United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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P.F., Appellant
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and
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DEPARTMENT OF THE NAVY,
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Kings Bay, GA, Employer
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___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 07-730
Issued: August 22, 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 January 22, 2007 appellant filed a timely appeal of the December 7, 2006 schedule
award decision of the Office of Workers’ Compensation Programs and January 12, 2007 decision
which denied further merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board
has jurisdiction over the merit and nonmerit issues.
ISSUES
The issues are: (1) whether appellant has more than a two percent hearing loss of the left
ear, for which he received a schedule award; and (2) whether the Office properly refused to
reopen his case for further review of the merits of his claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 10, 2006 appellant, then a 37-year-old sand blaster, filed an occupational disease
claim alleging that his hearing loss was caused by factors of his federal employment. He did not

stop work. Appellant’s work history, employing establishment audiograms and medical records
accompanied the claim.1
By letter dated October 17, 2006, the Office referred appellant, together with the medical
record and a statement of accepted facts,2 to Dr. R. Michael R. Loper, a Board-certified
otolaryngologist, for a second opinion evaluation to include an audiogram. In an October 24,
2006 report, Dr. Loper noted appellant’s history of injury and treatment and conducted an
examination. He advised that audiometric data from December 2004 revealed a slight loss in the
left ear restricted to six kilohertz (KHz) and noted that the right ear was within normal limits.
Dr. Loper determined that appellant had findings which revealed a mild loss of 40 decibels and
two to eight KHz in excess of that expected for presbycusis and noted that his workplace
exposure was sufficient in intensity to cause the loss. He diagnosed bilateral noise-induced
neurosensory high frequency loss due to his noise exposure in the federal employment and
recommended bilateral hearing aids and hearing conservation. Dr. Loper also submitted results
of audiometric testing performed by a certified audiologist on October 24, 2006. The results
included that testing for the right ear at the frequency levels of 500, 1,000, 2,000 and 3,000
cycles per second (cps) revealed decibel losses of 15, 20, 30 and 35. Dr. Loper also noted that
testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel
losses of 5, 25, 35 and 40 decibels.
In a November 2, 2006 report, the Office medical adviser applied the Office’s
standardized procedures to the October 24, 2006 audiogram. He determined that appellant had
zero percent monaural hearing loss for the right ear. The Office medical adviser then followed
the same procedure on the left ear and found 1.88 percent monaural hearing loss for the left ear
which he rounded up to 2 percent. He found that appellant had a left monaural hearing loss of
two percent. The Office medical adviser did not recommend hearing aids.
By decision dated December 7, 2006, the Office granted appellant a schedule award for a
two percent impairment of the left ear. The award ran for 1.04 weeks from October 24 to
31, 2006.
On January 5, 2007 the Office received appellant’s December 15, 2006 request for
reconsideration. Appellant disagreed with the Office’s decision, noting that it was based on the
most recent audiograms as opposed to earlier audiograms. He questioned the time frame of the
award commencing on October 24, 2006. Appellant enclosed copies of the previously submitted
1

The record reflects that appellant was in the military from August 1979 to August 1982 as a canon crewman in
the filed artillery division with noise exposure to include standard readings for cannon fire of 160 decibels with a
reduction of up to 35 decibels with earplugs. Additionally, appellant submitted employing establishment
audiograms dated June 20 and July 11, 2000 and June 21, 2001. These audiograms did not show a ratable hearing
loss.
2

The record reflects that appellant worked for the employing establishment from June 1985 to March of 2002 as
an industrial sandblaster/painter and cannon crewman and was currently employed as a paint shop supervisor. The
Office indicated that a noise study was not available but that the standard decibels for noise exposure due to
sandblasting was reported to be up to 112 decibels. The Office indicated that earplugs were used which could be
assumed to be at 90 to 97 decibels and appellant was exposed to noise on a continuous basis from 8 to 12 hours a
day for 5 days a week.

2

audiograms. He enclosed a copy of a previous claim which was accepted for a “foreign body left
finger.”
By decision dated January 12, 2007, the Office denied appellant’s request for
reconsideration on the grounds that it neither raised substantial legal questions nor included new
and relevant evidence and was insufficient to further warrant review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 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. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001), has been adopted by the implementing
regulation as the appropriate standard for evaluating schedule losses.5
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.7 Then, the “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 result in no impairment in the ability
to hear everyday speech under everyday conditions.8 The remaining amount is multiplied by a
factor of 1.5 to arrive at the percentage of monaural hearing loss.9 The binaural loss is
determined by calculating the loss in each ear using the formula for monaural loss; the lesser loss
is multiplied by five, then added to the greater loss and the total is divided by six to arrive at the
amount of the binaural hearing loss.10 The Board has concurred in the Office’s adoption of this
standard for evaluating hearing loss.11

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id.

6

A.M.A., Guides at 250.

7

Id.

8

Id.

9

Id.

10

Id.

11

Donald E. Stockstad, 53 ECAB 310 (2002), petition for recon. granted (modifying prior decision), Docket
No. 01-1570 (issued August 13, 2002).

3

ANALYSIS -- ISSUE 1
The Office referred appellant to Dr. Loper who examined appellant and obtained an
audiogram on October 24, 2006. Dr. Loper determined that appellant’s hearing loss was
employment related.
An Office medical adviser reviewed this audiogram on November 2, 2006 to determine
the extent of appellant’s hearing loss. The frequency levels, for the right ear, recorded at 500,
1,000, 2,000 and 3,000 cps revealed decibel losses of 15, 20, 30 and 35 respectively, for a total
of 100 decibels. This figure, when divided by 4, results in an average hearing loss of 25
decibels. The average of 25 decibels was then reduced by 25 decibels, which resulted in a 0
percent monaural hearing loss of the right ear. Testing for the left ear at the frequency levels of
500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 5, 25, 35 and 40 decibels respectively,
for a total loss of 105 decibels which, when divided by 4, results in an average 26.25 decibels.
When reduced by the 25 decibel fence, this result in 1.25 which is then multiplied by the factor
of 1.5 which results in a 1.875 percent monaural hearing loss rounded up to 2 percent, of the left
ear.12 The medical adviser properly applied the Office’s standardized procedures in determining
that appellant had a two percent left ear hearing loss and a nonratable right ear hearing loss.
There are no other audiograms that conform with the Office’s standards for evaluating hearing
loss which show a greater impairment.
Appellant’s concern on appeal was the date on which the period of the schedule award
began. In hearing loss cases, the period covered by a schedule award commences on the date of
the medical examination and audiogram upon which the Office based the schedule award.13 This
is generally referred to as the date of maximum medical improvement (MMI). Moving the
period of the award back in time will not gain appellant additional compensation. Section 8107
of the Act provides only a finite amount of compensation for permanent impairment.14
Appellant is entitled to 1.04 weeks of compensation for the hearing loss in his left ear based on
Dr. Loper’s medical examination and audiogram performed on October 24, 2006, the date of
MMI which is the appropriate date for the commencement of the schedule award.

12

See Marco A. Padilla, 51 ECAB 202 (1999); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter, 3.700.3.b. (October 1990) (the policy of the Office is to round the calculated percentage of
impairment to the nearest whole point).
13

See generally Franklin L. Armfield, 28 ECAB 445 (1977) (discussing when the period of the award should
begin in hearing loss cases); Mark A. Holloway, 55 ECAB 321 (2004) (determination of whether MMI has been
reached is based on the probative medical evidence of record and is usually considered to the date of the evaluation
by the attending physician which is accepted as definitive by the Office.)
14

Under section 8107 of the Act, 52 weeks of compensation is provided for the complete loss of hearing in one
ear, while 200 weeks of compensation is provided for the complete loss of hearing in both ears. Partial losses are
compensated proportionately. This means that appellant is entitled to 1.04 weeks of compensation for the hearing
loss in his left ear (52 times 2 percent) and no compensation for the hearing loss in his right ear (52 times 0). The
hearing loss in his right ear, while measurable, is unratable because the average loss is below the fence of 25
decibels and is considered to have no impairment in its ability to hear everyday sounds under everyday conditions.

4

Appellant also alleged that the most recent audiograms were considered in lieu of his
earlier audiograms. However, as noted, there are no other audiograms that conform with the
Office’s standards for evaluating hearing loss which show a greater impairment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,15 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) 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 that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
(ii) Advances a relevant legal argument not previously considered by the Office;
or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
the [the Office].”16
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
the Office without review of the merits of the claim.17
ANALYSIS -- ISSUE 2
Appellant disagreed with the Office’s schedule award decision and requested
reconsideration on December 15, 2006. The underlying issue on reconsideration was whether he
had more than a two percent hearing loss in his left ear. However, appellant did not provide any
relevant or pertinent new evidence to the issue of whether he had greater than a two percent
hearing loss in the left ear.
He submitted copies of his previously submitted audiograms. The submission of
evidence which repeats or duplicates evidence that is already in the case record does not
constitute a basis for reopening a case for merit review.18 Appellant did not provide any relevant
and pertinent new evidence to establish that he sustained more than a two percent hearing loss of
the left ear.
15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.606(b).

17

20 C.F.R. § 10.608(b).

18

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald, 50
ECAB 185 (1998).

5

Appellant also submitted copies of a previous claim for his left finger and paperwork
related to Office decisions and social security benefits. While he questioned why earlier
audiograms were not used, appellant did not provide additional new relevant evidence showing
that the schedule award was improper. Submission of evidence that does not address the
particular issue involved does not constitute a basis for reopening a case.19
The evidence submitted by appellant on reconsideration does not satisfy the third
criterion noted above, for reopening a claim for merit review. He also has not shown that the
Office erroneously applied or interpreted a specific point of law or advanced a relevant new
argument not previously submitted. Therefore, the Office properly denied appellant’s request for
reconsideration.20
CONCLUSION
The Board finds that appellant is entitled to no more than the two percent hearing loss of
the left ear for which he received for a schedule award. The Board also finds that the Office
properly refused to reopen appellant’s case for further review of the merits of his claim under 5
U.S.C. § 8128(a).

19

Robert P. Mitchell, 52 ECAB116 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Alan G.
Williams, 52 ECAB 180 (2000).
20

The Board notes that appellant submitted evidence subsequent to the January 12, 2007 Office decision. The
Board cannot consider this evidence, however, as its review of the case is limited to the evidence of record which
was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c). Appellant, however, retains the right to
file a claim for an increased schedule award based on medical evidence indicating that the progression of an
employment-related condition, without new exposure to employment factors, has resulted in a greater permanent
impairment than previously calculated. Linda T. Brown, 51 ECAB 115 (1999).

6

ORDER
IT IS HEREBY ORDERED THAT the January 12, 2007 and December 7, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 22, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-1403
Issued: January 25, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2011 appellant filed a timely appeal from the December 15, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his prostate
cancer claim.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.
ISSUE
The issue is whether appellant’s prostate cancer is causally related to his federal
employment.

1

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).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 27, 2010 appellant, a 57-year-old ship propeller finisher, filed an occupational
disease claim alleging that his prostate cancer was the result of his federal employment. He
explained that the propeller shop was dusty with metallic particles and abrasive grit and that he
was exposed to a variety of toxic substances, including trichloroethane and methylchloroform.
In a decision dated December 15, 2010, OWCP denied appellant’s claim. It found that he
had established the following elements: he was a federal civilian employee who filed a timely
claim; the exposure was accepted;3 he was in the performance of duty; and a medical condition
was diagnosed. OWCP found, however, that there was no medical evidence to support that his
prostate cancer was causally related to the accepted occupational exposure: “Your physician
must explain how the work event(s) caused or affected your condition, based upon an accurate
factual and medical history, citing objective findings in support of the opinion.”
On appeal, appellant submitted evidence to show that he had accepted conditions for
other work-related injuries, including lumbosacral sprain, early peripheral neuropathy and left
frontal parietal contusion. He advised of his surgery for cancer, which he believes is job related
because of the work he did and the medical reports from the shipyard doctor and OSHA.
Appellant claimed total disability and asked to be awarded compensation for the peripheral
neuropathy of both arms and legs. He stated that he has worked no other jobs. Appellant also
submitted a June 7, 2011 report from a nurse practitioner.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.4 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim. When an employee
claims that he sustained an injury in the performance of duty, he must submit sufficient evidence
to establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged. He must also establish that such event, incident or exposure caused
an injury.5

3

The employing establishment explained that it could not acknowledge the accuracy of appellant’s statements
because he had been off the rolls since December 20, 1986. It provided his job description as of that date, which
included the following: A ship propeller finisher helper works in a dusty, noisy atmosphere performing under many
adverse conditions as the job dictates, and is exposed to cleaning vapor, paint spray dust and other chemical odors
present in the areas of propeller manufacture. Most of the work in the Propeller Shop is dusty and noisy with
metallic and nonmetallic particles of abrasive grit and chips ever present in the air. Proper safety equipment is
provided to protect the employee from the constant conditions and each individual is expected to observe and obey
all of the existing safety rules and regulations.
4

5 U.S.C. § 8102(a).

5

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

2

Causal relationship is a medical issue,6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty,8
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
ANALYSIS
OWCP accepted that appellant’s work exposed him to certain environmental factors, at
least insofar as those factors are reflected in the relevant position description. Appellant alleged
an unquantified exposure to trichloroethane and methylchloroform. The question his claim
presents is whether his occupational exposure caused his prostate cancer.
This is a medical question. A physician who is familiar with appellant’s work
environment, who demonstrates a rather detailed understanding of the environmental factors to
which appellant was exposed, must address whether this environment had anything to do with
the development of appellant’s prostate cancer. Any physician supporting causal relationship
must offer a convincing medical explanation. The opinion must not be speculative or equivocal.
Appellant has submitted no medical opinion evidence to support his claim. The Board
has reviewed the evidence of record submitted in this case, and no physician has drawn a causal
connection between appellant’s prostate cancer and his work as a ship propeller finisher or has
attempted to explain such relationship. Without a well-reasoned medical opinion showing a
causal relationship, appellant has not met his burden to establish a critical element of his claim.
The Board will therefore affirm OWCP’s December 15, 2010 decision denying compensation.10
Appellant’s other work injuries are not relevant to his prostate cancer claim, which is the
only claim presently before the Board. OWCP’s December 15, 2010 decision did not rule on his
entitlement to compensation for an accepted peripheral neuropathy. The Board has no
jurisdiction to consider that issue. Appellant believes that his prostate cancer is work related, but
his opinion cannot establish the element of causal relationship. This is a medical question that
must be resolved by a qualified physician. The June 7, 2011 report from a nurse practitioner is
not from a qualified physician, and it constitutes new evidence that the Board may not consider.
6

Mary J. Briggs, 37 ECAB 578 (1986).

7

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

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

See R.B., Docket No. 11-498 (issued December 8, 2001) (in which OWCP denied, as unsupported by the
evidence, the employee’s claim that he contracted prostate cancer as a result of the continuous hostile employment
environment caused by stressful interactions with his supervisor).

3

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 to establish that his prostate cancer
is causally related to his federal employment. Appellant has submitted no medical opinion to
support his claim.
ORDER
IT IS HEREBY ORDERED THAT the December 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 25, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
DEPARTMENT OF HEALTH, EDUCATION &
WELFARE, MENTAL HEALTH STUDY
CENTER, Adelphi, MD, Employer
__________________________________________

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Appearances:
Thomas Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-538
Issued: June 4, 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 December 19, 2006 appellant filed a timely appeal of a November 1, 2006 decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration and a
July 19, 2006 merit decision with respect to termination of compensation. Pursuant to 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 the Office met its burden of proof to terminate compensation
for wage-loss and medical benefits effective February 25, 2001; and (2) whether the Office
properly denied appellant’s application for reconsideration without merit review of the claim
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The Office accepted that appellant sustained acute cervical, dorsal and lumbosacral
strains in a motor vehicle accident on October 7, 1965. The Office also accepted a herniated

intervertebral disc resulting from a December 19, 1967 employment injury. Appellant
underwent lumbar surgery on January 2, 1968. He resigned from the employing establishment in
1969 and began receiving compensation for total disability.
Appellant’s attending physician, Dr. David Bosacco, an orthopedic surgeon, indicated in
a September 3, 1998 report, that appellant underwent left shoulder surgery. The Office referred
him for a second opinion examination by Dr. Stephen Valentino, an osteopath. In a report dated
August 26, 1999, Dr. Valentino provided a history and results on examination. He stated in
pertinent part:
“Based on today’s evaluation I find no objective findings of residuals from
[appellant’s] history of work[-]related injury. His most recent diagnostic studies
show no evidence of residual from his disc herniation and no basis for ongoing
radiculopathy such that no ongoing disability is imparted to his history of
work[-]related injury and subsequent treatment thereof. [Appellant] no longer
suffers any residuals from his history of work injury. He does have rather
significant medical findings which would impose a significant degree of disability
with regard to his function and employability. Specifically, significant diabetes,
cataracts, Charcot joints and history of thoracic compression fractures. These,
however, are not casually related to [appellant’s] employment.”
In a report dated November 21, 2000, Dr. Valentino indicated that he had reviewed an
October 28, 1999 magnetic resonance imaging scan and stated that there was no evidence of any
significant nerve root compression, recurrent disc herniation or epidural fibrosis. He opined that
his opinions remained unchanged.
By letter dated November 29, 2000, the Office advised appellant that it proposed to
terminate his compensation based on the weight of the medical evidence. The Office discussed
the findings of Dr. Valentino. Appellant was advised that, if he disagreed with the proposed
action, he should submit evidence or argument within 30 days.
Appellant submitted a December 27, 2000 report from a “John J. Logue, Ph.D.” who
stated that he was a friend and neighbor of appellant. Mr. Logue stated that appellant continued
to have disability with the back and left leg, as well as heart problems and diabetes.
In a decision dated February 16, 2001, the Office terminated compensation for wage-loss
and medical benefits effective February 25, 2001. The Office found that the weight of the
evidence was represented by Dr. Valentino.
On April 1, 2005 the Office received a March 29, 2005 letter from appellant’s spouse,
who indicated that he was hospitalized. She inquired as to the appeal process regarding
compensation payments. The Office responded by letter dated June 17, 2005, stating that
appellant apparently had requested an oral hearing by letter dated March 14, 2001. A hearing
before an Office hearing representative was held on May 26, 2006.
Appellant submitted a May 26, 2006 report from Dr. Bosacco who stated that he had not
seen appellant since 2002, but he had treated him since 1983. Dr. Bosacco noted that appellant
had surgeries in 1968, 1971 and 1983, all of which were referable to the work injury and
2

appellant did report during his visits that his low back problems had improved significantly. He
opined that, after reviewing medical records, “[appellant] has never recovered from the original
work injury of December 19, 1967 and continues to be symptomatic referable to his work injury
diagnoses which would be lumbar sprain and strain with disc herniation, status post surgery x 3.”
By decision dated July 19, 2006, the hearing representative affirmed the February 16,
2001 termination decision. He found that the weight of the medical evidence was represented by
Dr. Valentino.
Appellant requested reconsideration by letter dated August 10, 2006. He submitted an
August 4, 2006 report from Dr. Bosacco who stated that regarding the question of whether
appellant still suffers residuals from the December 19, 1967 work injury, Dr. Bosacco had
answered the question in the May 26, 2006 report.
In a decision dated November 1, 2006, the Office determined that the request for
reconsideration was insufficient to warrant merit review of the claim. The Office found that the
evidence submitted was repetitive in nature.
LEGAL PRECEDENT -- ISSUE 1
Once the Office has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits.1 The Office may not terminate compensation without
establishing that disability ceased or that it was no longer related to the employment.2 The right
to medical benefits is not limited to the period of entitlement to disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition that require further medical treatment.3
ANALYSIS -- ISSUE 1
The Office accepted lumbar disc herniation and acute cervical, dorsal and lumbosacral
strains from employment injuries on October 7, 1965 and December 19, 1967. The second
opinion physician, Dr. Valentino, provided an August 26, 1999 report with an opinion that
appellant did not have residuals of the accepted employment injuries. He noted the lack of
objective findings based on examination results and diagnostic testing and Dr. Valentino
provided a rationalized medical opinion on the issue presented. Appellant did not submit
probative medical evidence supporting a continuing employment-related condition or disability.
He did not submit any contemporaneous reports from Dr. Bosacco. The December 27, 2000
letter from a neighbor is not competent medical evidence as there is no indication he is a
physician as defined under the Act.4
1

Jorge E. Stotmayor, 52 ECAB 105, 106 (2000).

2

Mary A. Lowe, 52 ECAB 223, 224 (2001).

3

Frederick Justiniano, 45 ECAB 491 (1994).

4

See 5 U.S.C. § 8101(2).

3

The weight of the medical evidence in this case is, therefore, represented by
Dr. Valentino, the second opinion physician. Based on the evidence of record, the Office met its
burden of proof to terminate compensation for wage loss and medical benefits effective
February 25, 2001.
After termination or modification of benefits, clearly warranted on the basis of the
evidence, the burden for reinstating compensation benefits shifts to appellant. In order to
prevail, he must establish by the weight of the reliable, probative and substantial evidence that he
had an employment-related disability which continued after termination of compensation
benefits.5 In this case, appellant submitted a May 26, 2006 report from his attending physician,
Dr. Bosacco who does not, however, provide a rationalized opinion based on a complete
background. Dr. Bosacco does not provide a complete history of the employment injuries or
discuss in detail the medical history. He did not, for example, discuss the 1965 motor vehicle
accident. Dr. Bosacco opined that appellant never recovered from the December 19, 1967
employment injury, without providing further detail. To the extent that he opines that appellant
continued to be disabled on and after February 25, 2001, Dr. Bosacco does not provide medical
rationale in support of such an opinion. Dr. Bosacco generally noted that appellant was seen for
low back problems, had lumbar surgeries in 1968, 1971 and 1983 and appellant did not report
that he had improved significantly regarding his lower back. He did not discuss appellant’s
federal employment, his lumbar condition on or about February 25, 2001 or explain why he felt
that appellant continued to have an employment-related lumbar condition and why this condition
caused disability for the date-of-injury position.
The Board accordingly finds that the report of Dr. Bosacco is of diminished probative
value to the issue presented. It is not sufficient to establish a continuing employment-related
disability after February 25, 2001.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,6 the Office’s regulations provides that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(i) shows that [the Office]
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by [the Office]; or (iii) constitutes relevant and pertinent evidence not
previously considered by [the Office].”7 Section 10.608(b) states that any application for review
that does not meet at least one of the requirements listed in section 10.606(b)(2) will be denied
by the Office without review of the merits of the claim.8 Evidence that repeats or duplicates

5

Talmadge Miller, 47 ECAB 673, 679 (1996); see also George Servetas, 43 ECAB 424 (1992).

6

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
7
8

20 C.F.R. § 10.606(b)(2).
20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

4

evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.9
ANALYSIS -- ISSUE 2
On reconsideration, appellant did not attempt to show that the Office had erroneously
applied or interpreted a point of law or advance a new and relevant legal argument. He
submitted an August 4, 2006 report from Dr. Bosacco which does not provide any new and
relevant evidence on the issue presented. Dr. Bosacco refers to his May 26, 2006 report without
providing any relevant new evidence. Since appellant did not meet any of the requirements of
section 10.606(b)(2), the Office properly declined to reopen the case for merit review.
CONCLUSION
The Office met its burden of proof to terminate compensation benefits effective
February 25, 2001 based on the medical evidence from the second opinion physician. Appellant
did not meet any of the requirements of 20 C.F.R. § 10.606(b)(2) and, therefore, the Office
properly refused to reopen the claim for merit review.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 1 and July 19, 2006 are affirmed.
Issued: June 4, 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

9

Eugene F. Butler, 36 ECAB 393 (1984).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Norton, VA,
Employer
__________________________________________

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Appearances:

Docket No. 12-83
Issued: October 24, 2012

Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
Appellant, on October 20, 2011, filed a timely appeal from an August 3, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that a modification of
OWCP’s March 30, 2001 loss of wage-earning capacity (LWEC) determination is warranted as
of March 11, 2004.2

1
2

5 U.S.C. § 8101 et seq.

The August 3, 2011 decision also modified the LWEC decision effective July 5, 2011. However, as that portion
of the decision was not adverse to appellant, the Board has no jurisdiction over that aspect of appellant’s case. 20
C.F.R. § 501.3(a).

FACTUAL HISTORY
This case has previously been before the Board. In the first appeal, the Board issued a
decision on July 12, 2006 which found that the cases were not in posture and remanded the cases
to OWCP for proper assemblage and consolidation of the claims.3 The Board noted that, as
appellant filed multiple claims for injuries to the same part of his body, OWCP should have
doubled the case files in accordance with its procedures. In addition, the Board noted that the
August 23, 2005 OWCP hearing representative’s decision was contained in both Docket No.
06-157 and Docket No. 06-158. The Board also found that the medical and factual evidence
referenced was split between the two case records. Lastly, the Board determined that since
OWCP incompletely associated the current claim filed by appellant either together or with his
prior claims, it remanded the case to OWCP for consolidation of all his prior claims for the same
part of the body, to be followed by a de novo decision on the merits of the claim to protect his
appeal rights.
In the second appeal, the Board on January 21, 2009 issued an order remanding the case.4
The Board set aside an October 30, 2007 OWCP’s hearing representative’s decision which
affirmed a July 14, 2004 OWCP decision. The July 14, 2004 decision denied appellant’s claim
for a recurrence of disability beginning March 11, 2004 and his request for authorization for
cervical fusion and lumbar fusion surgeries. The Board found that appellant’s recurrence claim
should have been handled as a request for modification of the March 30, 2001 LWEC.
In the fourth appeal on July 13, 2010, the Board found the case not in posture for decision
on the issues of modification of a March 30, 2001 LWEC and OWCP’s denial of authorization
for surgery.5 The Board found that there was an unresolved conflict in the medical opinion
evidence between Dr. Dwight D. Bailey, appellant’s treating Board-certified family practitioner,
and Dr. Richard T. Sheridan, a second opinion Board-certified orthopedic surgeon, as to the
nature of appellant’s residuals from his accepted conditions and his capacity to perform the
duties of the rated position. The Board also found an unresolved conflict in the medical opinion
evidence between Dr. Sheridan and Dr. Morgan P. Lorio, a treating Board-certified orthopedic

3

Docket Nos. 06-157 & 06-158 (issued July 12, 2006).

4

Docket No. 08-651 (issued January 21, 2009).

5

Docket No. 09-1974 (issued July 13, 2010).

2

surgeon, as to whether surgery for the lumbar and cervical spines was medically warranted. The
facts and the circumstances of the Board’s prior decisions are incorporated by reference.6 The
relevant medical and factual evidence is set forth below.
The relevant evidence from the prior appeal includes a March 30, 2001 LWEC
determination, which was based upon wages earned as a mine safety and health specialist. The
position description noted the job as primarily sedentary; occasional travel to mine and field
offices; and ability to sit or stand as infrequently or frequently as needed. The duties of the
position included reviewing reports; preparing paperwork; provided guidance and technical
assistance; performing part 50 audits which may include driving to mine office to audit mine
records; and assisting in planning and training courses for inspectors.
To resolve the outstanding conflict in medical opinion, OWCP referred appellant to
Dr. Yogesh Chand, a Board-certified orthopedic surgeon. It noted that Dr. Bailey had concluded
that appellant was totally disabled from performing the duties of the selected position of mine
safety and health specialist while Dr. Sheridan concluded that appellant was capable of
performing the sedentary job duties of the position. OWCP also related that Dr. Sheridan opined
that appellant only sustained a temporary aggravation of his lumbar and cervical degenerative
disc disease, which has resolved. It requested that Dr. Chand address the following: to describe
any objective findings relative to the accepted employment injuries; whether the effects of the
employment injuries had ceased and if not to report the prognosis; whether appellant’s accepted
conditions of low back and cervical strains and temporary aggravation of lumbar and cervical
degenerative disc disease materially changed and if so to provide supporting objective evidence;
if employment-related residuals did exist, did they limit his activities; whether any
employment-related residuals prevented him from performing his employment duties with or
without limitations; to provide any work restrictions; include any recommendations for further
treatment; whether appellant is capable of working eight or four hours a day with restrictions and
in either case to complete a work capacity evaluation; and to provide any rationalized medical
opinion supporting a conclusion that he is disabled from any form of work.
On September 28, 2010 Dr. Chand, based upon a review of the medical evidence,
statement of accepted facts and physical examination, diagnosed neck sprain with progressive
post-traumatic osteoarthritis and low back sprain with progressive post-traumatic osteoarthritis
which he attributed to the March 31, 1992 employment injury. A physical examination revealed
a normal gait, moderate to severe stiffness in neck range of motion, no tenderness of the thoracic
spine, mild tenderness in the lumbosacral area and normal bilateral leg neurological function.
Dr. Chand reviewed objective evidence including magnetic resonance imaging (MRI) scans
6

On April 1, 1992 appellant, then a 41-year-old mine safety and health inspector, filed a traumatic injury claim
alleging that he injured his lower back on March 31, 1992 while moving office furniture. OWCP assigned claim
File No. xxxxxx747 and accepted the claim for a low back strain. Appellant returned to his regular full-time work
on April 5, 1993 with subsequent intermittent periods of disability. On July 11, 1994 OWCP accepted a claim for a
recurrence of disability beginning April 3, 1993. On January 5, 1996 appellant filed a traumatic injury claim
alleging that he injured his neck, shoulders and lower back on January 4, 1996 due to his employment duties and
assigned claim File No. xxxxxx685. OWCP accepted the claim for lumbar and cervical strains. On January 14,
1997 appellant filed a traumatic injury claim alleging he injured his lower back, neck and shoulders on January 13,
1997 in the performance of duty. OWCP accepted the claim for low back strain, aggravation of cervical and lumbar
degenerative disc disease and L5-S1 radiculopathy and assigned claim File No. xxxxxx209. It combined claim File
Nos. xxxxxx209, xxxxxx685 and xxxxxx747 with xxxxxx747 as the master file number. Appellant retired from the
employing establishment effective April 3, 2005.

3

performed on February 19, 2009 and June 21, 2010 and x-ray interpretations performed on
April 28, 2004 and May 17, 2010, and provided his interpretation. He opined that appellant’s
medical condition had materially changed as he required surgical procedures for the lumbar
spine and neck and had developed spinal stenosis in both areas. Dr. Chand concluded that
appellant was capable of working an eight-hour day with restrictions based on his ability to
perform some type of activity at home. He related that appellant was capable of performing
sedentary work which allowed change of positions with restrictions. The restrictions identified
by Dr. Chand included up to six hours of sitting; up to one hour of walking and standing; no
kneeling, climbing, squatting, reaching, bending or operating a motor vehicle at work or to and
from work; up to one-half hour of reaching above the shoulder and twisting; pushing, pulling and
lifting up to 15 pounds eight hours a day; and breaks as necessary.
On December 8, 2010 OWCP authorized cervical and lumbar fusion surgery at L5-S1
and C4-7, which was performed on July 5, 2011.
On August 18, 2011 appellant elected to receive benefits under FECA effective
July 5, 2011.
By decision dated August 3, 2011, OWCP disallowed in part appellant’s request for
modification of a March 30, 2011 LWEC. It found the evidence insufficient to warrant
modification as of March 11, 2004 as the medical evidence established that, while appellant’s
condition had worsened, he was capable of working with restrictions. OWCP also found in the
August 3, 2011 decision that the March 30, 2011 LWEC should be modified effective July 5,
2011, the date appellant underwent surgery.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.7 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8 OWCP’s Federal (FECA) Procedure Manual
provides that if a formal loss of wage-earning capacity decision has been issued, the rating
should be left in place unless the claimant requests resumption of compensation for total wage
loss.9 In this instance the claims examiner will need to evaluate the request according to the
customary criteria for modifying a formal loss of wage-earning capacity.10
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

7

D.M., 59 ECAB 164 (2007); Harley Sims, Jr., 56 ECAB (2005).

8

T.M., Docket No. 08-975 (issued February 6, 2009); Katherine T. Kreger, 55 ECAB 633 (2004); see Robert H.
Merritt, 11 ECAB 64 (1959).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995). See Mary E. Marshall, 56 ECAB 420 (2005).
10

Federal (FECA) Procedure Manual, id. See Harley Sims, Jr., supra note 7.

4

rehabilitated or the original determination was, in fact, erroneous.11 The burden of proof is on
the party attempting to show a modification of the wage-earning capacity determination.12
Section 8123(a) of FECA13 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.14 When 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 on a proper factual background, must be
given special weight.15
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, it must secure a supplemental report from the specialist to correct the defect in his
original report.16
ANALYSIS
OWCP accepted the conditions of low back and cervical strains, aggravation of lumbar
and cervical degenerative disc disease, L5-S1 radiculopathy and authorized L5-S1 laminectomy
microdiscectomy. On remand from the Board’s July 13, 2010 decision, it referred appellant to
Dr. Chand, a Board-certified orthopedic surgeon, to resolve the conflict in the medical opinion
evidence between Drs. Bailey and Sheridan regarding appellant’s ability to perform the duties of
the rated position and whether he continued to have residuals from the accepted conditions.
A review of the record reveals that OWCP failed to properly identify the issue for
Dr. Chand or to provide him properly developed questions. As noted above, the issue to be
resolved is whether appellant was able to perform the duties of the rated position of mine safety
and health specialist. When OWCP provided information for Dr. Chand for review, it failed to
properly identify that issue for resolution. In the August 27, 2010 referral letter to Dr. Chand,
OWCP stated that the issue concerned a conflict in the medical evidence relating to appellant’s
work tolerance limitations. The questions posed specifically dealt with this issue and included
whether appellant’s employment-related injuries had resolved and whether he was totally
disabled for work. However, the conflict in the medical opinion evidence concerned whether
appellant was capable of performing the duties of the position of mine safety and health
specialist, which was the basis for a March 30, 2001 LWEC. It was not an issue of appellant’s
work tolerance limitations. Thus, the Board finds that OWCP failed to properly identify the
11

See D.M., supra note 7; Stanley B. Plotkin, 51 ECAB 700 (2000); Tamra McCauley, 51 ECAB 375 (2000);
Ernest Donelson, Sr., 35 ECAB 503 (1984).
12

Id.; Jack E. Rohrabaugh, 38 ECAB 186 (1986).

13

5 U.S.C. § 8123(a).

14

Id.; see J.J., Docket No. 09-27 (issued February 10, 2009); Y.A., 59 ECAB 701 (2008); Darlene R. Kennedy, 57
ECAB 414 (2006); Geraldine Foster, 54 ECAB 435 (2003).
15

V.G., 59 ECAB 635 (2008); Bryan O. Crane, 56 ECAB 713 (2005).

16

T.C., Docket No. 08-2112 (issued June 12, 2009); Phillip H. Conte, 56 ECAB 213 (2004); Raymond A.
Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988).

5

issue and correctly develop the questions in its referral letter to Dr. Chand. As OWCP failed to
properly identify the issue and correctly develop questions for Dr. Chand to answer, the Board
finds OWCP erred in its reliance on Dr. Chand’s opinion in denying modification of its
March 30, 2001 LWEC. The case will be remanded to OWCP to correctly identify the issue and
provide an accurate and complete list of questions to Dr. Chand so that his supplemental opinion
will be based on the proper issue and correct questions relating to appellant’s capability of
performing the duties of the rated position of Mine Safety and Health Specialist. If Dr. Chand is
unwilling or unable to clarify and elaborate on his opinion, the case should be referred to another
appropriate impartial medical specialist. After such further development as OWCP deems
necessary, an appropriate decision should be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision, as there exists an
unresolved conflict in the medical opinion evidence.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2011 is set aside in part and the case is remanded for
further development consistent with this decision.17
Issued: October 24, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

17

Supra note 2.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., widow of J.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milford, CT, Employer
__________________________________________

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Appearances:
Francesco P. Sandillo, IV, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1194
Issued: April 28, 2020

Case Submitted on the Record

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

JURISDICTION
On May 22, 2018 appellant, through her representative, filed a timely appeal from an
April 23, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP established that the employee received an
overpayment of compensation, for which he was not at fault, in the amount of $9,384.14 during
the period July 16, 2000 through December 12, 2017 because life insurance premiums were not
1

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

5 U.S.C. § 8101 et seq.

properly deducted; and (2) whether OWCP properly denied appellant’s request for waiver of
recovery of the overpayment.
FACTUAL HISTORY
On June 1, 2000 appellant’s husband, the employee, then a 49-year-old letter carrier, filed
a traumatic injury claim (Form CA-1) alleging that he sustained a back injury on May 31, 2000
due to loading mail trays into his postal vehicle while in the performance of duty. He stopped
work on May 31, 2000. OWCP accepted appellant’s claim for lumbosacral sprain and paid the
employee wage-loss compensation on the supplemental rolls commencing July 16, 2000 and on
the periodic rolls commencing August 10, 2003. On October 17, 2003 the employee was granted
disability retirement.
On December 15, 2017 appellant advised OWCP that the employee died on
December 12, 2017. She submitted a death certificate listing the cause of death as metastatic
esophageal cancer.
In a January 18, 2018 letter, entitled “life insurance adjustment request,” received on
January 26, 2018, the Office of Personal Management (OPM) requested that OWCP refer to an
attached OPM document dated November 24, 2003 and make an adjustment, if necessary. In
the attached document, OPM advised that the final salary on which the employee’s Federal
Employees’ Group Life Insurance (FEGLI) was based was $44,583.00. It further indicated
that the employee was enrolled in basic life insurance (BLI) with deduction of premiums
beginning on “compensation commencement date” and that he was enrolled in post-retirement
basic life insurance (PRBLI) at 50 percent reduction with deduction of premiums beginning on
October 18, 2003.
OWCP received compensation payment history documents covering the period July 16,
2000 through December 12, 2017 which revealed that deductions for BLI and PRBLI premiums
were not made for various periods between these dates.
In a February 26, 2018 letter, OWCP advised appellant of its preliminary determination
that she had received an overpayment of compensation in the amount of $9,384.14 because BLI
premiums were not deducted from the employee’s wage-loss compensation for the periods July
16 to October 20, 2000, April 20 to November 5, 2001, and May 3, 2003 to July 1, 2015, and
PRBLI premiums were not deducted from his wage-loss compensation for the period October
18, 2003 to December 12, 2017.3 It also made a preliminary finding that appellant, the
deceased employee’s spouse, was without fault in the creation of the overpayment. OWCP
advised appellant regarding her appeal options, including challenging the fact/amount of the
overpayment and requesting waiver of recovery of the overpayment. It directed her to complete
and return an overpayment recovery questionnaire form (Form OWCP-20) and submit financial
documentation supporting her claimed income and expenses.

3

The preliminary determination was addressed to the Estate of the employee in care of the appellant.

2

Appellant requested waiver of recovery of the overpayment and submitted a Form
OWCP-20 dated March 16, 2018 in which she delineated her monthly income, monthly
expenses, and assets. No supporting financial information was received.
By decision dated April 23, 2018, OWCP finalized its preliminary determination that a
$9,384.14 overpayment was created because BLI premiums were not deducted from the
employee’s wage-loss compensation for the periods July 16 to October 20, 2000, April 20 to
November 5, 2001, and May 3, 2003 to July 1, 2015, and PRBLI premiums were not deducted
from his wage-loss compensation for the period October 18, 2003 to December 12, 2017. It found
that appellant was without fault in the creation of the overpayment, but that waiver of recovery
was not warranted. OWCP noted that she failed to submit financial documentation in support
of her request for waiver of recovery of the overpayment. It directed appellant to pay the lump sum
amount of $9,384.14 within 30 days. 4
LEGAL PRECEDENT -- ISSUE 1
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. 5 When an
overpayment has been made to an individual because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which the individual is entitled.6 The fact that OWCP may have erred in making the overpayment,
or that the overpayment may have resulted from an error by another government agency, does not
by itself relieve the individual who received the overpayment from liability for repayment if the
individual also was at fault in accepting the overpayment. 7
Under the FEGLI Program, most civilian employees of the Federal Government are eligible
to participate in BLI and one or more of the forms of OLI. 8 The coverage for BLI is effective
unless waived,9 and premiums for BLI and OLI coverage are withheld from the employee’s pay.10
Upon retirement or upon separation from the employing establishment or being placed on the
FECA periodic compensation rolls, an employee may choose to continue BLI and OLI coverage,
in which case the schedule of deductions made will be used to withhold premiums from his or her
annuity or compensation payments. 11 BLI coverage shall be continued without cost to an
4

With respect to the recovery of an overpayment, the Board’s jurisdiction is limited to those cases where OWCP
seeks recovery from continuing compensation benefits. A.B., Docket No. 18-0915 (issued October 24, 2018);
Miguel A. Muniz, 54 ECAB 217 (2002). As OWCP did not seek recovery from continuing compensation benefits, the
Board does lacks jurisdiction over the method of recovery of the overpayment in this case. See 20 C.F.R. § 10.441.
5

5 U.S.C. § 8102(a).

6

20 C.F.R. §§ 10.434-10.437; J.L., Docket No. 18-0212 (issued June 8, 2018).

7

Id. at § 10.435.

8

5 U.S.C § 8702(a); see also I.J., Docket No. 19-1672 (issued March 10, 2020).

9

Id. at § 8702(b).

10

Id. at § 8707.

11

Id. at § 8706.

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employee who retired or began receiving compensation on or before December 31, 1989. 12
However, the employee is responsible for payment of premiums for OLI coverage which is
accomplished by authorizing withholdings from his or her compensation. 13
A 1980 amendment of 5 U.S.C. § 8706(b)(2) provided that an employee receiving
compensation under FECA could elect continuous withholdings from his or her compensation, so
that his or her life insurance coverage could be continued without reduction. 5 C.F.R. § 870.701
(December 5, 1980) provided that an eligible employee had the option of choosing no life
insurance; Option A -- basic coverage (at no additional cost) subject to continuous withholdings
from compensation payments that would be reduced by two percent a month after age 65 with a
maximum reduction of 75 percent; Option B -- basic coverage (at an additional premium) subject
to continuous withholdings from compensation payments that would be reduced by one percent a
month after age 65 with a maximum reduction of 50 percent; or Option C -- basic coverage subject
to continuous withholdings from compensation payments with no reductions after age 65 (at a
greater premium).14
Each employee must elect or waive Option A, Option B, and Option C coverage, in a
manner designated by OPM, within 60 days after becoming eligible unless, during earlier
employment, he or she filed an election or waiver that remains in effect. 15 Any employee who
does not file a Life Insurance Election with his or her employing office, in a manner designated by
OPM, specifically electing any type of optional insurance, is considered to have waived it and does
not have that type of optional insurance. 16
When an under withholding of life insurance premiums occurs, the entire amount is
deemed an overpayment of compensation because OWCP must pay the full premium to OPM upon
discovery of the error. 17
ANALYSIS -- ISSUE 1
The Board finds OWCP has not met its burden of proof to establish that the employee
received an overpayment of compensation.
OWCP found that an overpayment of compensation in the amount of $9,384.14 was created
because it failed to deduct BLI premiums from the employee’s wage-loss compensation for the
periods July 16 to October 20, 2000, April 20 to November 5, 2001, and May 3, 2003 to July 1,
2015, and failed to deduct PRBLI premiums from his wage-loss compensation for the period
12

Id. at § 8707(b)(2).

13

Id. at § 8706(b)(3)(B). See B.B., Docket No. 17-1733 (issued March 26, 2018); S.B., Docket No. 16-1795 (issued
March 2, 2017).
14

G.L., Docket No. 19-0297 (issued October 23, 2019); James J. Conway, Docket No. 04-2047 (issued
May 20, 2005).
15

5 C.F.R. § 870.504(a)(1).

16

Id. at § 870.504(b).

17

5 U.S.C. § 8707(d); see also B.B., supra note 13.

4

October 18, 2003 to December 12, 2017. OWCP reviewed the fiscal record and determined that
the employee had elected BLI and PRBLI and it explained that premiums had not been deducted
for the appropriate periods. The record includes OPM’s November 24, 2003 letter notifying
OWCP that the employee had elected BLI and PRBLI. The record also includes computer
printouts showing that proper life insurance premium deductions were not made between July 16,
2000 and December 12, 2017.
The Board finds, however, that OWCP failed to adequately support its determination that
the employee, now deceased, received a $9,384.14 overpayment due to its failure to properly
deduct premiums for BLI and PRBLI. While the record includes communications from OPM
regarding the employee’s BLI and PRBLI coverage, the record does not contain evidence that the
employee affirmatively signed a document electing BLI or PRBLI coverage. The record does not
contain a signed election form showing which coverage he actually selected or if he actually
selected coverage. The Board has previously found that OWCP must document whether and when
a claimant elected life insurance coverage after separation from federal service or retirement in
order to establish the fact of overpayment of compensation.18 As OWCP has not factually
established the employee’s election of BLI and PRBLI on the relevant dates, it has not met its
burden of proof to establish that a $9,384.14 overpayment was created between July 16, 2000 and
December 12, 2017, as alleged.
Also, a review of OWCP’s preliminary determination demonstrates that it notified
appellant that she had received an overpayment of compensation in the amount of $9,384.14.
However, appellant has not been established to be a federal employee nor was she a beneficiary of
the FECA compensation which is the basis of the claimed overpayment. 19 For that reason, OWCP
was required to follow certain procedures to protect her, as a nonbeneficiary, and that protection
is required in overpayment cases wherein it has knowledge that a beneficiary with an existing
overpayment has died. 20 Its procedures for recovery from a deceased debtor’s estate, in effect at
the time of OWCP’s April 23, 2018 decision, specifically provide instructions that:
“(b) Upon learning that a claimant with an existing overpayment has died, the
district office shall immediately contact the U.S. Office of Personnel Management
(OPM) to determine the availability of any OPM benefits payable at the time of
death that may be administratively offset, e.g., basic employee death benefits,
survivor annuity benefits or lump sum refund of the deceased employee’s
retirement contributions (5 C.F.R. § 831.1805). If such OPM benefits are available
for offset, the district office must follow the OPM referral procedures set forth in
Part 6.300.9.
(i) Many state statutes provide that an unsecured debt may not be collected from
an estate one year after the death of the decedent.

18

P.K., Docket No. 18-0913 (issued March 5, 2020); C.P., Docket No. 19-0317 (issued July 1, 2019); R.F., Docket
No. 18-0739 (issued January 2, 2019); D.T., Docket No. 17-0901 (issued January 29, 2018).
20 C.F.R. §10.5 defines a “beneficiary” of FECA compensation as an individual who is entitled to a benefit under
FECA.
19

20

See R.R., Docket No. 18-0803 (issued April 25, 2019).

5

(ii) As many states require publication of a notice to creditors, a written claim
against the estate should generally be presented within four months from the
date of death.”21
At the time of OWCP’s April 23, 2018 decision, its procedures for recovery from a
deceased debtor’s estate also provided that “[o]nce the estate has been closed and the proceeds
distributed, collection action must be terminated.”22
The Board therefore finds that OWCP has not met its burden of proof to establish that an
overpayment of compensation occurred as alleged.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to establish that the employee
received an overpayment of compensation.23
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2018 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: April 28, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees’ Compensation Appeals Board
Janice B. Askin, Judge
Employees’ Compensation Appeals Board
Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

21
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4(e)(2)(b) (June 2009).
22

Id. at Debt Liquidation, Recovery from a Deceased Debtor’s Estate, Chapter 6.300.15 (May 2004).

23

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jefferson, OH, Employer
__________________________________________

)
)
)
)
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)
)
)

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

Docket No. 15-78
Issued: February 27, 2015

Case Submitted on the Record

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

JURISDICTION
On October 14, 2014 appellant, through counsel, filed a timely appeal from a
September 17, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration. Because more than one year has elapsed
between the last OWCP merit decision dated April 15, 2013 to the filing of this appeal, the
Board lacks jurisdiction to review the merits of appellant’s case. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the September 17, 2014 nonmerit decision.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant’s counsel contends that the decision is contrary to the fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On May 6, 2008 appellant, then a 55year-old rural carrier, filed an occupational disease claim alleging that on May 4, 2008 she first
realized that her right knee and swollen feet were employment related. OWCP accepted the
claim for right ankle and knee tendinitis and placed appellant on the periodic rolls for temporary
total disability.
By decision dated March 19, 2010, OWCP terminated appellant’s compensation benefits
effective November 3, 2009. In a decision dated April 8, 2011, the Board found that OWCP
failed to meet its burden of proof due to an unresolved conflict in the medical opinion evidence
between Dr. William A. Seeds, appellant’s treating Board-certified orthopedic surgeon, and
Dr. Michael J. Jurenovich, a second opinion Board-certified osteopathic orthopedic surgeon,
with regard to whether appellant had any disability or continuing residuals of her accepted right
ankle and knee tendinitis.2 The Board reversed the November 3, 2009 decision terminating her
compensation benefits and the March 19, 2010 hearing representative’s decision affirming the
termination. By decision dated May 7, 2014, the Board affirmed an April 15, 2013 hearing
representative’s decision affirming a September 13, 2012 decision terminating her compensation
benefits.3 In affirming the termination of her compensation benefits, the Board found that
OWCP properly relied upon the opinion of the impartial medical examiner, Dr. Manhal A.
Ghanma, a Board-certified orthopedic surgeon, who negated a causal relationship between
appellant’s continuing conditions and disability related to her employment. The facts and the
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference.
On July 16, 2014 counsel requested reconsideration and submitted a June 16, 2014 report
from Dr. Seeds in support of the request.
In the June 16, 2014 report, Dr. Seeds noted that on February 17, 2004 appellant
sustained left shoulder and left humerus injuries as the result of a fall at work. He stated that the
extent of her shoulder disruption was not revealed until arthroscopic surgery which was
performed on February 24, 2004. In concluding, Dr. Seeds opined that appellant’s decreased
shoulder strength and range of motion were due to the degenerative changes which he attributed
to the shoulder injury sustained at work on February 17, 2004. He opined that she continued to
suffer from residuals and disability from her accepted employment injury.
By decision dated September 17, 2014, OWCP denied reconsideration. It found
Dr. Seeds’ report considered another employment injury and made no mention of the accepted
conditions under the current claim. Thus, OWCP found that the report failed to constitute new
and relevant evidence which would warrant a merit review.

2

Docket No.10-1327 (issued April 8, 2011).

3

Docket No. 13-2025 (issued May 7, 2014).

2

LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,4
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.7
ANALYSIS
In the most recent merit decision dated May 7, 2014, the Board affirmed an April 15,
2013 OWCP hearing representative’s decision terminating appellant’s compensation effective
September 22, 2013 and that the weight of the medical evidence established that she had no
further disability or residuals due to her accepted right ankle and knee tendinitis. On July 16,
2015 appellant’s counsel requested reconsideration of the termination of her compensation.
As noted, the Board does not have jurisdiction over a merit decision of OWCP. The issue
presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim. In her
July 16, 2014 request for reconsideration, appellant did not identify a specific point of law or
show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument not previously considered by OWCP.
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence, but appellant did not submit any pertinent new and relevant medical evidence in this
case. Appellant submitted a June 16, 2014 report from Dr. Seeds, which addressed disability and
continuing residuals due to shoulder conditions sustained as the result of an alleged February 17,
2004 traumatic employment injury. However, this report does not require the reopening of
appellant’s claim as it is not relevant to the underlying issue in the case, i.e., whether appellant
continues to have disability and residuals as the result of her accepted right ankle and knee
tendinitis sustained as a result of the March 4, 2008 occupational employment injury.8

4

5 U.S.C. §§ 8101-8193. Section 8128(a) of FECA provides that the Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.
5

20 C.F.R. § 10.606(b)(3). See J.M., Docket No. 09-218 (issued July 24, 2009); Susan A. Filkins, 57 ECAB
630 (2006).
6

Id. at § 10.607(a). See S.J., Docket No. 08-2048 (issued July 9, 2009); Robert G. Burns, 57 ECAB 657 (2006).

7

Id. at § 10.608(b). See Y.S., Docket No. 08-440 (issued March 16, 2009); Tina M. Parrelli-Ball, 57 ECAB
598 (2006).
8

D.K., 59 ECAB 141 (2007); D’Wayne Avila, 57 ECAB 642 (2006).

3

Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, advance a relevant legal argument not previously considered by OWCP or submit relevant
and pertinent new evidence not previously considered. The Board accordingly finds that she did
not meet any of the requirements of 20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal, counsel contends that OWCP’s decision was contrary to fact and law. Based
on the findings and reasons stated above, the Board finds that the attorney’s arguments are not
substantiated.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen her case for
further review of the merits under section 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 17, 2014 is affirmed.
Issued: February 27, 2015
Washington, DC

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

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

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

4


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

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)
)
)

Appearances:
Stephen Larkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0231
Issued: July 15, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 12, 2018 appellant, through counsel, filed a timely appeal from a June 26,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the June 26, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id

ISSUE
The issue is whether appellant has met her burden of proof to establish a lumbar condition
causally related to the accepted October 14, 2016 employment incident.
FACTUAL HISTORY
On October 14, 2016 appellant, then a 54-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained a back injury lifting a parcel of mail while in
the performance of duty. She stopped work on the date of injury.
Appellant was seen in a hospital emergency room on October 14, 2016 by Dr. Ito Ryosuke,
a Board-certified emergency room physician, who diagnosed a lumbar and pelvis sprain and lower
back muscle, fascia, and tendon strain. Dr. Ryosuke noted that appellant had a history of lumbar
disc herniation and back pain, and that she had developed back pain approximately one hour before
the examination when she twisted while moving a box at work.4
In a duty status report (Form CA-17) dated October 14, 2016, Eric Walter, a certified
physician assistant, noted an injury date of October 14, 2016 and diagnosis of lumbar sprain/strain.
He indicated that appellant was disabled from work.
On the date of injury, the employing establishment issued an authorization for examination
and/or treatment (Form CA-16), which indicated that appellant was authorized to seek medical
treatment for her October 14, 2016 employment incident. In the attending physician’s report
portion of the Form CA-16, Mr. Walter diagnosed lumbar sprain/strain and noted an injury date of
October 14, 2016. Under history of injury, he related that appellant’s back injury occurred as the
result of lifting packages at work earlier that day. Mr. Walter checked a box marked “yes”
indicating that the diagnosed condition had been caused or aggravated by the employment activity.
He placed appellant off work from October 14 to 17, 2016.
In a report dated October 20, 2016, Dr. Myassir Zarif, a physician specializing in
neurology, advised that appellant was under his care and was currently unable to work.
In a development letter dated October 27, 2016, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus limited
expenses had therefore been authorized. However, a formal decision was now required. OWCP
requested that she respond to an enclosed questionnaire by providing a more detailed description
of the incident, witness statements she had obtained regarding the incident, the immediate effects
of her employment incident, and a history of any other injury. It also requested that she submit a
medical report from her attending physician including a diagnosis, history of injury, examination
findings, and a rationalized opinion explaining how the reported employment incident caused or

4
The record reflects that appellant had prior OWCP claims also alleging back injuries, which have not been
administratively combined with this claim. Appellant’s February 20, 2007 claim under OWCP File No. xxxxxx827
was accepted for lumbar sprain. Her February 6, 2009 claim was also accepted for lumbar sprain under OWCP File
No. xxxxxx577.

2

aggravated her medical condition. OWCP afforded appellant 30 days to provide the requested
information.
Dr. Zarif, in a duty status report (Form CA-17) dated October 28, 2016, diagnosed
lumbosacral radiculopathy with an injury date of October 14, 2016. He reported that her injury
resulted from lifting a package and that she was currently off work. Dr. Zarif indicated that the
history of injury given by appellant corresponded with how the injury occurred.
In a November 22, 2016 report, Dr. Zarif noted that appellant was seen for lumbar
radiculopathy and low back pain and detailed examination findings. He related that she described
severe daily low back pain since her October 14, 2016 employment incident. Dr. Zarif, in a
disability note dated November 22, 2016, requested that appellant be excused from work until
December 6, 2016.
In duty status reports (Form CA-17) dated November 22 and December 6, 2016, Dr. Zarif
diagnosed lumbosacral pain and found appellant disabled from work. He noted an injury date of
October 14, 2016 due to lifting a parcel and indicated that the history given corresponded to the
description of how the injury occurred.
Dr. Zarif, in a December 6, 2016 report, noted that appellant was currently being seen for
an aggravation of her lower back pain which occurred on October 14, 2016 due to lifting a heavy
box. He observed that her pain radiated from her mid to lower spine down into her right leg and
foot. Dr. Zarif requested authorization for a magnetic resonance imaging (MRI) scan to rule out
nerve root or spinal cord impingement from severe disc disease.
By decision dated December 15, 2016, OWCP denied appellant’s claim finding that the
evidence of record was insufficient to establish causal relationship between the diagnosed
condition and the accepted October 14, 2016 employment incident.
Subsequent to the December 15, 2016 decision, OWCP received a December 13, 2016
MRI scan which revealed advanced L3-4 posterior disc bulge, advanced L4-5 grade 1
anterolisthesis with posterior disc herniation, and worsening of L5-S1 disc bulge.
Dr. Zarif, in a December 19, 2016 report, detailed examination findings which were
unchanged from prior reports and diagnosed low back pain and lumbosacral radiculopathy. In a
December 19, 2016 attending physician’s report (Form CA-20), he diagnosed lumbar myofascial
pain. Dr. Zarif noted an injury date of October 14, 2016 and checked a box marked “yes”
indicating that the diagnosed condition was caused or aggravated by employment activity, which
he identified as lifting a heavy box. In December 19, 2016 and January 20, 2017 duty status reports
(Form CA-17), he noted that appellant sustained a back injury while lifting a parcel of mail on
October 14, 2016. Dr. Zarif diagnosed lumbosacral radiculopathy and opined that appellant was
currently disabled from work.
On January 9, 2017 OWCP received appellant’s December 29, 2016 request for a
telephonic hearing before an OWCP hearing representative, which was held on July 10, 2017.
By decision dated August 23, 2017, OWCP’s hearing representative affirmed the denial of
appellant’s claim, finding that the evidence of record was insufficient to establish that the
diagnosed medical condition had been caused or aggravated by the accepted October 14, 2016
employment incident.
3

In a letter dated and received on September 27, 2017, appellant, through counsel, requested
reconsideration and submitted additional medical evidence including MRI scans dated January 14,
2013 and December 13, 2016.
In a September 14, 2017 report, Dr. Zarif noted that appellant had sustained two prior work
injuries involving her back. As a result of these prior work injuries and based on current
examination findings, he determined that she had developed post-traumatic arthritis. Dr. Zarif
explained that post-traumatic arthritis occurred when a joint has been worn out by a physical injury.
Next, he observed that appellant developed extreme back pain which radiated into her right leg on
October 14, 2016 after lifting a heavy package at work. Based on a comparison of 2013 and 2016
MRI scans, Dr. Zarif determined that her back condition had worsened. Based on his examination
findings and review of the two MRI scans, he diagnosed L4-5 and L5-S1 disc herniation, lumbar
radiculopathy, and acceleration of post-traumatic arthritis all of which he attributed to the accepted
October 14, 2016 employment incident. In support of this conclusion, Dr. Zarif noted that
appellant had developed post-traumatic arthritis from prior work injuries which caused a lumbar
weakness. As a result of this lumbar spine weakness, he explained that lifting a heavy package on
October 14, 2016 had aggravated her preexisting lumbar traumatic arthritis. In addition, Dr. Zarif
explained that disc bulges occur where there is damage to lumbar region, and the bulges cause
nerve irritation resulting in pain radiating down the leg.
By decision dated December 27, 2017, OWCP denied modification, finding that the
evidence of record did not establish causal relationship between the diagnosed condition and the
accepted October 14, 2016 employment incident.
In a letter dated and received on March 30, 2018, appellant, through counsel, requested
reconsideration and submitted additional evidence.
In a March 16, 2018 report, Dr. Zarif discussed the results of the 2013 and 2016 MRI scans,
which he explained showed a definite worsening of appellant’s lumbar condition following the
accepted October 14, 2016 employment incident. As a result of her employment injuries, he
concluded that appellant developed post-traumatic arthritis. The diagnoses attributable to the
accepted October 14, 2016 work incident were L4-5 and L5-S1 disc herniation, lumbar
radiculopathy, and acceleration of her post-traumatic arthritis. Dr. Zarif again explained that the
lumbar disc bulges occurred from damage to her lumbar region, which caused nerve irritation
resulting in pain radiating down the leg. He further explained that traumatic arthritis resulted from
the wearing out of a joint from a physical injury. Dr. Zarif noted that injuries to the lumbar region
resulted in disc bulges and that when fluid leaked from the disc bulge, it resulted in disc herniation.
He opined that the lifting of a package on October 14, 2016 was a direct cause of the diagnosed
condition and unrelated to any other pathology.
By decision June 26, 2018, OWCP denied modification, finding that the evidence
submitted on reconsideration contained insufficient medical rationale to establish causal
relationship between the accepted October 14, 2016 employment incident and the diagnosed
lumbar condition.
LEGAL PRECEDENT
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
4

United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.8 The second component is whether the employment incident caused a personal injury.9
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.10 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.11
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.12
ANALYSIS
The Board finds that this case not in posture for decision.
In support of her claim, appellant submitted medical evidence, including reports dated
September 14, 2017 and March 15, 2018 from Dr. Zarif, wherein he explained that her clinical
findings and imaging studies supported a traumatic injury to her lumbar spine that conformed to
appellant’s account of the accepted October 14, 2016 employment incident. Dr. Zarif provided a
detailed medical history, noting appellant’s prior accepted lumbar injuries, physical examination
findings, and review of diagnostic testing. In addition, he explained that a comparison of the 2013
MRI scan taken before the work incident and one taken after the incident, on December 13, 2016,
clearly demonstrated a worsening of her back condition. Dr. Zarif provided an affirmative opinion
5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

Elaine Pendleton, 40 ECAB 1143 (1989).

9

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

10

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

12

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

5

on causal relationship, explaining that appellant’s preexisting post-traumatic arthritis had
weakened her lumbar spine and that when she lifted a heavy package on October 14, 2016, stress
was placed in the lumbar region which caused fluid to flow from the disc which resulted in disc
herniation. As such, Dr. Zarif accurately identified the specific employment factor which
appellant claimed caused her condition, identified findings on examination, and the mechanism of
injury.
The Board notes that, while none of Dr. Zarif’s reports are completely rationalized, they
are consistent in indicating that appellant sustained an employment-related injury due to the
accepted October 14, 2016 employment incident and are not contradicted by any substantial
medical or factual evidence of record.13 While the reports are insufficient to meet her burden of
proof to establish her claim, they raise an uncontroverted inference between her lumbar condition
and the identified employment factor and are sufficient to require OWCP to further develop the
medical evidence and the case record.14
The Board thus finds that the medical evidence of record is sufficient to require further
development of the case record.15 It is well established that proceedings under FECA are not
adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden of
proof to establish entitlement to compensation, OWCP shares responsibility in the development of
the evidence.16 OWCP has an obligation to see that justice is done.17
The Board will remand the case for further development of the medical evidence.18 On
remand it shall refer appellant, a statement of accepted facts, and the medical evidence of record
to an appropriate specialist for an examination, and a rationalized opinion regarding causal
relationship between her diagnosed lumbar spine conditions and the accepted October 14, 2016

13

S.T., Docket No. 18-1119 (issued March 6, 2019); S.M., Docket No. 13-0534 (issued June 21, 2013); Frank B.
Gilbreth, Docket No. 02-1310 (issued May 14, 2003).
14

D.H., Docket No. 18-1410 (issued March 21, 2019); D.W., Docket No. 17-1884 (issued November 8, 2018);
S.S., Docket No. 17-0322 (issued June 26, 2018); A.F., Docket No. 15-1687 (issued June 9, 2016). See also John J.
Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).
15

S.T., supra note 13; C.T., Docket No. 16-1222 (issued March 9, 2017).

16
D.H., supra note 14; D.W., supra note 14; see, e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Dorothy
Sidwell, 36 ECAB 699, 707 (1985); Michael Gallo, 29 ECAB 159, 161 (1978).
17

D.H., supra note 14; D.W., supra note 14; William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E.
Evans, 26 ECAB 195 (1974).
18

C.T., supra note 15.

6

employment injury. After this and other such further development deemed necessary,19 OWCP
shall issue a de novo decision.20
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: July 15, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

19

OWCP’s procedures provide that cases should be combined when correct adjudication of the issues depends on
frequent cross-referencing between files. For example, if a new injury case is reported for an employee who previously
filed an injury claim for a similar condition or the same part of the body, doubling is required. See Federal (FECA)
Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c) (February 2000). On
remand OWCP shall administratively combine all necessary file numbers for a full and fair adjudication of appellant’s
pending claim.
20

The Board notes that a properly completed CA-16 form authorization may constitute a contract for payment of
medical expenses to a medical facility or physician, when properly executed. The form creates a contractual
obligation, which does not involve the employee directly, to pay for the cost of the examination or treatment regardless
of the action taken on the claim. The period for which treatment is authorized by a Form CA-16 is limited to 60 days
from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); P.R., Docket No. 18-0737
(issued November 2, 2018); N.M., Docket No. 17-1655 (issued January 24, 2018), Tracy P. Spillane, 54 ECAB
608 (2003).

7