United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Denver, CO, Employer
__________________________________________

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Appearances:
H. Earl Moyer, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-933
Issued: September 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 11, 2008 appellant, through her attorney, filed a timely appeal from a
September 11, 2007 merit decision of the Office of Workers’ Compensation Programs finding
that she received an overpayment of compensation and denying waiver. She also appeals from a
November 13, 2007 nonmerit decision denying her request for a prerecoupment hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case and over the November 13, 2007 nonmerit decision.1
ISSUES
The issues are: (1) whether appellant received an overpayment of $22,167.60 for the
period June 14, 2006 to February 9, 2007; (2) whether the Office properly denied waiver of the
overpayment; and (3) whether the Office properly denied appellant’s request for a
prerecoupment hearing.
1

By decision dated March 14, 2007, the Office determined that appellant had no more than an 11 percent
permanent impairment of the left upper extremity. Appellant has not appealed this decision and it is not before the
Board at this time. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On July 9, 2001 appellant, then a 51-year-old clerk, filed an occupational disease claim
alleging that she sustained carpal tunnel syndrome due to factors of her federal employment.
The Office accepted the claim for recurrent bilateral carpal tunnel syndrome. It previously
accepted that appellant sustained carpal tunnel syndrome under file number 12-0156203. In a
decision dated January 31, 1997, it granted her a schedule award for a 10 percent permanent
impairment of each upper extremity.
By decision dated March 14, 2007, the Office granted appellant a schedule award for an
11 percent permanent impairment of the left upper extremity.2 The period of the award ran for
34.32 weeks from June 14, 2006 to February 9, 2007. The Office based its schedule award on
the finding by the Office medical adviser that appellant had a total left upper extremity
impairment of 11 percent.
On July 23, 2007 the Office notified appellant of its preliminary determination that she
received an overpayment of $22,167.60 for the period July 6, 2006 to February 9, 2007. It found
that the overpayment occurred because it issued her a schedule award for an 11 percent left upper
extremity impairment without adjusting for the 10 percent schedule award previously paid. The
Office calculated the overpayment by subtracting the additional 1 percent owed appellant for a
left upper extremity impairment of $2,216.76 from the 11 percent paid to her of $24,384.36, to
find a total overpayment of $22,167.60. It determined the period of the overpayment by finding
that it owed her a schedule award for an additional 1 percent impairment for the period June 14
to July 5, 2006 and overpaid her from July 6 to February 9, 2007. The Office further advised
appellant of its preliminary determination that she was not at fault in the creation of the
overpayment. It requested that she complete the enclosed overpayment recovery questionnaire
and submit supporting financial documents in support of waiver. Additionally, the Office
notified appellant 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 September 11, 2007, the Office finalized its finding that appellant
received an overpayment of $22,167.50 for the period June 14, 2006 to February 9, 2007.3 It
found that she was without fault in the creation of the overpayment but was not entitled to
waiver. The Office noted that appellant had not responded to its preliminary notification of
overpayment. It determined that she should forward a check for the entire amount as repayment
of the overpayment.4
On October 6, 2007 appellant requested a prerecoupment hearing. She contested the
overpayment finding and submitted a completed overpayment recovery questionnaire and
financial information supporting waiver. By decision dated November 13, 2007, the Office
2

By decision dated April 12, 2004, the Office issued appellant a schedule award for a 24 percent permanent
impairment of the right upper extremity, less the 10 percent previously paid.
3

In the final decision, the Office did not separate out the period that it paid appellant the one percent of
compensation for the additional left upper extremity impairment in determining the period of the overpayment.
4

Appellant received disability retirement from the Office of Personnel Management effective April 1, 2006.

2

denied appellant’s request for a prerecoupment hearing as it was made after the final
overpayment decision.
LEGAL PRECEDENT -- ISSUE 1
Section 8108 of the Federal Employees’ Compensation Act5 provides for the reduction of
compensation for subsequent injury to the same member as follows:
“The period of compensation payable under the schedule in section 8107(c) of
this title is reduced by the period of compensation paid or payable under the
schedule for an earlier injury if -(1) compensation in both cases is for disability of the same member or
function or different parts of the same member or function or for
disfigurement; and
(2) the Secretary of Labor finds that compensation payable for the later
disability in whole or in part would duplicate the compensation payable
for the preexisting disability.”
ANALYSIS -- ISSUE 1
Appellant initially received a schedule award for a 10 percent permanent impairment of
the left upper extremity on January 31, 1997. On March 14, 2007 the Office granted her a
schedule award for an 11 percent permanent impairment of the left upper extremity.6 It based
the award on its finding that the medical evidence showed that appellant had an 11 percent
permanent impairment of the left upper extremity. However, as she previously received an
award for a 10 percent impairment of the left upper extremity, she was only entitled to an award
for an additional 1 percent impairment.7 Appellant received $24,384.36 from the Office for the
period June 14, 2006 to February 9, 2007 but was entitled to receive only $2,216.76 for the
additional one percent impairment She thus received an overpayment of compensation in the
amount of $22,167.60.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act5 provides that 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.”
(Emphasis added.) Thus, a finding that appellant was without fault does not automatically result
in waiver of the overpayment. The Office must then exercise its discretion to determine whether

5

5 U.S.C. §§ 8101-8193.

6

The Board notes that appellant has not appealed the merits of the schedule award decision but is instead
pursuing reconsideration of the decision before the Office.
7

See 5 U.S.C. § 8108.

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recovery of the overpayment would defeat the purpose of the Act or would be against equity and
good conscience.6
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of the Act if recovery would cause hardship because the beneficiary needs substantially all of his
income (including compensation benefits) to meet current ordinary and necessary living
expenses and also, if the beneficiary’s assets do not exceed a specified amount as determined by
the Office from data provided by the Bureau of Labor Statistics.8 An individual’s liquid assets
include but are not limited to case, the value of stocks, bonds, savings accounts, mutual funds
and certificates of deposits.9 Nonliquid assets include but are not limited to the fair market value
of an owner’s equity in property such as a camper, boat, second home and furnishings and
supplies.10
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.11 To establish that a valuable right has been
relinquished, it must be shown that the right was in fact valuable, that it cannot be regained and
that the action was based chiefly or solely in reliance on the payments or on the notice of
payment.12
ANALYSIS -- ISSUE 2
The Office, in its preliminary notification to appellant of the existence of the
overpayment, informed her that she needed to explain her reasons for seeking a waiver, complete
the recovery questionnaire form and submit financial documents to support her claimed income
and expenses. The overpayment recovery questionnaire is designed to obtain the financial
information to determine whether adjustment or recovery would defeat the purpose of the Act.
Appellant did not return the overpayment recovery questionnaire provided by the Office and did
not otherwise submit financial evidence or supporting documentation to establish that recovery
of the overpayment would defeat the purpose of the Act. Neither did she submit evidence to
establish that recovery of the overpayment would be against equity and good conscience
because, in reliance on the overpaid compensation, she relinquished a valuable right or changed
her position for the worse. Although appellant is without fault in the creation of the
overpayment, she nevertheless bears responsibility for providing the financial information
8

20 C.F.R. § 10.436. Office procedures provide that assets must not exceed a resource base of $4,800.00 for an
individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a)
(October 2004).
9

Id.

10

Id.

11

20 C.F.R. § 10.436.

12

Id. at § 10.437(b)(1).

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necessary to support her request to waive recovery of the overpayment. Section 10.438 of the
regulations states that a claimant who received an overpayment is responsible for providing
information about income, expenses and assets to the Office so that it may determine whether
recovery of the overpayment would defeat the purpose of the Act or be against equity and good
conscience.13 Failure to submit the information, which will also be used to determine a
repayment schedule if necessary, within 30 days of a request from the Office will result in a
denial of a waiver of recovery of the overpayment and no further requests for waiver will be
considered until the information is submitted.14
As appellant did not submit any evidence in response to the preliminary notice of the
overpayment the Board finds that the Office did not abuse its discretion in refusing to waive
recovery of the overpayment.15
LEGAL PRECEDENT -- ISSUE 3
Section 10.440(b) of the Office’s regulations provides that the only review of a final
decision concerning an overpayment is to the Board. The provisions of 5 U.S.C. § 8124(b)
(concerning hearings) and 5 U.S.C. § 8128 (concerning reconsiderations) do not apply to such a
decision.16 The Board has found that the implementation of this regulation is a proper exercise
of the Director’s discretion and that a claimant has no further right to review by the Office once a
final decision on the issue of overpayment has been issued.17
ANALYSIS -- ISSUE 3
The Office notified appellant of its preliminary determination that she received an
overpayment of compensation in a letter dated July 23, 2007. It informed her that she could
request a telephone conference, a prerecoupment hearing or a final decision based on the written
evidence within 30 days of the date of the letter. By decision dated September 11, 2007, the
Office finalized its overpayment determination and denied waiver of the overpayment. On
October 6, 2007 appellant requested a prerecoupment hearing after the final overpayment
decision. The Office’s regulations at section 10.440(b) provides that the only review of a final
decision concerning an overpayment is to the Board.18 The regulation further provides that the
hearing provisions of section 8124(b) do not apply to an overpayment decision.19 The Office

13

20 C.F.R. § 10.438(a).

14

Id. at § 10.438(b); Robert B. Hutchins, 52 ECAB 344 (2001).

15

Subsequent to the Office’s September 11, 2007 overpayment decision, appellant submitted information
regarding waiver. The Board’s jurisdiction is limited to the evidence before the Office at the time of its decision;
see 20 C.F.R. § 501.2(c).
16

20 C.F.R. § 440(b); see also Jan K. Fitzgerald, 51 ECAB 659 (2000).

17

Charles E. Nance, 54 ECAB 447 (2003); Philip G. Feland, 48 ECAB 485 (1997).

18

20 C.F.R. § 440(b).

19

Id.; see also Charles E. Nance, supra note 17.

5

thus properly denied appellant’s request for a prerecoupment hearing as it was made following
the final overpayment decision.
On appeal, appellant’s attorney contends that she tried to request a prerecoupment
hearing by letter dated August 7, 2007. He enclosed additional evidence on appeal. The case
record, however, does not contain a letter to the Office from appellant dated August 7, 2007.
The Board has no jurisdiction to review evidence for the first time on appeal.20
CONCLUSION
The Board finds that appellant received an overpayment of $22,167.60 for the period
June 14, 2006 to February 9, 2007. The Board further finds that the Office properly denied
waiver of the overpayment and her request for a prerecoupment hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 13 and September 11, 2007 are affirmed.
Issued: September 15, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

20

20 C.F.R. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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

Docket No. 06-1259
Issued: January 16, 2007

Case Submitted on the Record

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

JURISDICTION
On April 27, 2006 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs’ hearing representative dated April 18, 2006, which affirmed
the termination of her compensation benefits and claim for continuing disability and found the
evidence insufficient to establish an emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to terminate appellant’s
medical and compensation benefits effective December 25, 2005; (2) whether appellant
established that she had any continuing employment-related residuals or disability after
December 25, 2005; and (3) whether appellant sustained a consequential emotional condition
due to her accepted July 12, 2000 employment injury.

FACTUAL HISTORY
This is the second appeal before the Board. In a May 6, 2003 decision, the Board
reversed an Office decision which terminated appellant’s wage-loss compensation effective
July 20, 2001 on the basis that her injury-related disability had ceased.1 The Board found that
the medical evidence of record did not establish that appellant was capable of performing her
date-of-injury job as of May 1, 2001. The Office did not meet its burden of proof to terminate
appellant’s compensation benefits effective July 20, 2001. The factual history of the case is set
forth in the June 23, 2004 decision and incorporated herein by reference.2
Subsequent to the Board’s decision, the Office reinstated appellant’s compensation. It
noted that appellant returned to work on May 27, 2002 and sustained intermittent periods of
disability until June 2, 2003. The Office accepted appellant’s recurrence of disability claim
beginning July 23, 2003 and placed her on the periodic rolls for temporary total disability.
Appellant returned to work six hours per day on September 13, 2004. On September 28, 2004
the Office reduced her wage-loss compensation based on her actual earnings.
Appellant filed intermittent claims for wage-loss compensation for total disability which
the Office accepted and paid.
In a January 11, 2005 report, Dr. Pierre Herding, a treating Board-certified neurologist,
diagnosed lumbar spondylosis. A physical examination revealed “pain upon palpation of the left
buttock, accentuated by movement in all directions.” Dr. Herding recommended enrollment in a
pain management program and that she lose weight. On April 11, 2005 he noted that appellant
was able to return to work with restrictions for six hours per day. Appellant was prohibited from
working on various days in March due to increasing pain.
In a report dated July 5, 2005, Dr. Robert Chouteau, a second opinion osteopathic Boardcertified orthopedic surgeon, concluded that appellant’s lumbar condition had resolved with no
residuals. He reported that lumbar x-ray interpretations revealed “the contour of the vertebral
bodies to be smooth and the interspaces are well preserved.” The interpretation was a normal
lumbar spine with normal lumbar lordosis. A physical examination of the lumbar spine showed
point tenderness upon palpation of the lumbar paraspinalis musculature and bilateral sacroiliac
joints. Dr. Chouteau noted negative bilateral Lasegue’s sign, negative bilateral straight leg
raising and “full dorsalis pedis posterior tibial pulses bilaterally.” A lumbar myelogram
computerized tomography (CT) scan revealed a mild L5-S1 diffuse annular disc bulge with
slight effacement of the thecal sac without focal disc herniation or spinal stenosis. A
December 24, 2004 lumbar post myelogram CT scan showed no radiological abnormalities and
was within normal limits. In support of his conclusion that appellant’s condition had resolved,
1

Appellant, a 39-year-old clerk, filed a traumatic injury claim on July 12, 2000 alleging that on the date she
injured her back in the performance of duty. The Office accepted the claim for lumbar strain and aggravation of
lumbar degenerative disc disease. On February 26, 2001 appellant accepted a light-duty position. Appellant
returned to work on March 12, 2001working four hours per day and was released to full duty effective May 1, 2001.
By decision dated July 20, 2001, the Office terminated appellant’s compensation benefits effective July 14, 2001.
Appellant filed a recurrence claim beginning August 1, 2001, which the Office accepted.
2

Docket No. 02-1373 (issued May 6, 2003).

2

Dr. Chouteau noted that there were no objective findings. He saw no degenerative disc disease
on the x-ray interpretations or myelograms or magnetic resonance imaging scans. The physical
examination showed that appellant had no neurocirculatory deficit. With respect to the pain
management program, Dr. Chouteau concluded that it was not warranted as appellant’s accepted
condition had resolved. He opined that appellant was capable of working eight hours a day with
no restrictions.
The Office found a conflict in the medical opinion evidence between Dr. Herding,
appellant’s treating physician, and Dr. Chouteau, an Office referral physician, as to whether
appellant was capable of returning to full unrestricted duty, whether her condition had resolved
and whether referral to a pain management program was appropriate. By letter dated August 8,
2005, the Office referred appellant, together with a statement of accepted facts, the case record
and a list of questions to be addressed, to Dr. David R. Willhoite, a Board-certified orthopedic
surgeon, for an impartial medical examination.
In a report dated September 13, 2005, Jean Bell Williams, a licensed professional
counselor, diagnosed stress and depression. Appellant related that she worked from
September 2004 until August 2005 when her physician advised her to take time off from work
due to stress and anxiety by her supervisor. Ms. Williams also diagnosed a chronic pain
disorder, sleep disorder and anxiety. She recommended referral to a pain management program.
In a report dated September 20, 2005, Judy Elizabeth Dunn, a licensed professional
counselor, noted that appellant was first seen on December 27, 2001 for depression. She noted
“[r]eportedly, your symptoms were related to incidences at work.” Ms. Dunn noted that
appellant returned on August 1, 2005 for counseling due to similar symptoms and stated that they
were related to incidences at work.
In a report dated September 26, 2005, Dr. Willhoite reviewed the medical evidence,
statement of accepted facts and set forth findings on physical examination. He diagnosed a
resolved lumbar strain. A physical examination of the lumbar spine revealed normal range of
motion and no tenderness. Physical findings also included “some tenderness over the great
trochanters of both hips” and bilaterally negative leg raising. Dr. Willhoite noted a
September 28, 2000 magnetic resonance imaging (MRI) scan of the lumbar spine was normal
“except for some desiccation at the L5-S1 disc.” In response to the questions posed by the
Office, Dr. Willhoite concluded that appellant had no current objective findings regarding her
lumbosacral spine. He opined that appellant’s condition had resolved with no residuals.
Dr. Willhoite agreed with Dr. Chouteau that appellant was capable of performing her date-ofinjury position and working for eight hours with no restrictions from a lumbar perspective. He
opined that a pain management program was not warranted. Dr. Willhoite concluded that
appellant required psychiatric treatment for her depression.
On October 21, 2005 the Office issued a notice of proposed termination of benefits based
upon Dr. Willhoite’s report. The Office provided 30 days in which appellant could respond.
In an October 24, 2004 report, Dr. Herding noted that appellant “complained of pain in
both hips at the time of her initial accident.”

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In a letter dated October 29, 2005, appellant disagreed with the proposed termination.
She contended that she sustained bilateral hip strains as a result of the injury, which the Office
failed to accept. Appellant attached a copy of the July 15, 2000 report, which contained
diagnoses of lumbar strain and bilateral hip strain, to support that her hip condition was
employment related.
In a report dated October 31, 2005, Dr. Bagyalakshmi Arumugham, a treating Boardcertified psychiatrist, diagnosed stress which he attributed to appellant’s work.
On November 21, 2005 the Office requested a supplemental report from Dr. Willhoite
based on additional questions.
On December 16,
December 25, 2005.

2005

the

Office

terminated

appellant’s

benefits

effective

Subsequent to the termination, the Office received additional evidence, including a
December 1, 2005 supplemental report by Dr. Willhoite and a December 13, 2005 report from
Dr. Arumugham.
Dr. Willhoite noted that, while appellant “appeared to have some mild tenderness over
the greater trochanters of both hips,” he found no residuals from her employment-related
bilateral hip strain. He also found no evidence of any current hip condition.
Dr. Arumugham related that appellant began treatment on October 13, 2005 for major
depressive disorder. He concluded that appellant’s chronic pain due to her work injury and
physical limitations resulting from her pain contributed to her depression. Dr. Arumugham
indicated that appellant reported “no psychiatric illness prior to her injury.”
By amended decision dated December 20, 2005, the Office terminated appellant’s
compensation benefits effective December 25, 2005. The Office found the medical evidence
insufficient to establish that she sustained an emotional condition as a consequence of her
accepted injury.
On December 24, 2005 appellant requested review of the written record by an Office
hearing representative. In a February 22, 2006 report, Dr. Herding noted that appellant “was
formally evaluated with persistent back pain.”
In a February 28, 2006 MRI scan, Dr. Ashish Monga, an examining Board-certified
radiologist, reported no bilateral hip abnormalities.
In an April 18, 2006 decision, an Office hearing representative affirmed the
December 20, 2005 decision. It was found that Dr. Willhoite’s medical opinion was entitled to
special weight as an impartial medical specialist. The Office hearing representative found that
appellant no longer had any residuals or disability causally related to her accepted employment

4

injury. The evidence did not establish that appellant sustained a consequential emotional
condition injury due to her accepted July 12, 2000 employment injury.3
LEGAL PRECEDENT -- ISSUE 1
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability. To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.7
Section 8123(a) of the Federal Employees’ Compensation Act provides in pertinent part
that, if there is disagreement between the physician making the examination for the United States
and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination.8 Where a case is referred to an impartial medical specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background must be given special weight.9

3

Appellant filed a claim for a schedule award on August 11, 2005. The Board notes that it does not appear that
the Office issued a decision regarding appellant’s entitlement to schedule award compensation for her left lower
extremity. On April 7, 2006 the Office issued an overpayment decision based upon appellant’s knowingly omitting
outside employment and earnings. The Office issued a decision finding appellant forfeited compensation for the
period in a May 8, 2006 decision. Appellant requested an oral hearing by an Office hearing representative. The
Board also notes that no decision has been issued by an Office hearing representative on the overpayment and
forfeiture issues. The Board finds that, therefore, these matters are interlocutory in nature and is not currently before
the Board. See 20 C.F.R. § 501.2(c); Jennifer A. Guillary, 57 ECAB ___ (Docket No. 06-208, issued March 13,
2005) (providing that the Board has jurisdiction to consider and decide appeals from final decisions; there shall be
no appeal with respect to any interlocutory matter disposed of during the pendency of the case).
4

Paul L. Stewart, 54 ECAB 824 (2003).

5

Elsie L. Price, 54 ECAB 734 (2003).

6

See Del K. Rykert, 40 ECAB 284 (1988).

7

James F. Weikel, 54 ECAB 660 (2003).

8

5 U.S.C. § 8123(a); Darlene R. Kennedy, 57 ECAB ___ (Docket No. 05-1284, issued February 10, 2006).

9

John E. Cannon, 55 ECAB 585 (2004); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB
215 (1994).

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ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for lumbar strain and aggravation of lumbar
degenerative disc disease. By amended decision dated December 20, 2005, the Office finalized
its termination of appellant’s compensation and medical benefits on the grounds that the
accepted condition had resolved. An Office hearing representative affirmed this decision on
April 18, 2006. The Office bears the burden of proof to justify a termination of benefits.10
A conflict in the medical opinion arose between Dr. Herding, an attending Boardcertified neurologist, and Dr. Chouteau, an Office referral osteopath Board-certified in
orthopedic surgery. The physicians disagreed as to whether appellant had any residuals or
disability due to her July 12, 2000 employment injury, whether she was capable of working eight
hours without restrictions and whether referral to a pain management program was appropriate.
Dr. Herding concluded that appellant continued to have residuals from her accepted employment
injury. He also concluded that she was only capable of working six hours per day with
restrictions and recommended referral to a pain management program. Dr. Chouteau concluded
that appellant had no residuals or disability due to her accepted employment injury. He also
opined that she was capable of performing her date-of-injury position full time without
restrictions. Dr. Chouteau concluded that referral to a pain management program was
unnecessary.
The Office properly referred appellant to Dr. Willhoite, selected as an impartial medical
specialist, to resolve the conflict. Dr. Willhoite conducted a thorough physical examination
which provided normal results on physical examination. On MRI scan he found a normal lumbar
spine “except for some desiccation at the L5-S1 disc.” Dr. Willhoite opined that appellant’s
condition had resolved with no residuals or impairment. He concurred with Dr. Chouteau that
appellant was capable of performing her date-of-injury position and working eight hours without
restrictions from a lumbar perspective. Dr. Willhoite concluded that, as appellant’s condition
had resolved, referral to a pain management program was not warranted. In a supplemental
report dated December 1, 2005, he responded to the Office’s questions regarding her bilateral hip
condition. Dr. Willhoite noted that appellant “appeared to have some mild tenderness over the
greater trochanters of both hips.” However, he concluded that appellant had no residuals from a
bilateral hip strain. In support of this conclusion, he reported that his examination revealed no
evidence of any current hip condition.
Dr. Willhoite found that appellant no longer had any residuals or disability due to her
July 12, 2000 employment injury and was capable of returning to her date-of-injury position.
The Board finds that his opinion is entitled to special weight. His reports are well rationalized
and based on a proper medical and factual background. Therefore, the Office met its burden of
proof in terminating appellant’s compensation benefits.

10

Willa M. Frazier, 55 ECAB 379 (2004).

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LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits clearly warranted on the basis
of the evidence, the burden of proof for reinstating compensation benefits shifts to the claimant.11
ANALYSIS -- ISSUE 2
The relevant medical evidence regarding continuing employment-related residuals after
December 25, 2005 includes a February 22, 2006 report by Dr. Herding and a February 28, 2005
MRI scan of the hips by Dr. Monga. Dr. Herding noted that he had evaluated appellant for
persistent back pain but Dr. Monga noted an MRI scan revealed no abnormalities of the hips.
The Board finds that Dr. Herding’s February 22, 2006 report is insufficient to establish
appellant’s claim as it failed to address how her pain was causally related to her July 12, 2000
employment injury. Moreover, Dr. Herding essentially reiterated his opinion which gave rise to
the original conflict in medical evidence.12 Similarly, Dr. Monga’s opinion is insufficient to
create a conflict with Dr. Willhoite as he reported the scan revealed no abnormalities in the hips.
He failed to address how any hip condition was causally related to her July 12, 2000 employment
injury. Appellant has not submitted sufficient rationalized medical evidence establishing that she
has any continuing residuals or disability causally related to her accepted employment-related
condition.
LEGAL PRECEDENT -- ISSUE 3
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional
conduct.13 The subsequent injury is compensable if it is the direct and natural result of a
compensable primary injury.14 With respect to consequential injuries, the Board has stated that,
where an injury is sustained as a consequence of an impairment residual to an employment
injury, the new or second injury, even though nonemployment related, is deemed, because of the
chain of causation to arise out of and in the course of employment and is compensable.15
ANALYSIS -- ISSUE 3
The Board finds the evidence of record insufficient to establish a consequential injury
between appellant’s emotional condition and the accepted lumbar strain and aggravation of
lumbar degenerative disc disease that she sustained on July 12, 2000. The evidence relevant to
11

See Joseph A. Brown, Jr., 55 ECAB 542 (2004).

12

See Bernadine P. Taylor, 54 ECAB 336 (2003).

13

Albert F. Ranieri, 55 ECAB 598 (2004).

14

Id.; Carlos A. Marrero, 50 ECAB 117 (1998); A. Larson, The Law of Workers’ Compensation § 10.01 (2005).

15

Kathy A. Kelley, 55 ECAB 206 (2004).

7

her emotional condition consists of reports by Dr. Arumugham, a treating Board-certified
psychiatrist, Ms. Williams, a licensed professional counselor, and Ms. Dunn, a licensed
professional counselor. In an October 31, 2005 report, Dr. Arumugham diagnosed stress which
the physician attributed to appellant’s work. On December 13, 2005 he diagnosed major
depressive disorder. Dr. Arumugham concluded that appellant’s chronic pain due to her work
injury and physical limitations resulting from her pain contributed to her depression. He related
that appellant reported “no psychiatric illness prior to her injury.” While Dr. Arumugham
attributed appellant’s depression to chronic pain from her employment injury, he provided little
medical rationale explaining how appellant’s accepted lumbar strain and aggravation of lumbar
degenerative disc disease condition caused or contributed to her depression. The Board,
therefore, finds that the evidence of record is insufficient to establish that her depression disorder
was consequential to the accepted aggravation of lumbar strain and aggravation of lumbar
degenerative disc disease.
The remaining evidence of record is insufficient to establish appellant’s claim. The
September 13, 2005 report by Ms. Williams and September 20, 2005 report by Ms. Dunn are of
no probative value, as a licensed counselor is not a physician as defined under the Act.16
Appellant failed to submit probative medical evidence explaining how her accepted
condition caused or contributed to her psychological condition. She failed to demonstrate how
her depression arose as a natural consequence of her accepted injury. The Board finds that the
evidence of record is insufficient to discharge appellant’s burden of establishing that her
depression was a consequential injury of the accepted conditions of lumbar strain and
aggravation of lumbar degenerative disc disease.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
December 25, 2005 on the grounds that she no longer had any residuals or disability causally
related to her July 12, 2000 employment injury. The Board further finds that appellant has failed
to establish that she had any continuing employment-related residuals or disability after
December 25, 2005. The Board also finds that appellant has failed to establish that she sustained
a consequential emotional condition due to her accepted July 12, 2000 employment injury.

16

Section 8101(2) of the Act provides in pertinent part as follows: (2) physician includes surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their
practice as defined by State law. See Thomas O. Bouis, 57 ECAB ___ (Docket No. 06-692, issued June 7, 2006).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 18, 2006 is affirmed.
Issued: January 16, 2007
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, OCEAN VIEW POST
OFFICE, Miami, FL, Employer
__________________________________________

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

Docket No. 06-1744
Issued: January 19, 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 July 24, 2006 appellant filed a timely appeal from the May 30, 2006 decision of the
Office of Workers’ Compensation Programs, which denied her claim for compensation on the
grounds that she failed to establish that she sustained a recurrence of her accepted employment
injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(1), the Board has jurisdiction over the
merits of this case. In her appeal, appellant argued that she was not given adequate time and
assistance in gathering medical evidence and that she was entitled to compensation because of
the permanent nature of her injury.1
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
causally related to her accepted April 4, 1989 employment injury.

1

Appellant’s appeal mentions a wrist injury in addition to her accepted knee injury. The Board notes that the
accepted knee injury is the only one properly before it.

FACTUAL HISTORY
On April 4, 1989 appellant, then a 24-year-old letter carrier, filed a traumatic injury
claim, Form CA-1, alleging that she was struck on the right knee by a floor buffer at the
employing establishment. On May 5, 1989 the Office accepted appellant’s claim for contusion
of the right knee. Appellant was totally disabled from work from April 4 to May 2, 1989 and
partially disabled from work from May 3 to September 21, 1989. On September 22, 1989
appellant underwent an arthroscopic knee surgery and was diagnosed with a tear in her right
medial meniscus. She was totally disabled from the time of the operation until December 8,
19892 when her physician, Dr. Alfonso F. Petti, a Board-certified orthopedic surgeon, released
her to perform “sedentary-type work.”
To accommodate appellant’s partial disability, the employing establishment created a
light-duty position for her in the accounting department. Appellant remained in this light-duty
assignment from January 1990 until some time in 1991.3 On December 14, 1990 Dr. Petti wrote
a letter regarding appellant’s continued disability and stated that he believed she had sustained a
15 percent permanent impairment of her lower extremity and that she would require periodic
follow-up for her symptoms. Appellant continued to work under certain light-duty restrictions
dictated by Dr. Petti following her reassignment from the accounting department. In 1990,
appellant received a third-party settlement for her injury, which resulted in a surplus of
$13,314.08. Appellant was placed on nonpay, nonduty status on June 15, 1993 and was
terminated from the employing establishment on April 1, 1994 for misconduct unrelated to her
employment injury.
On November 9, 2004 appellant filed a recurrence of disability claim, Form CA-2a,
alleging that she had been in constant pain since her surgery in 1989. She did not provide a
specific date on which the recurrence allegedly occurred. Appellant indicated that she had great
difficulty walking and could not bend her knee. She stated that her knee could not improve, it
could only get worse. She also stated that she was not working, but did not provide the exact
date she stopped working. Appellant reported that she worked for Lockheed Martin in 1998 and
1999 as an office assistant. She indicated that she was not seeking compensation for lost wages.
The employing establishment controverted appellant’s claim on the grounds that she had
not provided medical evidence to show a causal relationship between the April 4, 1989
employment injury and the alleged recurrence. The employing establishment emphasized that
appellant had not been employed by them for 10 years.
On August 18, 2005 the employing establishment provided additional arguments and
evidence for its controversion, including administrative records related to her third-party
settlement and her termination from employment.

2

A December 20, 1989 document dates the end of total disability as December 26, 1989.

3

The record does not indicate the exact dates of her work assignment changes.

2

By letter dated September 1, 2005, the Office requested that appellant provide additional
factual and medical information to support her claim. It specifically requested a comprehensive
medical report that established a causal relationship between the employment injury and her
current condition. The Office gave appellant 30 days to provide the additional information.
Appellant did not submit the requested medical or factual information during this time.
By decision dated October 12, 2005, the Office denied appellant’s claim for
compensation on the grounds that she had not provided adequate evidence to establish that her
April 4, 1989 employment injury had recurred. It stated that her medical benefits should not be
impacted by the decision.
On October 19, 2005 appellant requested an oral hearing, which was set for
March 14, 2006. At the hearing, appellant stated that she held a variety of sedentary jobs from
the time she left the employing establishment in 1994 until approximately 2002, when her knee
kept her from working full time. She stated that she regularly saw a family doctor about her
knee complaints. Appellant also stated that she believed she needed another surgery but that,
because Dr. Petti retired, she could not afford to see another specialist. Appellant stated that she
had no outside hobbies involving physical activity because her knee was in too much pain.
By decision dated May 30, 2006, the Office denied modification of its earlier decision.
The Office hearing representative found that the record contained no medical evidence since
1992 and that appellant had not provided any medical evidence as to her current condition. For
these reasons, the Office hearing representative found that appellant had not met her burden of
proof.
LEGAL PRECEDENT
The Office’s regulation defines a recurrence of disability as an employee’s inability to
work, following a return to work, caused by a spontaneous change in a medical condition that
resulted from a previous injury or illness without an intervening injury or new exposure. The
term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn, except for when such withdrawal occurs for reasons of
misconduct, nonperformance of the job duties or a reduction-in-force (RIF).4
When claiming recurrence of disability, an employee who was given a light-duty position
to accommodate the effects of an employment injury has the burden of establishing that she
cannot perform the light-duty tasks. This must be shown by the weight of the reliable, probative
and substantial evidence. As part of the burden, the employee must show either a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty requirements.5

4

See 20 C.F.R. § 10.5(x).

5

Richard A. Neidert, 57 ECAB ___ (Docket No. 05-1330, issued March 10, 2006); Terry R. Hedman, 38 ECAB
222 (1986).

3

ANALYSIS
Appellant claimed compensation for recurrence of the accepted employment injury to her
right knee. She alleged that the ongoing pain in her right knee disabled her for work from 2002
to the present. The Board finds that appellant has not met her burden of proof to establish that
she sustained a recurrence of disability causally related to the April 4, 1989 employment injury.
Appellant was on light-duty status from December 1989 until her last day of work at the
employing establishment in June 1993. Because of this light-duty status to qualify for disability
compensation appellant must demonstrate either that her condition has changed such that she
could not perform the activities required by her previous light-duty status or that the
requirements of light duty have changed or were withdrawn.
Appellant has not met the burden of establishing that her condition has changed such that
she could not perform a job containing the light-duty restrictions in place at the time of her
termination. The record contains evidence that Dr. Petti, a Board-certified orthopedic surgeon,
opined that appellant would continue to experience symptom flare-ups as a result of her April 4,
1989 employment injury. While this evidence supports the need for light-duty requirements, it
does not establish the state of appellant’s employment-related condition from 2002 onward or
provide proof that she could not perform a job with the restrictions indicated by Dr. Petti due to
the effects of her April 4, 1989 employment injury. Appellant has presented no medical
evidence to support the claim that she is currently disabled. Appellant’s own statements and
belief are not adequate to prove her case:6 under the Federal Employees’ Compensation Act,
only the medical opinion of a physician can form the basis for compensation.7 The Board finds
that, in the absence of current medical evidence, appellant has not met her burden of proof.
Moreover, appellant has not shown that she is entitled to disability compensation because
of the withdrawal of light-duty status. Under the Office regulations, an employee is not entitled
to disability compensation when light-duty status tailored to her abilities is withdrawn because of
misconduct, refusal to do the work or a RIF. The record in this case indicates that appellant was
terminated for misconduct in 1994. Though this termination acted effectively as a withdrawal of
light-duty status, it cannot form the basis for a disability compensation claim because the
termination had nothing to do with appellant’s ability to perform the light-duty requirements.8
Appellant has argued that the Office did not allot her adequate time to get medical
records from her family doctor and did not provide assistance in this process. The Board has
held that it is ultimately the responsibility of claimants to gather the medical information

6

See Kenneth R. Love, 50 ECAB 193 (1998) (an award for compensation may not be based upon a claimant’s
own belief that there is a causal relationship between the claimed condition and the employment).
7

5 U.S.C. § 8121.

8

John W. Normand, 39 ECAB 1378 (1988).

4

necessary to establish a claim.9 Appellant’s difficulty in accessing her medical records does not
change the fact that the record does not currently contain adequate medical evidence of her
alleged disability.
The Board finds that appellant has not met her burden of proof of establishing that she
sustained a recurrence of disability causally related to the April 4, 1989 employment injury.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of
disability causally related to her accepted April 4, 1989 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 30, 2006 is affirmed.
Issued: January 19, 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

9

Mary A. Ceglia, 55 ECAB 626 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, Valparaiso, FL, Employer
__________________________________________

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

Docket No. 12-1169
Issued: November 5, 2012

Case Submitted on the Record

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

JURISDICTION
On May 3, 2012 appellant filed a timely appeal of a November 1, 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)(1) and 501.3, the Board has jurisdiction
over the merits of the case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish necrotizing
fasciitis due to his federal employment.
On appeal appellant alleged that there was nothing to suggest that a direct causal
relationship did not exist.
1
2

5 U.S.C. § 8101 et seq.

Following OWCP’s November 1, 2011 decision, appellant submitted additional evidence. As OWCP did not
consider this evidence in reaching a final decision, the Board may not consider it for the first time on appeal.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On July 31, 2011 appellant then a 64-year-old health technician/paramedic filed an
occupational disease claim alleging that he had developed necrotizing fasciitis, clostridium
septicum due to factors of his federal employment. He stated that he returned from a two-week
deployment in Haiti on January 30, 2010 and was diagnosed with strep throat. Appellant stated
that periodically after that he developed multiple episodes of uncontrolled fevers and on July 2,
2011 received a diagnosis of necrotizing fasciitis.
In a letter dated August 19, 2011, OWCP requested additional factual and medical
evidence in support of appellant’s claim and allowed 30 days for a response. Appellant
completed a narrative statement on September 14, 2011 and stated that since his return from
Haiti in January 2010 he experienced at least two bouts of uncontrolled shivering. On June 30,
2011 along with the shivering he experienced nausea and diarrhea with periods of reduced level
of consciousness. On July 2, 2011 appellant sought treatment at the hospital and received a
diagnosis of necrotizing fasciitis. He stated that necrotizing fasciitis was dormant in his colon
since his strep throat.
In a report dated September 8, 2011, Dr. Robert E. Hruby, a Board-certified surgeon,
stated that he first examined appellant on July 2, 2011 with necrotizing fasciitis and myonecrosis
secondary to clostridium perfringens infection. He stated that appellant developed multisystem
organ failure and required treatment for respiratory failure, renal failure and overwhelming
sepsis. Dr. Hruby opined, “From a clinical standpoint, the infectious etiology of his disease may
be related to his deployment to Haiti although deployment occurred months before. The medical
literature suggests that these types of unusual infections mainly remain dormant in the
gastrointestinal tract for extended periods of time.”
Appellant submitted his hospital records. On July 2, 2011 Dr. Hruby examined appellant
and diagnosed necrotizing fasciitis requiring wide debridement of the upper back, right flank and
right anterior abdominal wall. He noted that appellant had a two-day history of loose stools,
nausea and vomiting, hypotensive, acute renal insufficiency and hypovolemic with impending
shock. Appellant had necrotizing fasciitis involving the shoulder and right hemithorax for which
he received surgical debridement. He underwent surgical debridement on July 2 and 3, 2011.
On July 3, 2011 Dr. John J. Kossuta3 noted that appellant attributed his condition to a
contaminated salad. Dr. Hruby examined appellant on July 3, 2011 and diagnosed necrotizing
fasciitis with no clear source, possibly spontaneous, with multisystem organ failure. On July 3,
2011 appellant underwent further surgical debridement of his right posterior shoulder and right
lower quadrant anterior abdominal wall. On July 22, 2011 Dr. Hruby diagnosed clostridium
perfringens necrotizing fasciitis involving the upper back, right flank and right anterior
abdominal wall.
By decision dated November 1, 2011, OWCP denied appellant’s claim on the grounds
that the medical evidence did not establish that his diagnosed condition was due to his
employment. It found that appellant, a federal employee, filed a timely claim, and that the
3

Dr. Kossuta’s creditionals cannot be determined.

2

employment factors occurred and a medical condition was diagnosed, but that he had not
established a causal relationship between his diagnosed condition and his employment. OWCP
noted that only Dr. Hruby discussed the possible relationship between appellant’s deployment in
Haiti and his diagnosed medical condition and that he did not provide an explanation of the
relationship between the two.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”4 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by the employment is not
sufficient to establish causal relation.5
ANALYSIS
Appellant alleged that he was deployed to Haiti in January 2011 and that in July 2011 he
developed necrotizing fasciitis due to clostridium perfringens. He has established that he is a
federal employee and has implicated a factor of employment, travel to Haiti as causing or
contributing to his diagnosed condition of necrotizing fasciitis. However, appellant has not
submitted sufficient medical opinion evidence to establish a causal relationship between his
employment and his diagnosis.
Appellant initially attributed his injury to a contaminated salad eaten in July 2011. The
medical evidence does not address this etiology and if appellant’s condition was due to a
contaminated salad, he has submitted no evidence that this was related to his employment in any
way.
In a report dated September 8, 2011, Dr. Hruby stated that the infectious etiology of
appellant’s disease may be related to his deployment to Haiti. The Board has held that medical
opinions that are speculative or equivocal in character diminish the probative value of the
medical opinion.6 Dr. Hruby did not explain how or why he believed that appellant developed
4

20 C.F.R. § 10.5(q).

5

Lourdes Harris, 45 ECAB 545, 547 (1994).

6

A.G., Docket No. 12-659 (issued August 22, 2012); D.D., 57 ECAB 734, 738 (2006).

3

necrotizing fasciitis and myonecrosis due to his deployment to Haiti. He merely indicated that
there was a possible connection. Without medical opinion evidence addressing mechanics by
which appellant’s deployment to Haiti would have resulted in the diagnosed condition, and
offering a clear opinion that this deployment was the cause of his disease process, this report is
not sufficient to meet his burden of proof. Dr. Hruby further noted that appellant’s deployment
was months before his disease process and stated that the medical literature suggested that
clostridium perfringens infections “mainly remain dormant in the gastrointestinal tract for
extended period of time.” He did not provide any citations to medical literature and did not
explain why he believed that appellant’s clostridium perfringens infection developed due to his
deployment to Haiti. The Board has held that excerpts of medical publications are of no
evidentiary value in establishing a claim as they are of general application and are not
determinative as to whether specific conditions or disability were the result of the employment.
This material has probative value only to the extent that it is interpreted and cited by a physician
rendering an opinion on the causal relationship between a condition and specified employment
injury.7
The Board finds that appellant has not submitted the necessary medical opinion evidence
to establish a causal relationship between his deployment to Haiti in January 2011 and his
disease process in July 2011. On appeal appellant asserted that there was no evidence that his
condition was not related to his deployment. As noted above, in order to establish a claim for an
occupational disease he has the burden of proof to establish a causal relationship between his
condition and his employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant had not submitted the necessary medical opinion evidence
to establish a causal relationship between his implicated employment duties and diagnosed
condition and to establish his occupational disease claim.

7

Harlan L. Soeten, 38 ECAB 566, 567 (1987).

4

ORDER
IT IS HEREBY ORDERED THAT the November 1, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, 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
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS, Barstow, CA, Employer
__________________________________________

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

Docket No. 14-2043
Issued: March 3, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 25, 2014 appellant filed a timely appeal from the June 17, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish additional conditions
related to his February 23, 2012 work-related accident.

1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted additional evidence after OWCP’s June 17, 2014 decision, but the Board cannot consider such
evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
In July 2011, OWCP accepted that appellant, then a 41-year-old sandblaster, sustained
bilateral carpal tunnel syndrome and bilateral wrist tenosynovitis due to performing his repetitive
work duties over time. On October 13, 2011 appellant underwent right carpal tunnel release
surgery and, on February 9, 2012, he underwent left carpal tunnel release surgery. These
procedures were authorized by OWCP. Beginning October 13, 2011, appellant received
wage-loss compensation on the daily rolls due to his accepted injuries.
On February 23, 2012 appellant attended a physical therapy session which OWCP
authorized for treatment of his accepted work conditions. He was involved in an automobile
accident while returning home from a physical therapy session and later claimed that he
sustained a work-related injury due to this accident. The record contains a February 23, 2012
police report of the accident in which appellant reported to the officer arriving on the scene that
traffic came to a stop directly in front of him and, in an attempt to stop, he “applied his brakes
and felt a large collision from the rear portion of his vehicle.” Appellant stated that the impact of
the collision from the vehicle behind him pushed his vehicle into the vehicle in front of him. The
officer indicated that the accident could have been avoided if the driver of the vehicle that struck
appellant’s vehicle had been driving at a safe speed.3 The report indicated that appellant was
taken to the hospital with complaints of pain.
In a March 2, 2012 report, Dr. Rama T. Pathi, an attending Board-certified orthopedic
surgeon, reported the findings of his physical examination of appellant’s wrists on that date.
Appellant’s present complaints were continued bilateral numbness, tingling, stiffness, and
general weakness of both wrists and improved pain of the right wrist. Dr. Pathi diagnosed carpal
tunnel syndrome of both wrists and recommended physical therapy treatment of the wrists. This
report constitutes the first medical report of record after appellant’s February 23, 2012
automobile accident, but the report does not contain any mention of the February 23, 2012
incident and Dr. Pathi did not examine any part of appellant’s body other than his wrists.
In May 2012, Dr. Pathi referred appellant for pain management treatment to Dr. Sarah
Buenviaje-Smith, a Board-certified anesthesiologist. In a May 31, 2012 report of initial
examination, Dr. Buenviaje-Smith discussed appellant’s treatment for bilateral carpal tunnel
syndrome and bilateral wrist tenosynovitis. She diagnosed carpal tunnel syndrome and
recommended treatment for this condition to include medication and use of a transcutaneous
electrical nerve stimulation unit. Dr. Buenviaje-Smith did not mention the February 23, 2012
automobile accident in her report. Both Dr. Pathi and Dr. Buenviaje-Smith continued to produce
periodic reports detailing appellant’s medical condition. However, these reports did not mention
appellant’s February 23, 2012 automobile accident.
The findings of September 20, 2012 magnetic resonance imaging (MRI) scan testing of
appellant’s cervical spine revealed mild reversal of the normal cervical lordosis centered at the
C3-4 with no evidence of fracture, one millimeter anterolisthesis at C3-4, disc desiccation from
C3-4 through C6-7, and a small anterior disc osteophyte complex at C5-6 and C6-7. The
3

The officer did not provide any estimation of the speed of the vehicle that struck appellant’s vehicle.

2

findings of October 3, 2012 x-rays of his cervical spine showed spondylotic changes of the
cervical spine and muscle spasm with reversal of the normal lordosis.4
In an October 5, 2012 report, Dr. Buenviaje-Smith indicated that appellant reported being
involved in a rear-end automobile accident on February 23, 2012 which he felt caused three
bulging discs in his cervical spine. She indicated that he had filed a workers’ compensation
claim regarding this accident but the case had not been accepted. Dr. Buenviaje-Smith
diagnosed bilateral wrist pain and cervical radiculopathy. This report constitutes the first
evidence of record in which she mentioned appellant’s February 23, 2012 automobile accident.
On November 12, 2012 Dr. Buenviaje-Smith indicated that appellant complained of neck and
back pain “secondary to the auto[mobile] accident” and diagnosed bilateral carpal tunnel
syndrome and cervicalgia.
In a January 10, 2013 letter, Dr. Pathi noted that on February 23, 2012 appellant was
involved in an automobile accident five or six minutes after leaving an authorized appointment at
his office to treat his accepted work injuries. He stated, “[appellant] sustained a brand new
consequential injury to the neck and back due to the accident him [sic] leaving my office.” This
letter constitutes the first evidence of record in which Dr. Pathi mentioned appellant’s
February 23, 2012 automobile accident.
In a January 22, 2013 decision, OWCP denied appellant’s claim that he sustained a
work-related injury due to his February 23, 2012 automobile accident. It found that the
February 23, 2012 automobile accident constituted a work incident because it occurred while
returning from an authorized physical therapy appointment; however, he had not submitted
medical evidence showing an injury due to this work incident.
In a January 29, 2013 report, Dr. David T. Easley, a Board-certified orthopedic surgeon
serving as an OWCP referral physician, reported the findings of his physical examination on that
date and determined that appellant continued to have residuals of the accepted bilateral carpal
tunnel syndrome, but did not have residuals of the accepted bilateral wrist tenosynovitis. He
indicated that appellant sustained cervical and thoracic sprains due to the February 23, 2012
automobile accident, but noted that the conditions had resolved by the time of his January 29,
2013 examination.
In a February 26, 2013 decision, OWCP indicated that there decision “supersedes our
decision of January 22, 2013” and that the accepted conditions had been updated, due to the
January 29, 2013 report of Dr. Easley, to include “cervical sprain, 847.0 (resolved as of
January 29, 2013)” and “thoracic sprain, 847.1 (resolved as of January 29, 2013).”
In letters received by OWCP on February 18, March 11, May 7, and June 6, 2014,
appellant claimed that the February 23, 2012 automobile accident caused injuries that were far
more than severe than the cervical and thoracic sprains accepted by OWCP. He claimed that, as
a direct result of the work-related accident on February 23, 2012, he sustained bulging discs in
his cervical, thoracic, and lumbar spines.

4

The record does not contain any diagnostic testing of appellant’s thoracic and lumbar spines.

3

Appellant submitted additional reports of Dr. Pathi in support of this claim. In a
February 10, 2014 report, Dr. Pathi stated that appellant did not have any “lumbar spine issues”
prior to the February 23, 2012 automobile accident. He discussed appellant’s complaints of
neck, mid back, and low back pain and noted that he had been diagnosed with multiple lumbar
and cervical disc herniations/bulges with concurrent radiculopathy to the upper and lower
extremities.
Dr. Pathi discussed MRI scan testing of appellant’s lumbar spine from
June 22, 2013.5
In a May 20, 2014 report, Dr. Pathi indicated that appellant complained of cervical,
thoracic, and lumbar spine pain and noted that he did not have any “lumbar spine issues” prior to
the February 23, 2012 automobile accident. He discussed MRI scan testing of appellant’s
cervical spine from September 20, 2012 and MRI scan testing of his lumbar spine from June 22,
2013 and stated:
“Based on the description given by the patient, review of the MRI [scans] and my
training and experience as a Board-certified orthopedic surgeon, I have
determined that [appellant’s] injuries to the cervical, thoracic, and lumbar spine
are the direct result from the automotive accident that occurred on
February 23, 2012.”
In a June 17, 2014 decision, OWCP denied appellant’s claim to accept additional
conditions related to his February 23, 2012 work-related accident because he had failed to submit
sufficient medical evidence in support of his claim. It found that the medical evidence of record,
including the reports of Dr. Buenviaje-Smith and Dr. Pathi, did not contain rationalized medical
opinions showing that appellant sustained any injury on February 23, 2012 that was more severe
than the accepted cervical and thoracic sprains.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any specific condition and/or disability for which compensation is claimed are causally
related to the employment injury.6 The medical evidence required to establish a causal
relationship between a claimed period of disability and an employment injury is rationalized
medical opinion evidence. The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.7

5

The record does not appear to contain a copy of the June 22, 2013 findings.

6

J.F., Docket No. 09-1061 (issued November 17, 2009).

7

See E.J., Docket No. 09-1481 (issued February 19, 2010).

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ANALYSIS
In July 2011, OWCP accepted that appellant sustained bilateral carpal tunnel syndrome
and bilateral wrist tenosynovitis due to performing his repetitive work duties over time. On
October 13, 2011 appellant underwent right carpal tunnel release surgery and, on February 9,
2012, he underwent left carpal tunnel release surgery. On February 23, 2012 he attended a
physical therapy session which OWCP authorized for treatment of his accepted work conditions.
Appellant was involved in an automobile accident while returning home from a physical therapy
session and OWCP accepted that he sustained cervical and thoracic sprains due to this accident.8
He claimed that the February 23, 2012 automobile accident caused injuries that were far more
severe than the cervical and thoracic sprains accepted by OWCP. Appellant asserted that, as a
direct result of the work-related accident on February 23, 2012, he sustained bulging discs in his
cervical, thoracic, and lumbar spines as well as upper and lower extremity radiculopathies.
The Board finds that appellant has not met his burden of proof to establish additional
conditions related to his February 23, 2012 work-related accident. Before OWCP and on appeal,
appellant argued that the medical evidence of record showed that the accepted conditions should
expand to include bulging discs. However, for the reasons discussed below, he did not submit
sufficient medical evidence to establish his claim.
In May 5 and November 12, 2012 reports, Dr. Buenviaje-Smith, a Board-certified
anesthesiologist, mentioned that appellant reported being involved in a rear-end automobile
accident on February 23, 2012 which he felt caused three bulging discs in his neck as well as
neck and back pain. She indicated that he had filed a workers’ compensation claim regarding
this accident, but she did not provide any opinion on what conditions might have been caused by
the February 23, 2012 accident. Therefore, Dr. Buenviaje-Smith’s reports do not establish
appellant’s claim for expanding the accepted work injuries.
In a January 10, 2013 letter, Dr. Pathi, an attending Board-certified orthopedic surgeon,
noted that on February 23, 2012 appellant was involved in an automobile accident five or six
minutes after leaving an authorized appointment at his office to treat his accepted work injuries.
He stated, “[Appellant] sustained a brand new consequential injury to the neck and back due to
the accident him [sic] leaving my office.” In a February 10, 2014 report, Dr. Pathi noted that
appellant did not have any “lumbar spine issues” prior to the February 23, 2012 automobile
accident. He discussed appellant’s complaints of neck, mid back, and low back pain and
indicated that he had been diagnosed with multiple lumbar and cervical disc herniations/bulges
with concurrent radiculopathy to the upper and lower extremities. Dr. Pathi discussed MRI scan
testing of appellant’s lumbar spine from June 22, 2013. On May 20, 2014 he discussed MRI
scan testing of appellant’s cervical spine from September 20, 2012 and MRI scan testing of his
lumbar spine from June 22, 2013. Dr. Pathi stated that, based on appellant’s statements, review
of the diagnostic testing, and his training and experience as a Board-certified orthopedic surgeon,
appellant’s “injuries to the cervical, thoracic, and lumbar spine are the direct result from the
automotive accident that occurred on February 23, 2012.”
8

See Bruce A. Henderson, 39 ECAB 692 (1988) (a journey to a doctor’s office occasioned by a compensable
injury is covered under FECA).

5

Although Dr. Pathi indicated that appellant sustained more severe injuries on
February 23, 2012 than the cervical and thoracic sprains accepted by OWCP, this opinion is of
limited probative value because it lacks adequate medical rationale on causal relationship.9 He
did not describe the February 23, 2012 automobile accident in any detail or provide adequate
medical rationale explaining how it could have been competent to cause the described disc
herniations/bulges and concurrent radiculopathy. Nor did Dr. Pathi explain why the observed
conditions were not due to some nonwork-related condition such as the natural progression of
degenerative disc disease. He examined appellant on numerous occasions after February 23,
2012, but none of his reports contain even a mention of the February 23, 2012 accident until he
produced a letter on January 10, 2013.10 Given this delay in discussing the February 23, 2012
accident and its claimed effects, the provision of medical rationale is especially necessary to
establish a link between the February 23, 2012 automobile accident and conditions more serious
than the accepted cervical and thoracic sprains. The Board has held that the fact that a condition
manifests itself or worsens around the time of a work incident does not raise an inference of causal
relationship between a claimed condition and employment factors.11 Appellant did not submit a
rationalized medical report showing that he sustained a more serious condition on February 23,
2012 than the cervical and thoracic sprains accepted by OWCP.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish additional
conditions related to his February 23, 2012 work-related accident.

9

See supra note 7.

10

It was not until Dr. Pathi produced his February 10, 2014 report that he first mentioned that appellant
associated his neck, mid back, and low back pain with the February 23, 2013 automobile accident.
11

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

6

ORDER
IT IS HEREBY ORDERED THAT the June 17, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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