United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MICHAEL E. DeBAKEY VETERANS
ADMINISTRATION MEDICAL CENTER,
Houston, TX, Employer
__________________________________________

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

Docket No. 19-0523
Issued: January 7, 2020

Case Submitted on the Record

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

JURISDICTION
On January 4, 2019 appellant filed a timely appeal from a November 7, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a December 19, 2018 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish greater than
71 percent permanent impairment of the left index finger for which she previously received a
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP following the December 19, 2018
decision. 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.

schedule award; and (2) whether OWCP properly denied appellant’s request for reconsideration
of the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 17, 2014 appellant, then a 51-year-old food service worker, filed a traumatic
injury claim (Form CA-1) alleging that on November 16, 2014 she fractured and lacerated her left
index finger while in the performance of duty. OWCP accepted the claim for a closed fracture of
the left middle or proximal phalanx or phalanges, and an open wound of the left finger with
complications. On November 18, 2014 appellant underwent a left index finger debridement and
reduction of an open fracture and pin fixation of an open distal phalanx fracture. She underwent
additional left index finger surgeries on February 24 and March 28, 2016. OWCP paid appellant
intermittent wage-loss compensation. In July 2016, appellant resumed work with restrictions
following her March 28, 2016 surgery.
In a September 21, 2016 impairment evaluation, Dr. Lubor Jarolimek, an orthopedic
surgeon, diagnosed a healed fracture of the left index finger and complex regional pain syndrome
of the left index finger. He measured range of motion (ROM) of the left index finger. Citing the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides),3 Dr. Jarolimek found that appellant had one percent permanent
impairment of the left upper extremity. He noted that she had obtained maximum medical
improvement (MMI) around July 20, 2016.
On November 22, 2016 appellant filed a claim for a schedule award (Form CA-7).
On November 30, 2016 Dr. Albert E. Sanders, a Board-certified orthopedic surgeon and
OWCP referral physician, evaluated appellant to determine the extent of her current condition and
employment-related disability. He measured ROM of the left index finger, left middle finger, and
left wrist. Dr. Sanders found abnormal sensitivity of the left index finger. He diagnosed a
laceration, digital nerve injury, and closed fracture of the middle or proximal phalanx of the left
index finger and opined that appellant had continued residuals of her employment injury.
Dr. Sanders found that she could perform light-duty work.
In a January 19, 2017 letter, OWCP requested that appellant provide a report from her
attending physician addressing whether she had reached MMI. It afforded her 30 days to submit
the requested information.
By decision dated March 15, 2017, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish that she had reached MMI.
In a report dated March 23, 2017, Dr. J. Don Jackson, Jr., a surgeon, reviewed appellant’s
history of an employment injury to her left index finger and resulting surgeries. He agreed with
Dr. Jarolimek that she had one percent permanent impairment of the left upper extremity and had
reached MMI on or around July 20, 2016.

3

A.M.A., Guides (6th ed. 2009).

2

On April 4, 2017 appellant requested reconsideration.
On May 29, 2017 Dr. David J. Slutsky, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), reviewed the evidence and opined that appellant had 24 percent
permanent impairment of the left index finger using the diagnosis-based impairment (DBI) method
set forth in Table 15-12 on page 421 of the A.M.A., Guides. He further found 41 percent
permanent impairment of the left index finger using the ROM impairment rating method.
On November 27, 2017 OWCP informed appellant that it had authorized surgery for her
accepted condition and that therefore a schedule award was not payable at the current time.
On December 6, 2017 Dr. Gerard T. Gabel, a Board-certified orthopedic surgeon,
performed a digital nerve index neurectomy and deep transposition at the first web space, and a
left index ulnar nerve neurectomy and deep transposition of the level distal hand.
In an impairment evaluation dated February 14, 2018, Dr. Gabel opined that appellant had
65 percent permanent impairment of the left index finger due to loss of ROM, which equates to 13
percent permanent impairment of the left hand or 12 percent permanent impairment of the left
upper extremity.4
On May 16, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a letter dated May 21, 2018, OWCP advised appellant that Dr. Gabel’s February 14,
2018 report was insufficient to establish her schedule award claim as he had failed to address
whether she had reached MMI and had failed to obtain three independent ROM measurements for
the left finger. It afforded her 30 days to submit the requested information.
OWCP subsequently received a report dated May 30, 2018, wherein Dr. Gabel advised that
appellant’s condition was stable and that she had reached MMI on February 14, 2018. Dr. Gabel
asserted that he had obtained three ROM measurements of the left index finger on multiple
occasions. He noted that appellant had “little-to-no hyperesthesia within the index finger.”
On July 28, 2018 Dr. Slutsky determined that Dr. Gabel had not performed valid ROM
measurements. He therefore used the ROM measurements from Dr. Sanders’ November 30, 2016
report. Dr. Slutsky found that appellant had 50 percent impairment of the digit “due to a
longitudinal sensory loss along the entire length of her finger of both digital nerves” according to
Table 15-17 on page 427 of the A.M.A., Guides. He additionally found 41 percent permanent
impairment of the index finger due to loss of ROM, which he combined with the sensory
impairment to find 71 percent permanent impairment of the digit. Dr. Slutsky opined that appellant
had reached MMI on November 30, 2016.
In a report dated September 27, 2018, Dr. Gabel noted that OWCP had found 71 percent
permanent impairment of the digit, not 65 percent impairment, and indicated that a variation in

4
On February 20, 2018 appellant again filed a claim for a schedule award (Form CA-7). In a letter dated
February 26, 2018, OWCP advised her that it was taking no action on her schedule award claim as the evidence of
record was insufficient to establish that she had reached MMI.

3

ROM was “within reason.” He disagreed with the date of MMI as it was before appellant’s most
recent surgery.
By decision dated November 7, 2018, OWCP granted appellant a schedule award for 71
percent permanent impairment of the left index finger. The period of the award ran for 32.66
weeks from February 15 to October 1, 2018.
On December 5, 2018 appellant requested reconsideration. She contended that OWCP’s
regulations provided that the loss of a first finger constituted 46 weeks of compensation instead of
32.66 weeks.
By decision dated December 19, 2018, OWCP denied appellant’s request for
reconsideration of the merits of her schedule award claim.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members, or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.7 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment class of
diagnosis (CDX), which is then adjusted by grade modifiers based on functional history (GMFH),
physical examination (GMPE), and clinical studies (GMCS).10 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to provide reasons
5

Supra note 2.

6

20 C.F.R. § 10.404.

7

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9
A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 411.

4

for their impairment choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP’s DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with OWCP’s DMA providing rationale for
the percentage of impairment specified.13
Before an award may be made, it must be medically determined that no further
improvement can be anticipated and the impairment must reach a fixed and permanent state, which
is known as MMI.14 The Board has explained that MMI means that the physical condition of the
injured member of the body has stabilized and will not improve further.15 The determination of
whether MMI has been reached is based on the probative medical evidence of record and is usually
considered to be the date of the evaluation by the attending physician which is accepted as
definitive by OWCP.16 Only when an impairment has reached MMI can a permanent impairment
rating be performed.17
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted that appellant sustained a closured fracture of the left middle or proximal
phalanx or phalanges and an open wound of the left finger with complications. Appellant
underwent surgeries on her left index finger on November 18, 2014, February 24 and March 28,
2016, and December 6, 2017.
In an impairment evaluation dated February 14, 2018, Dr. Gabel advised that appellant had
65 percent permanent impairment of the left index finger due to loss of ROM. In a supplemental
report dated May 30, 2018, he opined that she had reached MMI. Dr. Gabel indicated that he had
obtained three ROM of the left index finger on multiple occasions. His report, however, does not
contain three valid ROM measurements of appellant’s left index finger as required by the A.M.A.,
Guides and this it is of diminished probative value.18
Dr. Slutsky, a DMA, reviewed the evidence on July 28, 2018 and found that Dr. Gabel had
failed to validly measure ROM. He therefore rated appellant’s impairment using the ROM
measurements from Dr. Sanders’ November 30, 2016 report. However, this report was dated prior
12

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

13

Supra note 7 at Chapter 2.808.5 (March 2017); see also R.E., Docket No. 18-1661 (issued May 28, 2019).

14

Supra note 7 at Chapter 3.700.3.a (January 2010).

15

See C.R., Docket No. 17-1872 (issued March 8, 2018).

16

See E.M., Docket No. 19-0664 (issued November 19, 2019).

17

A.M.A., Guides 19; G.B., Docket No. 15-0445 (issued May 4, 2015).

18

Id. at 464; see also M.S., Docket No. 19-0282 (issued August 2, 2019).

5

to her December 6, 2017 left index finger surgery and therefore she had not obtained MMI. As
noted, a claimant must obtain MMI prior to impairment rating.19 Consequently, the evidence the
DMA relied upon in rating appellant’s impairment is of no probative value as she had not yet
reached MMI.20
The Board thus finds that the medical evidence requires clarification to resolve the issue of
the extent of appellant’s permanent impairment of left index finger.21 The case will be remanded
for further development of the medical evidence and a reasoned opinion regarding the degree of
permanent impairment of the left index finger. Following this and other such further development
as deemed necessary, OWCP shall issue a de novo decision.22
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 19 and November 7, 2018 decisions
of the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: January 7, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
19

Id.

20

K.S., Docket No. 15-1082 (issued April 18, 2017).

21

Id.; see also R.B., Docket No. 12-1669 (issued February 21, 2013).

22

In light of the Board’s disposition in Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE ARMY,
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DIRECTORATE OF EMERGENCY SERVICES, )
PROTECTION & PREVENTION,
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Fort Bragg, NC, Employer
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__________________________________________ )
J.R., Appellant

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

Docket No. 20-0025
Issued: December 13, 2021

Case Submitted on the Record

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

JURISDICTION
On October 3, 2019 appellant filed a timely appeal from a May 3, 2019 merit decision of
the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal Employees’

1

Appellant timely requested 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 OWCP improperly calculated an
overpayment because the findings were based on his earnings as a firefighter, which required a special calculation
under its procedures. 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 $5,255.57 for the period October 19, 2018 through
February 2, 2019, for which he was without fault, because he continued to receive partial disability
compensation following his return to full-time work; and (2) whether it properly denied waiver of
recovery of the overpayment.
FACTUAL HISTORY
On July 18, 2018 appellant, then a 36-year-old firefighter, filed a traumatic injury claim
(Form CA-1) alleging that on that date he injured his left shoulder attempting to pull start a boat
motor while in the performance of duty. The employing establishment indicated that his pay rate
when he stopped work was $68,109.60 per year. It paid continuation of pay (COP) from July 19
through September 2, 2018. On August 6, 2018 OWCP accepted appellant’s claim for left
shoulder strain of the muscle, fascia, and tendon.
Appellant returned to modified duty, with modified work hours, on July 23, 2018 working
eight hours a day on scheduled shifts rather than his regular work schedule of 144 hours bi-weekly,
based on medical evidence dated July 19, 2018.4
On October 2, 2018 appellant completed a claim for compensation (Form CA-7) and
claimed disability from September 4 through 15, 2018 due to leave without pay (LWOP) and loss
of mandatory overtime. On the reverse side of the claim form the employing establishment
indicated that appellant’s hourly base pay was $16.07 per hour and that he received additional pay
of $24.11 per hour. It noted that he worked three days a week and 24 hours a day.
On October 3, 2018 the employing establishment offered appellant a full-time modifiedduty position as a firefighter with a salary of $44,281.00, working 40 hours a week, not including
weekends, rather than his regular work hours of 144 hours bi-weekly, this job offer was based on
medical evidence dated August 30, 2018.5 Appellant accepted this position on October 3, 2018.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the May 3, 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.
4

These restrictions included no work with the left hand, and no driving a government vehicle.

5

These restrictions found that appellant could drive, but included no hazardous du ty for one month.

2

On October 15, 2018 appellant filed a Form CA-7 for the period September 30 through
October 13, 2018 for leave buy back.
In an October 16, 2018 letter, the employing establishment asserted that appellant was
claiming LWOP for the period September 4 through 15, 2018 for the weekend shifts that he was
unable to perform.
In a report of work status dated October 19, 2018, the employing establishment notified
OWCP that on October 3, 2018 appellant had accepted a modified-duty position.6 It further
advised that his work schedule was 144 hours bi-weekly, but that he was working reduced hours.
The October 3, 2018 position included working eight hours a day on assigned shifts, not including
weekends.
On October 26, 2018 appellant informed OWCP that he had returned to full-duty work.
In an October 29, 2018 Form CA-7, the employing establishment indicated that appellant’s
position required mandatory overtime, and that, while his base pay was $44,281.00 per year, he
also had additional pay of $23,829.00 per year. It noted that he worked 144 hours bi-weekly
performing 24-hour work shifts. In a separate Form CA-7 of even date, appellant claimed
disability from September 16 through 29, 2018.
On November 5, 2018 OWCP calculated appellant’s pay rate including his annual pay rate
of $44,281.00 and his mandatory overtime of $23,829.00 per year to reach his weekly pay rate at
the time of injury and currently of $1,309.80.7 It established his tour of duty as three 24-hour
shifts, with a regular bi-weekly tour of 144 hours (six 24-hour shifts), consisting of 106 regular
hours and 38 “firefighter overtime hours.”8 OWCP determined that appellant was actually earning
$851.56 per 40-hour week, 9 and that he had 65 percent wage-earning capacity with wage loss of
6

Id.

7
Federal (FECA) Procedure Manual, Part 2-- Claims, Determining Pay Rates, Chapter 2.900.8.d(1) (March 2011).
(Annual salary/2756 (53 hours of regular pay per week x 52 weeks) = firefighter hourly rate; firefighter hourly rate x
106 hours = bi-weekly base pay; firefighter hourly rate x 1.5 = “firefighter overtime” rate (subject to GS-10, step 1
cap as described in Chapter 2.900.7.b.(22); “firefighter overtime” rate X number of hours in regular tour in excess of
106 hours = bi-weekly “firefighter overtime”; (Bi-weekly base pay + bi-weekly “firefighter overtime”) / 2 = weekly
pay rate.) These provisions of the procedure manual were updated following OWCP’s May 3, 2019 decision in
February 2020.
8

Id. at, Chapter 2.900.3.g.(1)(a) a nd (2)(a) (March 2011). Appellant is a full-time firefighter on a military
installation as described in Chapter 2.900.3.g.(1)(a). His tour of duty correlates with that described in Chapter
2.900.3.g. (2)(a). These provisions of the procedure manual were updated following OWCP’s decision in
February 2020.
9

Id. at Chapter 2.900.6(b) 12 and 13. As appellant, a firefighter, was required to work more than 106 hours per
pay period. The Federal Firefighters Overtime Pay Reform Act of 1998 (Public Law No. 105 -277) amended Title 5
of the U.S. Code to define hours worked by firefighters in excess of 106 bi-weekly, or 53 weekly, as “overtime.”
Public Law 106-554, which was enacted in December 2000, contained language establishing that those hours in excess
of 106 bi-weekly (or 53 weekly) should not be considered “overtime” pay for the purpose of computing pay under
Section 5 U.S.C. 5545 b. These changes became effective the first day of the first pay period after October 1, 1998.
Id. at Chapter 2.900.8(d)(1).

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$458.43 per week. 10 Multiplying $458.43 by ¾, the augmented rate, as appellant has dependents,
resulted in weekly compensation of $343.82 and wage-loss compensation every four weeks in the
amount of $1,375.25.
On November 20, 2018 OWCP authorized wage-loss compensation in the amount of
$3,339.99 for the period September 4 through November 10, 2018.11 It also authorized $1,375.29
for the period November 11 through December 12, 2018.
On November 16, 2018 appellant filed a Form CA-7 requesting leave buy back for the
period October 14 through 19, 2018.
In a February 6, 2019 report of work status, the employing establishment indicated that
appellant had returned to full-time regular duty with no restrictions on October 19, 2018. The
employing establishment noted his work restrictions had changed and referenced medical evidence
dated October 19, 2018. It provided a form report from appellant’s attending physician, Dr. Neil
Conti, a Board-certified orthopedic surgeon, which provided that appellant could return to work
without restrictions. The employing establishment also provided an occupational health clinic
return to work certificate from Dr. Michael Creel, an employing establishment physician
specializing in occupational medicine, dated October 19, 2018 which found that appellant could
return to work without restrictions on October 19, 2018 and indicated that he required no further
medical treatment.
On February 7, 2019 OWCP calculated an overpayment of compensation in the amount of
$5,255.57 for the 107-day period from October 19, 2018 through February 2, 2019.
In a February 11, 2019 preliminary overpayment determination, OWCP notified appellant
that he received an overpayment of compensation in the amount of $5,255.57 for the period
October 19, 2018 through February 2, 2019 because he returned to full-time work with no wage
loss on October 19, 2018, but continued to receive compensation for partial disability for this
period. It determined that he was at fault in the creation of the overpayment, because he accepted
a payment that he knew or reasonably should have known to be incorrect. OWCP provided
appellant with a calculation of the overpayment in the amount of $49.12 times 107 days for the
period October 19, 2018 through February 2, 2019 or $5,255.57. It further advised him of his

10

20 C.F.R. §§ 402 and 403 (A claimant is considered partially disabled, when he or she cannot return to the dateof-injury position, but is not totally disabled for all gainful employment, and if the claimant has actual earnings which
fairly and reasonable represent his or her wage-earning capacity, those earnings will form the basis for payment of
compensation for partial disability.) Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning
Capacity Based on Actual Earnings, Chapter 2.815.3.b(1) and 4.b (June 2013)(Where residuals of the accepted work
injury prohibit the employee from returning to the employment held at the time of injury, or from earning equivalent
wages, but do not render him/her totally disabled for all gainful employment, the employee is considered partially
disabled and is entitled to compensation for a loss of wage-earning capacity (LWEC). The method for computing the
compensation payable where an injured employee has actual earnings is called the Shadrick formula, as it reflects the
principles set forth in Albert C. Shadrick, 5 ECAB 376 (1953)).
11

This is a period of 68 days. Appellant’s daily LWEC was $49.12 resulting the payment of $3,339.99. (OWCP
variously listed appellant’s daily LWEC as $49.11 and $49.12. It used $49.11 when issuing the payment, and $49.12
when calculating the overpayment.)

4

appeal rights and provided an overpayment action request form and an overpayment recovery
questionnaire (OWCP-20). OWCP afforded 30 days for a response.
In a March 14, 2019 letter, appellant contested the amount of wage-loss compensation he
received prior to his return to full-duty work. He contended that his pay was not calculated
properly for wage-loss compensation purposes.12 Appellant also made a payment of $4,125.87
toward the overpayment.
On April 2, 2019 appellant completed the overpayment action request form and indicated
that OWCP should make a decision based on the written evidence and further indicated that he
disagreed with the amount of the overpayment and the finding of fault in the creation of the
overpayment. He provided a completed Form OWCP-20 and indicated that he had $4,125.87 of
the overpayment in his possession. Appellant listed his monthly income as $3,376.22. He
indicated that he had three dependents, his wife, and two minor children. Appellant listed his
monthly expenses as: mortgage, $761.00; food, $1,200.00; clothing, $40.00; utilities, $375;
miscellaneous expenses, $115.00; and a monthly credit card payment of $310.00, for total monthly
expenses of $2,801.00. He indicated that he had a checking account balance of $3,970.00.
Appellant contended that he was not at fault in the creation of the overpayment as he advised
OWCP on October, 26, 2019 that he had returned to work without restrictions.
Appellant provided an earnings and leave statement which indicated that his yearly biweekly gross pay was $2,794.40 and his bi-weekly net pay was $1,803.55.
By decision dated May 3, 2019, OWCP finalized its preliminary overpayment
determination finding that appellant received an overpayment of compensation in the amount of
$5,255.57 for the period October 19, 2018 through February 2, 2019, that he had paid $4,125.87
toward the overpayment, overturned the preliminary finding, determining that he was not at fault
in the creation of the overpayment, but finding that recovery of the overpayment would not defeat
the purpose of FECA or be against equity and good conscience as appellant’s income of $3,372.27
exceeded his monthly expenses of $2,801.00 by more than $50.00.
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 susta ined while in the
performance of duty. 13 Section 8129(a) of FECA provides, in pertinent part, that when an
overpayment has been made to an individual under this subchapter because of an error of fact or
law, adjustment shall be made under regulations prescribed by the Secretary of Labor by
decreasing later payments to which an individual is entitled. 14

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Pay Rates, Chapter 2.900.3.g (March 2011);
Compensation Claims, Chapter 2.0901.b.1 (February 2013).
13

5 U.S.C. § 8102(a).

14

Id. at § 8129(a).

5

Section 8116(a) of FECA provides that, while an employee is receiving compensation or
if he or she has been paid a lump sum in commutation of installment payments until the expiration
of the period during which the installment payments would have continued, the employee may not
receive salary, pay, or remuneration of any type from the United States, except in limited specified
instances.15 OWCP’s procedures provide that an overpayment of compensation is created when a
claimant returns to work, but continues to receive wage-loss compensation. 16
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,255.57 for the period October 19, 2018 through February 2,
2019, for which he was without fault, because he continued to receive partial disability
compensation following his return to full-duty work.
Appellant resumed full-time work on October 19, 2018.17 However, OWCP continued to
pay him wage-loss compensation for partial disability following his return to full-time work, which
resulted in an overpayment of compensation. Appellant was not entitled to receive compensation
for partial disability and actual full-time earnings for the same time period. 18
OWCP determined appellant’s overpayment based on its proper calculation of appellant’s
pay rate including his annual pay rate of $44,281.00 and his mandatory ove rtime of $23,829.00
per year to reach his weekly pay rate at the time of injury and currently of $1,309.80. It determined
that appellant was actually earning $851.56 per 40-hour week, and that he had a 65 percent wageearning capacity with wage loss of $458.43 per week. Multiplying $458.43 by ¾, the augmented
rate, as appellant has dependents, resulted in weekly compensation of $343.82 . OWCP then
determined appellant’s daily compensation rate by dividing his weekly compensation rate of
$343.82 by 7 days a week to reach $49.12 and multiplied this amount by the number of days in
the period from October 19, 2018 through February 2, 2019 of 107 days to reach the overpayment

15

Id. at § 8116(a).

16

L.T., Docket No. 19-1389 (issued March 27, 2020); K.P., Docket No. 19-1151 (issued March 18, 2020); K.K.,
Docket No. 19-0978 (issued October 21, 2019); B.H., Docket No. 09-0292 (issued September 1, 2009); Federal
(FECA) Procedure Manual, Part 6 -- Debt Management, Initial Determinations in an Overpayment, Chapter
6.300.4(g) (September 2018).
17

The February 6, 2019 report of work status, from employing establishment indicated that appellant had returned
to full-time regular duty with no restrictions on October 19, 2018 and the accompanying October 18, 2019 medical
evidence established that appellant had no restrictions as of October 19, 2018.
18

M.S., Docket No. 16-0289 (issued April 21, 2016); J.R., Docket No. 08-1107 (issued June 15, 2009).

6

amount of $5,255.84.19 Thus, the Board finds that he received an overpayment of compensation
in the amount of $5,255.57 during the above-noted period.20
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA states: “Adjustment or recovery [of an overpayment] by the
United States may not be made when incorrect payment has been made to an individual who is
without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.”21
Recovery of an overpayment will defeat the purpose of FECA when such recovery would
cause hardship to a currently or formerly entitled beneficiary because the beneficiary from whom
OWCP seeks recovery needs substantially all of his or her current income, including compensation
benefits, to meet current ordinary and necessary living expenses, and the beneficiary’s assets do
not exceed a specified amount as determined by OWCP. 22 An individual is deemed to need
substantially all of his or her current income to meet current ordinary and necessary living expenses
if monthly income does not exceed monthly expenses by more than $50.00. 23 Also, assets must
not exceed a resource base of $6,200.00 for an individual or $10,300.00 for an individual with a
spouse or dependent plus $1,200.00 for each additional dependent. 24 An individual’s liquid assets
include, but are not limited to cash, the value of stocks, bonds, saving accounts, mutual funds, and
certificate of deposits. 25
Recovery of an overpayment is considered to be against equity and good conscience when
an individual who received an overpayment would experience severe financial hardship in
attempting to repay the debt or when an individual, in reliance on such payment or on notice that
such payments would be made, gives up a valuable right or changes his or her position for the
worse.26 OWCP’s procedures provide that, to establish that a valuable right has been relinquished,
19

While appellant disagreed that his wage-loss compensation was paid at the correct rate, he did not dispute that
he received wage-loss compensation for partial disability in the amount of $5,255.57 during the period in question.
Instead he argued that he should have received more wage-loss compensation prior to his return to full-duty work on
October 19, 2018.
20

R.Q., Docket No. 18-0964 (issued October 8, 2019).

21

5 U.S.C. § 8129(b).

22

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional
dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations,
Chapter 6.400.4a(2) (September 2018).
23

Id. at Chapter 6.400.4a(3); N.J., Docket No. 19-1170 (issued January 10, 2020); M.A., Docket No. 18-1666
(issued April 26, 2019).
24

Id. at Chapter 6.400.4a(2) (September 2018).

25

Id. at Chapter 6.400.4b(3).

26

Id. at § 10.437; E.H., Docket No. 18-1009 (issued January 29, 2019).

7

an individual must demonstrate that the right was in fact valuable, that he or she was unable to get
the right back, and that his or her action was based primarily or solely on reliance on the payment(s)
or on the notice of payment. 27
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. 28
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience. 29
The Board finds that OWCP properly determined that appellant did not require
substantially all of his income to meet ordinary living expenses. OWCP found that, after its review
of the financial documents of record, he had total current monthly income of $3,372.27 and total
monthly expenses of $2,801.00. As appellant’s monthly income exceeds his ordinary and
necessary living expenses by more than $50.00, the Board finds that he did not need substantially
all of his income for ordinary and necessary living expenses. 30
Additionally, the evidence of record did not demonstrate that recovery of the overpayment
would be against equity and good conscience because appellant has not shown that he would
experience severe financial hardship in attempting to repay the debt or that he relinquished a
valuable right or changed his position for the worse in reliance on the payment which created the
overpayment. Therefore, the Board finds that OWCP properly denied wavier of recovery with
regard to the $5,255.57 overpayment.31
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $5,255.57 for the period October 19, 2018 through February 2,
2019 for which he was without fault, because he continued to receive partial disability

27

Id. at Chapter 6.400.4c(3) (September 2018).

28

Supra note 13 at § 10.438(a); M.S., Docket No. 18-0740 (issued February 4, 2019).

29

Supra note 13 at § 10.436.

30

M.C., Docket No. 19-0699 (issued February 12, 2020).

31

Id.

8

compensation following his return to full-duty work. The Board further finds that OWCP properly
denied waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 13, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VA MEDICAL CENTER,
Tampa, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1725
Issued: April 5, 2021

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 August 14, 2019 appellant, through counsel, filed a timely appeal from a February 15,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

The Board notes that following the February 15, 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.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability commencing June 6, 2016 causally related to his accepted employment conditions.
FACTUAL HISTORY
On August 12, 2015 appellant, then a 57-year-old registered nurse, filed an occupational
disease claim (Form CA-2), alleging that he developed bilateral upper and lower extremity
radiculitis due to factors of his federal employment, including caring for and turning patients. He
indicated that he first became aware of his condition on July 28, 2015. On the reverse side of the
claim form, a supervisor for the employing establishment indicated that appellant did not stop work
and there were no modifications of work assignments at the time that he filed his claim. On
November 18, 2015 OWCP accepted appellant’s claim for cervical disc displacement and
dorsopathies C3-4, C4-5, and C5-6; impingement syndrome of the right shoulder; and lumbar
intervertebral disc disorders with myelopathy at L3-4, L4-5, and L5-S1.
On February 18 2016 an employing establishment human resources specialist notified
OWCP that appellant had been performing a light-duty assignment since September 2015 and
requested a second opinion evaluation to determine his work capacity.
In March 7 and 24, 2016 reports, appellant’s attending physician, Dr. Sara Vizcay, a Boardcertified family practitioner, opined that appellant could perform sedentary work four hours a day,
three days per week. She attributed this partial disability to his accepted employment injuries.
Dr. Vizcay completed a similar report on April 7, 2016.
On March 30, 2016 appellant accepted a light-duty position beginning April 14, 2016
working four hours a day, three days per week.
On June 6, 2016 Dr. James A. Haley, a Board-certified family practitioner, completed a
work capacity evaluation (Form OWCP-5c) indicating that appellant was totally disabled due to
lumbar and cervical stenosis.
Beginning on June 9, 2016 appellant filed claims for compensation (Form CA-7)
requesting wage-loss compensation for disability for the period beginning June 6, 2016.
In a June 21, 2016 development letter, OWCP advised appellant that the evidence of record
was insufficient to establish his claim for a recurrence of disability. It provided him with the
definition of a recurrence of disability and requested additional factual and medical evidence
supporting his claimed recurrence of total disability beginning June 6, 2016. OWCP provided
appellant with a questionnaire for his completion. It afforded him 30 days to respond.

3

5 U.S.C. § 8101 et seq.

2

On August 1, 2016 appellant completed the development questionnaire and provided
additional medical evidence. He described his light-duty positions. Appellant asserted that his
spinal stenosis caused numbness in his upper and lower extremities as well as radicular pain. He
noted that beginning in January 2016 he worked four hours every other day as he could neither
stand nor sit comfortably for prolonged periods. Appellant also alleged that his medications caused
impairment. He indicated that he was diagnosed with degenerative disc disease in 1992 and that
performing tasks including pulling, pushing, turning, lifting, and stooping as a registered nurse had
seriously aggravated this underlying condition. Appellant asserted that he experienced continuous
pain, stiffness, numbness and weakness in his neck, arms, and legs. He denied any other injuries
or outside work that contributed to his symptoms.
On May 9, 2016 Dr. Bharatkumar Patel, a Board-certified neurologist, examined appellant
and found normal strength and sensation through his upper and lower extremities. He noted that
appellant had 1+ reflexes in both upper and lower extremities. Dr. Patel reviewed appellant’s
cervical and lumbar magnetic resonance imaging (MRI) scans. He diagnosed cervical disc disease
with neuritis and bilateral upper extremity radiculopathy since the work-related injury in 2009 with
multilevel degenerative disc herniations on MRI scan. Dr. Patel also diagnosed lumbar disc
syndrome with neuritis and bilateral lower extremity radiculopathy since 1992 aggravated by
work-related injury in 2009. He recommended that appellant retire as his condition was not going
to improve, but would instead worsen with time. Dr. Patel restricted appellant’s bending, pushing,
pulling, twisting, and stooping. He also restricted appellant’s lifting or carrying to no more than
10 to 15 pounds. Dr. Patel found that appellant would avoid working overhead, and prolonged
hyperextension or hyperflexion. He recounted that appellant’s lumbar pain worsened with
prolonged sitting and noted that the medication prescribed for this condition could cause
drowsiness resulting in difficulty concentrating.
May 20, 2016 electromyogram and nerve conduction velocity (EMG/NCV) studies
demonstrated mild right carpal tunnel syndrome, and mild right ulnar neuropathy at the elbow.
On June 6, 2016 Dr. Vizcay examined appellant and opined that he was no longer capable
of light-duty work due to daily exacerbation of his bilateral upper and lower extremity
neuropathies. She found that he had trouble sitting, standing, and lifting. Dr. Vizcay noted that
appellant had an antalgic gait with a head tilt to the right. She found that appellant required
medications that caused sedation and decreased concentration. Dr. Vizcay recommended
ergonomic accommodations and disability retirement.
By decision dated August 22, 2016, OWCP denied appellant’s claim for recurrence of
disability finding that he had not established that he was disabled due to a material change of his
accepted cervical, lumbar, and right shoulder conditions.
Dr. Vizcay examined appellant on June 28, 2016 due to cervical and lumbar spine muscle
spasms and radiculitis into his bilateral upper extremities. She further noted that his lumbar
condition was chronic and expected to progress because of myelopathy.
Appellant underwent additional EMG/NCV studies on July 15, 2016 which demonstrated
bilateral chronic L3-4 radiculopathy.

3

On August 23, 2016 Dr. Vizcay completed a work capacity evaluation (Form OWCP-5c)
and found that appellant could sit, walk, stand, and reach intermittently for 30 minutes per hour.
She also indicated that he could not push, pull or lift more than 10 pounds, and that he could not
reach above the shoulder, twist, bend, stoop squat, kneel or climb.
In an October 18, 2016 note, Dr. Vizcay diagnosed cervical disc disease with stenosis and
neuritis, bilateral upper extremity radiculopathy, bilateral shoulder tendinitis/bursitis, bilateral
shoulder impingement, lumbar disc syndrome with myelopathy, bilateral lower extremity
radiculopathy, bilateral hip bursitis, and depression secondary to chronic pain, anxiety, and work
injuries. She noted that appellant continued to perform sedentary work, but recommended
disability retirement. Dr. Vizcay repeated her prior diagnoses and conclusions in a February 28,
2017 note.
On August 10, 2017 appellant underwent a right shoulder MRI scan which demonstrated a
partial tear of the supraspinatus tendon, biceps tendinosis, and hypertrophic changes at the
acromioclavicular (AC) joint. He also underwent additional cervical and lumbar MRI scans which
demonstrated straightened cervical lordosis, disc herniations at C3-4, C4-5, C5-6, C6-7, C7-T1,
and T1-2 as well as L3-4, and L4-5, with disc bulges at L2-3, and L5-S1.
In an August 22, 2017 request for reconsideration, appellant, through counsel, contended
that as he had claimed a recurrence of total disability within 90 days of returning to work, the focus
of his claim should have been on establishing disability rather than causal relationship. He
provided an affidavit noting that he returned to work on September 28, 2015 following his
accepted employment injury, was taken off work for three weeks on December 4, 2015, and
returned to work for four hours every other day on January 15, 2016.
By decision dated November 20, 2017, OWCP denied modification of the prior decision,
finding that the medical evidence did not establish a change in the nature and extent of the accepted
conditions.
On November 20, 2018 appellant, through counsel, requested reconsideration of the
November 20, 2017 decision and contended that new medical evidence established worsening of
appellant’s accepted conditions based on electrodiagnostic studies.
On November 10, 2017 appellant underwent EMG/NCV studies which demonstrated
chronic bilateral L2-4 radiculopathy and a new chronic right S1-2 radiculopathy.
In a November 22, 2017 report, Dr. Patel noted that appellant felt that his chronic neck and
back pain had worsened and repeated his prior diagnoses. He reported that appellant’s cranial
nerves were within normal limits, that his motor strength was normal throughout both upper and
lower extremities and that sensation was intact to light touch and pinprick. Dr. Patel again noted
that appellant had 1+ reflexes in both upper and lower extremities. He reviewed appellant’s
August 10, 2017 cervical and lumbar MRI scans as well as his EMG/NCV studies. Dr. Patel noted
that appellant’s additional EMG/NCV studies on November 10, 2017 which demonstrated new
conditions of chronic left C8-T1 radiculopathy, and acute right lower cervical radiculopathy
changes as well as chronic right S1-2 radiculopathy, when compared to the July 2, 2016 studies.
By decision dated February 15, 2019, OWCP denied modification of its prior decisions.
4

LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness. The term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the limited-duty requirements.5
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of establishing that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.6
ANALYSIS
The Board finds appellant has not met his burden of proof to establish a recurrence of total
disability commencing June 6, 2016 causally related to his employment conditions.
OWCP accepted appellant’s occupational disease claim for cervical disc displacement and
dorsopathies C3-4, C4-5, and C5-6; impingement syndrome of the right shoulder, and lumbar
intervertebral disc disorders with myelopathy at L3-4, L4-5, and L5-S1. On March 30, 2016
appellant accepted a light-duty position beginning April 14, 2016 working four hours a day, three
days per week. He filed Form CA-7 claims for compensation alleging recurrence of total disability
beginning June 6, 2016. Appellant has not alleged a change in the nature and extent of his lightduty job requirements. Additionally, there is no indication from the record that the employing
establishment withdrew light-duty work. Instead, appellant attributed his inability to work to a
change in the nature and extent of his accepted cervical, lumbar, and right shoulder conditions. He
therefore, has the burden of proof to provide medical evidence to establish that he was disabled
from work due to a worsening of his accepted work-related conditions.

4

20 C.F.R. § 10.5(x); K.A., Docket No. 19-0679 (issued April 6, 2020).

5

R.N., Docket No. 19-1685 (issued February 26, 2020); Terry R. Hedman, 38 ECAB 222 (1986).

6

Id.

5

In support of his claimed recurrence of total disability, appellant provided a June 6, 2016
form report from Dr. Haley, indicating that appellant was totally disabled due to lumbar and
cervical stenosis. He also provided a series of reports including a June 6, 2016 note from
Dr. Vizcay in which she opined that he was no longer capable of light-duty work due to daily
exacerbation of the bilateral upper and lower extremity neuropathies as well as his required
medications that caused sedation and decreased concentration. Neither Dr. Haley nor Dr. Vizcay
explained how appellant had become totally disabled such that he could no longer perform his
light-duty assignment for four hours a day, three days per week. A cursory opinion without
explanation is of limited probative value.7 Without such an explanation, these reports are
insufficient to establish a recurrence of total disability, as alleged.
In a report dated May 9, 2016, Dr. Patel, diagnosed cervical disc disease with neuritis and
bilateral upper extremity radiculopathy since the work-related injury in 2009 with multilevel
degenerative disc herniations on MRI scans. He also diagnosed lumbar disc syndrome with
neuritis and bilateral lower extremity radiculopathy since 1992 aggravated from a work-related
injury in 2009. Dr. Patel recommended that appellant retire as his condition was not going to
improve and as his prescribed medications could cause drowsiness resulting in difficulty
concentrating. However, he did not opine that appellant was totally disabled, and provided work
restrictions. As Dr. Patel did not explain how appellant’s conditions worsened such that he was
unable to perform his modified-duty position, his report is of diminished probative value and is
insufficient to establish appellant’s claim.8
In his November 22, 2017 report, Dr. Patel noted that appellant’s additional EMG/NCV
studies on November 10, 2017 demonstrated new conditions of chronic left C8-T1 radiculopathy,
and acute right lower cervical radiculopathy changes as well as chronic right S1-S1 radiculopathy,
when compared to the July 2, 2016 studies. He did not offer an opinion as to whether these new
conditions, diagnosed more than one year after appellant’s alleged recurrence of total disability on
June 6, 2016, were causally related to his accepted employment conditions or whether the
additional conditions rendered appellant’s totally disabled for work.9 Further, medical evidence
that does not offer an opinion regarding the cause of an employee’s condition or disability is of no
probative value on the issue of causal relationship.10
Appellant also provided EMG/NCV studies. The Board has explained that diagnostic
studies, standing alone, lack probative value as they do not address whether the accepted
employment injury caused any of the diagnosed conditions.11

7

K.A., supra note 4; L.B., Docket No. 07-1861 (issued December 13, 2007).

8

S.D., Docket No. 19-0955 (issued February 3, 2020).

9

See M.S., Docket No. 16-1907 (issued August 29, 2017).

10

J.P., Docket No. 18-1396 (issued January 23, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
11

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

6

As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling conditions and the accepted injuries. Furthermore, the medical
evidence must directly address the dates of disability for work for which compensation is
claimed.12 None of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused total disability during the period in question, or supported a finding
that his newly diagnosed conditions were causally related to the accepted employment injury.13
Appellant therefore, has not met his 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 his burden of proof to establish a recurrence of
disability commencing June 6, 2016 causally related to his employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 5, 2021
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
12

J.B., Docket No. 18-1751; 19-0793 (issued May 6, 2019); Sandra D. Pruitt, 57 ECAB 126 (2005).

13

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR,
)
NATIONAL PARK SERVICE, REGULAR
)
EMPLOYEE FUNCTIONS, Luray, VA,
)
Employer
)
___________________________________________ )
B.S., Appellant

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

Docket No. 16-1122
Issued: October 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 5, 2016 appellant filed a timely appeal from a February 25, 2016 merit decision
and a March 28, 2016 nonmerit 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 these issues.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a traumatic
injury causally related to a May 13, 2015 employment incident; and (2) whether OWCP properly
1
2

5 U.S.C. § 8101 et seq.

On appeal appellant submitted new evidence. The Board cannot consider this evidence on appeal, however, as
its review of the case is limited to the evidence of record which was before OWCP at the time of its final decision.
20 C.F.R. § 501.2(c)(1); see Steven S. Saleh, 55 ECAB 169 (2003).

refused to reopen appellant’s case for further review of the merits of his claim under
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 14, 2015 appellant, then a 40-year-old tractor operator, filed a traumatic
injury claim (Form CA-1) alleging that on May 13, 2015 he was working outdoors and installing
blocks in the parking area. He noted that he was wearing appropriate clothing and insect
repellant. Appellant indicated that he found an imbedded deer tick in his stomach. He did not
stop work. The employing establishment checked the box marked “yes” in response to whether
appellant was injured in the performance of his duties and with regard to whether the knowledge
of the facts about the injury agreed with the statements of the employee and/or witnesses. In a
separate statement, it also noted that appellant routinely worked outdoors and had logged several
instances of deer tick bites in the past.
In a December 16, 2015 letter, OWCP advised appellant that additional factual and
medical evidence was needed. It informed him of the type of evidence needed to support his
claim and requested that he submit such evidence within 30 days. No evidence was received.
By decision dated January 29, 2016, OWCP denied appellant’s claim as he had not
established an injury as alleged, finding that he had not submitted any medical evidence and
there was no evidence to support that an injury and or medical condition occurred.
On February 1, 2016 appellant provided a January 4, 2016 report from Dr. Sasha L.
Grams, Board-certified in family medicine. Dr. Grams noted that he saw appellant on
November 30, 2015 with the chief complaint of fatigue, which appellant related going on for
about two weeks and advised that “the fatigue felt similar to a prior episode of Lyme disease.”
He noted that the last tick bite that appellant could remember was reported as a work-related
injury occurring on May 13, 2015. Dr. Grams reported that appellant continued to work
outdoors for the employing establishment although he could not recall any tick bites since then.
He explained that a Lyme titer done on December 2, 2015 came back nonreactive. Dr. Grams
advised that he ordered other tests as part of the work up and noted that they all were essentially
normal. He explained that he suspected Lyme disease, which might not show up on testing, and
started him on a course of doxycycline. Dr. Grams noted that appellant had a dramatic
improvement in his fatigue with return to his baseline energy level within a short time of being
on doxycycline. He opined that “the most likely explanation for his fatigue was Lyme disease
due to tick bite given the resolution of his symptoms with treatment for this.”
On February 10, 2016 appellant requested reconsideration.
By decision dated February 25, 2016, OWCP modified the January 29, 2016 decision,
finding that appellant submitted medical evidence diagnosing a condition, but that the claim
remained denied as the medical evidence did not contain rationale to support causal relationship.
On March 10, 2016 appellant requested reconsideration.
In a March 10, 2016 letter, Michelle Kerns, an administrative officer with the employing
establishment, confirmed that appellant documented a tick exposure at work on May 13, 2015.
2

She also indicated that appellant was constantly working outdoors in the field and was routinely
exposed to ticks and the elements in the park. Ms. Kerns explained that appellant did not
become ill from his exposure until December, which was common in tick exposure cases. She
attached a copy of tick report documenting his exposure.
By decision dated March 28, 2016, OWCP denied appellant’s request for reconsideration
without a review of the merits as the evidence submitted was insufficient to warrant review of
the February 25, 2016 decision. It explained that the factual evidence from the employing
establishment was irrelevant, as it failed to address the deficiencies in the medical evidence.
OWCP advised that appellant had not provided diagnostic testing results to confirm that
appellant in fact contracted Lyme disease and he did not provide a physician’s well-reasoned
opinion explaining how the May 13, 2015 tick exposure was related to the diagnosed Lyme
disease.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA,3 and that an injury was sustained in the performance
of duty.4 These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6 In some traumatic injury cases, this component can
be established by an employee’s uncontroverted statement on the Form CA-1.7 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.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical

3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

6

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

7

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

8

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

3

rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
In this case, appellant alleged that on May 13, 2015 he sustained a tick bite in the
performance of duty. OWCP accepted that the tick bite occurred. The issue to be determined is
whether the medical evidence established that appellant’s diagnosed condition is causally related
to the May 13, 2015 employment incident.
The Board finds that the medical evidence is insufficiently rationalized to establish the
second component of fact of injury, that the employment incident caused an injury. The medical
evidence contains no reasoned explanation of how the specific employment incident on May 13,
2015 caused or aggravated an injury.10
Appellant submitted a January 4, 2016 report from Dr. Gram, who noted that he saw
appellant on November 30, 2015 for fatigue of weeks’ duration which appellant felt to be similar
to a prior episode of Lyme disease. Dr. Gram noted that the last tick bite that appellant could
remember was reported as a work-related injury occurring on May 13, 2015. However, he
indicated that a Lyme titer test performed on December 2, 2015 came back nonreactive and other
tests were essentially normal. Dr. Gram explained that he “suspected Lyme disease, which
might not show up on testing, and started him on a course of doxycycline.” He indicated that
appellant had a dramatic improvement in his fatigue with return to his baseline energy level
within a short time of being on doxycycline and concluded that “the most likely explanation for
his fatigue was Lyme disease due to tick bite given the resolution of his symptoms with
treatment for this.”
The Board finds, however, that Dr. Gram did not provide a definitive diagnosis, as he
indicated he suspected Lyme disease despite testing being nonreactive and normal. Further, his
opinion is speculative regarding causal relationship. Dr. Gram indicated that the most likely
explanation for appellant’s condition was the tick bite, as his symptoms resolved after treatment.
The Board has held that speculative and equivocal medical opinions regarding causal
relationship have no probative value.11 Moreover, Dr. Gram did not explain how appellant’s
condition was caused by the accepted May 13, 2015 employment incident. Medical reports
without adequate rationale on causal relationship are of diminished probative value and do not
meet an employee’s burden of proof.12

9

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

10

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
11

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
12

See R.C., Docket No. 15-315 (issued May 4, 2015); Ceferino L. Gonzales, 32 ECAB 1591 (1981).

4

Because the medical report submitted by appellant does not address how the May 13,
2015 incident at work caused or aggravated his Lyme disease, this report is of limited probative
value13 and it is insufficient to establish that the May 13, 2015 employment incident caused or
aggravated a specific injury.
The Board notes that OWCP procedures provide that in certain circumstances no medical
report is required where all of the following criteria are satisfied, a claim may be accepted
without a medical report: (1) The condition reported is a minor one which can be identified on
visual inspection by a lay person (e.g., burn, laceration, insect sting or animal bite); (2) The
injury was witnessed or reported promptly, and no dispute exists as to the fact of injury; and
(3) No time was lost from work due to disability.14 These procedures do not apply in this
situation. Although it is undisputed that he received a tick bite, the issue is whether the tick bite
caused the Lyme disease symptoms, a condition that could be identified on visual inspection and
in fact test results could not confirm. As found above, the report from Dr. Gram is speculative
and not rationalized.
On appeal, appellant argued that his physician, Dr. Grams, made a clinical diagnosis and
his report was conclusive. He also argued that his personal physician also noted that it was
common to have symptoms, but the blood test was negative. The Board finds, however, that the
medical evidence is insufficient to establish a medical condition related to the accepted tick bite.
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,15 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(3) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”16
13

See Linda I. Sprague, 48 ECAB 386, 389-90 (1997).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.606(b).

5

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.17
ANALYSIS
Appellant disagreed with the denial of his claim for a traumatic injury and requested
reconsideration on March 10, 2016. The underlying issue on reconsideration is medical in
nature, whether the May 13, 2015 tick bite caused Lyme disease or any other medical condition.
Appellant, however, did not provide any relevant or pertinent new evidence to the issue
of whether he sustained a traumatic injury due to his tick bite on May 13, 2015.
On reconsideration, appellant submitted documentation from the employing
establishment confirming that he was bitten by a tick on May 13, 2015. However, the factual
component of his claim had already been accepted. The relevant issue in this claim is medical in
nature and must therefore be resolved by the submission of relevant medical evidence.18 Thus,
this evidence is irrelevant. Appellant did not submit new medical evidence, but rather submitted
additional factual evidence. The submission of evidence that does not address the particular
issue involved does not constitute a basis for reopening a case.19
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion, noted above, for reopening a claim for merit review. Furthermore, appellant also
has not shown that OWCP erroneously applied or interpreted a specific point of law, or advanced
a relevant new argument not previously submitted. Therefore, OWCP properly denied his
request for reconsideration.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish a traumatic
injury causally related to the May 13, 2015 employment incident. The Board also finds that
OWCP properly refused to reopen appellant’s case for further review of the merits of his claim
under 5 U.S.C. § 8128(a).

17

Id. at § 10.608(b).

18

See Paul Foster, 56 ECAB 208 (2004).

19

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the March 28 and February 25, 2016 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: October 17, 2016
Washington, DC

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

Colleen Duffy Kiko, 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.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2493
Issued: August 25, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 19, 2008 appellant filed a timely appeal from a July 29, 2008 Office of
Workers’ Compensation Programs’ decision denying her 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 established that she is entitled to 31.95 hours of disability
compensation from April 26 to July 3, 2008 causally related to her accepted employment
conditions.
FACTUAL HISTORY
On May 26, 2000 appellant, then a 40-year-old distribution clerk filed an occupational
disease claim alleging that she developed acute tendinitis by casing flats at work. She returned
to work in a limited-duty position on June 21, 2000. The Office accepted appellant’s claim for
unclassified affections of the right shoulder region not elsewhere classified, traumatic
arthropathy of the right shoulder region, right carpal tunnel syndrome, reflex sympathetic

dystrophy of the right arm and right lateral epicondylitis. It authorized arthroscopic surgery of
the right shoulder on January 15, 2002 and right carpal tunnel release on May 29, 2007.
Appellant was also treated for right acute tendinitis of right elbow, wrist and shoulder,
chronic lateral epicondylitis of the right elbow, radial nerve entrapment and reactive ulnar
neuritis of the right elbow and early adhesive capsulitis of the right shoulder, chronic cervical
myofascial strain and possible degenerative joint disease of the right wrist. On September 25,
2003 the Office granted her a schedule award for 25 percent permanent impairment of the right
arm. A June 28, 2006 electromyogram (EMG) report revealed medial nerve pathology at the
right wrist affecting primarily median sensory fibers in the carpal tunnel segment.
Appellant came under the treatment of Dr. Richard M. Braun, a Board-certified
orthopedist, from April 10, 2006 to October 12, 2007, for pain in the hands and right shoulder.
Dr. Braun diagnosed bilateral carpal tunnel syndrome, ulnar neuritis along the elbow, lateral
epicondylitis and shoulder cuff tendinitis requiring surgical treatment. He opined that the
neuropathy in the wrist and hand area was due to repetitive activities performed as a clerk. On
May 25, 2007 Dr. Braun performed a right carpal tunnel release. On January 14, 2008 he
returned appellant to light-duty work with restrictions on the right side, lifting limited to one
pound with no grasping, lifting, pushing, pulling, gripping activities and twisting.
On February 7, 2008 the employing establishment offered appellant a modified limitedduty position as a full-time sales service distribution associate, which she accepted on
February 19, 2008. The job duties included sorting undeliverable bulk business mail with the
left hand only for three hours a day, working at the carrier call desk with left hand only for two
hours a day and sorting station markups with left hand only for three hours a day. The physical
requirements of the modified job were sorting mail weighing up to one pound, minimal writing
with the left hand, lifting up to five pounds with the left hand and writing and stamping on mail
with the left hand only up to one pound.
In a duty status report dated March 3, 2008, Dr. Braun noted that appellant had pain in
both hands and at the incision site and reduced her work hours to four hours a day with no lifting
over two pounds, no use of the right hand and no writing with the left hand.
On March 3, 2008 the Office requested that Dr. Braun address why appellant was
restricted to four hours a day when she was previously capable of working eight hours, why she
was incapable of using her right hand and why use of her left hand was restricted. In reports
dated March 3 and 14, 2008, Dr. Braun noted that, despite restricted work of four hours a day,
appellant showed symptomatic deterioration and increased swelling in her hands. He continued
appellant’s work restrictions of four hours.
The employing establishment submitted a postal inspector’s report dated March 24, 2008,
which documented appellant’s activities and determined that they exceeded her medical
restrictions. The investigation obtained videotaped footage of appellant which was viewed by
Dr. Braun. A subsequent interview with Dr. Braun revealed that appellant had the ability to
work more than four hours daily with a greater lifting limit as she misrepresented her physical
capabilities to him. The investigation also noted that appellant held a second job as a security
guard for four different security companies from 1999 to 2007.

2

On March 25, 2008 Dr. Braun viewed the videotaped surveillance of appellant and
prepared a questionnaire provided by the postal inspector. He noted that appellant was restricted
from lifting over two pounds on March 3, 2008; however, her activities as shown in the
videotape exceeded the prescribed limits. Dr. Braun noted that appellant reported not being able
to perform the activities depicted in the surveillance video. He noted that the activities depicted
on the videotape suggested that she could return to work for six hours a day, with restrictions on
lifting up to five pounds. Dr. Braun opined that appellant exaggerated her symptoms and
subsequent disability and misrepresented her physical capabilities and her ability to return to
reasonable modified work.
Appellant submitted several CA-7 forms claiming compensation for partial disability
from March 29 to April 24, 2008, for fours hours of leave without pay per day. On May 8, 2008
the Office advised her that she was returned to work for six hours per day by Dr. Braun on
March 25, 2008 and would be compensated for two hours per day for the period in question.
Appellant submitted an April 25, 2008 work capacity evaluation and report from
Dr. Braun. He noted that she presented with pain in both hands and diagnosed status post carpal
tunnel syndrome. Dr. Braun returned appellant to work for four hours a day for two weeks. In a
report dated April 30, 2008, he increased appellant’s workday to six hours a day with a lifting
restriction of eight pounds.
In a letter dated May 7, 2008, the Office requested that Dr. Braun clarify appellant’s work
status as of March 25, 2008. It noted that, on March 25, 2008, he opined that appellant was
capable of working six hours a day with a five-pound lifting restriction; however, on April 25,
2008, he opined that appellant was limited to working four hours a day without restriction. The
Office noted that, on April 30, 2008, Dr. Braun released appellant to six hours a day with an
eight-pound lifting restriction.
Appellant submitted a duty status report from Dr. Braun dated May 9, 2008, who
determined she was permanent and stationary. Dr. Braun diagnosed right shoulder tendinitis,
lateral epicondylitis in the right elbow, possible ulnar neuritis, right carpal tunnel syndrome
requiring surgery, contracture of the right hand with impaired range of motion and repetitive
episodes of swelling. He opined that appellant could return to modified work on May 9, 2008
for six hours a day with lifting restricted to eight pounds.
In a letter dated May 13, 2008, the Office again requested that Dr. Braun clarify
appellant’s work. Dr. Braun did not respond.
On June 4, 2008 the Office referred appellant for a second opinion to Dr. Thomas J.
Sabourn, a Board-certified orthopedic surgeon, for determination of her work capacity. In a
June 26, 2008 report, Dr. Sabourn reviewed the records provided to him and examined appellant
on June 25, 2008. He noted the history of appellant’s right arm conditions and diagnosed right
shoulder acromioclavicular joint arthritis, impingement syndrome, carpal tunnel syndrome,
residual stiffness of right hand fingers after carpal tunnel surgery, lateral epicondylitis of the
right elbow, chronic cervical strain and sprain, left shoulder acromioclavicular (AC) joint
arthritis with rotator cuff tendinitis and pain syndrome. Dr. Sabourn noted an obvious
disproportion between appellant’s symptomology and her objective findings. He advised that

3

she could not work as a distribution clerk due to overuse of her extremities. However, appellant
could work eight hours a day with permanent limitations of two hours of reaching, no reaching
above the shoulders with the right arm, reach two hours cumulatively over an eight-hour day
with the left arm, repetitive motions with the wrists and elbow cumulatively for three hours of an
eight-hour workday, push, pull and lift for four hours per day with an eight-pound limitation,
five-minute break each hour and repetitive fingering no more than two hours bilaterally.
Dr. Sabourn reviewed the February 7, 2008 job offer and noted that she could easily perform the
job as a sales service distribution associate if she were to use both hands.
In letters dated July 7 and 21, 2008, the Office requested that Dr. Braun review and
comment on Dr. Sabourn’s report. No additional evidence was received.
Appellant submitted several CA-7 forms, claims for compensation, for intermittent
periods of partial disability for 117.61 hours for the period April 26 to July 3, 2008. The
employer submitted several CA-7, time analysis forms, for April 26 to July 3, 2008.
On July 10, 2008 the employing establishment issued a notice of removal indicating that
appellant made a misrepresentation on a CA-7 form dated November 29, 2000 noting that she
had not received pay for the period January 10 to May 18, 2000, when there was evidence she
worked as a security guard from May 7, 1999 to January 14, 2000.
In a decision dated July 29, 2008, the Office denied appellant’s claim for compensation
for intermittent partial disability for 31.95 hours from April 26 to July 3, 2008. It found that
Dr. Braun returned her to work for six hours a day effective March 25, 2008 and therefore she
was entitled to wage-loss compensation for two hours per day from April 26 to June 24, 2008 or
a total of 85.66 hours of leave. The Office denied compensation beginning June 25, 2008 the
date of Dr. Sabourn’s examination which found she was capable of working eight hours a day.
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
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
1

See Fereidoon Kharabi, 52 ECAB 291 (2001).

2

Id.

3

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

4

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 a right shoulder injury not elsewhere classified,
traumatic arthropathy of the right shoulder region, right carpal tunnel syndrome, reflex
sympathetic dystrophy of the upper right limb and right lateral epicondylitis. It accepted that she
was partially disabled for two hours per day from April 26 to June 24, 2008 for a total of 85.66
hours of leave. The Board notes that the medical evidence supports that appellant was partially
disabled due to the accepted injury during this period. In reports dated March 25 and May 9,
2008, Dr. Braun opined that she could work six hours a day with restrictions. For this reason,
appellant was properly granted wage-loss compensation for the hours she did not work.
However, the commencing June 25, 2008, the Office denied wage-loss compensation as
the medical evidence noted appellant’s capacity to work full time. On appeal, appellant asserts
that Dr. Braun’s reports support the hours of disability claimed.
On March 25, 2008 Dr. Braun viewed a videotaped surveillance of appellant and noted
that her activities exceeded the physical limitations set for her. He opined that she exaggerated
her symptoms and subsequent disability and misrepresented her physical capabilities and her
ability to return to reasonable modified work. Dr. Braun opined that the activities depicted on
the videotape revealed that appellant could work for six hours per day with restrictions on lifting
up to five pounds. In his work capacity evaluation and report dated April 25, 2008, he noted
appellant’s complaints of pain in both hands and reduced her work hours to four per day.
Although Dr. Braun noted that appellant had symptoms of bilateral hand pain, he did not
specifically address whether she had any employment-related disability beginning April 25, 2008
causally related to her accepted conditions. He did not fully address why appellant was restricted
to working four hours per day instead of six hours and why these restrictions would be
attributable to the 2000 employment injury. Furthermore, Dr. Braun’s April 25, 2008 opinion
that appellant could work four hours daily within restrictions is at odds with his April 30, 2008
report, which again found that she could work six hours daily within restrictions. On May 7,
2008 the Office requested that Dr. Braun clarify his opinion on appellant’s capacity for work. In
a May 9, 2008 report, Dr. Braun opined that appellant could work six hours a day with
restrictions. He did not address the limitations regarding appellant’s work capacity. The Board
has found that vague medical opinions which do not explain causal relationship are of
diminished probative value.5 Therefore, these reports are insufficient to meet appellant’s burden
of proof that she was disabled for more than two hours a day from April 26 to June 24, 2008.
The Office referred appellant to Dr. Sabourn, who in a June 26, 2008 report, noted her
history of injury and diagnoses. On examination, Dr. Sabourn noted a discrepancy between
objective findings and appellant’s symptomatology. He opined that appellant could not return to
work as a distribution clerk because she would be required to overuse her upper extremities.
4

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

5

See A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006).

5

However, Dr. Sabourn opined that appellant was capable of work eight hours a day in a lightduty position with permanent restrictions. He reviewed the February 7, 2008 job offer as a sales
service distribution associate and noted that appellant could easily perform the job if she were to
use her right and left hand when sorting undeliverable bulk business mail for three hours per day
and sorting mail pieces weighing up to one pound for three hours a day. The Office twice
requested that Dr. Braun comment on Dr. Sabourn’s report but no response was received. The
Board finds that there is no probative medical evidence supporting entitlement to disability
compensation beginning June 25, 2008, the date Dr. Sabourn examined appellant and found her
capable of full-time limited duty.
Consequently, the medical evidence does not establish that appellant is entitled to 31.95
hours of disability compensation for the claimed period.
CONCLUSION
The Board finds that appellant has failed to establish that she was disabled for 31.95
hours from April 26 to July 2, 2008 causally related to the accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 29, 2008 is affirmed.
Issued: August 25, 2009
Washington, DC

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

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

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

6