin advised that appellant underwent a myelogram
and computerized tomography (CT) scan of the cervical and lumbar spines on August 22, 2005.
The findings were abnormal in comparison to a 2003 myelogram. Dr. Gorin related the new
abnormalities to the August 2, 2005 work incident. He advised that it was a mistake for
appellant to have returned to work and, as a result, her cervical spine was made symptomatic by
her work activities which had corresponding abnormalities on the cervical spine studies.
Dr. Gorin opined that appellant was totally disabled for duty at any capacity.
In a September 21, 2005 report, Dr. Clark A. Gunderson, a Board-certified orthopedic
surgeon, noted the history of appellant’s February 12, 1998 and August 2, 2005 work injuries.
X-rays of the cervical spine revealed degenerative changes at C5-6 and C6-7 levels, x-rays of the
lumbar spine showing a narrowed lumbosacral disc, and a myelogram and CT scan showing a
disc herniation with a spondylosis at C5-6 and C6-7. Dr. Gunderson opined that appellant’s
complaints relative to her neck and lower back were probably related to her cervical and lumbar
disc disease.4 In an October 19, 2005 duty status report, he stated that the cervical and lumbar
disc disease was related to the August 2, 2005 work incident and that appellant was totally
disabled.
3

See supra note 2.

4

Copies of an April 27, 2005 MRI scan of the cervical spine and a June 27, 2003 myelogram and CT scan of the
cervical spine were also provided.

2

Appellant requested continuation of pay for her absences incurred as a result of her
August 2, 2005 work incident and filed CA-7 forms claiming compensation from August 3, 2005
onwards.
In an October 31, 2005 letter sent to Dr. Gunderson, the Office noted appellant’s
preexisting cervical and lumbar disc disease and inquired as to whether appellant’s current
diagnosed conditions were causally related to the August 2, 2005 work incident. It requested
that Dr. Gunderson provide a rationalized medical opinion on the causal relationship between the
diagnosed cervical and lumbar disc disease and the August 2, 2005 employment incident.
In a November 8, 2005 report, Dr. Gunderson advised that appellant had complaints since
February 12, 1998, which included cervical disc disease with a herniated disc and that pain
management was attempted. He stated that she had an aggravation of a continual problem after
she returned to work. Dr. Gunderson opined that all of appellant’s complaints were continuous
and date back to the February 12, 1998 injury. He further opined that she was disabled from the
February 12, 1998 work injury, not the August 2, 2006 incident.
By decision dated November 14, 2005, the Office denied appellant’s traumatic injury
claim on the grounds that the medical evidence failed to demonstrate that her claimed medical
condition was related to the established work-related incident. By decision dated November 14,
2005, the Office also denied appellant’s request for continuation of pay for the period August 3
through September 18, 2005.
By letter dated November 30, 2005, appellant, through her representative, requested an
oral hearing. A telephonic hearing was held on March 9, 2006.
In an August 15, 2005 report, Dr. Gorin advised that appellant had been under his care in
the outpatient pain management and rehabilitation arena on a monthly basis since
January 29, 1999. He noted that she was released to work and sustained additional injury as a
direct result of this release. Dr. Gorin advised that it remained to be seen whether appellant
developed new injuries or whether her underlying conditions from her first injury were made
more symptomatic by her lifting and reaching work activities. He stated that it was “clear to me,
with more medical probability than not, that, upon this patient’s return to work on August 2,
2005, she did, in fact, suffer additional injuries…. She should not have been returned to the
workforce, because of this initial injury in fact did result in the creation of a cervical spine injury
from a lumbar spine injury.” Dr. Gorin further opined that appellant was not fit for duty in any
capacity.
In a November 16, 2005 duty status report, Dr. Gunderson opined that appellant’s
cervical disc disease was due to the August 2, 2005 work incident and she was totally disabled.
By decision dated May 30, 2006, an Office hearing representative affirmed the
November 14, 2005 decision.

3

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.5 When an employee
claims that she sustained a traumatic injury in the performance of duty, she must establish the
fact of injury, consisting of two components, which must be considered in conjunction with one
another. The first is whether the employee actually experienced the incident that is alleged to
have occurred at the time, place and in the manner alleged. The second is whether the
employment incident caused a personal injury and generally this can be established only by
medical evidence.6
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.7 An award of
compensation may not be based on appellant’s belief of causal relationship.8 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.9 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion 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 established incident or factor of employment.11

5

Robert Broome, 55 ECAB 339 (2004).

6

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003). The term injury
as defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
7

Katherine J. Friday, 47 ECAB 591, 594 (1996).

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

Id.

10

20 C.F.R. § 10.303(a).

11

John W. Montoya, 54 ECAB 306 (2003).

4

ANALYSIS
Appellant alleged that, on August 2, 2005, she sustained an injury while squatting and
reaching for an item on a lower shelf. The Board finds that the evidence supports that the
employment incident occurred as alleged. The issue, therefore, is whether she has submitted
sufficient medical evidence to establish that the August 2, 2005 employment incident caused an
injury. The Board finds that the medical evidence presented does not contain a rationalized
medical opinion establishing that the August 2, 2005 employment incident caused or aggravated
her claimed disability. Therefore, appellant has failed to satisfy her burden of proof.
Dr. Gorin’s reports are insufficient to establish appellant’s claim. In an August 2, 2005
report, he diagnosed an acute back strain but related it to appellant’s previous work injury of
February 12, 1998. In reports of August 4, 10 and 15, 2005, Dr. Gorin diagnosed leg pain,
lumbar and cervical pain and opined that appellant was totally disabled. However, none of these
reports contain a reasoned medical opinion explaining how the disability reported for the period
commencing August 3, 2005 was related to the August 2, 2005 incident. The only reference to
the cause of disability was a check mark of yes to the question as to whether the condition was
employment related with no explanation. The Board has held that when a physician’s opinion on
causal relationship consists only of checking yes to a form question, without explanation or
rationale, that opinion is of diminished probative value and is insufficient to establish a claim.12
Subsequent reports reflect that Dr. Gorin attributed appellant’s disability to her previous work
injury of February 12, 1998 or to the August 2, 2005 claimed injury. His opinion is ambiguous
and not based on a complete factual and medical background.13
In August 15 and 29, 2005 reports, Dr. Gorin opined that appellant sustained additional
injuries from her return to work on August 2, 2005. He explained that appellant suffered a new
injury to her cervical spine by her work activities on August 2, 2005 as shown by new
abnormalities on cervical spine studies. However, Dr. Gorin failed to discuss the nature of the
relationship between appellant’s current condition and the work-related incident and,
specifically, how the incident exacerbated her symptoms. He did not specify the nature of the
prior condition or explain why appellant’s current condition was not the natural progression of
the original condition, rather than a result of the August 2, 2005 work-related incident. Without
explanation, Dr. Gorin’s assertion that appellant’s condition was related to the August 2, 2005
incident is not sufficient to establish causal relationship.14 Dr. Gorin is required to explain how
appellant’s condition is causally related to the August 2, 2005 employment injury. Therefore, his
opinion lacks probative value.
On September 21, 2005 Dr. Gunderson reported a diagnosis of cervical and lumbar disc
disease. The Office solicited additional evidence from him in further development of the claim.
In a November 8, 2005 report, Dr. Gunderson did not provide any medical opinion to support
that appellant’s current diagnosis of cervical disc disease with a herniated disc was causally
12

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

13

See John W. Montoya, supra note 11.

14

Id.

5

related to the August 2, 2005 work incident. Dr. Gunderson reported that appellant’s diagnosed
condition and continuous complaints dated to the February 12, 1998 work incident and that her
disability was a result of the February 12, 1998 work injury, not the August 2, 2006 work
incident. While Dr. Gunderson subsequently attributed appellant’s cervical disc disease and
disability to the August 2, 2005 work incident, he failed to provide an adequate explanation for
his change in opinion or present any medical rationale explaining how or why the August 2,
2005 work incident caused or aggravated appellant’s diagnosed condition.15 Therefore, his
opinion lacks probative value.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof in establishing that she
sustained a traumatic injury in the performance of duty on August 2, 2005.
ORDER
IT IS HEREBY ORDERED THAT the May 30, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 1, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

15

Robert Broome, supra note 5.

6


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

)
)
)
)
)
)
)
)

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

Docket No. 14-634
Issued: July 23, 2014

Case Submitted on the Record

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

JURISDICTION
On January 27, 2014 appellant filed a timely appeal from an October 9, 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 a traumatic injury in
the performance of duty on September 4, 2012.
FACTUAL HISTORY
On September 14, 2012 appellant, then a 45-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging neck, right shoulder, right hip and lower back injuries sustained in
the performance of duty on September 4, 2012. She stated that she was injured in an automobile
1

5 U.S.C. § 8101 et seq.

incident on that date when a car hit her vehicle on the left front side after skidding on a wet road.
Appellant wore her seat belt, but slammed against the door and center console of her vehicle. A
supervisor checked a box indicating that appellant was injured in the performance of duty and
challenged continuation of pay on the basis that she had not submitted sufficient medical
information. The supervisor also checked a box indicating that appellant’s knowledge of the
facts of her injury did not agree with her statements, because she had completed her route after
the incident and stated that she was not hurt.
Appellant submitted a certificate to return to work dated September 11, 2012, which was
signed by a physician’s assistant and stated that she could return to work on September 20, 2012.
By letter dated September 28, 2012, OWCP advised appellant that the evidence of record
was insufficient to support her claim. It afforded her 30 days to submit additional medical
evidence.
On September 10, 2012 a physician’s assistant examined appellant and assessed her with
shoulder pain, low back pain and an injury from a moving vehicle. Appellant also submitted
reports from the same physician’s assistant dated September 6 and 20, 2012.
On September 24, 2012 Dr. Michael R. Gallagher, Board-certified in neurological
surgery, stated that appellant had seen him in his office on that date for lower back pain status
post a work-related injury and that she would be unable to return to work for at least four weeks.
In a report dated September 27, 2012, Dr. Clyde A. Kyle III, a Board-certified
radiologist, examined the results of a magnetic resonance imaging (MRI) scan of appellant’s
cervical spine. He diagnosed her with multilevel cervical spondylosis, right moderate-to-severe
root foramen encroachment at C6-7 and right mild-to-moderate nerve root foramen
encroachment at C5-6. On the same date, Dr. Lynn S. Carlson, a Board-certified radiologist,
examined the results of x-rays of appellant’s right shoulder. She diagnosed chronic Hills-Sachs
lesion of the humeral head, with no evidence of current dislocation. Dr. Eugene Long, a Boardcertified radiologist, examined a computerized tomography (CT) scan of appellant’s cervical
spine on the same date. He diagnosed degenerative disc disease at C5-6 and C6-7, noting that
there was no acute fracture of the cervical spine and no epidural hematoma.
In a work capacity evaluation for psychiatric/psychological conditions dated
October 4, 2012, Dr. Oliver L. Gregory, a Board-certified psychiatrist, stated that appellant was
physically unable to work due to a dislocated shoulder, neck and hip resulting from an
automobile incident. He noted that she was mentally competent, but that the pain from her
injuries prevented her from working. Dr. Gregory stated that appellant was having nightmares
and was unable to sleep.
On October 11, 2012 the employing establishment challenged appellant’s entitlement to
all benefits under this claim. It explained that she was involved in a vehicular incident on
September 4, 2012 while delivering mail on her route and that she did not want medical attention
after the incident. On September 5, 2012 appellant called a supervisor and advised that as she
did not have a vehicle to deliver her mail, she would be off work that day. On
September 6, 2012 she reported to the employing establishment and told a supervisor that after

2

consulting with a physician, she needed to be off work until September 11, 2012, but did not
provide medical documentation at that time. Appellant’s supervisor advised that appellant would
have to complete a Form CA-1 and submit medical documentation, but she stated that she did
not want to file a claim and would use her own leave. On September 10, 2012 her husband
advised that appellant would need to see another physician. Appellant’s supervisor mailed
appellant a Form CA-1, advising her to complete and submit it as soon as possible. Appellant
did so, and her supervisor received the Form CA-1 on September 14, 2012. The employing
establishment listed the medical evidence received until October 11, 2012.
By decision dated November 5, 2012, OWCP denied appellant’s claim. It found that she
had not submitted any medical evidence containing a diagnosis in connection with the alleged
traumatic event. OWCP explained that the medical evidence must not only contain a diagnosis,
but establish that a diagnosed medical condition was causally related to the work incident. It
stated that appellant had only submitted medical evidence containing a diagnosis of “pain.”
OWCP accepted that she was a federal civilian employee who filed a timely claim and that the
traumatic event of September 4, 2012 occurred as described.
On July 10, 2013 appellant requested reconsideration of the November 5, 2012 decision.
She explained her reasons for requesting reconsideration in a letter of the same date, noting that
there was some medical documentation that was never filed with OWCP and included this
documentation to demonstrate that her physical and mental health were different before the
incident of September 4, 2012. With her request, appellant submitted numerous reports dating
from March 23, 2007 to August 22, 2011 which noted treatment for a variety of conditions
ranging from skin conditions, vitamin deficiency, migraine, depression, sinusitis, mild
demyelinating sensory motor polyneuropathy and bilateral carpal tunnel syndrome. She also
submitted documents dating from February 13, 2007 through August 20, 2011 signed by
physician’s assistants, medical laboratory technicians, certified medical assistants and licensed
practical nurses.
Appellant submitted a September 6, 2012, certificate signed by a physician’s assistant,
which stated that she could return to work on September 11, 2012. She submitted three
certificates from the same physician’s assistant dated September 11, 2012, one stating that she
could return to work on September 16, 2012, one stating that she could return to work on
September 20, 2012 and the other stating that she could return to work on September 24, 2012.
Appellant also submitted unsigned instructions detailing her partial hospitalization for a
psychiatric condition.
On September 10, 2012 Dr. Martin D. Simms, a Board-certified radiologist, examined
x-rays of appellant’s cervical spine. He diagnosed her with reversal of the usual cervical
lordoris, possibly reflecting muscular spasm and moderate degenerative disc disease at C5-6 and
C6-7.
In a report dated September 27, 2012, Dr. Carlson examined an x-ray of appellant’s right
hip, noting no fracture or dislocation and minimal spurring of the femoral head and lateral aspect
of the acetabulum. On the same date, Dr. Long examined a CT scan of her lumbar spine, noting
mild right-sided facet degenerative changes of the lower lumbar spine.

3

On October 16, 2012 Dr. Moody examined appellant’s lower back, shoulder and neck,
assessing her with low back pain, shoulder pain, neck pain, an upper respiratory infection and
blood pressure elevation. On November 9, 2012 he noted that she complained of neck pain,
stated that she had not returned to work since the motor vehicle incident and wanted to discuss
disability. In a report dated November 16, 2012, Dr. Moody diagnosed appellant with moderate
pedal edema and right leg pain. On December 23, 2012 he noted that her leg pain had not
improved but her edema had improved. In a report dated January 18, 2013, Dr. Moody
diagnosed appellant with an edema of the nasal mucosa, dysuria and left acute otitis media. On
February 14, 2013 he diagnosed her with edema, lumbar neuropathy, cervical neuropathy and
hand pain. On March 11, 2013 Dr. Moody noted that appellant’s left knee had begun to swell on
the previous day or the day before and that her pattern of joint symptoms had been progressively
worsening. He noted no injury to the knee and diagnosed her with left knee pain. In a report
dated March 19, 2013, Dr. Moody examined appellant’s left knee and assessed her with left knee
pain. On May 1, 2013 he noted progressive worsening of her left knee pain.
In a duty status report dated November 12, 2012, Dr. Gregory stated that appellant could
not work due to major depressive disorder and anxiety disorder and noted that she would not be
able to work while attending programming at a hospital. In a work capacity evaluation for
psychiatric/psychological conditions dated November 20, 2012, he stated that she was unable to
work while attending programming at a hospital and that she would be able to work on
approximately December 26, 2012. Dr. Gregory stated that appellant was unable to focus due to
symptoms of major depression and anxiety disorder.
On November 20, 2012 Dr. Moody stated that appellant was unable to work due to neck
and back pain from a vehicular incident.
An unsigned aftercare report dated November 26, 2012 stated that appellant had been
admitted to partial hospitalization due to increased symptoms of depression and anxiety.
In a duty status report dated December 10, 2012, Dr. Moody stated that appellant was
unable to work due to neck and low back pain and depression.
In a report dated January 3, 2013, Dr. Eletr noted that appellant complained of cervicalgia
and back pain after a motor vehicle incident on September 4, 2012. He diagnosed her with a
cervical root lesion, a lumbar root injury and migraines. On January 21, 2013 Dr. Eletr
diagnosed appellant with a cervical root lesion, carpal tunnel syndrome, a lumbar root injury and
idiopathic peripheral neuropathy. He noted that her pain increased after a motor vehicle incident
on September 4, 2012.
On January 21 and February 18, 2013, Dr. Eletr examined the results of
electromyographical and neuroconductive testing. He diagnosed appellant with mild-tomoderate left carpal tunnel syndrome; mild-to-moderate left ulnar compression at the left elbow;
moderate-to-severe right carpal tunnel syndrome; possible right C6 cervical radiculopathy and
possible L2, L3 and L4 lumbar radiculopathy.

4

On January 28, 2013 Dr. Lawrence Samuels, a Board-certified radiologist, examined the
results of an MRI scan of appellant’s lumbar spine. He noted mild lumbar degenerative disc
changes, with no significant spinal stenosis or visible nerve root impingement.
In a report dated March 13, 2013, Dr. Eletr noted that appellant had applied for disability
based on depression only, but that it had been denied, so that she was now attempting to get it
based on pain in her neck and back. He noted that her symptoms of neck and back pain
worsened after a motor vehicle incident on September 4, 2012, when she impacted her right
shoulder against the side window, dislocating it. Dr. Eletr diagnosed appellant with cervical root
lesion, lumbar disc displacement, chronic migraine, vitamin B12 deficiency and major
depressive disorder.
In a report dated May 6, 2013, Dr. John O. Nunes, a Board-certified radiologist,
examined the results of an MRI scan of appellant’s left knee. He noted mucoid degeneration of
the posterior horn of the lateral meniscus; partial extrusion of the medial meniscus; degenerative
patellofemoral changes; and medial tibiofemoral compartmental marginal osteophytes and
cartilage loss.
By letter dated June 3, 2013, Dr. Gregory stated that on appellant’s visit of
September 18, 2012, she told him that she had been in a motor vehicle incident. He noted that
since that visit, her health, both mental and physical, had not improved and that it was unknown
when or if she would return to work.
On June 13, 2013 Dr. Eletr noted that appellant had arrived complaining of left hand
numbness. He assessed her with migraine, cervical root lesion, cervicalgia and major depressive
disorder.
By decision dated October 9, 2013, an OWCP hearing representative reviewed the merits
of appellant’s case and affirmed its decision of November 5, 2012. It noted that she had not
submitted evidence providing an explanation as to how her diagnosed conditions resulted from
the vehicular incident of September 4, 2012.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty as alleged

2

Supra at note 1.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).

5

and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
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.6 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.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
ANALYSIS
Appellant alleged that on September 4, 2012, she sustained injuries to her neck, right
shoulder, right hip and lower back in the performance of duty. The Board finds that she has
4

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

Id. See Shirley A. Temple, 48 ECAB 404, 407 (1997); John J. Carlone 41 ECAB 354, 356-57 (1989).

6

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

7

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

8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149, 155-56 (2006); D’Wayne Avila, 57
ECAB 642, 649 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379, 384 (2006).

10

I.J., 59 ECAB 408, 415 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

submitted sufficient medical evidence of medical diagnoses, but that she has not submitted
sufficient rationalized medical evidence to establish a causal relationship between the incident
and her diagnoses.
On January 3, 2013 Dr. Eletr noted that appellant complained of cervicalgia and back
pain after a motor vehicle incident on September 4, 2012. He diagnosed her with a cervical root
lesion, a lumbar root injury and migraines.11 However, Dr. Eletr’s references in his reports
following the motor vehicle incident of September 4, 2012 through January 3, 2013 which were
substantially identical in each report are not sufficient to establish that the September 4, 2012
incident caused or aggravated appellant’s diagnosed conditions. He noted that her pain increased
after the September 4, 2012 incident. However, such generalized statements do not establish
causal relationship because they merely repeat appellant’s allegations and are unsupported by
adequate medical rationale explaining how this physical activity actually caused the diagnosed
conditions.12 Dr. Eletr noted in his March 13, 2013 report that her symptoms of neck and back
pain worsened after a motor vehicle incident on September 4, 2012, when she impacted her right
shoulder against the side window, dislocating it, but did not provide a diagnosis regarding her
right shoulder. Lacking thorough medical rationale on the issue of causal relationship, his
reports from January 3 through June 13, 2013 are of limited probative value on this issue and
insufficient to establish that appellant sustained an employment-related injury on
September 4, 2012.
Similarly, on June 3, 2013, Dr. Gregory stated that on appellant’s visit of
September 18, 2012, she told him that she had been in a motor vehicle incident. He noted that
since that visit, her health, both mental and physical, had not improved and that it was unknown
when or if she would return to work. The case record also contains several diagnostic reports
which provide only findings on examination of MRI scans, x-rays or CT scans, none of which
contain an opinion on causal relationship.
Dr. Gregory failed to provide a clear statement of opinion as to the causation of
appellant’s condition, merely noting a correlation between her condition’s lack of improvement
and the incident of September 4, 2012. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.13 For the same reason, the diagnostic reports of record are of
limited probative value on the issue of causal relationship and are insufficient to establish this
claim.
Appellant submitted other reports containing a history of injury but no opinion on causal
relationship. On September 24, 2012 Dr. Gallagher stated that she had seen him in his office on
that date for lower back pain status post a work-related injury and that she would be unable to
11

The Board has held that pain is generally a description of a symptom and is not, in itself, considered a firm
medical diagnosis. See B.P., Docket No. 12-1345 (issued November 13, 2012). Thus, Dr. Eletr’s diagnosis of back
pain and diagnoses of pain from other physicians of record are not sufficient to establish that appellant had been
diagnosed with a condition related to the September 4, 2012 incident.
12

See K.W., Docket No. 10-98 (issued September 10, 2010).

13

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

7

return to work for at least four weeks.
In a work capacity evaluation for
psychiatric/psychological conditions dated October 4, 2012, he stated that appellant was
physically unable to work due to a dislocated shoulder, neck and hip resulting from an
automobile incident. On November 20, 2012 Dr. Moody stated that she was unable to work due
to neck and back pain from a vehicular incident. On November 9, 2012 he noted that appellant
complained of neck pain, stated that she had not returned to work since the motor vehicle
incident and wanted to discuss disability. By letter dated June 3, 2013, Dr. Gregory stated that
on her visit of September 18, 2012, she told him that she had been in a motor vehicle incident.
He noted that since that visit, appellants mental and physical condition had not improved and that
it was unknown when or if she would return to work. Drs. Gallagher, Gregory and Moody did
not provide sufficient medical rationale explaining how her conditions were physiologically
caused or aggravated by the incident of September 4, 2013. Their statements of history of injury
merely repeated appellant’s allegations, without providing a clear rationalized opinion and
explanation as to the provenance of her conditions within a reasonable degree of medical
certainty.
The record also contains a number of radiology reports from Drs. Kyle, Carlson, Long
Simms, Samuels and Nune. None of the reports however address the cause of appellant’s
diagnosed conditions.
Appellant submitted several reports signed by physician’s assistants, nurses and related
nonphysician personnel. Physicians’ assistants and nurses do not qualify as physicians under
FECA and, therefore, their medical reports do not qualify as probative medical evidence
supportive of a claim for federal workers’ compensation, unless such medical reports are
countersigned by a physician.14 As none of the medical reports signed by nonphysicians were
countersigned by a physician, they do not qualify as probative medical evidence supportive of
appellant’s claim for compensation.
As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to a September 4, 2012 employment
incident, she has not met her burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her back
and neck conditions were causally related to a September 4, 2012 employment incident.

14

See 5 U.S.C. § 8101(2); M.B., Docket No. 12-1695 (issued January 29, 2013) (regarding nurse practitioners);
Lyle E. Dayberry, 49 ECAB 369, 372 (1998) (regarding physicians’ assistants).

8

ORDER
IT IS HEREBY ORDERED THAT the October 9, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9