United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greensville, SC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-878
Issued: November 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 25, 2014 appellant filed a timely appeal from a January 15, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP abused its discretion by denying appellant authorization for
a second cervical fusion.
FACTUAL HISTORY
On March 17, 2011 appellant, then a 53-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that the repetitive lifting of up to 70 pounds during his
career resulted in problems with his neck and arms. OWCP accepted a permanent aggravation of
1

5 U.S.C. §§ 8101-8193.

cervical spondylosis at C6-7 with myelopathy, cervical spondylosis without myelopathy, and
displacement of a cervical intervertebral disc without myelopathy at right C6-7. It paid benefits,
including authorization of an anterior cervical discectomy fusion at C6-7 performed on
February 9, 2011.2
A June 20, 2012 electromyogram and nerve conduction studies (EMG/NCS) report noted
evidence of a moderate bilateral carpal tunnel syndrome affecting sensory and motor
components. There was no electrodiagnostic evidence of any bilateral upper extremity
radiculopathy, plexopathy, myopathy, or overt peripheral neuropathy.
In a July 19, 2012 treatment note, Dr. Marco A. Rodriguez, an orthopedic surgeon, stated
that appellant had pain with Impingement I and II testing and weakness in his deltoid and
supraspinatus regions. He also noted weakness in appellant’s biceps and triceps on the right side
with decreased sensibility in the radial side of the hand bilaterally and a negative Phalen’s
compression test. Dr. Rodriguez stated that appellant’s August 15, 2011 postoperative magnetic
resonance imaging (MRI) scan showed right-sided stenosis at C4-C5, C5-C6 which appeared
open, and C6-C7 foraminal narrowing on the right side, which was likely scar tissue as distal
symptoms in the hand seemed related to carpal tunnel syndrome. The July 9, 2012 computerized
tomography (CT) myelogram showed a well-fused C6-C7 level with no bony compression on the
nerves. The EMG/NCS showed moderate bilateral carpal tunnel syndrome. Dr. Rodriguez noted
that there was no radiculopathy on these studies. He assessed bilateral carpal tunnel syndrome
and right shoulder impingement. Dr. Rodriguez also assessed C4-C5 stenosis above a prior wellfused C6-C7, which might require an anterior cervical discectomy and fusion.
In an October 15, 2012 report, Dr. Rodriguez advised that appellant had a nine-day
benefit from a C4-C5 transforaminal epidural steroid injection, appellant’s shoulder pain with
range of motion had improved since shoulder arthrospcopy, but radiating shoulder pain
remained.
On October 29, 2012 Dr. Rodriguez requested authorization for a spinal fusion at C4-C5
with insertion of spine fixation and device.
On October 31, 2012 Dr. H.P. Hogshead, an OWCP medical adviser, reviewed the
medical evidence of record. He noted that the October 15, 2012 examination by Dr. Rodriguez
revealed no motor or sensory loss to the right upper extremity. Dr. Hogshead also noted that the
electrodiagnostic study of June 20, 2012 revealed no radiculopathy, myopathy, or neuropathy.
Therefore, he recommended that the cervical fusion surgery not be approved.
In a November 20, 2012 narrative, Dr. Rodriguez noted the history of appellant’s prior
surgeries of C6-C7, left carpal tunnel surgery and right shoulder arthroscopy. He advised that
appellant had cervical stenosis at C4-C5 and that the radiating shoulder pain had benefited from
a transforaminal epidural steroid injection at C4-C5. Dr. Rodriguez stated that appellant had
spinal stenosis with facet hypertrophy and uncovertebral joint hypertrophy on the right side. He
2

Under claim number xxxxxx568, OWCP accepted bilateral carpal tunnel syndrome and right shoulder
impingement. Appellant underwent authorized right shoulder subacromial decompression on September 6, 2012
and authorized left carpal tunnel release on November 1, 2012.

2

noted that, while appellant had C5-C6 arthropathy and left-sided stenosis, this was not associated
with his right-sided symptoms. Dr. Rodriguez stated that the nerve studies did not show any
changes and appellant had no significant weakness; however, his pain was distributed in the C5
area. Given the pain relief with the transforaminal injection, he felt that this was the source of
appellant’s radiating shoulder pain and again recommended a C4-C5 anterior cervical
discectomy and fusion with right-sided decompression.
On December 12, 2012 Dr. Hogshead reviewed Dr. Rodriguez’s November 20, 2012
report and noted that he did not provide any new objective findings. He noted that there was a
pain problem but there was no documentation of record of any radiculopathy. Dr. Hogshead
recommended that the cervical disc fusion surgery at C4-C5 not be approved.
On December 18, 2012 OWCP referred appellant, the medical record and a statement of
accepted facts to Dr. James Bethea, a Board-certified orthopedic surgeon, for a second opinion
examination. In a January 23, 2013 report, Dr. Bethea stated that he did not recommend the
proposed surgical procedure as there was a discrepancy on interpretation of the July 9, 2012 CT
myleogram. Dr. Rodriguez believed that stenosis of the cervical spine was responsible for
appellant’s continuing pain while the radiologist stated that there was no significant stenosis
demonstrated. Dr. Bethea stated that he could not make a recommendation as the CT myleogram
was not made available for his review. On April 3, 2013 he reviewed the July 9, 2012 CT
myleogram and stated that there was no indication for surgical intervention at this time.
On April 8, 2013 OWCP again received a request from Dr. Rodriguez for cervical fusion
at C4-C5.
On April 10, 2013 Dr. James W. Dyer, an OWCP medical adviser, concurred with
Dr. Bethea, who found no objective evidence of radiculopathy in the right upper extremity and
recommended that surgery not be authorized.
In an April 24, 2013 letter, OWCP informed Dr. Rodriguez of the deficiencies in his
request to approve the recommended surgery at C4-C5. It requested that he respond within 30
days with a reasoned medical opinion as to how the C4-C5 facet disease and stenosis was related
to the accepted conditions as work related.
In a May 7, 2013 report, Dr. Rodriguez stated that appellant’s diagnosis was C4-C5
spinal stenosis with right arm radiculopathy, which dated back to his recovery from the C6-C7
fusion from his original injury. He noted that appellant went back to light-duty work during that
recovery doing repetitive lifting and the pain came back in his neck and arms. Appellant
underwent left carpal tunnel release and right shoulder arthroscopy which helped with his
symptoms, but his neck pain and right shoulder and arm pain continued with weakness in his
deltoid. Dr. Rodriguez stated that the MRI scan showed C4-C5 stenosis on right side and some
C5-C6 narrowing on the left side. A CAT scan myleogram also showed some stenosis on the
right side at C4-C5. Dr. Rodriguez noted that appellant obtained some relief from a C4-C5
transforaminal epidural steriod injection of his right shoulder but continued to have problems
with radiating pain into his right shoulder and arm after his right shoulder and left wrist surgery.
He stated that the best option was a C4-C5 fusion with instrumentation as there was significant
osteophyte formation that needed decompression. Dr. Rodriguez opined that appellant’s

3

condition arose from his recovery from his cervical fusion which OWCP had accepted as it
occurred during the recovery phase of that surgery.
In a June 13, 2013 letter, OWCP informed appellant of the deficiencies in
Dr. Rodriguez’s May 7, 2013 report regarding the surgical request and requested that he provide
a medical narrative with medical rationale to support that the requested surgery was warranted
due to the November 30, 2010 work injury. Appellant was provided 30 days to provide the
information to OWCP.
Dr. Rodriguez resubmitted his May 7, 2013 report.
received.

No new medical reports were

By decision dated August 14, 2013, OWCP denied authorization of the spinal surgery at
C4-C5 as it did not appear to be medically necessary for or treatment causally related to the
accepted conditions. The weight of the medical evidence rested with Dr. Bethea, the second
opinion specialist, and Dr. Dyer who concurred with Dr. Bethea.
On December 2, 2013 OWCP received a request for reconsideration. In a November 14,
2013 letter, appellant stated that he was scheduled for a cervical fusion of C4-C5. He did not
understand why surgery was denied when his claim had been approved for a permanent
aggravation of a preexisting cervical injury and he had underwent an approved surgical fusion at
C6-C7 in 2011. Appellant submitted physical therapy notes from a certified physician’s assistant
and a September 11, 2013 MRI scan of the cervical spine. In treatment records Dr. Rodriguez
diagnosed C4-C5 stenosis with right arm radiculopathy. In an October 7, 2013 report, he stated
that the C4-C5 cervical disc fusion with instrumentation could help appellant’s radicular pain.
Dr. Rodriguez indicated that appellant was getting worse and more severely limited. Appellant
was scheduled for surgery on November 19, 2013.3
By decision dated January 15, 2014, OWCP denied modification of its April 14, 2013
decision denying authorization of surgery.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.4 OWCP has the general objective of ensuring that an employee recovers from his
or her injury to the fullest extent possible in the shortest amount of time. It therefore has broad
administrative discretion in choosing means to achieve this goal.5 The only limitation on

3

Medical reports from Dr. Mark D. Visk, a Board-certified orthopedic surgeon, referred to appellant’s bilateral
carpal tunnel syndrome and right shoulder impingement syndrome with AC joint arthritis conditions.
4

5 U.S.C. § 8103(a).

5

Dale E. Jones, 48 ECAB 648, 649 (1997).

4

OWCP’s authority is that of reasonableness.6 To be entitled to reimbursement for medical
expenses, a claimant must establish that the expenditures were incurred for treatment of the
effects of an employment-related injury. This burden of proof includes providing supporting
rationalized medical evidence.7
To establish that a medical procedure is warranted, a claimant must submit evidence to
show that the procedure is for a condition causally related to the employment injury and that the
procedure is medically warranted. Both of these criteria must be met in order for OWCP to
authorize payment.8
ANALYSIS
OWCP accepted that appellant sustained a permanent aggravation of cervical spondylosis
at C6-C7 with myelopathy, cervical spondylosis without myelopathy, and displacement of
cervical intervertebral disc without myelopathy at right C6-C7. It paid appropriate benefits,
including benefits pertaining to a February 9, 2011 cervical disc fusion at C6-C7.9
Dr. Rodriguez requested authorization for a cervical disc fusion at C4-C5, which OWCP denied.
On October 29, 2012 Dr. Rodriguez, requested authorization for a neck/spine fusion at
C4-C5 with insertion of spine fixation and device. However, his October 15, 2012 report did not
specifically explain how the requested procedure was medically necessary for treatment of the
effects of an employment-related condition. In his October 15, 2012 examination, Dr. Rodriguez
reported only pain and no motor or sensory loss in the right upper extremity. The June 20, 2012
electrodiagnostic study also revealed no radiculopathy, myopathy, or neuropathy. In his
November 20, 2012 narrative, Dr. Rodriguez did not offer any new objective findings or any
rationale as to how the requested surgery was causally related. He stated that appellant has
cervical stenosis at C4-C5. Dr. Rodriguez indicated that the nerve studies did not show any
changes and appellant had no significant weakness; however, given the pain relief with the
transforaminal epidural steroid injection at C4-C5, he opined that this was the source of
appellant’s radiating shoulder pain and recommended a C4-C5 anterior cervical discectomy and
fusion with right-sided decompression.
In his May 7, 2013 report, Dr. Rodriguez did not specifically explain why the requested
surgery was medically warranted for treatment of an accepted condition. In his May 7, 2013
report, he stated that appellant’s diagnosis was C4-C5 spinal stenosis with right arm
radiculopathy. Dr. Rodriguez opined that appellant’s problems started during his recovery from
the C6-C7 fusion from his original injury as he was doing repetitive lifting and the pain came
6

Daniel J. Perea, 42 ECAB 214 (1990) (holding that abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts).
7

F.T., Docket No. 09-919 (issued December 7, 2009).

8

See R.L., Docket No. 08-855 (issued October 6, 2008).

9

Under claim number xxxxxx568, OWCP accepted bilateral carpal tunnel syndrome and right shoulder
impingement and authorized right shoulder subacromial decompression and left carpal tunnel release.

5

back in the neck and arms. However, he offered no rationale as to how or why the diagnosed
condition or proposed surgery was causally related to the accepted C6-C7 condition other than
the condition occurred during the recovery phase of the accepted C6-C7 surgery. 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.10 Consequently, Dr. Rodriguez’s reports are of
limited probative value regarding whether the requested C4-C5 cervical disc fusion surgery was
medically needed for the treatment of an accepted work-related condition.
OWCP referred appellant for a second opinion examination with Dr. Bethea, a Boardcertified orthopedic surgeon. In a January 23, 2013 report, Dr. Bethea noted his review of the
medical record, the statement of accepted facts and his examination of appellant. After
reviewing on April 3, 2013 the July 9, 2012 CT myelogram, which he indicated Dr. Rodriguez
and the radiologist disagreed on the interpretation of whether a significant stenosis was present,
Dr. Bethea advised that there was no indication for surgical intervention at this time. While
Dr. Bethea and the medical adviser agreed appellant suffered from pain, both physicians found
there were no objective findings to support any radiculopathy in the right upper extremity to
necessitate the proposed surgery.
Based on the evidence of record, the Board finds that OWCP did not abuse its discretion
by denying the proposed surgical procedure for a cervical fusion at C4-C5. While appellant
contends on appeal that the C4-C5 cervical surgery offered relief for his symptoms, the evidence
of record failed to establish the necessity for surgery was causally related to the accepted
employment injury or that the procedure was medically warranted.
CONCLUSION
The Board finds that OWCP properly exercised its discretion pursuant to 5 U.S.C.
§ 8103(a) in refusing to authorize appellant’s request for cervical surgery at C4-C5.

10

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

6

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baytown, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-2020
Issued: March 5, 2014

Case Submitted on the Record

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

JURISDICTION
On September 3, 2013 appellant filed a timely appeal of the March 14, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained bilateral carpal tunnel syndrome and ulnar nerve
entrapment as a result of employment activities.
FACTUAL HISTORY
This case was previously before the Board. By decision dated April 18, 2011, the Board
set aside OWCP’s March 15 and June 11, 2010 decisions denying appellant’s occupational

1

5 U.S.C. §§ 8101-8193.

disease claim and remanded the case for further development.2 In the Board’s January 22, 2013
decision, the Board set aside OWCP’s decision dated February 14, 2012 denying appellant’s
claim and remanded the case for further development. The Board found that the referee
physician had not provided sufficient rationale to support his stated conclusion that appellant’s
diagnosed CTS was not causally related to his employment.3 The Board instructed OWCP to
obtain a supplemental report from Dr. Frank Barnes, a Board-certified orthopedic surgeon and an
impartial medical specialist. The facts and circumstances of the case up to that point are set forth
in the Board’s prior decision and incorporated herein by reference.4
Dr. Barnes in a July 12, 2011 report reviewed the statement of accepted facts and the
medical record. He noted findings upon physical examination of the upper extremities. For
manual muscle testing it showed grade 4+/5 strength generally, the skin was normal, tenderness
over the ulnar groove at the elbow, negative Tinel’s sign at the wrist and at the elbow, normal
range of motion at the elbow and wrist. Dr. Barnes noted sensory testing was normal except for
numbness over the right little finger in the right hand and numbness over the left thumb and little
finger in the left hand and there was normal radial pulse, ulnar pulse and capillary filling. He
diagnosed bilateral carpal and cubital tunnel syndrome. Dr. Barnes opined that these conditions
were diseases of life, occurring frequently with no initiating injury or similar cause. Referring to
the American Medical Association, Guides to the Evaluation of Disease and Injury Causation,
referencing pages 173-175, 182-83, Table 9-17 and Table 9-14, he noted that a job such as
appellant’s would have no relation to either CTS or cubital tunnel syndrome.
On February 12, 2013 pursuant to the Board’s remand instructions, OWCP requested that
Dr. Barnes provide a supplemental report. It specifically noted that appellant had not provided
an accurate factual background and to address his employment activities as set forth in the
statement of accepted facts.
Dr. Barnes in his March 1, 2013 supplemental report noted that appellant was a rural
carrier and his job was described as heavy. He noted that since appellant did a variety of
activities during the workday, he did not consider the activities “highly repetitive” in nature.
Dr. Barnes noted that neither the American Medical Association, Guides to the Evaluation of
Disease and Injury Causation or the Official Disability Guidelines (ODG) find any significant
connection between CTS and work activity. He noted that the ODG found a weak correlation
between “highly repetitive” activity, continuous repetition of the same activities for much of the
workday, but that did not relate to the work of a rural carrier. Dr. Barnes further opined that
appellant’s diagnoses of CTS and ulnar neuropathy were a disease of life and they occur
frequently with no initiating injury or repetitive motion cause. Referring to the American
2

Docket No. 10-1778 (issued April 18, 2011). The Board found that the reports of appellant’s treating
physicians, Dr. Steven Seefeldt, Board-certified in internal medicine, and Dr. Lubor J. Jarolimek, a Board-certified
orthopedic surgeon, while not completely rationalized, strongly supported a causal relationship between appellant’s
diagnosed carpal tunnel syndrome (CTS) and factors of employment and warranted further development of the
medical evidence.
3

A conflict of medical opinion arose between appellant’s treating physician Dr. Seefeldt and Dr. Robert Fulford,
a Board-certified orthopedic surgeon and second opinion physician.
4

Docket No. 12-1639 (issued January 22, 2013).

2

Medical Association, Guides to the Evaluation of Disease and Injury Causation, referencing
pages 173-175, 182-83, Table 9-17 and Table 9-14, he found that the job duties of appellant
would have no relation to either CTS or cubital tunnel syndrome.
In a decision dated March 14, 2013, OWCP denied modification of the decision dated
August 15, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.6
Section 8123 of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician, who shall make an examination.7 When there exist opposing
medical reports of virtually equal weight and rationale and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if

5

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
6

Solomon Polen, 51 ECAB 341 (2000).

7

5 U.S.C. § 8123.

3

sufficiently well rationalized and based upon a proper factual background, must be given special
weight.8
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, it must secure a supplemental report from the specialist to correct the defect in his or
her original report. However, when the impartial specialist is unable to clarify or elaborate on
his or her original report or if his or her supplemental report is also vague, speculative or lacking
in rationale, OWCP must submit the case record and a detailed statement of accepted facts to a
second impartial specialist for the purpose of obtaining his rationalized medical opinion on the
issue.9
ANALYSIS
The Board finds that this case is not in posture for a decision as to whether appellant
sustained an injury in the performance of duty, as there remains an unresolved conflict in the
medical evidence.
OWCP found a conflict in medical opinion between appellant’s treating physician,
Dr. Seefeldt, and the second opinion physician, Dr. Fulford, as to whether appellant had
developed a diagnosed condition as a result of the accepted employment activities. In order to
resolve the conflict, it referred appellant to Dr. Barnes for the impartial medical examination.
The Board found that Dr. Barnes’ initial report of July 12, 2011 was of diminished value and
instructed OWCP to obtain a supplemental report. However, the Board finds that his March 1,
2013 supplemental report remains insufficient to resolve the conflict.
In his March 1, 2013 report, Dr. Barnes noted that appellant was a rural carrier and his
job was described as heavy. He noted that since appellant does a variety of activities during the
workday, he did not consider the job duties to be “highly repetitive” in nature. Dr. Barnes noted
that neither the American Medical Association, Guides to the Evaluation of Disease and Injury
Causation nor ODG find any significant connection between CTS and work activity. He noted
that the ODG found a weak correlation between “highly repetitive” activity, continuous
repetition of the same activities for much of the workday and CTS, but none of the job duties of a
rural carrier are of that nature. Dr. Barnes further opined that appellant’s diagnoses of CTS and
ulnar neuropathy are disease of life and they occur frequently with no initiating injury or
repetitive motion cause. Referring to the American Medical Association, Guides to the
Evaluation of Disease and Injury Causation pages 173-175, 182-83, Table 9-17 and Table 9-14,
he found that the job duties associated with appellant’s position did not relate to either CTS or
cubital tunnel syndrome.
8

James F. Weikel, 54 ECAB 660 (2003); Beverly Grimes, 54 ECAB 543 (2003); Sharyn D. Bannick, 54 ECAB
537 (2003); Daniel F. O Donnell, Jr., 54 ECAB 456 (2003); Phyllis Weinstein (Elliot H. Weinstein), 54 ECAB 360
(2003); Bernadine P. Taylor, 54 ECAB 336 (2003); Karen L. Yeager, 54 ECAB 317 (2003); Barry Neutuch, 54
ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).
9

Talmadge Miller, 47 ECAB 673 (1996); Harold Travis, 30 ECAB 1071, 1078 (1979); see also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810(11)(c)(1)-(2)
(April 1993).

4

The Board notes that Dr. Barnes reiterated the opinion from his initial report of July 12,
2011, stating that the diagnosed bilateral CTS and cubital tunnel syndrome were diseases of life,
occurring frequently with no initiating injury or similar cause and that a job such as appellant’s
would have no relation to either CTS or cubital tunnel syndrome. Dr. Barnes failed to provide
any further explanation of his opinion as requested by OWCP. When a case is referred to an
impartial medical specialist for the purpose of resolving a conflict, the opinion of the specialist,
if sufficiently well rationalized, must be given special weight.10 When the impartial specialist is
unable to clarify or elaborate on his original report or if his supplemental report is also vague,
speculative or lacking in rationale, as is the case here, OWCP should refer the claimant to a
second impartial specialist.11
The Board finds that Dr. Barnes did not furnish sufficient rationale to resolve the conflict
in medical opinion as to whether his CTS was related to employment activities. For these
reasons, the Board finds that the case will be remanded to OWCP for further development of the
medical evidence and referral of appellant, along with a statement of accepted facts, to a new
referee physician to resolve the continuing conflict of medical opinion. After such further
development as OWCP deems necessary, an appropriate decision should be issued regarding this
matter.
CONCLUSION
The Board finds that the case is not in posture for decision. The case shall be remanded
for further development of the medical evidence, to be followed by an appropriate merit
decision.

10

See supra note 7.

11

See id.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
March 14, 2013 decision is set aside. The case is remanded for action consistent with this
decision of the Board.
Issued: March 5, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
City of Industry, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Docket No. 20-1314
Issued: February 23, 2021

Case Submitted on the Record1

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

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

JURISDICTION
On June 22, 2020 appellant filed a timely appeal from a June 1, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, he asserted that oral argument should be granted because he sought to
highlight the importance of his case and address why he is not responsible for the overpayment. The Board, in
exercising its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately
be addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay
issuance of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this
decision is based on the case record as submitted to the Board.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $7,078.63 for which he was without fault, because
he concurrently received FECA wage-loss compensation benefits and Social Security
Administration (SSA) age-related retirement benefits for the period July 29 through December 7,
2019 without an appropriate offset; and (2) whether OWCP properly denied waiver of recovery of
the overpayment.
FACTUAL HISTORY
On November 17, 2018 appellant, then a 66-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he developed numbness, tingling, and pain in both hands,
fingers, and arms due to factors of his federal employment. He noted that he first became aware
of his condition and realized it was causally related to his federal employment on
September 16, 2018. Appellant did not immediately stop work.
On February 4, 2019 OWCP accepted the claim for bilateral carpal tunnel syndrome,
trigger finger -- left index finger, and trigger finger -- left middle finger. It paid appellant wageloss compensation on the supplemental rolls from July 29 through August 17, 2019 and January 5
to 17, 2020, and on the periodic rolls from August 18, 2019 through January 4, 2020.
On August 12, 2019 appellant filed a claim for wage-loss compensation (Form CA-7) for
temporary total disability for the period July 29 through August 12, 2019. He indicated on the
Form CA-7 that he was receiving SSA retirement benefits. On page two of the claim form P.W.,
an employing establishment human resources specialist, acknowledged that appellant was
temporarily totally disabled from work from July 29 through November 16, 2019.
On August 22, 2019 OWCP requested information from SSA regarding appellant’s dual
benefits.
On September 13, 2019 OWCP received a completed Federal Employees Retirement
System (FERS)/SSA dual benefits calculation form from SSA. SSA calculated SSA age-related
benefit rates with FERS offset and without a FERS offset for periods including January 1 through
December 7, 2019. Beginning January 1, 2019, SSA rate with FERS was $2,012.60 and without
FERS was $385.90.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the June 1, 2020 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.

2

OWCP prepared a FERS offset calculation worksheet on December 13, 2019, wherein it
noted the calculation of appellant’s SSA offset overpayment from July 29 through
December 7, 2019. The total overpayment was determined to be $7,078.63.
On December 13, 2019 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $7,078.83 had been created because
appellant received SSA age-related retirement benefits from July 29 through December 7, 2019
that were partially based on credits earned while working in the Federal Government, and that this
portion of his SSA benefit was a prohibited dual benefit. It determined that he was without fault
in the creation of the overpayment. OWCP requested that appellant submit a completed
overpayment recovery questionnaire (Form OWCP-20) to determine a reasonable payment
method, and advised him that he could request waiver of recovery of the overpayment. It further
requested that he provide supporting financial documentation, including copies of income tax
returns, bank account statements, bills and canceled checks, pay slips, and any other records to
support income and expenses. Additionally, OWCP further notified him 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.
On January 2, 2020 appellant completed an overpayment action request form and requested
waiver. He indicated that he was requesting waiver of recovery of overpayment because OWCP
was aware that he was receiving SSA benefits and OWCP had advised him that, since he was over
age 66, his benefits would not be affected.4
In a January 23, 2020 letter, appellant elected Office of Personnel Management (OPM)
retirement benefits in lieu of FECA benefits because he did not want to be subjected to the
SSA/FERS offset. In a compensation termination sheet dated January 28, 2020, OWCP noted that
appellant’s FECA benefits were discontinued.
In an April 3, 2020 notice, OWCP’s hearing representative informed appellant that an
telephonic hearing was scheduled for May 12, 2020 at 11:30 a.m. Eastern Standard Time (EST).
OWCP instructed him to call the toll-free number listed below and when prompted, enter the pass
code also listed below. It mailed the notice to appellant’s last known address of record. Appellant
did not appear for the hearing and no request for postponement of the hearing was made.
By decision dated June 1, 2020, OWCP found that, as appellant had not appeared for the
scheduled telephonic hearing, it had finalized the overpayment determination. It found that
appellant had received an overpayment of compensation in the amount of $7,078.635 for the period
July 29 through December 7, 2019 because it failed to offset his compensation payments by the
portion of his SSA age-related retirement benefits that were attributable to his federal service.
OWCP further found that he was without fault in the creation of the overpayment, but denied
waiver of recovery of the overpayment because appellant had not completed the Form OWCP-20
4
The completed overpayment action request form requested waiver of recovery, but did not indicate whether
appellant was seeking a telephone conference, a final decision based on the written evidence, or a prerecoupment
hearing. The form was mailed to OWCP’s Branch of Hearings and Review.
5
The December 13, 2019 preliminary overpayment determination found an overpayment of compensation in the
amount of $7,078.83.

3

and failed to provide the requested information regarding income, expenses, debts, and assets
necessary to determine whether recovery of the overpayment would defeat the purpose of FECA
or be against equity and good conscience. It required the overpayment be due and payable in full.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.6 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.7
Section 10.421(d) of OWCP’s implementing regulations requires OWCP to reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.8 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA benefits because the portion of the SSA
age-related retirement benefits 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.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $7,078.63, for which he was without fault, because he
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period July 29 through December 7, 2019, without an appropriate offset.
The evidence of record supports that appellant received FECA wage-loss compensation for
total disability beginning on July 29, 2019, and that he received SSA age-related retirement
benefits beginning July 2019. As noted, a claimant cannot receive concurrent FECA wage-loss
compensation and SSA age-related retirement benefits attributable to federal service for the same
period.10 The information provided by SSA established that appellant had received SSA agerelated retirement benefits that were attributable to his federal service from July 29 through
December 7, 2019. Thus, the record establishes that he received an overpayment of FECA wageloss compensation.11

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

9

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

10

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007); see
also N.B., id.; A.C., Docket No. 18-1550 (issued February 21, 2019).
11

Id.

4

To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
documentation from SSA with respect to appellant’s specific SSA age-related retirement benefits
that were attributable to federal service. SSA provided its rate with FERS and without FERS for
the period July 29 through December 7, 2019. OWCP provided its calculations for the relevant
period based on SSA’s worksheet and determined that he received an overpayment in the amount
of $7,078.63. The Board, thus, finds that appellant received prohibited dual benefits for the period
July 29 through December 7, 2019 totaling $7,078.63.12 .
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.13 Section 10.438 of OWCP’s regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary.14
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 of
recovery of the overpayment 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.15 However, appellant had the responsibility to provide financial information to
OWCP,16 but failed to do so.
In its preliminary determination, dated December 13, 2019, OWCP requested that
appellant provide a completed Form OWCP-20 and supporting financial documentation, including
copies of income tax returns, bank account statements, bills and canceled checks, pay slips, and
any other records to support income and expenses. It advised him that it would deny waiver of
recovery if he failed to furnish the requested financial information within 30 days. Appellant did
not provide the requested Form OWCP-20 or submit any financial information necessary for

12

Id.

13

5 U.S.C. § 8129.

14

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

15

Id. at § 10.436.

16

Id. at § 10.438; S.P., Docket No. 19-1318 (issued July 31, 2020).

5

OWCP to determine if recovery of the overpayment would defeat the purpose of FECA or be
against equity and good conscience.
Accordingly, as appellant did not submit the information required under 20 C.F.R. § 10.438
of OWCP’s regulations to determine his eligibility for waiver, OWCP properly denied waiver of
recovery of the overpayment.
On appeal appellant asserts that he disagrees with the overpayment determination and notes
that he had previously provided financial information. He further asserts that he should be
compensated for his wage loss because his injury was work related. As noted above, however,
appellant received concurrent FECA wage-loss compensation and SSA age-related retirement
benefits attributable to his federal service for the same period,17 which is a prohibited dual benefit
and constitutes an overpayment.18
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $7,078.63, for which he was without fault, because he
concurrently received FECA wage-loss compensation benefits and SSA age-related retirement
benefits for the period July 29 through December 7, 2019 without an appropriate offset. The Board
further finds that OWCP properly denied waiver of recovery of the overpayment.

17

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007); see
also N.B., supra note 9; A.C., Docket No. 18-1550 (issued February 21, 2019).
18

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. L.L., Docket No. 19-0097 (issued March 20, 2020); A.B.,
Docket No. 18-0915 (issued October 24, 2018). As appellant was not in receipt of continuing wage-loss compensation
at the time of OWCP’s overpayment determination, the Board does not have jurisdiction over the method of recovery
of the overpayment in this case. See id.; Miguel A. Muniz, 54 ECAB 217 (2002); Lorenzo Rodriguez, 51 ECAB 295
(2000); 20 C.F.R. § 10.441.

6

ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 23, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 19-1023
Issued: June 16, 2020

Case Submitted on the Record

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

JURISDICTION
On April 10, 2019 appellant, through counsel, filed a timely appeal from a March 8, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective August 18, 2018, as she no longer had residuals or
disability causally related to her accepted April 19, 2011 employment injury.
FACTUAL HISTORY
On April 21, 2011 appellant, then a 51-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 19, 2011 she injured the right side of her neck when a car
backed into the side of her vehicle while in the performance of duty. She stopped work on
April 19, 2011 and returned to work on June 27, 2011 for four hours per day with restrictions.
Appellant stopped work again on July 5, 2011 and did not return. OWCP accepted the claim for
neck sprain. It subsequently expanded acceptance of the claim to include right brachial neuritis or
radiculitis and right bicipital tenosynovitis. OWCP paid appellant wage-loss compensation on the
periodic rolls beginning September 25, 2011.
By decision dated April 26, 2013, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective May 5, 2013. By decision dated October 30, 2013, an OWCP
hearing representative affirmed the April 26, 2013 termination decision. She, however, remanded
the case after finding a conflict in medical opinion evidence now existed between appellant’s
treating physician, Dr. Gregory S. Slappey, and a second opinion physician, Dr. Alexander N.
Doman, both Board-certified orthopedic surgeons, on the issue of continuing residuals or
disability. Following further development, OWCP reinstated appellant’s compensation benefits.3
In letters dated August 11 and October 4, 2017, OWCP advised appellant that it had not
received a medical report from her physicians within the past year. It requested that she submit a
detailed report from her treating physician addressing whether she had continued objective
findings, residuals of her employment-related condition, and her ability to work with or without
restrictions.
In a report dated September 1, 2017, Dr. Douglas H. Murray, a Board-certified orthopedic
surgeon, discussed appellant’s complaints of right shoulder pain. He noted that the cause of her
shoulder pain was multifactorial as she had biceps tendon subluxation, impingement,
acromioclavicular (AC) arthritis, and secondary scapulothoracic pain. Dr. Murray noted that
appellant had been diagnosed with rheumatoid arthritis since he last examined her on
December 11, 2015. On examination of the right shoulder he found full shoulder motion with “a
significant hitch and pain,” tenderness of the bicep with subluxation of the tendon on specific
maneuvers, intact, but painful cuff strength, positive impingement signs, and scapulothoracic pain.
Dr. Murray found that appellant had right shoulder pain with a biceps tendon subluxation, partial
thickness cuff tearing, impingement, and AC arthropathy with probable secondary scapula
winging. He diagnosed shoulder pain, bicipital tenosynovitis, and subacromial impingement.
Dr. Murray opined that appellant’s diagnoses appeared related to her employment injury based on
when they began and their failure to improve with treatment since that time. He noted that she had
3
By decision dated April 21, 2014, OWCP denied authorization for right shoulder arthroscopic surgery. On
January 13, 2015 an OWCP hearing representative affirmed the April 21, 2014 decision.

2

periscapular pain, but that the shoulder condition seemed to cause the periscapular symptoms.
Dr. Murray recommended surgery for biceps tendon management as well as a decompression,
distal clavicle excision, and possible cuff treatment. He provided work restrictions, including no
overhead work or lifting over 10 pounds.
On March 22, 2018 OWCP referred appellant, together with a statement of accepted facts,
the medical record, and a list of questions, to Dr. Howard B. Krone, a Board-certified orthopedic
surgeon, for a second opinion evaluation to determine whether she continued to have residuals and
disability due to the accepted employment injury.
In an April 19, 2018 report, Dr. Krone reviewed the history of injury and the medical
evidence of record. On examination he found no tenderness on palpation of the cervical spine or
trapezius. Dr. Krone noted that appellant’s motor examination was difficult to perform, as she
pulled away with any movement of the right shoulder. On examination of the right shoulder he
observed global tenderness on palpation without specific tenderness over the AC joint, bicipital
tendon, and glenohumeral joint. Dr. Krone noted a sound with movement, which he attributed to
scapulothoracic bursitis. He observed limited range of motion of the shoulders. Dr. Krone noted
that appellant had problems with her right shoulder and neck that preexisted her employment
injury. He advised that her neck sprain would have resolved within four weeks. Dr. Krone
indicated that a physician had initially diagnosed brachial neuritis or radiculitis, which had not
been demonstrated by a magnetic resonance imaging (MRI) scan, and right bicipital tenosynovitis.
He related that any bicipital tendon tenderness should have resolved with injections and over time
and found no evidence supporting a diagnosis of bicipital subluxation. Dr. Krone opined that
appellant had no residuals of her employment-related conditions, noting that the findings on
physical examinations and on functional capacity evaluations were inconsistent. He related, “The
initial injuries have resolved and there are no residual injuries. [Appellant’s] subjective complaints
have not been borne out by imaging, history, or physical examination.” Dr. Krone found that she
could perform her usual employment duties. He advised that appellant had nonemploymentrelated rheumatoid arthritis, which would preclude her return to employment.
On July 3, 2018 OWCP provided appellant with a notice of proposed termination of her
wage-loss compensation and medical benefits because the medical evidence of record established
that she no longer had any residuals or continuing disability from her work injury. It determined
that the weight of the medical evidence rested with the April 19, 2018 report of Dr. Krone. OWCP
afforded appellant 30 days to submit additional evidence or argument. No additional evidence or
argument was received within this time frame.
By decision dated August 23, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective August 18, 2018. It found that the opinion of
Dr. Krone constituted the weight of the medical evidence and established that she had no further
residuals or disability causally related to her accepted employment injury.4

4
The August 23, 2018 termination decision superseded an August 14, 2018 termination decision. OWCP paid
appellant compensation through August 18, 2018.

3

On August 29, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative regarding the August 23, 2018 termination decision.
A telephonic hearing was held on January 9, 2019. The record was held open for 30 days
for the submission of additional medical evidence. No additional medical evidence was received
within this time frame.
By decision dated March 8, 2019, an OWCP hearing representative affirmed the
August 23, 2018 termination decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification of
compensation. After it has been determined that an employee has disability causally related to his
or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.5 Its burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
Section 8123(a) of FECA provides, in pertinent part, 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.9
ANALYSIS
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits as there is an unresolved conflict in the medical evidence
between appellant’s treating physician, Dr. Murray, and the second opinion physician,
Dr. Krone.10

5

M.C., Docket No. 18-1374 (issued April 23, 2019); L.H., Docket No. 17-1859 (issued May 10, 2018); Jason C.
Armstrong, 40 ECAB 907 (1989).
6

M.C., id.; see Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7
M.C., Docket No. 18-1199 (issued April 5, 2019); see L.H., supra note 5; T.P., 58 ECAB 524 (2007); Kathryn E.
Demarsh, 56 ECAB 677 (2005).
8

M.C., id.; see L.H., supra note 5; Kathryn E. Demarsh, id.; James F. Weikel, 54 ECAB 660 (2003).

9

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10

See L.H., supra note 5.

4

In a report dated September 1, 2017, Dr. Murray evaluated appellant for complaints of right
shoulder pain. On examination of the right shoulder he noted full motion with pain and a
significant hitch, tenderness of the bicep with subluxation of the tendon on specific maneuvers,
intact, but painful cuff strength, positive impingement signs, and scapulothoracic pain. Dr. Murray
diagnosed right shoulder pain, bicipital tenosynovitis of the right shoulder, and subacromial
impingement of the right shoulder. He further noted that appellant had a biceps tendon
subluxation, partial thickness cuff tearing, impingement, and AC arthropathy with probable
secondary scapula winging. Dr. Murray opined that her diagnoses were causally related to the
employment-related motor vehicle accident of April 19, 2011 given when her problems began and
as she had been treated since that time without improvement. He provided work restrictions.
In an April 19, 2018 report, Dr. Krone opined that appellant had no residuals specifically
attributable to the work-related conditions, noting that examinations by multiple physicians had
yielded inconsistent findings on physical examination. He explained that appellant’s neck sprain
resolved in four weeks in his experience with conservative treatment, that her right brachial neuritis
or radiculitis had never been demonstrated by a MRI scan revealing nerve root involvement, and
that she received no apparent local injury to the right shoulder that would explain bicipital
subluxation. Dr. Krone observed that appellant’s subjective complaints had not been borne out by
imaging, history, or physical examination. He found that she was able to perform her date-ofinjury position as a rural carrier, but also advised that her symptoms of nonwork-related
rheumatoid arthritis precluded her return to productive and suitable employment.
Accordingly, at the time OWCP terminated appellant’s compensation on August 23, 2018,
there remained an unresolved conflict in the medical opinion evidence as to whether appellant had
residuals and disability from the accepted April 19, 2011 employment conditions.11 Dr. Krone
concluded that she had no residuals or disability and that the accepted conditions had resolved, or
were misdiagnosed. Dr. Murray, in his September 1, 2017 report, discussed appellant’s continuing
symptomatology, including for the accepted condition of bicipital tenosynovitis, and opined that
she continued to have employment-related residuals and disability.
It is well established that when 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.12 OWCP should have properly resolved the conflict prior to termination
of compensation.13 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.14

11

See J.S., Docket No. 15-0872 (issued September 28, 2016).

12

Supra note 10.

13

L.H., supra note 5; R.R., Docket No. 15-0380 (issued April 10, 2015); S.J., Docket No. 14-1821 (issued
January 23, 2015).
14

See J.S., supra note 11; V.Y., Docket No. 14-0828 (issued November 14, 2014).

5

CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 18, 2018, as she no longer had residuals
or disability causally related to her April 19, 2011 accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: June 16, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-603
Issued: June 12, 2013

Case Submitted on the Record

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

JURISDICTION
On January 16, 2013 appellant, through his attorney, filed a timely appeal from a
December 13, 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 appellant has established a modification of a July 31, 2009 loss of
wage-earning capacity determination was warranted.
FACTUAL HISTORY
On May 10, 2001 appellant, then a 47-year-old welder, filed an occupational claim (Form
CA-2) alleging that he sustained carpal tunnel syndrome as a result of his federal employment.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim on August 27, 2001 for bilateral carpal tunnel syndrome.2 Appellant
returned to a light-duty position, and stopped work on September 22, 2003. He returned to work
at four hours a day on October 14, 2005, and then filed a traumatic injury claim for injuries on
October 18, 2005 when he fell on stairs. OWCP accepted that claim for neck strain and right
shoulder rotator cuff tear. Appellant began receiving compensation for temporary total
disability, which OWCP stated was based on four hours a day for the occupational claim and
four hours for the traumatic injury claim.
OWCP sent a copy of the job description for motor vehicle dispatcher (Department of
Labor’s Dictionary of Occupational Titles, DOT # 249.167-014) to the attending physician,
Dr. Michael McManus, a Board-certified occupational medicine specialist. It requested an
opinion as to whether appellant could perform the job duties. In a response dated September 19,
2008, Dr. McManus checked a box “approve this occupation.”
The record reflects that appellant also received treatment from Dr. Derek Costa, a family
practitioner. In a report dated October 10, 2008, Dr. Costa diagnosed major depression, chronic
pain and disturbance of skin sensation.
In a report dated December 30, 2008, Dr. McManus noted that appellant had permanent
work restrictions and restrictions were now adjusted to “no driving.” Dr. McManus indicated in
a duty status report (CA-17) that appellant should not operate a motor vehicle.
In a job classification form (CA-66) dated January 21, 2009, the position of motor vehicle
dispatcher was described as a sedentary position with occasional 10-pound lifting, frequent
reaching and occasional handling. The rehabilitation counselor opined that appellant had the
vocational background for the position and the position was available in appellant’s commuting
area based on state employment information. The weekly wage was reported as $470.40.
By letter dated May 14, 2009, OWCP advised appellant that it proposed to reduce his
compensation on the grounds the selected position of motor vehicle dispatcher represented his
wage-earning capacity. It advised appellant that if he disagreed with this proposal he should
respond within 30 days.
By letter dated June 8, 2009, appellant’s attorney argued that the proposed reduction was
inappropriate. He contended that the medical evidence indicated that appellant could not drive a
motor vehicle to work. In a report dated June 25, 2009, Dr. McManus provided results on
examination and diagnosed status post bilateral carpal tunnel releases, status post bilateral medial
epicondylotomies and ulnar nerve decompression, status post restless right trigger, chronic
bilateral lateral epicondylitis, and recurrent episodes of bilateral hand edema of uncertain
etiology. He listed appellant’s medications.
In a decision dated July 31, 2009, OWCP reduced appellant’s compensation on the
grounds that he had the capacity to earn wages of $470.40 a week in the selected position of

2

A March 29, 2007 OWCP decision states that the claim was also accepted for bilateral epicondylitis and right
trigger finger.

2

motor vehicle operator. It noted that a transportation company was contacted and bus service
was available in appellant’s commuting area.
In a report dated October 6, 2009, Dr. McManus provided results on examination and
stated that appellant remained permanently disabled from his date-of-injury position. In a duty
status report dated October 6, 2009, he advised that appellant was unable to work, noting “severe
secondary lymphedema right greater than left wrist/hand.”
Appellant continued to receive treatment from Dr. McManus. In reports dated
February 9, 2011 and January 10, 2012, Dr. McManus stated that appellant reported no change in
symptoms.
On February 22, 2012 appellant filed a claim for recurrence of disability (Form CA-2a).
He reported that the date of recurrence was June 25, 2009, the date pay stopped July 31, 2009,
and the date he stopped working October 6, 2009. In a February 17, 2012 statement, appellant
indicated that his conditions continued to decline. By letter dated March 13, 2012, his attorney
argued that worsening of pain could be a basis for compensation and OWCP was misinterpreting
to the medical evidence.
In a report dated March 5, 2012, Dr. McManus stated that appellant’s condition had
worsened, as appellant had “developed reactive severe and recurrent lymphedema of his upper
extremities, greatest right elbow-hand with any sustained or repetitive use of his hand.” He
stated that this new diagnosis had been documented in the past, and due to the new condition,
appellant was not qualified for any work that required sustained repetitive use of the hands. In a
report dated March 20, 2012, Dr. McManus stated that appellant had filed a new claim for posttraumatic upper extremity lymphedema and Raynaud’s phenomena.
By decision dated April 17, 2012, OWCP denied modification of the July 31, 2009 loss
of wage-earning capacity determination. It found the medical evidence was insufficient to
warrant modification.
Appellant requested a hearing before an OWCP hearing representative, which was held
on September 26, 2012.
By decision dated December 13, 2012, the hearing representative affirmed the April 17,
2012 OWCP decision. The hearing representative found the medical evidence was not sufficient
to establish a material change in an employment-related condition resulting in disability for the
selected position.
LEGAL PRECEDENT
Once the wage-earning capacity of an injured employee 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

3

rehabilitated, or the original determination was, in fact, erroneous.3 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.4
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty and supported by medical
rationale explaining the opinion.5
ANALYSIS
OWCP issued a July 31, 2009 decision finding that appellant’s wage-earning capacity
was represented by the selected position of motor vehicle dispatcher. It determined his loss of
wage-earning capacity (LWEC) using the formula developed in the Albert C. Shadrick decision.6
Appellant filed a claim on February 22, 2012 for a recurrence of disability. Since there was an
existing LWEC determination in place, the issue is whether he established that modification of
the July 31, 2009 LWEC was appropriate.7
A modification may be established by showing the original determination was erroneous.
With respect to his claim for compensation filed on February 22, 2012, appellant did not raise
this argument before OWCP or submit relevant evidence to establish the original determination
was erroneous. OWCP found the selected position was vocationally and medically suitable.
Dr. McManus had reviewed the position and found appellant could perform the duties on
September 19, 2008. With respect to employee retraining or vocational rehabilitation, this
argument is typically raised by OWCP to show that appellant’s wage-earning capacity has
increased and is not relevant to the current appeal.
Appellant has argued that his condition worsened such that the wage-earning capacity
should be modified. The specific time he felt his condition worsened is not clear from the
recurrence claim, as he noted several different dates. Appellant referred to June 25, 2009, a time
when he was receiving compensation for total disability.
On the recurrence of disability claim form appellant also listed October 6, 2009. The
Board notes that the evidence must establish a material change in the nature and extent of the
injury-related condition. Dr. McManus treated appellant on October 6, 2009, but his reports do
not establish a material change in the employment-related condition. He diagnosed a
lymphedema, but this condition is not accepted as employment related. To establish a
modification of the LWEC, the evidence must establish that the condition is causally related to
the employment injuries, and that it resulted in disability for the selected position of motor
3

Sue A. Sedgwick, 45 ECAB 211 (1993).

4

Id.

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

6

5 ECAB 376 (1953).

7

See Katherine T. Kreger, 55 ECAB 633 (2004) (when an LWEC decision is in effect, a claim for a recurrence of
disability is treated as a request for modification of the LWEC determination).

4

vehicle dispatcher.8 Dr. McManus stated that appellant was disabled and referred to a severe
lymphedema. He did not provide a rationalized medical opinion on causal relationship between
the diagnosed condition and either the 2001 occupational claim injuries or the October 18, 2005
traumatic injuries. Dr. McManus did not provide a rationalized opinion as to disability for the
selected position.
Dr. McManus continued to treat appellant, but his reports do not establish a material
change in an employment-related condition. He indicated in the February 9, 2011 and
January 10, 2012 reports that appellant reported no change in his symptoms.
In a March 5, 2012 report, Dr. McManus opined that appellant had developed recurrent
lymphedema of his upper extremities, noting the right elbow and hand, but again he does not
explain how this condition developed and how this condition is causally related to appellant’s
employment injuries, or discuss disability for the selected position. The Board finds that the
reports of Dr. McManus are insufficient to establish a modification based on a material change in
an employment-related condition.
On appeal, appellant argues that his return to work was short-lived in 2005 and OWCP
improperly shifted the burden of proof to him. The issue in this case is not a recurrence of
disability after a limited return to work. OWCP issued an LWEC decision on July 31, 2009.
The issue is whether that determination should be modified. For the reasons noted, the Board
finds the evidence does not establish a modification. Appellant also briefly states that no jobs for
the selected position were reasonably available. The Board notes that the CA-66 form prepared
by the rehabilitation counselor opined that the position was reasonably available in appellant’s
commuting area and cited employment data to support the opinion. Appellant did not submit any
evidence to establish that the position was not reasonably available in his commuting area. He
may request modification of the LWEC determination, supported by new evidence or argument,
at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly denied modification of the July 31, 2009 LWEC
determination.

8

See S.R., Docket No. 08-1000 (issued April 22, 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 13, 2012 is affirmed.
Issued: June 12, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENTS COMMAND,
Warren, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Paul H. Kullen, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2291
Issued: May 19, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2008 appellant, through her attorney, filed a timely appeal from
November 8, 2007 and June 27, 2008 merit decisions of the Office of Workers’ Compensation
Programs denying her claim for disability compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained intermittent periods of
disability from January 13 through September 17, 2003 causally related to her accepted
employment injury.
FACTUAL HISTORY
On September 26, 2003 appellant, then a 47-year-old supply management specialist, filed
an occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome due to

factors of her federal employment. The Office accepted her claim for bilateral carpal tunnel
syndrome.1
In a report dated May 22, 2003, Dr. Peter Janevski, a Board-certified surgeon, noted that
appellant used a computer in her work for the employing establishment. He diagnosed bilateral
carpal tunnel syndrome and indicated that she wanted workers’ compensation due to her 27 years
of computer use.
In a form report dated August 22, 2003, Dr. Janevski diagnosed bilateral carpal tunnel
syndrome. He indicated that the section of the form relevant to disability was not applicable.
Dr. Janevski listed the dates he treated appellant as February 15 and April 5, 1999 and
May 22, 2003.2
On January 23, 2004 Dr. Janevski related that appellant had symptoms of carpal tunnel
syndrome and required a carpal tunnel release. He discussed her history of computer work at the
employing establishment for 27 years and also noted that she had congenital abnormalities of the
hands.
On August 8, 2005 appellant filed a claim for compensation (Form CA-7) for intermittent
disability from January to September 2003. The employing establishment noted that she retired
with incentive pay on April 30, 2004 and submitted an incomplete time analysis form.
By letter dated September 22, 2005, the Office requested that the employing
establishment provide appellant’s leave usage for the period covered by the Form CA-7. In a
separate letter of the same date, the Office requested that appellant submit medical evidence
showing that she was disabled from employment for the period claimed.
In a report dated October 13, 2005, Dr. Janevski related that appellant had suspected
carpal tunnel syndrome but that the diagnosis could not be documented due to congenital
abnormalities of the hands. He asserted that she was unable “to work from January 12 to
September 20, 2003 due to chronic pain.”
In a decision dated June 13, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence did not show that she was totally disabled during the period January 13
through September 17, 2003.
On July 11, 2006 appellant requested an oral hearing. Following a preliminary review,
on August 18, 2006 the hearing representative found that the case was not in posture for a
hearing. The hearing representative vacated the June 13, 2006 decision and remanded the case

1

By decision dated January 9, 2004, the Office denied appellant’s claim on the grounds that she did not establish
that she sustained bilateral carpal tunnel syndrome due to factors of her federal employment. By decision dated
March 25, 2005, a hearing representative reversed the January 9, 2004 decision and accepted the claim for bilateral
carpal tunnel syndrome.
2

On October 13, 2003 Dr. Janevski recommended a carpal tunnel release. On November 3, 2003 he opined that
appellant should limit typing to four hours per day.

2

for the Office to obtain complete information from the employing establishment regarding
appellant’s leave usage between January 12 and September 20, 2003.
On June 8, 2007 appellant, through her attorney, requested reconsideration. On
September 28, 2007 the employing establishment provided the dates that appellant used leave
and leave without pay from January 12 to September 20, 2003.3
On October 1, 2007 the Office notified appellant that it had insufficient medical evidence
to support that she was disabled for any claimed date except for May 22, 2003. It requested that
she obtained clarification from Dr. Janevski regarding whether she was unable to work due to
carpal tunnel syndrome.
By decision dated November 8, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to support her claim for intermittent wage loss
between January 13 and September 17, 2003.
On November 28, 2007 appellant requested an oral hearing. In a report dated February 5,
2008, Dr. Jerry A. Taylor, an osteopathic hand surgeon, certified by the American Osteopathic
Association, discussed her work history of extensive typewriter and computer use and her
symptoms of hand pain and numbness beginning in 1995. In discussing appellant’s medical
history, Dr. Taylor related, “[Appellant] missed work at a rate of approximately [one to two]
days per week from Jan[uary] 2003 thr[ough] her last day of work which was April 30, 2004.
She stopped working at that time because she was no longer able to work due to the severe pain
and numbness of the hands.” He diagnosed bilateral carpal tunnel syndrome on the left more
than right, a history of congenital absence and hypoplasia of the digits of both hands and pain
and tenderness at the base of both palms of unknown etiology but possibly due to carpal tunnel
syndrome. Dr. Taylor opined that appellant was totally disabled from her employment due to her
bilateral carpal tunnel syndrome.
A hearing was held on April 30, 2008. In a decision dated June 27, 2008, the hearing
representative affirmed the November 8, 2007 decision as modified to show that appellant was
entitled to four hours of compensation for medical treatment on May 22, 2003. She determined
that there was no other medical evidence supporting either that appellant was disabled from work
or sought medical treatment for her accepted work injury from January 13 to
September 17, 2003.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act4 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.5 Whether a particular injury caused an employee disability for employment
3

The leave analysis indicates that appellant missed periodic time from work and used a combination of annual
leave and leave without pay.
4

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

5

Paul E. Thams, 56 ECAB 503 (2005).

3

is a medical issue which must be resolved by competent medical evidence.6 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.7 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.8
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome causally
related to factors of her federal employment. Appellant filed a claim for compensation for
intermittent periods of disability between January 13 and September 17, 2003.
On May 22, 2003 Dr. Janevski diagnosed symptoms of carpal tunnel syndrome
bilaterally. He did not address whether appellant was disabled from employment. The Office
found that she was entitled to four hours of wage-loss compensation on this date as she obtained
medical treatment for her work injury.
In an August 22, 2003 form report, Dr. Janevski diagnosed carpal tunnel syndrome and
recommended a carpal tunnel release. He indicated on the form that the questions regarding total
or partial disability were not applicable and there is no evidence that he treated appellant on this
date.
Consequently, Dr. Janevski’s report does not support her claim for disability
compensation.
On January 23, 2004 Dr. Janevski noted appellant’s history of work at the employing
establishment for 27 years and diagnosed carpal tunnel syndrome. He did not, however, address
the relevant issue of whether she had any disability between January 13 and September 17, 2003.
The Board will not require the Office to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.9
In a report dated October 13, 2005, Dr. Janevski noted that appellant’s suspected
diagnosis of carpal tunnel syndrome could not be verified due to her congenital hand
abnormalities bilaterally. He opined that she was unable “to work from January 12, 2003 to
September 20, 2003 due to chronic pain.” Dr. Janevski did not, however, provide any rationale

6

Id.

7

Id.

8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

4

for his finding. Medical conclusions unsupported by rationale are of diminished probative
value.10
On February 5, 2008 Dr. Taylor reviewed appellant’s work history and noted that she
began experiencing pain and numbness in her hands in 1995. He noted that she had missed one
or two days of work weekly between January 2003 and April 2004. Dr. Taylor diagnosed
bilateral carpal tunnel syndrome probably due to appellant’s work for the employing
establishment, congenital absence of hypoplasia of the digits of the hands and tenderness of both
palms, etiology unknown. He found that she was totally disabled from employment due to her
carpal tunnel syndrome beginning in April 2004. While Dr. Taylor noted appellant’s history of
missing one or two days of work each week from January 2003 until April 2004 due to hand pain
and numbness, he did not provide an independent opinion that she was disabled from work on
specific dates between January and September 2003 due to her carpal tunnel syndrome.
Consequently, his opinion is insufficient to meet her burden of proof.
On appeal, appellant’s attorney advised that the employing establishment accepted her
work absences without requiring further documentation. As discussed, however, disability under
the Act is a medical issue and must be supported by competent medical evidence.11
CONCLUSION
The Board finds that appellant has not established that she sustained intermittent periods
of disability from January 13 through September 17, 2003 causally related to her accepted
employment injury.

10

Jaja K. Asaramo, 55 ECAB 200 (2004); Jacquelyn L. Oliver, 48 ECAB 232 (1996).

11

See Paul E. Thams, supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 27, 2008 and November 8, 2007 are affirmed.
Issued: May 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.O., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Pensacola, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Docket No. 20-0038
Issued: August 26, 2020

Case Submitted on the Record1

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

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

JURISDICTION
On September 27, 2019 appellant filed a timely appeal from an August 29, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3

1
Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 21,
2020, the Board exercised its discretion and denied the request, finding that the arguments on appeal could adequately
be addressed based on the case record. Order Denying Request for Oral Argument, Docket No. 20-0038 (issued
August 21, 2020). The Board’s Rules of Procedure provide that an appeal in which a request for oral argument is
denied by the Board will proceed to a decision based on the case record and the pleadings submitted. 20 C.F.R.
§ 501.5(b).
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the August 29, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a right shoulder
condition causally related to the accepted July 19, 2019 employment incident.
FACTUAL HISTORY
On July 20, 2019 appellant, then a 60-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on July 19, 2019 she sustained a right shoulder sprain after
a coworker punched her in the shoulder while in the performance of duty. On the reverse side of
the claim form the employing establishment noted that appellant was injured in the performance
of duty, but that it was unclear whether she was punched or was lightly tapped due to conflicting
statements from appellant and the witness. It indicated that she stopped work on July 21, 2019.
In a July 19, 2019 statement, appellant reported that R.L. punched her in the right shoulder.
She reported previously having surgery on both shoulders.
The employing establishment properly executed an authorization for examination and/or
treatment (Form CA-16) on July 20, 2019. The Form CA-16 noted appellant’s history of injury
on July 19, 2019 and described her injury as a right shoulder sprain.
In a July 21, 2019 emergency room report, Dr. Delvon I. Ferguson, an osteopath
specializing in emergency medicine, diagnosed shoulder sprain. He prescribed medication and
discharged appellant with instructions for care of a shoulder sprain.
In a July 21, 2019 return-to-work slip, an unidentified health care provider diagnosed
lumbosacral radiculopathy at S1, lumbar disc herniation, and elevated blood and returned appellant
to work on July 23, 2019.
The employing establishment challenged appellant’s claim in a letter dated July 22, 2019,
asserting that she had not established causal relationship and there were conflicting witness
statements as to whether the contact between appellant and R.L. was a punch or a light tap. In a
statement dated July 19, 2019, R.L. noted that on July 19, 2019 he lightly tapped appellant’s right
shoulder to greet her. A statement from J.N. dated July 19, 2019 indicated that R.L. tapped
appellant lightly on the shoulder as a greeting. A July 20, 2019 witness statement from N.D. noted
that appellant was speaking with several clerks at the time of the incident and stated that R.L. only
tapped her on the shoulder. She further noted that appellant was toting two bags and waiving her
arms in the air.
In a July 26, 2019 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim,
including a physician’s report explaining a causal relationship between appellant’s claimed
condition and the employment incident. OWCP afforded appellant 30 days to submit the requested
evidence. No further evidence was received.
By decision dated August 29, 2019, OWCP denied the claim finding that the July 19, 2019
employment incident of being punched in the shoulder occurred, as alleged, but that the medical
evidence submitted was insufficient to establish causal relationship between her diagnosed
condition and the accepted July 19, 2019 employment incident.
2

LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11

4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to the accepted July 19, 2019 employment incident.
In support of her claim, appellant submitted a July 21, 2019 emergency treatment report
from Dr. Ferguson who diagnosed shoulder sprain. Dr. Ferguson, however, failed to address
causation. The Board has held that medical evidence that does not offer an opinion regarding the
cause of an employee’s condition is of no probative value on the issue of causal relationship.12
Consequently, this report will not suffice for purposes of establishing entitlement to FECA
benefits.
Appellant also submitted a return-to-work slip containing an illegible signature which
addressed appellant’s disability from employment. The Board has held that reports that are
unsigned or bear an illegible signature lack proper identification and cannot be considered
probative medical evidence as the author cannot be identified as a physician.13 Therefore, this
report is also insufficient to establish the claim.
The Board finds that appellant has not submitted sufficient medical evidence to establish
an injury causally related to the accepted July 19, 2019 employment incident and, thus, has not to
met her burden of proof to establish her claim.14
On appeal appellant asserts that her manager did not properly complete paperwork for her
claim and witnesses lied. The Board notes that OWCP has accepted that the July 19, 2019
employment incident of being punched in the shoulder occurred as alleged. However, OWCP
denied appellant’s claim because she did not submit sufficient medical evidence to establish an
injury causally related to the accepted July 19, 2019 employment incident. This is a medical issue
and must be addressed by rationalized medical evidence from appellant’s treating physician. As
the record is devoid of such evidence, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a right shoulder
condition causally related to a July 19, 2019 employment incident.

12
See R.C., Docket No. 19-0376 (issued July 15, 2019); L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
13

M.A., Docket No. 19-1551 (issued April 30, 2020).

14

S.H., Docket No. 19-1897 (issued April 21, 2020); C.T., Docket No. 20-0020 (issued April 29, 2020).

4

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.15
Issued: August 26, 2020
Washington, DC

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

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

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

15
The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No. 171062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

5