United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Z.B., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE CASUAL FIREFIGHTERS,
Albuquerque, NM, Employer
__________________________________________

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

Docket No. 12-1164
Issued: December 14, 2012

Case Submitted on the Record

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

JURISDICTION
On April 27, 2012 appellant filed a timely appeal from a January 30, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP) denying his recurrence claim. 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 claim.
ISSUE
The issue is whether appellant established that he sustained a recurrence of disability due
to his accepted June 2, 2010 traumatic injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 22, 2010 appellant, then a 20-year-old firefighter, filed a traumatic injury claim
(Form CA-1) alleging that on June 2, 2010 he sustained a bee sting to his left hand, which
resulted in an allergic reaction, severe disorientation and poor level of consciousness.
In a June 2, 2010 medical report, Dr. Ray Andreassen, an osteopath, obtained a history
that appellant was stung by a bee at his work site and immediately brought to the clinic for
treatment. Appellant was unresponsive to verbal cues and was breathing spontaneously.
Dr. Andreassen diagnosed bee sting anaphylactic reaction and discharged appellant with stable
vital signs. In a June 2, 2010 attending physician’s report (Form CA-20), he stated that
appellant’s allergic reaction was caused or aggravated by the bee sting from the June 2, 2010
employment incident. Dr. Andreassen noted that appellant could resume work on June 3, 2010 if
no further problems occurred. In a June 3, 2010 follow-up note, John Winczura, a physician’s
assistant stated that appellant’s condition had improved.
In a December 16, 2011 telephone note, an OWCP claims examiner stated that appellant
reported that he was terminated from his employment at Tahoe Hotshots because he could not
perform the duties of his position as a result of disorientation from his severe allergic reaction to
the bee sting. Appellant further stated that he was unable to work as a firefighter and would like
his case reopened.
On January 7, 2012 appellant filed a recurrence of disability. He stated that he stopped
work on June 9, 2010 as a result of his recurrence. Appellant did not indicate if his recurrence
was a result of medical treatment or time loss from work. He checked the box marked “no”
when asked if he was in any way limited in performing his usual duties after returning to work
following the original injury, noting that he did not return to work. Appellant also checked the
box marked “no” when asked if accommodations were made after his June 2, 2010 injury. In a
January 7, 2012 claim for compensation (Form CA-7), he requested leave without pay for the
period June 28, 2010 January 7, 2012.
In an attached narrative statement, appellant reported that on June 2, 2010 he was stung
by a bee on his left hand. He immediately informed the Emergency Medical Technician (EMT)
because he knew he was highly allergic. The EMT did not inject him with an EpiPen, checked
his basic operating functions and released him back to work. Appellant informed the EMT that
he was not feeling well and was given Benadryl. A short while later he notified the EMT that his
symptoms were worsening, causing him to go in and out of consciousness. At that point
appellant was injected with an EpiPen and taken to the medical center. He was cleared by the
hospital and released under EMT supervision for three days. On the third day, appellant’s
superintendent informed him that he could not continue working at Tahoe Hotshots because he
was too much of a liability as a result of his bee allergy. Appellant had no duties to attend to
upon his return to work and was forced to resign from his crew. He was offered a wrec crew job,
which was basically a janitorial position at the base where the crew was stationed.
In a May 31, 2010 progress note, Mr. Winczura stated that appellant requested an EpiPen
on May 31, 2010 due to his severe reactions to bee stings. The request was granted. On June 2,

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2010 appellant was brought to the emergency room for an allergic reaction to a bee sting. He
returned for follow-up treatment on June 3, 2010.
On June 23, 2012 OWCP accepted appellant’s claim for toxic effect of venom,
anaphylaxis due to bee sting. It stated that his claim was reopened due to the fact that he had
filed a recurrence claim.
By decision dated January 30, 2012, OWCP denied appellant’s recurrence claim finding
that the medical evidence did not establish that he sustained a recurrence of disability causally
related to the accepted June 2, 2010 employment injury. It noted that no medical evidence was
submitted past June 2010.2
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.3 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force.4
An employee, who is prevented by employment-related residuals from returning to a job
the employee held when injured does return to a light-duty position or when the medical
evidence shows that the employee could perform the light-duty position, the employee must
present reliable, probative and substantial evidence that he or she cannot perform in the lightduty position because of a recurrence of total disability. As part of this burden, the employee
must show a change in the nature and extent of the injury-related condition or a change in the
nature and extent of the light-duty requirements.5
OWCP’s procedures provide that a recurrence of disability can be created by the
withdrawal of a light-duty assignment made to accommodate an employee if the withdrawal is
not due to misconduct or nonperformance of job duties.6

2

The Board notes that appellant submitted additional evidence after OWCP rendered its January 30, 2012
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
3

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a medical
condition as a documented need for medical treatment after release from treatment for the accepted condition).
4

Id.

5

Terry R. Hedman, 38 ECAB 222 (1986).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3b(1)(c) (January 1995).

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Although appellant must prove the facts alleged, proceedings under FECA are not
adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden to
establish his or her claim, OWCP also has a responsibility in the development of the evidence.7
This is particularly true when the evidence is of the character normally obtained from the
employing establishment or other government source.8 20 C.F.R. § 10.118(a) states: The
employer is responsible for submitting to OWCP all relevant and probative factual and medical
evidence in its possession, or which it may acquire through investigation or other means. Such
evidence may be submitted at any time.
ANALYSIS
The Board finds that this case is not in posture for decision as to whether appellant
sustained a recurrence of total disability.
In its January 30, 2012 decision, OWCP found that appellant did not sustain a recurrence
on the grounds that the medical evidence failed to establish that his alleged disability was
causally related to the June 2, 2010 injury. Appellant, however, claimed that he sustained a
recurrence of total disability when his position as a firefighter was withdrawn effective June 5,
2010 and he was forced to resign. He did not contend that his condition had worsened such that
he was unable to perform the duties of his position as a firefighter. In his narrative statement,
appellant reported that his superintendent told him that he was too much of a liability to be a
firefighter due to his bee allergy. He stated that he had no duties to perform upon returning to
work and was forced to resign after he was offered a wrec crew job, which was essentially a
janitorial position.9
OWCP regulations provide that compensation for wage loss due to disability is available
only for any periods during which an employee’s work-related medical condition prevents him
from earning the wages earned before the work-related injury. An employee is not entitled to
compensation for any wage loss claimed to the extent that the evidence contemporaneous with
the period claim establishes that an employee had medical work restrictions in place; that light
duty within those work restrictions was available; and that the employee was previously notified
in writing that such duty was available.10
In its January 30, 2012 decision, OWCP did not make adequate findings regarding
appellant’s allegation that his regular employment was withdrawn, that he was offered work as a
janitor and that he was ultimately not allowed to work at all. It is unclear in the record forwarded
to ECAB whether appellant was offered an appropriate modified-duty position in writing or
whether his regular position was withdrawn by the employing establishment on June 9, 2010.
These questions must be clarified.
7

See Claudia A. Dixon, 47 ECAB 168 (1995).

8

R.E., 59 ECAB 323 (2008); Willie A. Dean, 40 ECAB 1208 (1989).

9

The Board notes that, in a December 16, 2011 telephone note, appellant alleged that he was terminated from his
employment. The status of appellant’s employment subsequent to the June 2, 2010 injury is unclear.
10

20 C.F.R. § 10.500(a).

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OWCP must develop the case and make factual findings on the status of appellant’s
employment at the time that he claimed a recurrence of disability. This evidence is of the
character normally obtained by the employing establishment and is therefore more readily
accessible to OWCP than to appellant. It is a well established principle that OWCP must make
findings of fact and offer a statement of reasons in its final decisions.11 Once factual findings are
made, OWCP should evaluate the evidence to determine whether a recurrence of disability was
established.12
CONCLUSION
The Board finds that OWCP did not make factual findings on the issue of whether
appellant sustained an employment-related recurrence of disability.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this decision.
Issued: December 14, 2012
Washington, DC

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

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

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

11

See Anrietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R. § 10.126.

12

T.M., Docket Nos. 09-1090, 09-2226 (issued March 8, 2010); T.D., Docket No. 07-2331 (issued
June 19, 2008).

5


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

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

Docket No. 07-368
Issued: May 17, 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 November 24, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 21, 2006 which denied his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of appellant’s claim.1
ISSUE
The issue is whether appellant was disabled from March 3 through June 6, 2006, as a
result of his January 4, 2006 employment-related right thumb and wrist sprain.

1

The record includes evidence received after the Office issued the September 21, 2006 decision. The Board
cannot consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On January 4, 2006 appellant, then a 64-year-old mail carrier, sustained a sprained right
thumb and wrist after it was twisted and bent backwards while at work. His claim was accepted
for right thumb sprain on March 1, 2006. Appellant’s claim was accepted for right wrist sprain
and right wrist synovitis on May 23, 2006. On June 19, 2006 he had surgery on his right wrist.
On June 30, 2006 appellant filed a Form CA-7 claim for compensation for leave without
pay from March 3 through June 9, 2006. He also submitted a Time Analysis Form dated May 9,
2006 for the period February 6 through April 21, 2006.
In a July 6, 2006 letter, the Office informed appellant that medical documentation was
needed to support his claim. The Office received additional medical documentation including
Advanced Orthopedic Centers notes dated June 9 to August 28, 2006. Appellant was treated by
Dr. T. Paul McDermott, Jr., Board-certified in orthopedic surgery, in notes dated March 21 to
July 14, 2006. In the July 14, 2006 report, Dr. McDermott opined that appellant was disabled
from June 19 through 22, 2006.
In a September 21, 2006 decision, the Office denied appellant’s claim on the grounds that
the evidence failed to support disability during the claimed time period.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of his claim by the weight of the evidence.2
For each period of disability claimed, the employee has the burden of proving that he was
disabled for work as a result of his accepted employment injury.3 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability are medical
issues that must be proved by a preponderance of the reliable, probative and substantial
evidence.4 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.5
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work.6 The Board has held that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurt too much to work without objective signs of disability being shown, the
2

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein.

3

David H. Goss, 32 ECAB 24 (1980).

4

Edward H. Horton, 41 ECAB 301 (1989).

5

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

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physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.7
ANALYSIS
The Office denied wage-loss compensation for the period March 3 through June 6, 2006
finding that the medical evidence did not establish that appellant was disabled due to his
January 4, 2006 employment injury. The Office accepted appellant’s traumatic injury claim for
right thumb, right wrist sprain and right wrist synovitis. Appellant did not submit sufficient
medical evidence to establish that he was disabled for intermittent dates from March 3
through June 6, 2006.
The record indicates that he had doctor visits on two of the days claimed, March 21 and
May 16, 2006. However, there is no evidence that he missed work because of these
appointments. Appellant submitted no medical reports providing a physician’s opinion with
findings on examination stating that he was disabled for work because of his employment-related
right thumb and wrist condition on the specific dates for which he is claiming compensation.
Without a narrative medical opinion directly addressing the dates listed, the evidence of record
fails to establish that appellant is entitled to compensation for disability during the period in
question.8 The Board finds that appellant has failed to meet his burden.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he is
entitled to any additional compensation for the period March 3 through June 6, 2006.

7

John L. Clark, 32 ECAB 1618 (1981).

8

Nathaniel Milton, supra note 2; Joseph M. Whelan, supra note 2.

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ORDER
IT IS HEREBY ORDERED THAT the September 21, 1006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Palm Beach, FL, Employer
__________________________________________

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1667
Issued: February 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 13, 2011 appellant, through her attorney, filed a timely appeal from a
February 25, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly terminated medical benefits effective
February 25, 2011.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated March 3, 2010, the
Board remanded the case for additional development.2 The Board found OWCP did not properly
1

5 U.S.C. § 8101 et seq.

2

Docket No. 09-1109 (issued March 3, 2010).

consider the evidence regarding disability from May 14, 2005 to July 14, 2006. In the prior
decision, the Board provided a history of the case which is incorporated herein by reference.
OWCP had accepted that appellant, a mail handler, sustained cervical and right shoulder
strains in the performance of duty on July 13, 2000. On December 28, 2004 appellant was
working four hours a day in a modified position, and as of January 22, 2005 she increased to six
hours a day. OWCP paid wage-loss compensation for the remaining two hours. On March 17,
2005 an attending orthopedic surgeon, Dr. Rolando Garcia Jr., stated that appellant had chronic
neck pain radiating into the arm. He noted a magnetic resonance imaging (MRI) scan showing
disc herniations at C5-6 and C6-7. Dr. Garcia recommended cervical surgery and indicated that
appellant was placed in a no work status. Appellant retired from employment as of
May 13, 2005.
OWCP referred appellant for a second opinion examination by Dr. Jerry Sher, a Boardcertified orthopedic surgeon. In a report dated June 14, 2005, Dr. Sher stated that the workrelated cervical stain represented an aggravation of preexisting cervical degenerative disc disease
that had not resolved. On August 19, 2005 OWCP accepted the claim for aggravation of cervical
degenerative disc disease.3 On July 24, 2006 appellant submitted a claim for compensation
(Form CA-7) through July 14, 2006.
By decision dated April 5, 2007, OWCP denied the claim on the grounds that appellant
had elected Office of Personnel Management disability retirement for the period May 14, 2005 to
July 14, 2006. In a decision dated May 17, 2007, its hearing representative reversed the April 5,
2007 decision, and returned the case for a decision regarding disability after May 13, 2005.
Following the Board’s remand on the issue of compensation from May 14, 2005 to
July 14, 2006, OWCP issued a decision of May 4, 2010 that found the medical evidence did not
establish any employment-related disability from May 14, 2005 to July 14, 2006. In a decision
dated September 8, 2010, OWCP’s hearing representative remanded the case for further
development. The hearing representative noted that OWCP had the burden of proof to terminate
compensation, and it had not considered the findings of second opinion physician Dr. Sher.
Appellant was referred to Dr. Brad Cohen, an orthopedic surgeon, for a second opinion
examination. In a report dated October 27, 2010, Dr. Cohen provided a history and results on
examination. With respect to the accepted conditions, he stated that given the length of time
since the employment injury, the cervical strain had likely resolved. Dr. Cohen further stated, “It
is also likely that the aggravation of [preexisting] cervical degenerative disease/spondylosis has
resolved and continued symptoms of neck pain and upper extremity radiculopathy are secondary
to the natural progression of the degenerative process [overtime]. The right shoulder strain has
resolved. The rotator cuff tear was treated surgically and also appears to have resolved.” In
response to a question as to permanent work restrictions, Dr. Cohen stated that the permanent
work restrictions imposed after the work injury would be appropriate, considering that appellant
had a chronic degenerative neck condition that was unlikely to improve. He also included an

3

A statement of accepted facts dated September 24, 2010 indicates that OWCP has also accepted a right shoulder
rotator cuff tear.

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“addendum” report dated November 19, 2010 indicating that he had reviewed a November 12,
2010 functional capacity evaluation.
By letter dated November 30, 2010, OWCP requested an additional report from
Dr. Cohen. It advised Dr. Cohen that terms such as “likely” were speculative and not medically
rationalized. Dr. Cohen submitted a report dated December 7, 2010. He provided an additional
review of the medical evidence. Dr. Cohen stated,
“Based upon my physical examination, it is my opinion that the right shoulder
strain has resolved. The rotator cuff tear was treated surgically and also appears
to have resolved. The shoulder exam[ination] is relatively benign, with negative
impingement signs and good range of motion. It is therefore my clinical
impression that continued symptoms [i]n the shoulder are actually related to the
cervical degenerative condition. The shoulder was also noted to have negative
impingement signs and a functional range of motion on examination by
[Dr. Sher], M.D. on June 14, 2005. It was also his opinion that the work[-]related
right shoulder condition had resolved with no residuals.”
With respect to the neck condition, Dr. Cohen opined that “the cervical strain and
aggravation of [preexisting] cervical degenerative disease have resolved. Continued symptoms
of neck pain and upper extremity radiculopathy are most likely secondary to the natural
progression of the cervical degenerative process over time.”
By letter dated January 11, 2011, OWCP advised appellant it proposed to terminate her
medical benefits. It stated that the weight of the medical evidence established that the
employment-related conditions had resolved.
On February 7, 2011 appellant submitted a January 25, 2011 report from Dr. Merrill
Reuter, an orthopedic surgeon, who indicated that she was treated for neck and right shoulder
pain. Dr. Reuter provided a history and results on examination. He recommended a cervical
discography, noting that “if it were to be identified that she has single or double level injury
consistent with her early MRI [scans] from 2003 and 2005 that it is likely that this is from her
work[-]related injury and the treatment should in fact be covered.”
By decision dated February 25, 2011, OWCP terminated medical benefits on the grounds
the evidence showed that employment-related residuals had ceased.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation.4 The right to medical benefits for an accepted condition is not limited to the
period of entitlement to compensation for disability. To terminate authorization for medical

4

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993).

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treatment, OWCP must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.5
ANALYSIS
In the present case, OWCP accepted that appellant sustained cervical and right shoulder
strains, a right shoulder rotator cuff tear and aggravation of cervical degenerative disc disease.
The second opinion physician, Dr. Cohen addressed all of these conditions and opined that they
have resolved. While he initially used terms such as likely and most likely, the December 7,
2010 report did not use equivocal language on this issue. Moreover, Dr. Cohen supported his
opinion with medical rationale.6 He referred to the length of time following the injury, the
medical history and his own physical examination. Dr. Cohen provided detailed medical reports
of record and provided an accurate medical and factual background.
The Board notes that there was no contemporaneous medical report from an attending
physician establishing a continuing employment-related condition. Dr. Rueter recommended a
cervical discography and “if” it showed results consistent with earlier MRI scans then it would
likely be employment related. This report is of diminished probative value as it is both equivocal
and dependent on future diagnostic tests.
On appeal, appellant’s representative argues that Dr. Cohen’s reports were speculative
and contradictory, but a review of the reports establishes, with respect to the issue presented in
this appeal,7 Dr. Cohen provided an unequivocal opinion and supported his opinion with medical
rationale. It was not contradictory to include continuing work restrictions, as he indicated that
appellant had an underlying cervical degenerative condition. The Board reiterates that
Dr. Cohen provided a rationalized medical opinion that represents the weight of the medical
evidence of record. 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 OWCP met its burden of proof to terminate medical benefits
effective February 25, 2011.

5

Furman G. Peake, 41 ECAB 361 (1990).

6

Rationalized medical opinion evidence is medical evidence that is based on a complete factual and medical
background, of reasonable medical certainty and supported by medical rationale explaining the opinion. Jennifer
Atkerson, 55 ECAB 317, 319 (2004).
7

Dr. Cohen’s opinion regarding compensation from May 14, 2005 to July 14, 2006 is not at issue in this appeal.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 25, 2011 is affirmed.
Issued: February 6, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Mount Morris, MI, Employer
__________________________________________

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

Docket No. 10-1129
Issued: January 18, 2011

Case Submitted on the Record

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

JURISDICTION
On March 18, 2010 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ December 1, 2009 merit decision denying her traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant sustained a traumatic injury to her back, left shoulder and
left elbow on September 9, 2008.
FACTUAL HISTORY
On September 18, 2008 appellant, a 45-year-old window/distribution clerk, filed a
traumatic injury claim alleging that, on September 9, 2008, she developed pain in her upper and
mid-back, radiating into surrounding areas and through her left shoulder and arm, while sorting
mail into a new flat sorting case. She stated that the newly installed case required strenuous,

repetitious movement and additional reaching beyond the front ledge, placing added stress on her
back and arms.1
In a statement accompanying her claim (Form CA-1), appellant indicated that, because of
the design of the new case, which was larger than the one she previously used, she had to reach
farther with her left arm and was unable to use her stool. She had to get up constantly to put mail
into the buckets and constantly walk back and put box mail behind her. These movements all
created stress on appellant’s back and left arm. On September 10, 2008 appellant tried to work
but she had to leave work due to continuing pain.
The employing establishment controverted appellant’s claim. It contended that she had
failed to report the alleged injury promptly and the measurements of the new case were in
keeping with her restrictions.
On September 26, 2008 the Office informed appellant that the evidence and information
submitted was insufficient to establish that she had experienced the incident as alleged or that
she had a diagnosed condition that resulted from the incident. Appellant was advised to submit
medical evidence which provided a diagnosis and a rationalized opinion explaining how the
alleged incident caused the diagnosed condition.
Appellant submitted reports and disability slips for the period September 10 through
October 21, 2008 from Dr. Imad Tahboub, a Board-certified internist. On September 10, 2008
Dr. Tahboub diagnosed neck and shoulder pain and degenerative joint and disc disease. He
recommended that appellant be placed on sick leave for three days. On September 15, 2008
Dr. Tahboub placed her off work until September 29, 2008 for persistent, severe neck and arm
pain, degenerative joint disease (DJD) and disc disease. A September 22, 2008 duty status report
notes that appellant was “attempting to sort flat mail, causing back pain, left arm and shoulder.”
Dr. Tahboub diagnosed right medial epicondylitis with disc disease, right shoulder and elbow
and identified the date of injury as September 9, 2008. In a September 22, 2008 attending
physician’s report, he opined that appellant was totally disabled from September 10 through
29, 2008. Notes dated September 22 and October 21, 2008 reflect that Dr. Tahboub examined
her on those dates and contain a diagnosis of herniated disc.
In an October 13, 2008 report, Dr. Nael M. Tarakji, a Board-certified neurologist, stated
that appellant “hurt her back with significant back pain radiating to lower extremity.” He noted
that the back pain was associated with numbness and tingling involving the lateral aspect of the
leg, more on the right than the left with muscle spasm. A recent magnetic resonance imaging
(MRI) scan of the lumbar spine showed central canal stenosis at the level of L3-L4 with right
disc herniation at L3-L4 and L4-L5 without nerve root compression, but facet joint disease from
L3 to S1. The thoracic spine MRI scan showed multiple disc herniations, worse at T6-T7 on the
left and T7-T8 on the right. Dr. Tarakji recommended that appellant apply for permanent
disability.

1

The Office accepted an earlier claim of appellant’s for a November 23, 2005 occupational disease claim for
displacement and degeneration of a cervical intervertebral disc.

2

Appellant submitted an October 14, 2008 report from Dr. Jawad A. Shah, a Boardcertified neurological surgeon. She told him that working on a new and larger case at work on
September 9, 1008 put a strain on her back. Dr. Shah reviewed a recent MRI scan, which
revealed diffuse disc bulges without compromise to any neurological elements. He diagnosed
cervicalgia and lumbago.
Appellant submitted work excuses dated October 9 and 27, 2008 from Dr. James T.S.
Rhyee, a treating physician, reflecting that she was in his office on those dates. The record
contains a September 23, 2008 report of an electromyogram and nerve conduction study and
October 2, 2008 reports of MRI scans of the lumbar and thoracic spine.
By decision dated November 5, 2008, the Office denied appellant’s claim on the grounds
that the medical evidence failed to establish that her claimed medical condition was causally
related to the established work-related event. On August 27, 2009 appellant requested
reconsideration.
Appellant submitted a November 11, 2008 report from Dr. Tahboub, who described her
employment activities, noting that she had previous permanent restrictions including five-pound
lifting limits, no repetitive movement with right arm, no twisting or bending and no forceful
pushing, pulling or extreme outward reaching. During a September 10, 2008 examination, she
complained of pain in the neck, shoulders, back and arms that had been aggravated by sudden
changes in her work, which did not comply with her restrictions. On September 22, 2008
appellant described pain in the center of her back and lower back and into her buttocks and hips.
Dr. Tahboub opined that the changes in appellant’s work activities aggravated her pain and may
have resulted in new spinal herniations.
In a December 12, 2008 duty status report, Dr. Tarakji indicated by placing a checkmark
in the “yes” box his opinion that appellant’s multiple disc herniations were due to her
September 9, 2008 injury. He stated that she was permanently disabled from work. On May 7,
2009 Dr. Tarakji stated that appellant had neck and back pain, as well as shoulder and arm pain,
associated with right-sided elbow pain and numbness involving the hands. He opined that her
injury was “work related over the years.” On August 5, 2009 Dr. Tarakji certified that he had
been treating appellant for her September 9, 2009 work-related injury to her lower back, in the
form of strain to the lower back resulting in back pain radiating to the lower extremities. An
MRI scan study of the lumbar spine showed degenerative lumbar spine disease with multiple
herniated discs at the level of L3-L4 and L4-L5. Appellant also had multiple disc herniations in
the thoracic area causing degenerative lumbar spine disease with radicular-type symptoms to the
lower extremities. Dr. Tarakji diagnosed mid- and low-back pain with evidence of multiple
herniated discs, bilateral carpal tunnel syndrome, tennis elbow and cervical degenerative spine
disease.
In a narrative report dated October 26, 2009, Dr. Tahboub opined that appellant’s work
activities on September 9, 2008 caused or contributed to her herniated disc and left medial
epicondylitis conditions. He stated that she was working on a new sorting case, which was wider
and deeper than the case it replaced and required her to stretch and turn constantly while sorting
mail. By the end of appellant’s morning shift, her upper back was throbbing. Dr. Tahboub
opined that her herniated disc and left medial epicondylitis conditions were caused by being

3

forced to lean forward while sorting the mail for three hours on the date in question. Left medial
epicondylitis became noticeable when appellant was required to extend her arm repetitively for
hours during the morning sorting. Appellant had not experienced the sharp pain in the elbow
outward prior to the occurrence. Dr. Tahboub found weakness of limbs, back and neck as well
as some numbness extending into the lower extremities, more on the right, as well as constant
sharp, throbbing, achy pain. Appellant was unable to grip well, push and pull, lift or stoop for
any length of time. Areas of pain become more intense when unable to rest.
Appellant submitted an August 5, 2009 report from Dr. James Culver, a Board-certified
anesthesiologist, who stated that he had initially treated her on November 11, 2008 for chest wall
pain, due to disc herniation and thoracic radiation. Dr. Culver noted that she had sustained an
injury on the morning of September 9, 2008 while sorting mail using a newly installed sorting
case.
Appellant submitted a November 14, 2008 report from Dr. David A. Fernandez, a Boardcertified orthopedic surgeon, who described the history of injury, as reported by appellant. On
September 9, 2008 she began working on a new sorting base, which required extended
movement to sort the mail and created added strain on her left arm, back and neck. Appellant’s
standing during her shift, with constant back and forth movement, put a strain on her entire back.
A review of the cervical, lumbar and thoracic MRI scans revealed diffused disc bulges without
compromise to any of the neurological elements. On examination, paraspinal tone was intact.
Appellant’s right arm had decreased active abduction. She had full passive motion; decreased
active flexion, but full passive flexion. On the left arm, appellant had decreased active abduction
and flexion, but full passive abduction and flexion. A neurological examination revealed intact
cranial nerves II-XII. Deep tendon reflexes were 2+ at the biceps, brachioradialis, triceps, knees
and ankles bilaterally. Sensory examination was normal bilaterally. Motor strength was 5/5 at
C5 through T8 bilaterally. Appellant was point tender to palpation over the medial epicondyle
and the elbows bilaterally. Dr. Fernandez diagnosed cervical spondylosis, cervical degenerative
disc disease and bilateral medial epicondylitis. He opined that “the repetitive action and motion
certainly contributed to her left medial epicondylitis.”
On August 21, 2009 Dr. Fernandez attempted to clarify his November 14, 2008 report.
He stated that, at the end of the morning sorting of mail on September 9, 2008, appellant first
noticed burning pain in her left elbow, as well as a throbbing and dull type of pain that extended
down her arm. Dr. Fernandez described a new sorting case that required her to stand and turn
constantly and to do extended repetitive reaching with her left arm. He opined that the left
medial epicondylitis was consistent with a work injury, given appellant’s new job requirements
and the stresses on the left elbow.
In an undated statement, appellant asserted that her left elbow, thoracic spine and lumbar
spine conditions began on September 9, 2009, due to her employment activities on the new
sorting case.
By decision dated December 1, 2009, the Office denied modification of its October 5,
2008 decision on the grounds that the medical evidence was not sufficiently rationalized to
establish that appellant’s condition was causally related to the established work-related events.

4

LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee, resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
“arising out of and in the course of employment.”3
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an “employee of the
United States” within the meaning of the Act, that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.4 When an employee claims that he sustained a
traumatic injury in the performance of duty, he must establish the “fact of injury,” consisting of
two components which must be considered in conjunction with one another. The first is whether
the employee actually experienced the incident that is alleged to have occurred at the time, place
and in the manner alleged. The second is whether the employment incident caused a personal
injury and generally this can be established only by medical evidence.5
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.6 An award of
compensation may not be based on appellant’s belief of causal relationship.7 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents, is
sufficient to establish a causal relationship.8 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.9

2

5 U.S.C. § 8102(a).

3

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers’ compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum,
1 ECAB 1 (1947).
4

Robert Broome, 55 ECAB 339 (2004).

5

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith,
54 ECAB 174 (2002). The term “injury” as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101(5). See 20 C.F.R. § 10.5(q), (ee).
6

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

7

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

8

Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

9

20 C.F.R. § 10.303(a).

5

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the established incident or factor of employment.10
ANALYSIS
The Board finds that this case is not in posture for decision as to whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of her claim. However, it is well established that proceedings under the Act
are not adversarial in nature and, while the claimant has the burden of establishing entitlement to
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.11
The Office accepted that the September 9, 2008 casing activities occurred as alleged, but
found that the medical evidence of record was insufficient to establish that any of appellant’s
diagnosed conditions was causally related to the established incidents. The Board finds,
however, that the medical evidence of record supports that she sustained a work-related injury on
September 9, 2008.
Dr. Fernandez demonstrated a clear understanding of appellant’s work activities on
September 9, 2008 on the new sorting case, which required her to stand and turn constantly and
to do extended repetitive reaching with her left arm. He diagnosed cervical spondylosis, cervical
degenerative disc disease and bilateral medial epicondylitis and opined that “the repetitive action
and motion certainly contributed to her left medial epicondylitis.” Dr. Fernandez did not fully
explain how appellant’s activities on the new casing machine were competent to cause her
diagnosed conditions. The reports do, however, support that appellant’s employment duties on
the date in question contributed to her left elbow condition.
Dr. Tahboub, who began treating appellant on September 10, 2008, the day following the
accepted incident, provided a complete and accurate factual background. On November 11,
2008 he opined that the changes in her work activities aggravated her back pain and may have
resulted in new spinal herniations. On October 26, 2009 Dr. Tahboub provided examination
findings and opined that appellant’s work activities on September 9, 2008 caused or contributed
to her herniated disc and left medial epicondylitis conditions. As appellant’s new sorting case
was wider and deeper than the case it replaced, it forced her to lean forward, stretch and turn
10

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

11

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell,
36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1993).

6

constantly while sorting the mail for three hours on the date in question. Her left medial
epicondylitis became noticeable when she was required to extend her arm repetitively during the
morning sorting. Although Dr. Tahboub did not provide a fully-rationalized opinion as to the
nature of the relationship between the claimed conditions and the September 9, 2008 work
incident, he did discuss appellant’s work requirements as they related to the new case sorter on
that date and explained how those activities would have caused or exacerbated her diagnosed
conditions. Thus, his reports provide support for her claim.
Dr. Tarakji diagnosed mid- and low-back pain with evidence of multiple herniated discs,
bilateral carpal tunnel syndrome, tennis elbow and cervical degenerative spine disease. In a
December 12, 2008 duty status report, he indicated by placing a checkmark in the “yes” box his
opinion that appellant’s multiple disc herniations were due to her September 9, 2008 injury. On
May 7, 2009 Dr. Tarakji opined that her injury was “work related over the years.” On August 5,
2009 he certified that he had been treating appellant for her September 9, 2009 work-related
injury to her lower back, in the form of strain to the lower back resulting in back pain radiating to
the lower extremities. An MRI scan study of the lumbar spine showed degenerative lumbar
spine disease with multiple herniated discs at the level of L3-L4 and L4-L5. Appellant also had
multiple disc herniations in the thoracic area causing degenerative lumbar spine disease with
radicular-type symptoms to the lower extremities. Dr. Tarakji’s opinion is of diminished
probative value, as he failed to explain how the accepted work activities caused or aggravated
her diagnosed conditions. His reports are, however, consistent with the factual and medical
evidence of record and strongly suggest that appellant’s diagnosed conditions were at least
aggravated by the events of September 9, 2008.
The remaining medical evidence of record also supports appellant’s claim. On
October 14, 2008 Dr. Shah reported that her work activities on a new and larger case at work on
September 9, 2008 put a strain on her back. He reviewed a recent MRI scan, which revealed
diffuse disc bulges without compromise to any neurological elements and diagnosed cervicalgia
and lumbago. On August 5, 2009 Dr. Culver noted that he initially treated appellant on
November 11, 2008 for chest wall pain, due to disc herniation and thoracic radiation. He stated
that she sustained an injury on the morning of September 9, 2008 while sorting mail using a
newly installed sorting case. Although neither physician explained with sufficient medical
rationale how appellant’s current condition was caused by the September 9, 2008 incident, the
history of injury provided, in conjunction with her pain and the physicians’ diagnoses, support
her claim that she sustained an injury on the date in question.
The Board notes that, while none of the reports of appellant’s attending physicians is
completely rationalized, they are consistent in indicating that she sustained an employmentrelated injury and are not contradicted by any substantial medical or factual evidence of record.
While the reports are not sufficient to meet her burden of proof to establish her claim, they raise
an uncontroverted inference between her claimed condition and the accepted employment
incident and are sufficient to require the Office to further develop the medical evidence and the
case record.12 On remand, the Office shall obtain a rationalized opinion from a qualified
12

See Virginia Richard, id.; see also Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB
354 (1989).

7

physician as to whether appellant’s current condition is causally related to the accepted incident
and shall issue an appropriate decision in order to protect her rights of appeal.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained a traumatic injury in the performance of duty on September 9, 2008.
ORDER
IT IS HEREBY ORDERED THAT the December 1, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: January 18, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Asbury Park, NJ, Employer
__________________________________________

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

Docket No. 07-176
Issued: April 9, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 25, 2006 appellant, through her attorney, filed a timely appeal from a May 8,
2006 merit decision of a hearing representative of the Office of Workers’ Compensation
Programs affirming a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a five percent impairment of each lower
extremity for which she received a schedule award.
FACTUAL HISTORY
On June 11, 2002 appellant, then a 38-year-old letter carrier, filed a claim for a traumatic
injury to her back occurring on May 30, 2002 when she picked up a tray of mail. The Office
accepted the claim for lumbar sprain, an aggravation of degenerative disc disease and left-sided
radiculopathy. She received continuation of pay from June 3 to July 7, 2002 and compensation
from July 17 to August 4, 2002, when she resumed limited-duty employment.

On September 16, 2003 Dr. Lambro Demetriades, an orthopedic surgeon and attending
physician,1 discussed appellant’s history of back pain following heavy lifting at work. He listed
findings of “normal strength and sensation in both lower extremities” and no radiculopathy.
Dr. Demetriades diagnosed degenerative changes of the lumbar spine and recommended that she
continue working with restrictions in “her present position on a permanent basis.”
On October 20, 2003 appellant requested a schedule award. She submitted a report dated
August 18, 2003 from Dr. David Weiss, an osteopath, who diagnosed chronic lumbosacral strain
and sprain, discogenic disease at L4-5 and L5-S1, lumbar radiculopathy with a history of a
positive electromyogram (EMG) on September 30, 2002, and a disc herniation at L5-S1 by
discogram. On physical examination, he stated:
“Manual muscle strength testing of the hip flexors reveals a grade of 4+5
bilaterally. The gastrocnemius reveal a grade of 5/5 bilaterally.”
“Sensory examination reveals a perceived sensory deficit over the L4, L5 and S1
dermatomes on the left and over the L5 dermatome on the right.”
“The gastrocnemius circumferential measurements reveal 46 [centimeters] on the
right versus 45.5 [centimeters] on the left.”
Citing to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides), Dr. Weiss determined that appellant had a 5 percent
impairment for loss of motor strength of the left hip flexors,2 a 2 percent impairment for loss of
motor strength of the left extensor hallucis longus,3 and a 4 percent impairment due to sensory
deficit of the left L4, L5 and S1 nerve root, respectively, for a combined left lower extremity
impairment of 16 percent.4 He added a 3 percent impairment due to pain to find a 19 percent
total left lower extremity impairment.5 For the right side, Dr. Weiss determined that appellant
had a five percent impairment for loss of motor strength of the right hip flexor6 and a four
percent impairment of the L5 nerve root due to sensory deficit,7 for a combined right lower
extremity impairment of nine percent. He added 3 percent due to pain to find a 12 percent total
impairment of the right lower extremity.8

1

The Office approved appellant’s request for an evaluation by Dr. Demetriades.

2

A.M.A., Guides 532, Table 17-8.

3

Id.

4

Id. at 424, Tables 15-15, 15-18.

5

Id. at 574, Figure 18-1.

6

Id. at 532, Table 17-8.

7

Id. at 424, Tables 15-15, 15-18.

8

Id. at 574, Figure 18-1.

2

An Office medical adviser reviewed Dr. Weiss’ report on June 17, 2004. He determined
that a conflict existed between Dr. Demetriades and Dr. Weiss regarding whether appellant had
sensory and motor deficits of the lower extremities.
By letter dated June 22, 2004, the Office referred appellant to Dr. Robert Dennis, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a report dated
July 8, 2004, Dr. Dennis discussed appellant’s subjective complaints, reviewed the medical
evidence of record and listed findings on physical examination. He found no weakness, atrophy
or neurological deficit of the lower extremities. Dr. Dennis indicated that he had reviewed
Dr. Weiss’ August 18, 2003 report but was unable to reproduce the sensory and motor deficits
described. He diagnosed resolved lumbar sprain, lumbar radiculopathy due to L4-5 and L5-S1
disc protrusions superimposed on degenerative changes, mostly resolved and L5 radiculopathy
by EMG with no “ongoing present persistent neurological deficits.” Dr. Dennis asserted:
“If you turn to [p]age 532, Table 17.8 and tr[y] to find any atrophy of muscle
groups or neurological loss as it relates to the lower extremities, one would come
up with no more than a five percent functional loss of the right lower extremity
and left lower extremity.
That would be, in my opinion, an appropriate
extrapolation of this Table, that tries to identify neurological deficits due to
herniated discs. This five percent permanent functional loss of the right lower
extremity and a five percent permanent functional loss of the left lower extremity
is given in respect to the EMG findings, the MRI findings, some of the findings
provided by other physicians, and giving [appellant] the maximal benefit of the
doubt in regards to how much of these findings are due to the described work
accident and how much was preexisting.”
He noted that it would be more accurate to rate appellant’s lower back impairment.
Dr. Dennis opined that she reached maximum medical improvement on September 16, 2003.
On January 20, 2005 an Office medical adviser reviewed Dr. Dennis’ report and
concurred with his findings and application of Table 17-8 on page 532 of the A.M.A., Guides.
By decision dated February 7, 2005, the Office granted appellant a schedule award for a five
percent permanent impairment of the right lower extremity and a five percent permanent
impairment of the left lower extremity. The period of the award ran for 28.80 weeks from
September 16, 2003 to April 4, 2004.
Appellant, through her attorney, requested an oral hearing, which was held on
February 28, 2006. At the hearing, counsel argued that as both Dr. Demetriades and Dr. Weiss
were attending physicians, the record contained no conflict in medical opinion at the time of her
referral to Dr. Dennis.
In a decision dated May 8, 2006, the Office hearing representative affirmed the
February 7, 2005 decision. He determined that Dr. Dennis resolved a conflict between Dr. Weiss
and the Office medical adviser, who found that Dr. Demetriades’ findings were inconsistent with
Dr. Weiss’ report.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,9 and its
implementing federal regulation,10 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 for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform standard
applicable to all claimants.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.12 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.13
ANALYSIS
The Office accepted that appellant sustained lumbar sprain, an aggravation of
degenerative disc disease and left-sided radiculopathy due to a May 30, 2002 employment injury.
In a report dated September 16, 2003, Dr. Demetriades, her attending physician, found that she
had normal strength and sensation in the lower extremities and recommended permanent work
restrictions. On October 20, 2003 appellant filed a claim for a schedule award. In support of her
request, she submitted a report dated August 18, 2003 from Dr. Weiss, who found that appellant
had a four percent impairment of the left L4, L5 and S1 dermatome, respectively, due to sensory
deficits and a four percent impairment of the right L5 dermatome.14 He further found that she
had a five percent impairment for bilateral loss of hip flexor strength on the left and a two
percent impairment for loss of strength of the left extensor hallucis longus.15 Dr. Weiss
combined these findings and determined that appellant had a 16 percent left lower extremity
impairment and a 9 percent right lower extremity impairment. He then added an additional
bilateral three percent impairment due to pain under Chapter 18 and concluded that appellant had
a 19 percent left lower extremity impairment and a 12 percent right lower extremity impairment.
9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

20 C.F.R. § 10.404(a).

12

5 U.S.C. § 8123(a).

13

20 C.F.R. § 10.321.

14

A.M.A., Guides at 424, Table 15-15, 15-18.

15

Id. at 532, Table 17-8.

4

An Office medical adviser reviewed Dr. Weiss’ report and determined that a conflict in
medical opinion existed between Dr. Demetriades and Dr. Weiss on the issue of whether
appellant had sensory and motor deficits of the lower extremities. The Office referred appellant
to Dr. Dennis for resolution of the conflict. As Dr. Demetriades and Dr. Weiss were both
attending physicians, however, no conflict in medical opinion existed under section 8123.16 The
hearing representative found that the conflict existed between the Office medical adviser and
Dr. Weiss; however, the Office medical adviser merely identified the existence of a conflict and
did not render his own opinion on the issue of whether appellant had lower extremity sensory
and motor deficits. Dr. Dennis, consequently, is not an impartial medical examiner but instead
provided a second opinion examination.
In a report dated July 8, 2004, Dr. Dennis found that appellant had no lower extremity
weakness, atrophy or neurological deficit. He noted that an EMG revealed L5 radiculopathy but
indicated that he could find no motor or sensory deficits on examination. Dr. Dennis determined
that appellant had a five percent impairment of both the right and left lower extremity according
to Table 17-8 on page 532 of the A.M.A., Guides.
The Board finds a conflict in medical opinion between appellant’s physician, Dr. Weiss,
and the Office referral physician, Dr. Dennis, on the extent of her permanent impairment of the
lower extremities. Section 8123(a) of the Act provides that if there is a 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 the examination.17 In accordance
with section 8123, the case will be remanded for the Office to refer appellant to an impartial
medical specialist for a determination of the extent of her right and left lower extremity
impairment. After such further development as the Office deems necessary, it shall issue an
appropriate decision regarding her entitlement to a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision due to a conflict in medical
evidence.

16

Section 8123(a) provides that if there is a 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. 5 U.S.C. § 8123.
17

5 U.S.C. § 8123.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2006 is set aside and the case is remanded for further
proceeding consistent with this decision.
Issued: April 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 08-732
Issued: November 4, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 14, 2008 appellant filed a timely appeal from a December 19, 2007 decision
of the Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of $8,626.72 in compensation for the period October 6, 2005 to June 10, 2006; and
(2) whether the Office properly determined that appellant was at fault in creating the
overpayment and that it was not subject to waiver.
FACTUAL HISTORY
The Office accepted that on December 17, 2001 appellant, then a 37-year-old rural
carrier, sustained a concussion, forehead laceration, chest contusion, right ankle fracture and
surgical reduction, left ankle sprain and a left hand injury in a work-related motor vehicle

accident. It later accepted a lumbosacral strain sustained on March 22, 2004.1
received compensation for the period June 4, 2005 to June 10, 2006.

Appellant

In May 2005, appellant’s attending physician found her able to perform light-duty work.
On August 15, 2005 the employing establishment offered her a light-duty position as a modified
clerk within her medical restrictions. Appellant rejected the offer as she desired a different work
schedule. Following additional development, the Office issued an October 6, 2005 decision
terminating her monetary compensation benefits effective that day under section 8106(c) of the
Federal Employees’ Compensation Act, on the grounds she refused an offer of suitable work.2
Appellant requested a telephonic hearing, held on November 2, 2006. By decision dated and
finalized December 21, 2006, an Office hearing representative affirmed the October 6, 2005
decision, finding that appellant did not provide a valid reason for refusing suitable work.
By notice dated October 6, 2006, the Office advised appellant of its preliminary
determination that an overpayment of $8,626.72 was created as she erroneously received
schedule award compensation from October 6, 2005 to June 10, 2006, after her benefits were
terminated effective October 6, 2005.3 It made the preliminary determination that appellant was
at fault in creation of the overpayment as she knew or reasonably should have known that she
was not entitled to payments after termination of her compensation. Appellant was afforded the
opportunity to submit financial information or request a hearing.
In a November 27, 2007 telephone memorandum, the Office noted that appellant had
called that day with questions about the October 6, 2006 notice. It advised appellant to submit
her concerns in writing. Appellant did not submit additional evidence.
By decision dated December 19, 2007, the Office finalized its preliminary determination
of an $8,626.72 overpayment of compensation. It found that appellant was at fault in creation of
the overpayment as she accepted payments made after the Office had terminated her
compensation. The Office directed recovery of the overpayment through a lump-sum payment
of the entire amount. The decision was mailed to appellant at her address of record.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act4 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal

1

The Office assigned the December 17, 2001 claim File No. xxxxxx321. The lumbar strain claim was assigned
File No. xxxxxx481. The record now before the Board contains the complete record from both claims. Although
the two files have not been formally doubled, the Office developed the two claims together regarding the suitable
work and overpayment issues.
2

5 U.S.C. § 8106(c).

3

The Office calculated that, for the period October 6, 2005 to June 10, 2006, appellant received $8,626.72 in
compensation.
4

5 U.S.C. §§ 8101-8193.

2

injury sustained while in the performance of his duty.5 Section 8129(a) of the Act provides, in
pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”6 The
Office’s procedure manual identifies various situations when overpayments of compensation
may occur, including when a schedule award expires but compensation continued to be paid.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a fracture and contusions in a December 17,
2001 motor vehicle accident and a lumbar sprain on March 22, 2004. It terminated her
entitlement to wage-loss compensation benefits effective October 6, 2005. The evidence reflects
and appellant does not dispute that she received compensation from the Office under a schedule
award in the amount of $8,626.72, for the period October 6, 2005 to June 10, 2006. As appellant
was not entitled to receive any disability compensation as of October 6, 2005, the Board finds
that the Office correctly determined that she received an overpayment of compensation in the
amount $8,626.72 for the period in question.8
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.9 Section 10.433 of the implementing regulations specifically provides that the
Office may consider waving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.10 The regulation further provides that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.11 Under the regulations, a recipient
will be found to be at fault with respect to creating an overpayment if the recipient on the issue
of fault, section 10.433 of the Office’s regulations, provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide

5

5 U.S.C. § 8102(a).

6

5 U.S.C. § 8129(a).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).
8

Alberto Pineiro, 51 ECAB 310 (2000).

9

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

10

20 C.F.R. § 10.433 (a).

11

Id.

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information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known was incorrect.12
Section 10.433(b) of the Office’s regulations provides, in relevant part, that the
determination of fault “depends on the circumstances surrounding the overpayment. The degree
of care expected may vary with the complexity of those circumstances and the individual’s
capacity to realize that he or she is being overpaid.13
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment under the third
standard noted above, because she accepted payments after October 6, 2005 that she knew or
should have known were incorrect.
By accepting payments after her entitlement to benefits was terminated, effective
October 6, 2005, appellant accepted payments that she knew or should have known were
incorrect. Therefore, she was at fault in the creation of the overpayment.14 The record reflects
that a copy of the Office’s decision was properly mailed to appellant at her address of record in
the ordinary course of business and is thus presumed to have been received.15 Appellant has not
submitted evidence to rebut the presumption of receipt.16 Accordingly, she was on notice that
her wage-loss benefits had been terminated and that she was not entitled to receive any
compensation payments subsequent to October 6, 2005.
However, appellant accepted
compensation payments for the period October 6, 2005 to June 10, 2006, in the amount of
$8,626.72. As she was aware that her entitlement to benefits had been terminated, she accepted
payments that she knew or should have known to be incorrect. Accordingly, the Board finds that
appellant was at fault in the creation of the overpayment.17 The fact that the Office may have
been negligent in issuing the payments does not mitigate this finding.18
As appellant was at fault in the creation of the overpayment, she is not eligible for waiver
of recovery of the overpayment. The Office is required by law to recover this overpayment.19
12

20 C.F.R. § 10.433(a)(3).

13

20 C.F.R. § 10.433(b).

14

See D.R.., 59 ECAB ___ (Docket No. 07-823, issued November 1, 2007); Otha J. Brown, 56 ECAB 228
(2004); Karen K. Dixon, 56 ECAB 145 (2004).
15

See Joseph R. Giallanza, 55 ECAB 186 (2003); Larry L. Hill, 42 ECAB 596 (1991).

16

Joseph R. Giallanza, supra note 15.

17

D.R., supra note 14.

18

20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

19

Recovery of the overpayment is not an issue in this case, as appellant is not in receipt of continuing total
disability payments. With respect to the recovery of the overpayment, the Board’s jurisdiction is limited to those
cases where the Office seeks recovery from continuing compensation benefits under the Act. 20 C.F.R. § 10.441(a);
see Albert Pineiro, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51 ECAB 295 (2000).

4

CONCLUSION
The Board finds that the Office properly found that appellant received an overpayment of
compensation in the amount of $8,626.72. The Board further finds that appellant was at fault in
creation of the overpayment and it was therefore not subject to waiver.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 19, 2007 is affirmed.
Issued: November 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
DEPARTMENT OF LABOR, DIVISION OF
FEDERAL EMPLOYEES’ COMPENSATION,
Chicago, IL, Employer
__________________________________________

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

Docket No. 16-0655
Issued: May 26, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 19, 2016 appellant filed a timely appeal from a September 17, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to an October 30, 2014 employment incident.
FACTUAL HISTORY
On November 3, 2014 appellant, then a 52-year-old claims examiner, filed a traumatic
injury claim (Form CA-1) alleging a low back injury in the performance of duty. She alleged
1

5 U.S.C. § 8101 et seq.

that on October 30, 2014 she injured her back as a result of using stairs to evacuate the building
due to a bomb threat. Appellant stopped work on November 5, 2014 and worked intermittently
before returning to full duty on December 29, 2014.
In a November 19, 2014 disability status report, Dr. Samuel Chmell, a Board-certified
orthopedic surgeon, advised that appellant was unable to work from November 19 through
December 18, 2014. He assessed lumbar disc herniation.
By letter dated December 9, 2014, OWCP notified appellant that initially her claim was
administratively handled to allow medical payments, as it appeared to be a minor injury resulting
in minimal or no lost time from work. However, it advised that it was now considering the
merits of her claim because she had not returned to work in a full-time capacity. OWCP advised
appellant of the type of evidence needed to establish her claim.
Subsequently, OWCP received a November 6, 2014 report by Dr. Chmell, who advised
that appellant sustained an injury to her low back on October 30, 2014 while at work.
Dr. Chmell noted that the building where she worked had a bomb scare which required her to run
down eight flights of stairs as she could not take the elevator. He indicated that she felt a sharp
pain down her low back radiating down the back of her right thigh. Dr. Chmell advised that she
related that her back pain was higher than the pain she felt with a previous back injury.2 On
examination he noted that appellant walked with a limp on the right, had difficulty getting in and
out of her chair. Dr. Chmell noted lumbar spasm and tenderness, zero degrees of extension of
the lumbar spine, 35 degrees flexion of the lumbar spine, positive straight leg raising on the right
and negative on the left, and diminished strength and sensation at the right ankle and foot. He
assessed acute low back injury and noted that appellant was fully incapacitated as she had
marked difficulty moving around and was at risk for falling.
In a November 10, 2014 diagnostic report, Dr. Michael Micaletti, a Board-certified
diagnostic radiologist, advised that the magnetic resonance imaging (MRI) scan of the lumbar
spine revealed degenerative disc disease, facet arthropathy, a broad-based disc protrusion
laterally on the right with foraminal extension at L4-5 similar to that seen in a previous
examination, and a broad-based disc protrusion at L5-S1 slightly larger than previously seen. An
August 13, 2012 MRI scan was used for comparison.
In a November 13, 2014 report, Dr. Chmell advised that appellant experienced rightsided low back pain radiating down her right leg. He noted that the most recent MRI scan of the
low back revealed an old disc herniation with residuals at L4-5 and a new herniation at L5-S1.
Examination revealed a limp on the right side, lumbar spasm, and tenderness, positive straight
leg raising on the right, and diminished strength and sensation at the right ankle and foot.
Dr. Chmell assessed L5-S1 disc herniation and L4-5 degeneration and stenosis due to an old
injury. He prescribed physical therapy and advised that she could return to work with
restrictions. On November 20, 2014 Dr. Chmell advised that appellant returned to work but was

2

The record reveals that appellant filed an occupational disease claim (Form CA-2) on January 2, 2010 for a
herniated disc at L4-5 and degenerative disc disease involving her work chair. Appellant underwent surgery.
OWCP denied this claim under File No. xxxxxx522.

2

unable to move about in a safe reasonable fashion. He noted that she was unable to work until
her next appointment on December 18, 2014.
In a December 8, 2014 attending physician’s report (Form CA-20), Dr. Chmell assessed
lumbar disc herniation. He checked a box marked “yes” to indicate that the condition was
caused or aggravated by an employment activity. Dr. Chmell noted that the condition was a low
back injury at work on October 30, 2014. He also indicated that appellant had a preexisting low
back condition which required surgery in 1991.
In a December 16, 2014 statement, the employing establishment confirmed that the
building was forced to evacuate the premises on October 30, 2014. It noted that appellant exited
using the stairs. After the evacuation employees went to a designated rally point five blocks
away from the building and were subsequently dismissed for the day. The employing
establishment indicated that the process took place during regular work hours and that it
considered the evacuation as part of its employees’ official duties.
In a December 31, 2014 statement, appellant advised that she did not receive a
development letter.
In a January 8, 2015 report, Dr. Chmell advised that appellant had to run down eight
flights of stairs due to a bomb scare. Lumbar spine examination revealed a limp on the right
side, spasm, spine tenderness, and diminished range of motion. There was positive straight leg
raising, and diminished strength and sensation at the right ankle and foot. He assessed L5-S1
disc herniation and L4-5 disc reherniation and degeneration. Dr. Chmell opined that running
down eight flights of stairs of a building being evacuated for a bomb scare was a competent
cause of injury to the low back, particularly in somebody with a weakened back from a previous
injury. He attributed the L5-S1 disc herniation to running down eight flights of stairs.
By decision dated March 12, 2015, OWCP denied appellant’s claim because the medical
evidence of record was insufficient to establish that the diagnosed condition was causally related
to the accepted work events.
In a March 21, 2015 report, Dr. Chmell, advised that running down stairs was very
stressful to the lumbar spine. He noted that the gravitational forces acting on the lumbar spine
are 10 times greater when running down the stairs than when ascending stairs. Dr. Chmell
further noted that the act of running down stairs provided repetitive traumatic flexion-extension
mechanism to the lumbar spine with these markedly added gravitational forces. He indicated
that repetitive stressful flexion-extension trauma to the lumbar spine can and does result in disc
herniation. Dr. Chmell advised that there was nothing in the medical record to explain the
sudden and dramatic change in August 13, 2012 and November 2014 MRI scans.
In an April 3, 2015 statement, appellant clarified that she did not actually run down the
stairs and that she traveled down the stairs as fast as possible. She noted that she had no real
injuries since her back surgery in 2012 and contended that the diagnostic reports showed that her
injury was caused by the alleged October 30, 2014 injury.
On April 4, 2015 appellant requested an oral hearing before an OWCP hearing
representative.
3

In a July 30, 2015 report, Dr. Chmell clarified the meaning of the phrase “running down
the stairs” in his previous reports. He explained that “running down the stairs” is a common
phrase and that he actually meant hurrying down the stairs to the best of appellant’s ability.
Dr. Chmell acknowledged that appellant had a preexisting injury at the L4-5 level of her lumbar
spine, but noted that the new injury was at the L5-S1 level. He reiterated that the diagnosed
condition was attributed to the work injury.
An oral hearing took place on August 4, 2015. Appellant advised that she did not walk
down stairs on a regular basis and that she typically took escalators and elevators. She clarified
that she did not literally run down the stairs, but she moved as quickly as she could which she
described as slower than the average person. Appellant acknowledged that she had a preexisting
back injury at L4-5, but noted that her most recent MRI scan showed a problem at L5-S1 that she
did not have prior to the incident.
In a January 15, 2015 statement, Ruth Riley, appellant’s coworker, advised that on
October 30, 2014 the elevators were not working so she had to walk down the stairwell with
appellant. She noted there were a few coworkers who were exiting at the same time but
appellant could not keep up with their pace. Ms. Riley indicated that she stayed with appellant
as she noticed that she was unable to walk as fast. In a September 1, 2015 statement, Brent
Barron, a coworker, advised that he was trained in evacuations as the floor warden for the eighth
floor. He indicated that on the day in question he was not at work and to his knowledge there
was no one at the office who was trained in evacuations from the eighth floor. Mr. Barron
opined that evacuation procedures were not followed and if they had been the injury to appellant
could have been prevented.
By decision dated September 17, 2015, the OWCP hearing representative affirmed the
prior decision.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,3 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.4 The employee must also
establish that he sustained an injury in the performance of duty as alleged and that his disability
for work, if any, was causally related to the employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

R.C., 59 ECAB 427 (2008).

5

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

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the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
The Board finds this case is not in posture for decision.
Appellant filed a traumatic injury claim asserting that she sustained a low back injury as a
result of walking down stairs to evacuate her work building. OWCP denied the claim as
appellant submitted insufficient evidence to establish that the October 30, 2014 work incident
caused an L5-S1 disc herniation and resulted in L4-5 disc reherniation and degeneration. The
Board finds, however, that the case requires further development regarding whether she
sustained a traumatic injury causally related to the October 30, 2014 employment incident.
In his March 21, 2015 report, Dr. Chmell, advised that running down stairs was very
stressful to the lumbar spine. He noted that the gravitational forces acting on the lumbar spine
are 10 times greater when running down the stairs than when ascending stairs. Dr. Chmell
further noted that the act of running down stairs causes repetitive traumatic flexion-extension
mechanism to the lumbar spine with these markedly added gravitational forces. He indicated
that repetitive stressful flexion-extension trauma to the lumbar spine can and does result in disc
herniation. Dr. Chmell further advised that there was nothing in the medical record to explain
the sudden and dramatic change in the August 13, 2012 and November 2014 MRI scans. In his
July 30, 2015 report, he clarified the use of the phrase “running down the stairs” in his previous
reports. Dr. Chmell explained that running down the stairs” is a common phrase and that he
actually meant hurrying down the stairs to the best of appellant’s ability. He noted that
appellant’s preexisting injury was at the L4-5 level of her lumbar spine, while the new injury was
at the L5-S1 level. Dr. Chmell reiterated that the diagnosed condition was attributed to the work
injury.
Dr. Chmell’s reports, when read together, identified the history of the injury, identified
findings upon examination, and explained how the accepted work incident caused or aggravated
a diagnosed condition. The Board finds that Dr. Chmell’s report are sufficient, given the absence
of any opposing medical evidence, to require further development of the record.8 It is well
established that proceedings under FECA are not adversarial in nature9 and while appellant has
6

T.H., 59 ECAB 388 (2008).

7

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

8

See Earnest J. Reece, Jr., 32 ECAB 1508, 1510 (1981).

9

See e.g., Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985); Michael Gallo. 29 ECAB 159, 161 (1978);
William N. Saathoff, 8 ECAB 769, 770-71 (1956).

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the burden to establish entitlement to compensation, OWCP shares responsibility in the
development of the evidence.10 OWCP has an obligation to see that justice is done.11
The case will be remanded to OWCP for further action consistent with this decision. On
remand, after such further development of the case record as OWCP deems necessary, a de novo
decision shall be issued.12
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2015 decision of Office of
Workers’ Compensation Programs is set aside and the case remanded for additional development
consistent with this decision.
Issued: May 26, 2016
Washington, DC

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

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

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

10

Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).

11

William J. Cantrell, 34 ECAB 1233, 1237 (1983); Gertrude E. Evans, 26 ECAB 195 (1974).

12

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, Rockville, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0714
Issued: February 5, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

On January 30, 2018 appellant filed a timely appeal from an August 2, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). The Board docketed the appeal as
No. 18-0714.
The Board has duly considered the matter and finds that the case must be remanded to
OWCP.
On July 3, 2017 OWCP issued a preliminary notice that appellant received an overpayment
of compensation in the amount of $71,799.39 as she no longer had an eligible dependent beginning
July 25, 2000, but had continued to receive wage-loss compensation at the augmented rate through
April 1, 2017. It also informed her of its preliminary determination that she was at fault in creation
of the overpayment. OWCP provided appellant with an overpayment recovery questionnaire
(Form OWCP-20). It notified her that, within 30 days of the date of the letter, she could request a
telephone conference, a final decision based on the written evidence, or a prerecoupment hearing.
By decision dated August 2, 2017, OWCP found that appellant had received an overpayment of
compensation in the amount of $71,799.39, as she had received wage-loss compensation at the
augmented rate without an eligible dependent from July 25, 2000 through April 1, 2017. It further
found that appellant was at fault in the creation of the overpayment of compensation as she knew
or should have known that she was receiving compensation to which she was not entitled. OWCP
also ordered recovery of the overpayment of compensation by withholding $400.00 every 28 days

from appellant’s continuing wage-loss compensation benefits. It indicated that she had not
responded to its preliminary notice of overpayment. A review of the record, however,
demonstrates that on August 1, 2017 OWCP received appellant’s overpayment recovery
questionnaire (Form OWCP-20) indicating that she disagreed that the overpayment occurred,
disagreed with the finding of fault, and was requesting waiver of the overpayment.
It is well established that OWCP must review all evidence submitted by a claimant and
received by OWCP prior to issuance of its final decision.1 As the Board’s decisions are final as
to the subject matter appealed, it is crucial that all evidence relevant to the subject matter of the
claim, which was properly submitted to OWCP prior to the time of issuance of its final decision
be addressed by OWCP.2
As noted above, on August 1, 2017 appellant disagreed with the findings of the preliminary
notice of overpayment and submitted an overpayment recovery questionnaire. OWCP did not
review this additional evidence prior to issuing the final overpayment decision on August 2, 2017.
Accordingly, the case is not in posture for a decision and the case will be remanded for a
proper response to appellant’s additional submissions. Following this and such other development
as deemed necessary, OWCP shall issue an appropriate decision.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 2, 2017 is set aside and the case is remanded for further action consistent
with this order of the Board.

1

William A. Couch, 41 ECAB 548 (1990); N.L., Docket No. 17-1058 (issued February 8, 2018).

2

Id.

2

Issued: February 5, 2019
Washington, DC

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

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

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

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