United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., claiming as widow of J.B., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF RECLAMATION, Granite, CO, Employer
__________________________________________

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

Docket No. 16-0707
Issued: November 1, 2016

Case Submitted on the Record

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

JURISDICTION
On February 26, 2016 appellant filed a timely appeal from a January 4, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $18,933.61 because she concurrently received Social Security Administration (SSA)
benefits for the period January 1, 2009 to October 18, 2014 while receiving FECA benefits;
(2) whether OWCP abused its discretion by refusing to waive recovery of the overpayment; and
(3) whether OWCP properly required repayment of the overpayment by deducting $300.00 every
28 days from appellant’s continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 16, 1991 appellant’s husband, the employee, a 41-year-old electrician,
died as a result of a motor vehicle accident in the performance of duty. The initial notice of
death, (Form CA-6), did not indicate whether the employee was covered by the Federal
Employees Retirement Systems (FERS) or Civil Service Retirement Service.
On September 24, 1991 appellant filed a claim for death benefits (Form CA-5). OWCP
awarded her and her four children death benefits and paid compensation in the amount of
$2,070.66 every 28 days commencing September 17, 1991.
Appellant completed and signed a series of annual, mandatory reports (Form EN1032)
dated October 8, 2009, October 17, 2010, October 25, 2011, October 11, 2012, and
November 5, 2013. She indicated on these forms that she was receiving SSA widow benefits as
part of an annuity under FERS.
In a facsimile (fax) transmittal dated November 19, 2013, OWCP requested SSA to
provide information regarding any dual benefits appellant may have received.
An SSA representative responded that, effective January 1, 2009, appellant’s SSA rate
with FERS was $761.00 a month and without FERS it was $496.60 a month.2 Beginning
December 2011, the amounts increased to $788.40 with FERS and $514.50 without FERS. In
December 2012, appellant’s SSA rate with FERS was $801.80 and $523.20 without FERS. In
December 2013, her SSA rate with FERS was $813.80 and $531.00 without FERS. OWCP
determined that an offset in the amount of $261.05 should be taken from future compensation
payments and reduced her 28-day compensation rate effective October 19, 2014.
In an October 22, 2014 letter, OWCP advised appellant of its preliminary determination
that she received an overpayment of compensation in the amount of $18,879.82 for the period
January 1, 2009 to October 18, 2014 due to OWCP’s failure to properly offset her FERS annuity
for the SSA benefits she received. It calculated the overpayment by subtracting the amount she
should have received every month (SSA monthly earnings without FERS) from the amount she
did receive every month (SSA monthly earnings with FERS) and multiplying that amount by the
number of months she received that overpayment amount. OWCP indicated that from January 1,
2009 to November 30, 2011 appellant was overpaid $264.40 for 35 months for a total of
$9,254.00. From December 1, 2011 to November 30, 2012 appellant was overpaid $273.90 for
12 months for a total of $3,286.80. From December 1, 2012 to November 30, 2013 she was
overpaid $278.60 for 12 months totaling $3,343.20. From December 1, 2013 to September 30,
2014 appellant was overpaid $282.80 for 10 months for a total of $2,828.00. From October 1
to 18, 2014 she was overpaid $167.82. Based on these calculations, OWCP determined that
appellant was overpaid in the total amount of $18,879.82 for the period January 1, 2009
to October 18, 2014.
OWCP also made a preliminary determination that appellant was not at fault in the
creation of the overpayment because she was not aware, nor could have reasonably been aware,
2

The offset was effective January 1, 2009 because that was the month that appellant turned 62 years of age.

2

that she was not entitled to dual compensation benefits. It advised her that she could submit
evidence challenging the fact, amount, or finding of fault and request waiver of the recovery of
the overpayment. OWCP requested that appellant complete and return an enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documents. Appellant
was advised that she had 30 days to request a telephone conference, a financial decision based on
the written evidence, or a prerecoupment hearing.
On November 6, 2014 appellant requested a telephonic prerecoupment hearing and
waiver of recovery of the overpayment. She indicated that she quit her job in 2009 based on her
combined SSA and OWCP benefits and lost $51,564.00 in annual earnings. Appellant explained
that she would not have quit her job if she had known her monthly income would have been less.
She further reported that she bought a house based on her anticipated income for the rest of her
life and also had to buy a $1,800.00 furnace. Appellant noted that she had $4,850.00 in credit
card debt that she paid off monthly and that $15,000.00 of her investments were designated for a
new car. She stated that since 2009 her portfolio had fallen from $300,989.00 to $273,044.00
and she was concerned that this would be insufficient to support her for the rest of her life.
In a completed Form OWCP-20, appellant reported total monthly income of $3,540.70,
which included $708.00 in SSA benefits, $2,273.70 in FECA benefits, and $559.00 in reinvested
dividends. She also reported approximately $3,184.04 in monthly household expenses3 and did
not list any outstanding debts. Appellant indicated the following assets: $25.00 cash on hand,
$18,370.00 in a checking account, $3,500.00 in a savings account, and $273,044.00 in
investments for a total of $294,044.00 in assets. She submitted various financial documents
supporting these figures.
A telephonic prerecoupment hearing was held on October 5, 2015. Appellant stated that
she went to the SSA office, but they were unable to verify the figures on which OWCP based its
overpayment calculations. She also noted that it took OWCP five years to correct the dual
benefits and that the overpayment occurred at no fault of her own. Appellant again asserted that
she would not have quit her job and suffered a loss of income of $55,000.00 in wages if she had
known what her monthly income would actually be based on compensation benefits. The
hearing representative went through the financial information appellant provided in her
completed Form OWCP-20 for appellant to verify its accuracy.
In a January 4, 2013 decision, the hearing representative affirmed the fact and amount of
overpayment with modification. She noted that appellant received dual benefits from SSA and
OWCP for the period January 1, 2009 to October 18, 2014 and accordingly, received an
overpayment of compensation. The hearing representative noted, however, that OWCP
calculated appellant’s total overpayment amount based on the number of months overpaid, as
opposed to the number of days overpaid, even though the more accurate calculation is the
specific number of days overpaid. She calculated that from January 1 to November 30, 2009, the
28-day offset was $244.06 for 334 days for a total overpayment amount of $2,911.31 for this
period. From December 1, 2009 to November 30, 2010, the 28-day offset amount was $244.06
for 365 days for a total overpayment amount of $3,181.52 for this period. From December 1,
3

Appellant specified $911.04 for mortgage payment, $430.00 for food, $55.00 for clothing, $750.00 for utilities,
and $1,038.00 in miscellaneous expenses.

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2010 to November 30, 2011, the 28-day offset amount was $244.06 for 365 days for a total
overpayment amount of $3,181.52 for this period. From December 1, 2011 to November 30,
2012, the 28-day offset amount was $252.83 for 366 days for a total overpayment amount of
$3,304.86 for this period. From December 1, 2012 to November 30, 2013, the 28-day offset
amount was $257.17 for 365 days for a total overpayment amount of $3,352.38 for this period.
From December 1, 2013 to October 18, 2014, the 28-day offset was $261.05 for 322 days for a
total overpayment amount of $3,002.03 for this period. The hearing representative totaled the
various amounts and determined that appellant received an overpayment of compensation in the
amount of $18,933.61 for the period January 1, 2009 to October 18, 2014.
The hearing representative also affirmed OWCP’s finding that appellant was not at fault
in the creation of the overpayment. She determined that appellant was not entitled to waiver of
recovery of the overpayment because recovery of overpayment would not defeat the purpose of
FECA nor be against equity or good conscience. The hearing representative noted that because
appellant’s monthly income exceeded her expenses by $494.51 each month, it was reasonable to
deduct $300.00 each cycle from her continuing compensation payments in order to repay the
overpayment amount.
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 duty.4
Section 8116(d) of FECA requires that compensation benefits be reduced by the portion
of SSA benefits based on age or death that are attributable to federal service and that, if an
employee receives SSA benefits based on federal service, his or her compensation benefits shall
be reduced by the amount of SSA benefits.5
OWCP procedures provide that, while SSA benefits are payable concurrently with FECA
benefits, the following restrictions apply: in disability cases, FECA benefits will be reduced by
SSA benefits paid on the basis of age and attributable to the employee’s federal service.6 The
offset of FECA benefits by SSA benefits attributable to employment under FERS is calculated as
follows: where a claimant has received SSA benefits, OWCP will obtain information from SSA
on the amount of the claimant’s benefits beginning with the date of eligibility to FECA benefits.
SSA will provide the actual amount of SSA benefits received by the claimant/beneficiary. SSA
will also provide a hypothetical SSA benefit computed without the FERS covered earnings.
OWCP will then deduct the hypothetical benefit from the actual benefits to determine the amount

4

5 U.S.C. § 8102(a).

5

Id. at § 8116(d); see G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George (Angelos
George), 54 ECAB 201 (2002).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.11 (February 1995); see
R.C., Docket No. 09-2131 (issued April 2, 2010).

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of benefits which are attributable to federal service and that amount will be deducted from FECA
benefits to obtain the amount of compensation payable.7
ANALYSIS -- ISSUE 1
Effective September 17, 1991, OWCP began to pay appellant FECA wage-loss
compensation benefits. Appellant reported that she began to receive SSA benefits in
January 2009. The Board has found that the portion of the SSA benefits that her husband earned
as a federal employee as part of his FERS retirement package, and the receipt of benefits under
FECA and federal retirement benefits concurrently is a prohibited dual benefit.8 The SSA
notified OWCP of the applicable SSA rates for appellant and their effective dates from
January 1, 2009 to October 19, 2014. Based on these numbers, OWCP determined that the
prohibited dual benefit she received during this period created an overpayment in the amount of
$18,933.61.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period January 9, 2009 through October 18, 2014 and concludes that it properly determined
that she received dual benefits totaling $18,933.61 for this period. OWCP determined what the
offset amount should have been for each 28-day compensation period, divided that number by 28
to calculate the daily amount, and multiplied that daily overpayment amount by the number of
days that she received compensation at that rate. The Board has previously found that the offset
amount should be calculated on a 28-day basis, rather than on a monthly basis.9 Thus, the Board
finds that OWCP properly calculated that appellant was overpaid in the amount of $18,933.61.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.10
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that rests
within OWCP’s discretion pursuant to statutory guidelines.11
Recovery of an overpayment will defeat the purpose of FECA if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom OWCP seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses; and (b) the

7

See P.G., Docket No. 13-0589 (issued July 9, 2013).

8

Supra note 6. See also L.B., Docket No. 12-1202 (issued February 6, 2013); D.P., Docket No. 09-64 (issued
August 10, 2009).
9

See C.N., Docket No. 16-0134 (issued March 8, 2016).

10

5 U.S.C. § 8129(b).

11

See Robert Atchison, 41 ECAB 83, 87 (1989).

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beneficiary’s assets do not exceed a specified amount as determined by OWCP.12 An
individual’s liquid assets include, but are not limited to cash, the value of stocks, bonds, savings
account, mutual funds, and certificates of deposits.13 Additionally, recovery of an overpayment
is considered to be against equity and good conscience when any individual who received an
overpayment would experience severe financial hardship in attempting to repay the debt or when
any individual, in reliance on such payment or on notice that such payments would be made,
gives up a valuable right or changes his or her position for the worse.14 To establish that a
valuable right has been relinquished, it must show that the right was in fact, valuable, that it
cannot be regained and that the action was based chiefly or solely in reliance on the payments or
on the notice of payment.15 An individual must show that he or she made a decision she
otherwise would not have made in reliance on the overpaid amount and that this decision
resulted in a loss.16
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 will also be used to determine the
repayment schedule, if necessary. Failure to submit the requested information within 30 days of
the request shall result in denial of waiver, and no further request for waiver shall be considered
until the requested information is furnished.17
ANALYSIS -- ISSUE 2
As OWCP found that as appellant was without fault in the creation of the overpayment, it
must consider whether she was eligible for consideration of waiver of recovery. Although
appellant was without fault in the creation of the overpayment, repayment of the overpayment
will still be required unless adjustment or recovery of the overpayment would defeat the purpose
of FECA or recovery of the overpayment would be against equity and good conscience.
The Board finds that recovery of overpayment in this case would not defeat the purpose
of FECA. OWCP reviewed appellant’s income, expenses, and assets as detailed in her
completed overpayment recovery questionnaire (Form OWCP-20) received on
November 18, 2014. Appellant reported total monthly income of $3,540.70 and monthly
expenses of $3,184.04. The Board notes that as her monthly income exceeds her monthly
12

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a)(1)(b) (June 2009).
13

Id. at Chapter 6.200.6a(4)(a) (June 2009). See S.S., Docket No. 12-1302 (issued February 22, 2013).

14

20 C.F.R. § 10.437(a)(b).

15

Id.

16

Id. at § 10.437(b)(2); see Wayne G. Rogers, 54 ECAB 482 (2003).

17

Id. at § 10.438.

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expenses by over $50.00, she does not need substantially all of her current income to meet
ordinary and necessary living expenses. Furthermore, appellant reported assets of $25.00 cash
on hand, $18,370.00 in a checking account, $3,500.00 in a savings account, and $273,044 in
investments for a total of $294,939 in assets. The Board finds, therefore, that she is not entitled
to waver because her assets far exceed her $10,880.00 resource base.18
The Board further finds that recovery of overpayment in this case would not be against
equity or good conscience. Appellant contends on appeal that recovery of the overpayment
should be waived because she detrimentally relied on the additional funds. She has asserted that
she made decisions, including to stop working and to buy a house, based on her anticipated
monthly income. Appellant alleges that she would not have made those decisions if she had
known that her monthly income was actually $261.05 less than what was represented to her. The
claimant must show that she would not have made that decision if OWCP had informed her of
the compensation she was correctly entitled.19
In O.G.,20 the claimant received an overpayment of compensation and argued detrimental
reliance indicating that once OWCP informed him how much compensation he would receive
weekly, he immediately decided that he could let his two daughters continue to attend their
colleges. His assets exceeded $200,000.00, including a second, nonincome-producing property
and a boat. The Board found that, although the employee showed that the amount he was
overpaid caused him to make a decision to his own detriment, he failed to show that he would
not have made that decision if OWCP had informed him of the compensation to which he was
correctly entitled. In other words, he did not establish that the $83.06 error in his weekly pay
rate made all the difference and that if he had instead received compensation benefits at the
correct and slightly reduced pay rate it would not have been possible for his daughters to remain
at their respective universities.
In contrast, OWCP procedures provide that if a widow entered her daughter in college
because the difference in monthly benefits between her entitlement to a Civil Service death
annuity and her entitlement to a FECA death annuity made this possible and it was subsequently
discovered that all FECA benefits were paid in error, she would have had no other funds from
which to pay her daughter’s tuition. The widow would qualify for waiver of recovery of the
overpayment of compensation under the principle of detrimental reliance as she was in a worse
position financially than if she and her daughter had never been entitled to FECA benefits
because she entered her daughter in college and incurred a financial obligation in spending the
benefits.21

18

As noted, the resource base is $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for
each additional dependent. For appellant and one son ($8,000.00) must be added to three other children ($960.00 x
3= $2,880.00) for a total of $10,880.00. Supra note 11.
19

See O.G., Docket No. 11-1112 (issued January 20, 2012).

20

Docket No. 11-1112 (issued January 20, 2012).

21

See Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Waiver of Recovery, Chapter 6.200.6.b(3)
(June 2009), Example 3.

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To establish detrimental reliance, appellant must show that the amount she was overpaid
caused her to make a decision, to her detriment, that she would not have otherwise made. The
record establishes that she has over $294,044.00 in assets in addition to $3,540.70 in monthly
income. Appellant did not show that OWCP’s failure to conduct a proper FERS offset for SSA
benefits she received for the period January 1, 2009 to October 18, 2014 made all the difference
and that, if she had instead received compensation benefits at the correct rate, it would not have
been possible for her to stop working, or that she would not have purchased a new home or a
new furnace nor would she have committed to taking a cruise. She has not shown that her assets
and income would have precluded the specific purchases at issue. Further, appellant has not
shown that the amount of the overpayment, when compared to her other income and assets,
would have resulted in her inability to leave her prior employment. As she has failed to present
any evidence or compelling argument that her specific purchases and her decision to stop all
work were reliant upon her benefit rate at the improper amount, she has not met her burden of
proof to establish her claimed detrimental reliance.
Furthermore, the Board has previously explained that the detrimental reliance provision is
not applicable to conversion of the overpayment into a different form, such as food, consumer
goods, real estate, etc., from which the claimant derived some benefit.22
Appellant has not submitted any evidence to establish that she gave up a valuable right or
changed her position for the worse in detrimental reliance on the prohibited dual benefits.
Accordingly, she does not qualify for waiver of recovery of the overpayment under the principle
of detrimental reliance. As appellant did not establish that recovery of the overpayment in
compensation would defeat the purpose of FECA or be against equity and good conscience, the
Board finds that OWCP did not abuse its discretion in denying waiver of recovery.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of Title 20 of the Code of Federal Regulations provide in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant factors, so as to
minimize any hardship.”23
The analysis that determines the amount of adjustment is substantially the same as that
used to determine waiver.24

22

Robert Craw, 38 ECAB 253 (1986).

23

20 C.F.R. § 10.441(a); see Donald R. Schueler, 39 ECAB 1056, 1062 (1988).

24

See Howard R. Nahikian, 53 ECAB 406 (2002).

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ANALYSIS -- ISSUE 3
OWCP determined that the overpayment should be recovered from appellant’s continuing
compensation payments by deducting $300.00 every 28 days. The Board finds that OWCP took
into consideration the financial information of record and the factors set forth in section
10.441(a). OWCP considered that appellant had assets totaling $294,939.00 and that her
monthly income exceeded her expenses by $494.51. It followed collection guidelines by
requiring installments large enough to collect the debt promptly and minimizing any resulting
hardship on her. Accordingly, the Board will affirm OWCP’s determination regarding rate of
recovery.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $18,933.61 for the period January 1, 2009 through
October 18, 2014. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment and directed recovery of overpayment by deducting $300.00 from her continuing
compensation every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the January 4, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 1, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
DEPARTMENT OF THE ARMY, UNITED
STATES MILITARY ACADEMY,
West Point, NY, Employer
__________________________________________

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

Docket No. 19-0752
Issued: August 20, 2019

Case Submitted on the Record

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

JURISDICTION
On February 22, 2019 appellant filed a timely appeal from a January 31, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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
The Board notes that following the January 31, 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.
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation
effective August 30, 2018 based on his capacity to earn wages as a service order clerk.
FACTUAL HISTORY
On January 22, 2004 appellant, then a 41-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on January 13, 2004 he experienced back pain and
numbness of the left leg and right foot when he slipped and fell getting out of a truck while in the
performance of duty. He stopped work on January 14, 2004 and did not return. OWCP accepted
the claim for lumbar sprain. It subsequently expanded acceptance of the claim to include
postlaminectomy syndrome and displacement of a lumbar intervertebral disc without myelopathy
at L5-S1. OWCP paid appellant wage-loss compensation for total disability on the supplemental
rolls effective March 7, 2004, and on the periodic rolls effective June 13, 2004.3
On July 13, 2015 OWCP referred appellant to Dr. Richard C. Smith, a Board-certified
orthopedic surgeon, for a second opinion examination.
In a report dated July 30, 2015, Dr. Smith diagnosed low back pain, displacement of a
lumbar intervertebral disc without myelopathy, and lumbar postlaminectomy syndrome. In a
July 31, 2015 work capacity evaluation (OWCP-5c), he found that appellant could perform
sedentary and light work for eight hours per day with restrictions.
In a March 30, 2016 work capacity evaluation (OWCP-5c), Dr. Michael Baskin, a Boardcertified physiatrist, found that appellant could work up to two hours per day performing sedentary
work.
OWCP determined that a conflict existed between Dr. Smith and Dr. Baskin regarding
appellant’s work restrictions and referred him to Dr. Markus Kornberg, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a report dated October 5, 2016, Dr. Kornberg diagnosed failed back syndrome, chronic
back pain, and left radicular symptoms. He advised that appellant had sustained a disc herniation
at L5-S1 due to his January 13, 2004 employment injury. Dr. Kornberg opined that appellant could
work eight hours per day with restrictions. In a work capacity evaluation (OWCP-5c) of even
date, he found that appellant could perform medium work with restrictions, including sitting for
four hours per day, walking for three hours per day, standing for two hours per day, and lifting up
to 20 pounds for three hours per day.
On May 30, 2017 OWCP referred appellant to a vocational rehabilitation counselor for
vocational rehabilitation.

3

On April 1, 2004 appellant underwent a discectomy and removal of a large extruded disc fragment compression
the left L5-S1 nerve root. On July 15, 2004 he underwent a discectomy and removal of a huge focal disc herniation
compression the right L5-S1 nerve root.

2

In a vocational rehabilitation report dated July 13, 2017, the vocational rehabilitation
counselor reviewed appellant’s work history as a maintenance mechanic and as a counter attendant
and cashier. She related that testing showed that appellant had average aptitude for clerical tasks.
The vocational rehabilitation counselor recommended that he complete a short online computer
training course with a goal of job placement as a service dispatcher, service order clerk, or
information clerk.
On August 28, 2017 the vocational rehabilitation counselor recommended a change in
status to a “short online prevocational computer/keyboarding enhancement” followed by
placement services. An OWCP rehabilitation specialist recommended approval of the plan on
September 21, 2017.
On October 9, 2017 the vocational rehabilitation counselor completed a job classification
(Form CA-66) for the position of service order clerk. The duties included distributing work orders,
scheduling service calls, and recording information. The position was sedentary and required
occasional lifting up to 10 pounds. The vocational rehabilitation counselor advised that appellant
met the specific vocational preparation of three to six months for the position through his work
experience in customer service, basic computer skills, basic math skills, high school education,
and good communication skills. She opined that state employment data confirmed that the position
was reasonably available within his commuting area at a weekly wage of $349.74 per week.
On November 29, 2017 the vocational rehabilitation counsel advised that appellant had
completed 88 percent of his online computer training in “touch typing” but had failed to update
her on his progress.
On December 15, 2017 OWCP’s rehabilitation specialist changed appellant’s case status
to placement with a new employer effective December 7, 2017.
By vocational rehabilitation closure report dated February 27, 2018, the vocational
rehabilitation counselor advised that appellant had not communicated with her and did not appear
to be searching for employment. As such, she recommended case closure.
In a March 6, 2018 closure memorandum, an OWCP vocational rehabilitation specialist
noted that appellant completed 88 percent of his online training in basic computer skills and typing.
She found that the targeted position of service order clerk remained available and was vocationally
appropriate and was reasonably available within his commuting area at entry level wages ranging
from $349.60 to $640.00 per week. The vocational rehabilitation specialist noted, however, that
the medical evidence from Dr. Kornberg was stale.
In a report dated March 6, 2018, Dr. Robert R. Reppy, an osteopath, disagreed with
Dr. Kornberg’s work restrictions, noting that he had failed to perform a physical capacity
evaluation. He asserted that appellant was unable to work as a mechanic.
On March 12, 2018 OWCP again referred appellant to Dr. Smith for a second opinion
examination.
In a report dated March 29, 2018, Dr. Smith reviewed appellant’s history of injury and the
medical evidence of record, including the results of diagnostic testing. He diagnosed low back
3

pain, displacement of the L5-S1 lumbar intervertebral disc without myelopathy, and lumbar
postlaminectomy syndrome. Dr. Smith indicated that appellant had “significant pain behavior,
which may have some psychological component.” He found that he had continued restrictions
from his employment injury but could perform sedentary employment with accommodation. In a
work capacity evaluation (OWCP-5c) of even date, Dr. Smith advised that appellant could perform
sedentary employment.
In a progress report dated May 2, 2018, Dr. Reppy diagnosed failed back syndrome, lumbar
sprain, and displacement of a lumbar intervertebral disc with myelopathy. He noted that OWCP
continued to identify lumbar sprain as an accepted condition even though 14 years had passed
since the injury. Dr. Reppy advised that appellant could not lift more than 10 pounds, perform
repetitive activities, stand more than 30 minutes, walk more than 45 minutes, and was unable to
climb or stoop due to residuals of his January 13, 2004 employment injury.
In a state workers’ compensation form dated May 11, 2018, Dr. Lourdes Vareis-Batista, a
Board-certified physiatrist, made a notation on the form that appellant was unable to perform
functional activities.4 In a report of even date, she diagnosed low back pain and lumbar
postlaminectomy syndrome.
On June 1, 2018 OWCP advised appellant of its proposed reduction of his wage-loss
compensation as the evidence established that he could earn wages in the selected position of
service order clerk. It afforded him 30 days to submit evidence or argument regarding the proposed
reduction of his compensation.
In reports dated June 6 and 18, 2018, Dr. Reppy diagnosed failed back syndrome, lumbar
sprain, and displacement of a lumbar intervertebral disc with myelopathy.5 He provided work
restrictions, including no lifting over 10 pounds, standing no more than 30 minutes, or walking
over 45 minutes.
On June 20, 2018 Dr. Reppy advised that the diagnosis of sprain was in error as it did not
apply to a condition lasting over six months. He recommended that OWCP expand acceptance of
the claim to include lumbar radiculopathy and a left herniated nucleus pulposus at L5-S1.
Appellant, in an undated statement received by OWCP on June 29, 2018, asserted that
Dr. Reppy had found that he was unable to work.
By decision dated August 29, 2018, OWCP reduced appellant’s wage-loss compensation
effective August 30, 2018 as he had the capacity to earn wages of $349.60 per week as a service
order clerk. It found that the opinion of Dr. Smith represented the weight of the evidence and
established that he could perform the selected position. OWCP applied the formula set forth in

4

Dr. Vareis-Batista continued to submit similar reports dated June 2018 through March 2019.

5

Dr. Reppy submitted similar progress reports on July 16 and August 20, 2018.

4

Albert C. Shadrick6 as codified in section 10.403 of OWCP’s regulations, to determine appellant’s
loss of wage-earning capacity (LWEC).
In a progress report dated September 5, 2018, Dr. Reppy diagnosed failed back syndrome,
lumbar sprain, and displacement of a lumbar intervertebral disc with myelopathy due to appellant’s
accepted employment injury. In a September 26, 2018 report, he found that appellant should not
stand over 30 minutes, walk over 45 minutes, climb, or stoop.7
On September 10, 2018 appellant requested a review of the written record before an OWCP
hearing representative.
In a January 21, 2019 progress report, Dr. Reppy advised that appellant was unable to lift
over 10 pounds. He asserted that residuals of his lumbar intervertebral disc disorder with
myelopathy “prevent[ed] him from returning to his job.”
On January 22, 2019 Dr. Reppy related that appellant could perform modified duties lifting
under 25 pounds, performing no carrying, and walking not more than five minutes. He attributed
his disability to his accepted employment injury.
By decision dated January 31, 2019, OWCP’s hearing representative affirmed the
August 29, 2018 LWEC determination.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to establish that the disability has
ceased or lessened in order to justify termination or modification of compensation benefits.8 Its
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.9
Under section 8115(a) of FECA wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity.10 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.11
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
6

5 ECAB 376 (1953).

7

The record contains similar progress reports from Dr. Reppy dated December 5, 2018 and January 7, 2019.

8

See C.H., Docket No. 19-0136 (issued May 23, 2019).

9

See C.M., Docket No. 18-1326 (issued January 4, 2019).

10

5 U.S.C. § 8115(a).

11

Id.; see also Z.W., Docket No. 18-1000 (issued June 24, 2019).

5

market under normal employment conditions.12 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.13 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his
commuting area.14
When OWCP makes a determination of partial disability and of specific work restrictions,
it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for
selection of a position listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service, local Chamber of Commerce, employer contacts, and
actual job postings.15 Lastly, OWCP applies the principles set forth in Albert C. Shadrick16 as
codified in section 10.403 of OWCP’s regulations,17 to determine the percentage of the employee’s
LWEC.18
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
effective August 30, 2018 based on his capacity to earn wages as a service order clerk.
OWCP properly determined that a conflict arose between Dr. Smith, an OWCP referral
physician, and Dr. Baskin, appellant’s physician, regarding his physical work restrictions. It
referred him to Dr. Kornberg for an impartial medical examination. In a report dated October 5,
2016, Dr. Kornberg diagnosed failed back syndrome, chronic back pain, left radicular symptoms,
and a herniated disc at L5-S1 due to appellant’s January 13, 2004 employment injury. He
determined that he could work with restrictions, including sitting four hours per day, walking three
hours per day, standing two hours per day, and lifting up to 20 pounds for three hours per day.
The Board finds that OWCP properly referred appellant for vocational rehabilitation based on his

12
See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 -Claims, Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).
13

See M.K., Docket No. 17-0208 (issued April 17, 2018).

14

C.M., Docket No. 18-0688 (issued November 15, 2018).

15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6.a (June 2013).
16

5 ECAB 376 (1953).

17

20 C.F.R. § 10.403.

18

See J.H., Docket No. 18-1319 (issued June 26, 2019).

6

report, which established that he was no longer totally disabled due to residuals of his employment
injury.19
OWCP further properly found that appellant had the physical capacity to perform the duties
of a service order clerk. Following vocational rehabilitation, it referred him to Dr. Smith for an
updated report regarding his work restrictions. In a report dated March 29, 2018, he found that
appellant could perform sedentary employment. The position of service order clerk is classified
as sedentary employment requiring occasional lifting up to 10 pounds. Additionally, Dr. Reppy,
appellant’s attending physician, opined in 2018 progress reports that he could perform modified
duty with restrictions of lifting no more than 10 pounds, standing no more than 30 minutes, walking
no more than 45 minutes, and performing no repetitive activities, climbing, or stooping. The
medical evidence, consequently, establishes that he has the requisite physical ability to earn wages
as a service order clerk.20
In state workers’ compensation form reports dated 2018 and 2019, Dr. Lourdes VareisBatista, indicated by notation that appellant could not preform functional activities and diagnosed
low back pain and lumbar postlaminectomy syndrome. She did not, however, directly address
whether he could work as a service order clerk or provide any rationale for her findings, and thus
her opinion is of little probative value.21
On January 21, 2019 Dr. Reppy found that appellant could not lift over 10 pounds and that
he was unable to perform his employment due to residuals of his lumbar intervertebral disc
disorder. He did not, however, address the issue of whether he could work in the selected position
of service order clerk, and thus his report is of no probative value.22
In a progress report dated January 22, 2019, Dr. Reppy found that appellant could perform
modified duties lifting under 25 pounds and walking under five minutes as a result of his accepted
employment injury. He did not provide any rationale for his change in work restrictions;
consequently, his report is of diminished probative value.23
The Board, therefore, finds that the weight of the evidence establishes that appellant had
the physical capacity to perform the duties of the selected position of service order clerk.24
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations but also take into account work experience, age, mental capacity and

19

C.M., supra note 9.

20

See C.H., supra note 8.

21

See C.S., Docket No. 16-1448 (issued October 4, 2017).

22

See C.H., supra note 8; L.B., Docket No.18-0533 (issued August 27, 2018).

23

See J.S., Docket No. 16-1285 (issued January 5, 2017).

24

See T.J., Docket No. 16-1473 (issued January 26, 2017).

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educational background.25 The rehabilitation counselor determined that appellant had the skills
necessary to perform the position of service order based on his prior work experience, education,
basic computer and math skills, communication skills, and his completion of 88 percent of an
online computer training course. She further found that the position was reasonably available
within his commuting area at a weekly wage of $349.74 per week. As the rehabilitation counselor
is an expert in the field of vocational rehabilitation, OWCP may rely on his or her opinion in
determining whether the job is vocationally suitable and reasonably available.26 The Board finds
that OWCP considered the proper factors, including the availability of suitable employment,
appellant’s physical limitations and employment qualifications in determining that he had the
capacity to perform the position of service order clerk.27 OWCP further properly determined his
LWEC in accordance with the formula developed in Shadrick and codified at 20 C.F.R. § 10.403.28
OWCP, therefore, properly found that the position of service order clerk reflected his wage-earning
capacity effective August 30, 2018.
On appeal appellant disagreed that he had only sustained a lumbar sprain and requested
that OWCP expand acceptance of his claim to include postlaminectomy syndrome, lumbar disc
displacement, lumbar radiculopathy, a herniated L5-S1 disc, and disc bulges and tears. The Board
notes, however, that OWCP had accepted a lumbar sprain and expanded acceptance to include
postlaminectomy syndrome and disc displacement of an intervertebral disc without myelopathy at
L5-S1. Appellant has the burden of proof to submit evidence showing any additional conditions
not accepted or approved by OWCP resulted from the employment injury through the submission
of reasoned medical evidence.29
Appellant may request modification of the wage-earning capacity determination, supported
by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
effective August 30, 2018 based on his capacity to earn wages as a service order clerk.

25

See supra note 15; see also M.P., Docket No. 18-0094 (issued June 26, 2018).

26

See J.B., Docket No. 17-0817 (issued April 26, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.6(b) (June 2013).
27

T.B., Docket No. 17-1777 (issued January 16, 2019).

28

Supra note 16. OWCP divided appellant’s employment capacity to earn wages of $349.60 a week by the current
pay rate of the position held when injured of $1,102.90 per week to find a 32 percent wage-earning capacity. It
multiplied the pay rate at the time of injury of $814.33 by the 32 percent wage-earning capacity percentage. The
resulting amount of $260.59 was subtracted from appellant’s date-of-injury pay rate of $814.33 which provided a loss
of wage-earning capacity of $553.74 per week. OWCP then multiplied this amount by the appropriate compensation
rate of three-fourths and applied adjustments, which yielded net compensation of $1,999.26 every four weeks.
29

See V.B., Docket No. 12-599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

8

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 20, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


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

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 09-226
Issued: July 20, 2009

Case Submitted on the Record

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

JURISDICTION
On October 30, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated August 11, 2008 which affirmed a February 8, 2008
decision denying appellant’s claim for compensation. Pursuant to 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 met her burden of proof in establishing that she had any
disability beginning February 1, 2001 to December 8, 2004 causally related to her accepted
employment condition.
FACTUAL HISTORY
On December 15, 2004 appellant, then a 40-year-old carrier, filed an occupational
disease claim alleging that she developed a right knee condition as a result of walking and
climbing stairs while in the performance of duty. She did not stop work. On December 29,
2005 the Office accepted the claim for aggravation of osteoarthritis of the right knee and
aggravation of occupational bursitis of the right knee.

Appellant was treated by Dr. Hend Aljundi, a Board-certified internist, from
December 9, 2004 to March 17, 2005 for chronic knee pain. She reported that her mail route
involved walking three hours and climbing stairs while carrying a 30-pound satchel.
Dr. Aljundi diagnosed patella femoral osteoarthritis of the right knee and bursitis of the right
knee. He opined that appellant’s knee condition was aggravated by her work duties and
recommended restrictions of no excessive walking, standing and little or no stair climbing for a
period of six weeks. In reports dated October 6 and December 6, 2005, Dr. Aljundi diagnosed
patella femoral osteoarthritis of the right knee with bursitis of the right knee and recommended
short-term restrictions on walking and stair climbing. He opined that appellant’s job as a city
carrier required extensive walking and climbing stairs with a heavy mail satchel which
aggravated her right knee condition.
Appellant submitted reports from Dr. Aljundi dated January 16 to June 29, 2006 who
provided additional restrictions due to the compromised condition of appellant’s knee joint. He
noted a maximum of three hours working in the field and the remainder of the day performing
light-duty activities. On March 1, 2006 Dr. Aljundi treated appellant in follow up and
diagnosed degenerative joint disease of the right knee, tension headaches and hypertension. He
opined that appellant’s postal duties exacerbated her arthritis. In return to work slips dated
August 1 and 2, 2006, Dr. Aljundi diagnosed right knee sprain, exacerbation of osteoarthritis
with joint effusion and noted that appellant was totally disabled from August 1 to 6, 2006.
Appellant was also treated by Dr. Salah Fares, a Board-certified internist, on
February 15, 2006. Dr. Fares diagnosed acute right knee pain and recommended oral
analgesics and rest for two days with continued work restrictions.
Appellant submitted several CA-7 forms, claiming compensation for intermittent total
disability for the period February 1, 2001 to December 23, 2005. The employing establishment
submitted several CA-7a time analysis forms for January 27, 2001 to December 23, 2005. It
noted that there was no medical documentation for the leave used.
In a letter dated August 17, 2006, the Office requested that appellant submit medical
evidence establishing partial disability from work beginning February 1, 2001.
Appellant submitted a grievance summary dated February 1, 2006 and alleged that she
was denied available light duty from December 7 to 9, 2005. The grievance was denied on the
grounds that she was given full consideration within restrictions and work availability. In
statements dated September 6 and 15, 2006, appellant asserted that she was denied
opportunities to work an eight-hour day after the development of her condition but prior to
acceptance of her claim. She submitted a report dated August 1, 2006 from Dr. Aljundi who
treated her for increasing pain in her right knee. Dr. Aljundi noted appellant’s work history and
diagnosed gastritis and osteoarthritis of the right knee and recommended three days’ rest. In
reports dated August 24 to October 16, 2006, he diagnosed osteoarthritis of the right knee and
continued appellant’s work restrictions. In duty status reports dated December 20, 2006 to
April 10, 2007, Dr. Aljundi continued to recommend full-time work with restrictions.
The employing establishment submitted a statement from Angela Isby, a manager, who
noted that appellant was off work in late 2001 and early 2002 due to maternity leave and was

2

otherwise provided with work within her restrictions. Also submitted were light-duty job offers
dated August 11, 2006, July 26, August 20 and December 12, 2007.
Appellant submitted several statements dated April 10 to August 9, 2007 asserting that
prior to approval of her claim, she was sent home due to the employer’s policy of not
guaranteeing eight hours of work to employee whose disabilities that had not been approved by
the Office.
Appellant submitted CA-7 forms, claiming compensation for partial disability for
intermittent hours for the period November 27, 2004 to December 23, 2005. The employing
establishment submitted several CA-7a time analysis forms for November 27, 2004 to
December 23, 2005.
Appellant submitted duty status reports dated October 11, 2007 and January 9, 2008
from Dr. Aljundi who diagnosed anserine bursitis and patella femoral osteoarthritis and advised
that appellant could work full time with restrictions. Dr. Aljundi submitted an Office
questionnaire dated January 9, 2008 and diagnosed overuse of the knees with continuing
residuals.
In a decision dated February 8, 2008, the Office denied appellant’s claim for
compensation for partial disability, beginning February 1, 2001 to December 8, 2004, on the
grounds that the evidence was not sufficient to establish that her partial disability was due to
her accepted work injury.
In a letter dated February 8, 2008, the Office advised appellant that she would be paid
for intermittent time lost from December 25, 2004 to December 23, 2005 when light-duty work
was not made available prior to the adjudication of her claim.
Appellant requested a telephonic hearing which was held on May 28, 2008. She
submitted a certificate to return to work dated February 2, 2001 from Dr. Naira Henein, a
Board-certified internist, who diagnosed knee pain. Dr. Henein provided work restrictions of
no walking distances or climbing stairs from February 3 to 8, 2001. Also submitted was an
August 31, 2007 report from Dr. Aljundi who noted treating appellant since April 9, 2001 for
right knee pain. Dr. Aljundi provided work restrictions beginning October 21, 2004. Appellant
also submitted reports from Dr. Aljundi dated January 24, 2005 and January 9, 2008, which
were previously of record.
In a decision dated August 11, 2008, the Office affirmed the February 8, 2008 decision
which denied appellant’s claim for compensation for the period February 1, 2001 to
December 8, 2004.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she
is disabled for work as a result of an accepted employment injury and submit medical evidence
for each period of disability claimed.1 Whether a particular injury causes an employee to be
1

See Fereidoon Kharabi, 52 ECAB 291 (2001).

3

disabled for employment and the duration of that disability are medical issues.2 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.3
The Board will not require the Office to pay compensation for disability in the absence
of medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so, would essentially allow an employee to self-certify his or her disability
and entitlement to compensation. For each period of disability claimed, the employee has the
burden of establishing that he or she was disabled for work as a result of the accepted
employment injury.4
ANALYSIS
The Office accepted appellant’s claim for aggravation of osteoarthritis of the right knee
and aggravation of occupational bursitis of the right knee. The Board finds that the medical
evidence submitted in support of the wage-loss compensation claim for partial disability for the
period February 1, 2001 to December 8, 2004 is insufficient to establish that the claimed period
of partial disability was caused or aggravated by the accepted employment injury.
Appellant submitted a return to work certificate dated February 2, 2001 from
Dr. Henein who diagnosed knee pain and returned appellant to work with restrictions from
February 3 to 8, 2001. Although Dr. Henein noted that appellant had symptoms of right knee
pain, she did not specifically address whether appellant had any employment-related disability
beginning February 1, 2001 causally related to her work injury. Therefore, this report is
insufficient to meet appellant’s burden of proof.
Appellant submitted reports from Dr. Aljundi from December 9, 2004 to March 17,
2005 who treated appellant for chronic knee pain. Dr. Aljundi diagnosed patella femoral
osteoarthritis of the right knee and bursitis of the right knee. He recommended that appellant
return to work full time with restrictions. In reports dated October 6, 2005 to October 16, 2006,
Dr. Aljundi treated appellant for increasing right knee pain. He opined that appellant’s job
duties required extensive walking and stair climbing with a heavy mail satchel which
aggravated her right knee condition. Dr. Aljundi diagnosed patella femoral osteoarthritis of the
right knee, bursitis of the right knee and degenerative joint disease of the right knee and
recommended short-term restrictions on walking and stair climbing. He did not, however,
indicate any periods of disability resulting from the accepted conditions of aggravation of
osteoarthritis of the right knee or aggravation of occupational bursitis of the right knee.
Therefore, these reports are insufficient to establish that appellant was disabled from
February 1, 2001 to December 8, 2004 due to her employment injury. Rather, Dr. Aljundi
opined that appellant could continue working full time subject to restrictions. Evidence from
the employing establishment indicates that appellant was provided work within her restrictions.
2

Id.

3

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

4

Sandra D. Pruitt, 57 ECAB 126 (2005).

4

Likewise, duty status reports from Dr. Aljundi dated December 20, 2006 to April 10,
2007 and October 11, 2007 to January 9, 2008 advised that appellant could work full time
subject to restrictions. In return to work slips dated August 1 and 2, 2006, Dr. Aljundi
diagnosed right knee sprain, exacerbation of osteoarthritis with joint effusion and opined that
appellant was totally disabled from August 1 to 6, 2006. Similarly, on August 31, 2007 he
noted treating appellant on April 9, 2001 for right knee pain and provided work restrictions
beginning October 21, 2004. Even though Dr. Aljundi noted that she had symptoms of her
right knee condition and was disabled on certain days in 2006, he did not, in this report or in
others, specifically address whether appellant had any employment-related disability beginning
February 1, 2001 to December 8, 2004 causally related to her accepted employment conditions.
Therefore, these reports are insufficient to discharge appellant’s burden of proof.
The remainder of the medical evidence, including a report from Dr. Fares dated
February 15, 2006, failed to provide an opinion on causal relationship between the claimed
period of disability and the accepted employment injury. Consequently, the medical evidence
did not establish that the claimed period of disability was due to appellant’s accepted
employment injury.
CONCLUSION
The Board finds that appellant has failed to establish that her disability for the period
February 1, 2001 to December 8, 2004 is causally related to the accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 11 and February 8, 2008 are affirmed.
Issued: July 20, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 07-1682
Issued: November 23, 2007

Case Submitted on the Record

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

JURISDICTION
On May 30, 2007 appellant filed a timely appeal from the October 20, 2006 and
February 21, 2007 merit decisions of the Office of Workers’ Compensation Programs that denied
his traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury in the performance of duty.
FACTUAL HISTORY
On August 26, 2006 appellant, then a 64-year-old part-time flexible clerk, filed a
traumatic injury claim alleging that he sustained an injury to his lower back and left hip in the
performance of duty on June 21, 2006. He explained that on that date he lifted a priority box and
felt a pull in his back. Appellant stopped work on August 26, 2006 and returned on

September 1, 2006. He also filed a claim for compensation for leave buyback but did not specify
the dates involved. The employing establishment controverted appellant’s claim.
In support of his claim, appellant submitted an August 26, 2006 duty status report from
Jessica Sharp, a family nurse practitioner. Ms. Sharp diagnosed lumbosacral strain but did not
give any work restrictions. Appellant also provided an August 26, 2006 attending physician’s
report from Ms. Sharp, again diagnosing lumbosacral strain. Appellant submitted a September 5,
2006 note from John A. Ross, a physician’s assistant, recommending that he remain off work
until a follow up appointment in six weeks.
On October 17, 2006 the employing establishment offered a limited-duty assignment,
which appellant accepted.
In an October 17, 2006 duty status report, Mr. Ross diagnosed acute low back strain and
recommended that appellant perform light-duty work for another three weeks.
By decision dated October 20, 2006, the Office denied appellant’s claim on the grounds
that the medical evidence of record was insufficient to establish that his diagnosed condition was
causally related to the June 21, 2006 employment incident.
The employing establishment provided a June 21, 2006 accident report and an undated
memorandum explaining that appellant declined to seek medical attention or file a claim
immediately following his injury.
In an October 17, 2006 report of a magnetic resonance imaging (MRI) scan of appellant’s
lumbar spine, Dr. Dennis K. Bielecki, a radiologist, advised that appellant complained of
“worsening pain since June 21, 2006 injury.” Dr. Bielecki noted degenerative changes from the
L3-4 level to the L5-S1 level and indicated that the most severe degenerative changes were at
L5-S1 and L4-5.
On October 19, 2006 appellant explained that he delayed seeking medical treatment until
August 26, 2006 because he experienced significant pain until the evening of August 25, 2006.
However, he reported the incident to his supervisor on the date of the alleged injury.
Appellant requested reconsideration on January 10, 2007.
By decision dated February 21, 2007, the Office denied modification of its October 20,
2006 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
1

5 U.S.C. §§ 8101-8193.

2

sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.2
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.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a “fact of injury” has been established.
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.4 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.5
The medical evidence required to establish causal relationship generally is 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.6 The
opinion of the physician must be based on a complete factual and medical background of the
claimant7 and must be one of reasonable medical certainty8 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.9
ANALYSIS
The record establishes that appellant picked up a priority box as alleged on
June 21, 2006. However, appellant has not submitted reasoned medical evidence supporting a
causal relationship between the employment incident and a diagnosed medical condition. The
Board finds that appellant did not meet his burden of proof in establishing his traumatic injury
claim.
In support of his claim, appellant submitted August 26, 2006 duty status and attending
physician’s reports from Ms. Sharp, a family nurse practitioner who diagnosed lumbosacral
strain. The Board finds that these reports do not constitute competent medical evidence because
Ms. Sharp, a nurse practitioner, is not a physician as defined in the Act.10 Appellant also
2

Elaine Pendleton, 40 ECAB 1143 (1989).

3

Victor J. Woodhams, 41 ECAB 345 (1989).

4

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

5

Id.

6

Conard Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

7

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

8

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

9

Judy C. Rogers, 54 ECAB 693 (2003).

10

See 5 U.S.C. § 8101(2); Joseph N. Fassi, 42 ECAB 677 (1991).

3

provided a duty status report and a note recommending time off work from John A. Ross, a
physician’s assistant. However, Mr. Ross’ reports also do not constitute competent medical
evidence because Mr. Ross, a physician’s assistant, is also not a physician pursuant to the Act.11
Because neither Ms. Sharp nor Mr. Ross is a physician, their reports do not have probative value
on the issue of causal relationship, which is a medical question that must be resolved by
competent medical evidence.12
Appellant also provided an October 17, 2006 MRI scan report from Dr. Bielecki, who
diagnosed degenerative changes of the lumbar spine. Although he noted complaints of
worsening pain “since June 21, 2006 injury,” Dr. Bielecki did not provide a specific opinion on
causal relationship, if any, between the employment incident and appellant’s diagnosed
condition. Dr. Bielecki did not address why picking up a priority box caused or aggravated a
diagnosed condition.
Accordingly, the Board finds that appellant has not met his burden of proof in
establishing his claim because he has not submitted reasoned medical evidence from a physician
explaining the reasons why picking up a priority box on June 21, 2006 would cause or aggravate
a diagnosed condition.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained an injury in the performance of duty.

11

See id.; George H. Clark, 56 ECAB ___ (Docket No. 04-1572, issued November 30, 2004).

12

See supra notes 10, 11; Steven S. Saleh, 55 ECAB 169 (2003).

4

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2007 and October 20, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 23, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.J., Appellant
and
DEPARTMENT OF AGRICULTURE,
FOOD SAFETY & INSPECTION SERVICE,
Boyden, IA, Employer
__________________________________________

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

Docket No. 18-1426
Issued: April 5, 2019

Case Submitted on the Record

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

JURISDICTION
On July 18, 2018 appellant filed a timely appeal from a January 19, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective May 1, 2017, as he no longer had residuals
or disability causally related to the accepted employment injury; and (2) whether appellant has met
his burden of proof to establish continuing residuals or disability of his employment injury on or
after May 1, 2017.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 27, 2014 appellant, then a 58-year-old food inspector, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral shoulder, elbow, and forearm pain
and bilateral hand numbness due to his repetitive work duties. He noted that he first became aware
of his claimed conditions and their relationship to his federal employment on June 1, 2013.
Appellant stopped work on October 27, 2014 and filed claims for compensation for leave
without pay (CA-7 forms) commencing on that date. He claimed that the employing establishment
could not accommodate his work restrictions.
By development letter dated October 29, 2014, OWCP informed appellant that the
evidence of record was insufficient to support his claim. It advised him of the medical and factual
evidence required and provided her with a questionnaire for completion. OWCP afforded
appellant 30 days to submit the requested evidence.
By decision dated December 24, 2014, OWCP denied appellant’s occupational disease
claim, finding that, although he established that evidence supported the injury or events occurred
as described, he had not submitted any medical evidence containing a firm medical diagnosis in
connection with the accepted injury or events.
On January 8, 2015 appellant requested reconsideration.
OWCP received medical evidence, including reports dated December 9, 2013 and
December 8 and 18, 2014 from Dr. Jeffrey S. Kalo, an attending orthopedic surgeon, who
examined appellant and diagnosed, among other things, lateral epicondylitis and mild biceps
tendinitis/tendinosis of the right elbow.
By decision dated February 11, 2015, OWCP modified its December 24, 2014 decision to
find that the medical evidence of record was sufficient to establish a diagnosis of lateral
epicondylitis and mild biceps tendinitis. However, the claim remained denied as causal
relationship had not been established between the diagnosed medical conditions and the accepted
employment factors.
Appellant requested reconsideration on March 16, 2015. He submitted narrative reports
from Dr. Kalo dated January 12 and 16 and April 15, 2015 and an attending physician’s report
(Form CA-20) dated February 26, 2015. Dr. Kalo opined that appellant’s right elbow lateral
epicondylitis was causally related to his repetitive work duties.
OWCP, by decision dated May 14, 2015, vacated its February 11, 2015 decision and
accepted appellant’s claim for right-sided lateral epicondylitis. It paid him wage-loss
compensation for temporary total disability on the supplemental rolls beginning October 27, 2014.
Supplemental rolls payments continued through May 30, 2015. Effective May 31, 2015, OWCP
transferred appellant to the periodic compensation rolls.
OWCP received additional reports dated April 15 and July 15, 2015 from Dr. Kalo, who
advised that appellant continued to have right elbow epicondylitis. Dr. Kalo recommended that
appellant undergo a functional capacity evaluation to determine his work restrictions.
2

By letter dated May 20, 2016, QTC Medical Services, OWCP’s scheduling contractor,
OWCP referred appellant, together with a statement of accepted facts (SOAF), the medical record,
and a set of questions, to Dr. Anthony C. Nwakana, a Board-certified orthopedic surgeon, for a
second opinion to determine whether he had any continuing residuals, work restrictions, and need
for medical treatment due to his accepted employment injury.
In a June 22, 2016 report, Dr. Nwakana indicated that on June 7, 2016 he reviewed the
SOAF and medical record, including Dr. Kalo’s reports and a December 18, 2014 magnetic
resonance imaging (MRI) scan of appellant’s right elbow. He discussed examination findings and
diagnosed work-related tendinitis of the right elbow. Dr. Nwakana advised that appellant may
have a slight residual of his work-related condition, but it was insignificant enough to warrant him
being off work. The condition “appeared to have resolved between the time of the last day worked
on October 31, 2014 to the examination on June 7, 2016.” Dr. Nwakana determined that appellant
had reached maximum medical improvement. He concluded that appellant could return to his food
inspector position without limitations.
On August 4, 2016 OWCP determined that there was a conflict in medical opinion between
Dr. Kalo and Dr. Nwakana as to whether appellant had any continuing residuals or disability due
to the accepted employment condition.
On August 29, 2016 OWCP referred appellant together with a SOAF, the medical record,
and a list of questions, to Dr. Paul A. Cederberg, a Board-certified orthopedic surgeon, for an
impartial medical examination.
In a September 29, 2016 report, Dr. Cederberg noted appellant’s history and reviewed the
SOAF and medical record, including the December 18, 2014 right elbow MRI scan. On
examination, he reported that appellant was pleasant and in no acute distress. The right upper arm
measured 13 inches in circumference compared to 12-1/4 inches on the left. The right forearm
measured 11-3/4 inches compared to 11 inches on the left. Grip strength averaged 60 pounds on
the right and 45 pounds on the left. The right elbow lacked 10 degrees of full extension and could
ﬂex to 135 degrees. The left elbow could fully extend to 0 degrees and ﬂex to 135 degrees. There
was normal pronation and supination. There was tenderness over the biceps insertion into the
radius, the medial epicondyle, but nontender over the lateral epicondyle, and the triceps insertion
into the right elbow. There was also generalized tenderness and trace effusion of the right elbow
compared to the left. Provocation tests for lateral epicondylitis were negative. Circulatory, motor,
and sensory examinations were otherwise intact. Reﬂexes at the triceps, biceps, and
brachioradialis were brisk and symmetrical. Dr. Cederberg opined that appellant had a slight loss
of full extension of the elbow, commonly found in individuals with primary osteoarthritis of the
elbow. He had diffuse tenderness about the attachments and origins of the elbow tendons, but not
over the lateral epicondyle. Dr. Cederberg noted that appellant’s clinical findings were typical of
someone with mild osteoarthritis to the right elbow, although he had no history of intra-articular
trauma or injury. He opined that the accepted work-related condition of lateral epicondylitis was
neither active nor causing any objective symptoms. Dr. Cederberg related that, at that time,
appellant only had a mild lack of extension of the elbow and functional range of motion of the
right elbow. Appellant’s grip strength was elevated over that of the left, as expected.
Dr. Cederberg found that appellant was not totally disabled from work. Appellant was capable of
working with restrictions related to the use of his right arm. With respect to his reasoning for his

3

opinions, Dr. Cederberg indicated that appellant had no complaints of his work-related lateral
epicondylitis. He found that this condition had resolved. Appellant had mild osteoarthritis of the
right elbow unrelated to his lateral epicondylitis condition. Dr. Cederberg noted that osteoarthritis
of the elbow was predominantly an age and genetically determined condition. In an accompanying
work capacity evaluation (Form OWCP-5c) dated September 29, 2016, he indicated that appellant
could perform his usual job and could work eight hours a day with permanent restrictions.
On March 16, 2017 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits because he no longer had residuals or disability causally related to the accepted
employment injury. It determined that the special weight of the medical evidence rested with the
September 29, 2016 impartial medical report of Dr. Cederberg. OWCP afforded appellant 30 days
to submit additional evidence or argument.
OWCP received a March 31, 2017 progress note from Dr. Grant W. Eyjolfson, Boardcertified in family medicine. Dr. Eyjolfson noted a history of appellant’s medical treatment,
including his own, and appellant’s chronic musculoskeletal complaints. He discussed examination
findings and diagnosed tendinopathy/tear and/or medial/lateral epicondylitis of the right elbow
causally related to appellant’s accepted work-related injury. However, Dr. Eyjolfson related that
he did not have any significant objective medical findings to indicate that the work-related
condition was still active and causing symptoms. He explained that he did not have any
occupational therapy or physical therapy consultations. Dr. Eyjolfson further explained that
appellant had a rather benign examination. Some of appellant’s symptoms seemed to be
exaggerated on examination as he had some muscle twitching and spasm in the elbow that seemed
unrelated and changed with distraction. Thus, Dr. Eyjolfson maintained that he could not comment
if these types of residuals were specifically attributed to the work-related condition. He related
that any improvement in appellant’s symptoms would be related to him being off work and not
being exposed to repetitive trauma. Dr. Eyjolfson again stated that it was difﬁcult for him to
comment as he had not been intimately involved in his medical care. Based on Dr. Kalo’s notes,
he advised that it was likely that appellant could only return to work with restrictions. He was not
a surgical candidate at that time for the noted diagnoses. Dr. Eyjolfson further advised that by
appellant’s own story, he could return to part-time or full-time modified duties.
By decision dated May 1, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that same date. It found that the opinion of Dr. Cederberg as the
impartial medical examiner (IME) constituted the special weight of the evidence and established
that he no longer had any residuals or disability due to the accepted condition.
Appellant requested an oral hearing before an OWCP hearing representative on
May 18, 2017. No additional medical evidence was submitted. A telephonic hearing was held on
November 16, 2017.
By decision dated January 19, 2018, an OWCP hearing representative affirmed the
termination of appellant’s compensation benefits. He found that the special weight of the medical
opinion evidence rested with the well-rationalized opinion of Dr. Cederberg, the IME, who found
that appellant no longer had any residuals or disability from his accepted employment condition
of right lateral epicondylitis.

4

LEGAL PRECEDENT -- ISSUE 1
Under FECA, once OWCP accepts a claim and pays compensation, it bears the burden of
proof to justify termination or modification of benefits.2 OWCP may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the employment.3
Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.6
Section 8123(a) 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 The implementing regulations
states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and OWCP
will select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.8 In situations where there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an IME for the purpose of resolving the conflict, the opinion
of such specialist, if sufficiently well rationalized and based upon a proper factual background,
must be given special weight.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective May 1, 2017.

2

See A.C., Docket No. 16-1670 (issued April 6, 2018); R.P., Docket No. 17-1133 (issued January 18, 2018); S.F.,
59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
3
See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
4

See R.P., supra note 2; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

See R.P., supra note 2; A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E.
Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
6
See R.P., supra note 2; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
7

5 U.S.C. § 8123(a).

8

20 C.F.R. § 10.321.

9

R.C., 58 ECAB 238 (2006); Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

5

OWCP accepted that appellant sustained lateral epicondylitis of the right elbow causally
related to his repetitive work duties. It paid him wage-loss compensation for total disability on the
supplemental rolls from October 27, 2014 through May 30, 2015. Effective May 31, 2015, OWCP
transferred appellant to the periodic compensation rolls.
OWCP later determined that a conflict in medical opinion arose between appellant’s
attending physician, Dr. Kalo, and Dr. Nwakana, an OWCP referral physician, regarding whether
he had any further disability or residuals of his accepted employment injury. It properly referred
him to Dr. Cederberg, a Board-certified orthopedic surgeon, for an impartial medical examination,
pursuant to 5 U.S.C. § 8123(a).
Where there exists opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10 The Board finds that the opinion of Dr. Cederberg is
well rationalized and based on a proper factual and medical history. Dr. Cederberg accurately
summarized the relevant medical evidence, provided detailed findings on examination, and
reached conclusions about appellant’s condition which comported with his findings.11 In his
September 29, 2016 report, he reviewed in detail the medical evidence of record. On examination,
Dr. Cederberg found that appellant had a slight loss of full extension of the elbow, commonly
found in individuals with primary osteoarthritis of the elbow. He further found that appellant had
diffuse tenderness about the attachments and origins of the elbow tendons, but not over the lateral
epicondyle. Dr. Cederberg noted that appellant’s clinical findings were typical of someone with
mild osteoarthritis to the right elbow, although he had no history of intra-articular trauma or injury.
He opined that the accepted work-related condition of lateral epicondylitis had resolved.
Dr. Cederberg further opined that appellant was capable of working with right arm restrictions,
which he listed in his September 29, 2016 Form OWCP-5c. He reasoned that appellant only had
a mild lack of extension of the elbow and functional range of motion of the right elbow and his
grip strength was elevated over that of the left, as expected. Dr. Cederberg further reasoned that
appellant had no complaints of his work-related lateral epicondylitis. He noted that appellant had
mild osteoarthritis of the right elbow that was unrelated to his accepted lateral epicondylitis
condition. Dr. Cederberg related that osteoarthritis of the elbow was predominantly an age and
genetically determined condition. His findings and conclusions establish that appellant has no
employment-related medical residuals or disability due to his accepted condition.
As Dr. Cederberg’s September 29, 2016 report is detailed, well rationalized and based on
a proper factual background, his opinion is entitled to the special weight accorded an IME.12
OWCP, therefore, met its proof to terminate appellant’s wage-loss compensation and medical
benefits for the accepted condition of lateral epicondylitis of the right elbow.

10

See C.V., Docket No. 17-1159 (issued April 6, 2018); J.M., 58 ECAB 478 (2007); Darlene R. Kennedy, 57 ECAB
414 (2006).
11

See C.V., id; Manuel Gill, 52 ECAB 282 (2001).

12

See C.V. and J.M., supra note 10; Katheryn E. Demarsh, 56 ECAB 677 (2005).

6

The medical evidence appellant submitted prior to the termination is insufficient to
overcome the special weight accorded to Dr. Cederberg as an IME. While Dr. Eyjolfson, in his
March 31, 2017 progress note, found that appellant had ongoing residuals of his accepted
employment-related right elbow condition, his progress note was not well rationalized and, as he
even explained, not based on objective medical evidence. A medical opinion which is not well
rationalized and is not based on objective medical evidence is of limited probative value.13
Thus, the Board finds that OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective May 1, 2017.
On appeal, appellant contends that OWCP’s two consulting physicians did not review MRI
scan results which established his epicondylitis condition and was confirmed by Dr. Kalo,
Dr. Eyjolfson and Dr. Jonah H. Luzier, a physician specializing in diagnostic radiology. The
Board notes that Dr. Nwakana and Dr. Cederberg each indicated in their reports that they reviewed
the results of the December 18, 2014 right elbow MRI scan. Thus, contrary to appellant’s
contention, the opinions of Dr. Nwakana and Dr. Cederberg were based on a complete and
accurate view of the medical record.14
LEGAL PRECEDENT -- ISSUE 2
Once OWCP meets its burden of proof to terminate appellant’s compensation benefits, the
burden shifts to the claimant to establish that he or she has continuing residuals or disability
causally related to the accepted employment injury.15 To establish causal relationship between the
disability claimed and the employment injury, the employee must submit rationalized medical
opinion evidence, based on a complete factual and medical background, establishing such causal
relationship.16
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
residuals or disability of his employment injury after May 1, 2017.
Given the Board’s finding that OWCP properly relied upon the opinion of Dr. Cederberg,
the IME, in terminating compensation, the burden of proof shifted to appellant to establish that he
remained entitled to compensation after that date.17 The issue of whether appellant has established
continuing disability following termination is a medical one, based on the medical evidence of
record.18 He did not, however, submit any additional medical evidence supporting continuing
13

See S.B., Docket No. 16-0933 (issued December 9, 2016); A.C., Docket No. 11-1339 (issued March 9, 2012).

14

See L.G., Docket No. 15-1334 (issued January 28, 2016).

15

See C.V., supra note 10; A.C., supra note 2; George Servetas, 43 ECAB 424, 430 (1992).

16

A.C., supra note 2.

17

See supra note11.

18

See P.C., Docket No. 16-1226 (issued March 23, 2017).

7

disability subsequent to OWCP’s termination of his wage-loss compensation and medical benefits
and thus failed to meet his burden of proof. Consequently, appellant has not established continuing
employment-related disability after May 1, 2017.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits, effective May 1, 2017, as he no longer had any residuals or
disability causally related to the accepted employment injury. The Board further finds that he has
not met his burden of proof to establish continuing residuals or disability of his employment injury
after May 1, 2017.
ORDER
IT IS HEREBY ORDERED THAT the January 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 5, 2019
Washington, DC

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

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

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

8