United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1494
Issued: March 11, 2020

Case Submitted on the Record

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

JURISDICTION
On July 2, 2019 appellant, through counsel, filed a timely appeal from a March 21, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 21, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP abused its discretion in denying appellant’s request for
authorization of chiropractic treatment for the period January 26 through July 23, 2018.
FACTUAL HISTORY
On April 24, 2017 appellant, then a 21-year-old city carrier assistant, filed a traumatic
injury claim (Form CA-1) alleging that on April 14, 2017 he injured his lower back when retrieving
a package from the rear of his postal vehicle while in the performance of duty. He stopped work
on April 18, 2017 and returned to work on April 24, 2017. OWCP assigned the claim File No.
xxxxxxx508,4 and accepted it for a lumbar strain.
On May 31, 2017 Dr. Galeano Gustavo, a family medicine specialist, released appellant to
full-duty work on May 31, 2017. He related that appellant’s lumbosacral spine examination was
relatively normal with normal sensation, normal reflexes with normal lordosis, no tenderness, full
range of motion, and negative straight leg raise bilaterally.
On or about June 2, 2017 appellant had a nonwork-related slip and fall at a gas station. He
was diagnosed with lumbar strain.5 A September 15, 2017 magnetic resonance imaging (MRI)
scan of the lumbar spine revealed no fracture, subluxation, or focal disc herniation in the lumbar
spine.
On January 26, 2018 appellant sought care from Dr. Darrell B. Carroll, a chiropractor, who
diagnosed lumbar sprain, left side lumbago with sciatica, radiculopathy of the thoracic and lumbar
regions, and muscle spasm of the back. A history of the April 14, 2017 employment injury was
provided. Dr. Carroll noted that appellant’s straight leg raise test was positive on the left and noted
several subluxations.
Appellant received chiropractic treatment from Dr. Carroll until
July 23, 2018. In his progress notes, Dr. Carroll noted subluxation of the lumbar and thoracic
segments; however, he did not relate that his subluxation diagnoses were based on x-ray evidence.
Under OWCP File No. xxxxxx885, appellant filed a traumatic injury claim (Form CA-1)
for a back injury, which occurred on July 24, 2018 when closing a freight elevator while in the
performance of duty. OWCP accepted the claim for strain of a muscle, fascia, and tendon of the
lower back, strain of ligaments of the lumbar spine, and a strain of unspecified muscle, fascia, and
tendon of the left shoulder and upper arm.
In an August 10, 2018 letter, OWCP advised appellant that the evidence submitted was
insufficient to authorize chiropractic treatment for the period January 26 through July 23, 2018 for
the accepted work-related conditions. It advised appellant of the criteria for authorization of

4

OWCP File No. xxxxxx367, with a date of injury of April 17, 2017, was administratively closed as OWCP
determined that it was for the same injury as the present claim, assigned File No. xxxxxxx508. All documents from
File No. xxxxxxx367 were moved into the current case file.
5

Under OWCP File No. xxxxxx948, appellant filed a claim for a July 8, 2017 traumatic injury when his back
allegedly tightened up while carrying mail in the performance of duty. OWCP denied the claim as the factual
component of fact of injury had not been established.

2

chiropractic treatment under FECA and requested additional medical information. Appellant was
afforded 30 days to submit the necessary evidence.
By decision dated September 21, 2018, OWCP denied authorization for chiropractic
treatment for the period January 26 through July 23, 2018. It noted that, while Dr. Carroll had
described subluxation at various levels of the spine, he did not demonstrate subluxation of the
spine based upon x-ray evidence.
On September 28, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review. During the January 22, 2019
telephonic hearing, he testified that he sought chiropractic treatment for the 2017 employment
injury and that manipulation had been performed. Appellant also testified that he had not been
referred by an orthopedic doctor for the chiropractic treatment.
By decision dated March 21, 2019, OWCP’s hearing representative affirmed the
September 21, 2018 denial of authorization of chiropractic treatment for the period January 26
through July 23, 2018. The hearing representative reviewed the evidence in appellant’s claims
pertaining to the lumbar spine condition and was unable to find any diagnostic studies, which
indicated a subluxation diagnosis based upon x-ray evidence or any evidence that appellant was
referred for chiropractic treatment by a physician.
LEGAL PRECEDENT
Section 8103(a) of FECA6 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances, and supplies prescribed by or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree or the period of disability, or aid in lessening the amount of the monthly compensation.7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
determining whether a particular type of treatment is likely to cure or give relief.8 The only
limitation on OWCP’s authority is that of reasonableness.9
Under section 8101(2) of FECA, chiropractors are only considered physicians to the extent
that they treat spinal subluxations as demonstrated by x-ray to exist.10 OWCP’s regulation relates
that reimbursable chiropractic services are limited to physical examinations (and related laboratory
tests), x-rays performed to diagnose a subluxation of the spine, and treatment consisting of manual
manipulation of the spine to correct a subluxation.11

6

See supra note 2.

7

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

8

R.C., Docket No. 18-0612 (issued October 19, 2018); W.T., Docket No. 08-0812 (issued April 3, 2009).

9

D.C., Docket No. 18-0080 (issued May 22, 2018); Mira R. Adams, 48 ECAB 504 (1997).

10

5 U.S.C. § 8101(2). See A.D., Docket No. 18-1478 (issued February 4, 2019).

11

20 C.F.R. § 10.5(o).

3

OWCP’s implementing regulations provide exceptions to the general rule that services
rendered by a chiropractor are not payable when they do not consist of manual manipulation of the
spine to correct a subluxation as demonstrated by x-ray to exist. These exceptions are for physical
therapy rendered by a chiropractor under the direction of an authorized physician and for
chiropractic treatment authorized without limitations by OWCP or the employing establishment.12
ANALYSIS
The Board finds that OWCP did not abuse its discretion in denying appellant’s request for
authorization of chiropractic treatment for the period January 26 through July 23, 2018.
The evidence of record, including evidence from appellant’s claims concerning his lumbar
spine, is devoid of a subluxation diagnosis based upon x-ray evidence or any evidence that
appellant was referred for chiropractic therapy treatment by a physician for treatment of his
accepted employment injuries. The record contains reports from Dr. Carroll, a chiropractor, who
provided spinal manipulation of multiple subluxations during the period in question. However,
Dr. Carroll did not provide explanation in any of his progress notes that a subluxation had been
diagnosed based upon x-ray evidence. As chiropractic treatment can only be reimbursed for
manual manipulation of subluxation based upon x-ray evidence, Dr. Carroll’s chiropractic
treatment is not reimbursable.13
Furthermore, appellant has not established that his chiropractic care should be authorized
as he was referred for chiropractic care by a physician. Appellant has in fact testified that he was
not referred to Dr. Carroll for chiropractic treatment. The evidence of record also does not
establish that chiropractic care has otherwise been authorized by OWCP or the employing
establishment.14
On appeal counsel asserts that OWCP’s decision is contrary to law and fact. As explained
above, the Board finds that OWCP did not abuse its discretion by denying authorization of
chiropractic treatment for the period in question.15
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 did not abuse its discretion in denying appellant’s request for
authorization of chiropractic treatment for the period January 26 through July 23, 2018.

12

Id. at § 10.311(d); see W.D., Docket No. 12-0968 (issued November 2, 2012).

13

Supra note 11.

14

Supra note 12.

15

Supra notes 11 and 12.

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ORDER
IT IS HEREBY ORDERED THAT the March 21, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 08-1861
Issued: January 26, 2009

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 June 23, 2008 appellant filed a timely appeal from a March 14, 2008 decision of the
Office of Workers’ Compensation Programs, denying his claim for disability compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant has established that he was disabled during the periods
October 19 through November 9 and December 3 through 28, 2007.
FACTUAL HISTORY
On September 10, 2007 appellant, then a 49-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that he sustained a shoulder injury as a result of performing
mail handler duties for 24 years, including repetitive and forceful pushing, pulling, grasping,
overhead throwing and heavy, overhead lifting. He previously sustained bilateral carpal tunnel
syndrome and trigger finger in the performance of duty.

In a decision dated September 21, 2007, the Office accepted appellant’s claim for left
shoulder labrum tear and left shoulder tendinitis.
In an August 23, 2007 work status report, Dr. A. Shabi Khan, a Board-certified
orthopedic surgeon, restricted appellant’s work duties to lifting no more than 30 pounds and
standing no more than two hours a day. He modified these restrictions in a September 27, 2007
duty status report to lifting no more than 25 pounds and standing no more than one hour a day.
On October 2, 2007 appellant accepted a light-duty position accommodating his standing and
lifting limitations.
On October 25, 2007 Dr. Khan examined appellant. He concluded that appellant had
multiple and changing findings with respect to his shoulders, but that he should remain in his
work capacity at that time. In duty and work status reports, Dr. Khan continued appellant’s
lifting and standing restrictions, commenting that appellant could work an eight-hour day and
overtime.
In a medical report dated November 16, 2007, Dr. Khan addressed appellant’s continuing
shoulder pain and requested authorization to perform a left shoulder arthroscopy.
On December 13, 2007 Dr. Khan saw appellant for a shoulder consultation, noting that a
rotator cuff repair of appellant’s left shoulder had been authorized and requesting a single hot
and cold compression unit and a postoperative abduction sling. On December 29, 2007 appellant
reported to Dr. Khan, presenting increased pain and an inability to perform many activities.
Dr. Khan noted decreased range of motion in appellant’s shoulder and mild tenderness in the
anterior aspect of the acromion, with signs of a positive impingement. He took appellant off
work due to significantly increased left shoulder pain and an upcoming January 25, 2008
shoulder surgery.
On January 18, 2008 appellant filed three claim forms (CA-7) for compensation for the
periods October 18 through November 9, 2007, December 3, 2007 through January 15, 2008,
and December 31, 2007 through January 15, 2008.
In a letter dated January 30, 2008, the Office notified appellant of the deficiencies in his
claims for disability for the periods October 18 through November 9 and December 3
through 28, 2007. It indicated that medical evidence supported his claim for disability beginning
December 29, 2007.
Appellant subsequently provided a medical note from Dr. Kahn dated February 4, 2008,
where the doctor documented that he placed appellant off work from October 18 to 29, 2007 due
to an exacerbation of his left shoulder injury. Dr. Khan also noted that appellant’s surgery was
scheduled for February 15, 2008.
In a February 13, 2008 initial evaluation report, the Office’s nurse noted that appellant’s
wife had delivered a baby on December 3, 2007. In a telephone bank memorandum dated
February 26, 2008, appellant contended that he should have taken family leave for the period of
time when his baby was born.

2

On March 14, 2008 the Office issued a decision denying appellant’s recurrence of
disability claims for the periods October 18 through November 9 and December 3 through 28,
2007, finding that the medical evidence did not establish temporary total disability for those
periods.
LEGAL PRECEDENT
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position, or the medical evidence
establishes that she can perform the light-duty position, the employee has the burden to establish,
by the weight of the reliable, probative and substantial evidence, a recurrence of total disability,
and show that she cannot perform such light duty. 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 job requirements.1
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury.2 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues, which must be
proved by a preponderance of the reliable, probative and substantial medical evidence.3 The
Board will not require the Office to pay compensation in the absence of medical evidence
directly addressing the particular period of disability for which compensation is sought. To do so
would essentially allow employees to self-certify their disability and entitlement to
compensation.4
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. Appellant’s burden of proving she was disabled on particular
dates requires that she furnish medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with medical reasoning.5
Where no such rationale is present, the medical evidence is of diminished probative value.6
ANALYSIS
The Office accepted that appellant sustained a left shoulder injury in the performance of
duty causally related to factors of his federal employment. On October 2, 2007 appellant
accepted a modified position within the restrictions provided by his attending physician,
1

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

2

Fereidoon Kharabi, 52 ECAB 291 (2001). See also David H. Gross, 32 ECAB 24 (1980).

3

Id. See also Edward H. Horton, 41 ECAB 301 (1989).

4

Id.

5

Ronald A. Eldridge, 53 ECAB 218 (2001).

6

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

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Dr. Khan. This issue is whether appellant established that he was disabled during the periods
October 18 through November 9 and December 3 through 28, 2007. The Board finds that
appellant has not met his burden of proof in establishing disability during these periods.
In order to establish disability, appellant is required to submit rationalized medical
opinion evidence establishing that he was disabled during the periods claimed.7 The only
evidence provided by appellant in support of his claim is a February 4, 2008 medical note from
Dr. Khan, documenting that he placed appellant off work from October 18 through 29, 2007 due
to an exacerbation of his left shoulder injury. This note is of little probative value because it
does not provide sufficient rationale explaining how appellant’s left shoulder injury was
exacerbated or why this exacerbation prevented appellant from working his modified duties.8
Moreover, the February 4, 2008 medical report directly contradicts Dr. Khan’s earlier
October 25, 2007 reports, finding that appellant could work eight hours a day and overtime and
that he should remain in his work capacity at that time. The Board has held that
contemporaneous evidence is entitled to greater probative value than later evidence.9 Thus,
because the October 25, 2007 reports were created contemporaneously with the period of alleged
disability, they are entitled to greater probative value than the February 4, 2008 medical report
created several months later. Therefore, the Board finds that appellant did not establish that he
was disabled from October 18 through 29, 2007.
Appellant also failed to submit any evidence to support his claim that he was disabled
from October 30 through November 9 and December 3 through 28, 2007. Furthermore, the
evidence of record goes against appellant’s claims of disability. The record contains two
medical reports dated within the periods of alleged disability from Dr. Khan. In these reports,
dated November 16 and December 18, 2007, the doctor requested authorization for continuing
treatment of appellant’s shoulder injury, but nowhere does he mention that appellant cannot
perform his work within the restrictions already provided or that appellant is totally disabled. If
appellant’s condition had worsened during these times, it is presumed that these changes would
be reflected in Dr. Khan’s contemporaneous medical reports. Additionally, according to an
initial evaluation by the Office’s nurse, appellant’s baby was born on December 3, 2008 and
according to his own admission, in a February 26, 2008 telephone call with the Office, appellant
admitted that he should have taken family leave during this period of time.
The Board finds that appellant has not established that he was disabled due to
employment during the periods October 18 through November 9 and December 3
through 29, 2007.

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8

See supra note 5.

See supra note 6.
October 29, 2007.
9

As noted above, the Office accepted appellant’s claim for disability commencing

Conrad Hightower, 54 ECAB 796 (2003).

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CONCLUSION
The Board finds that appellant did not establish periods of disability between October 18
and November 9 and December 3 through 28, 2007.
ORDER
IT IS HEREBY ORDERED THAT the March 14, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 2009
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Memphis, TN, Employer
__________________________________________

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

Docket No. 16-0229
Issued: May 10, 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 November 19, 2015 appellant timely appealed the September 2, 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 the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $27,558.81 for the period January 10, 2013 through May 28, 2014; and (2) whether
OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On February 24, 2003 appellant, then a 45-year-old small package and bundle sorter
clerk, injured her right knee moving a box with a manual pallet jack. OWCP initially accepted
1

5 U.S.C. § et seq.

her traumatic injury claim for right knee lateral meniscus tear (ICD-9 836.1). On November 14,
2003 appellant underwent an arthroscopic right knee partial lateral meniscectomy with limited
debridement. By decision dated June 3, 2004, OWCP granted a schedule award for 10 percent
permanent impairment of the right lower extremity.2 On April 14, 2006 appellant underwent a
second right knee arthroscopic procedure, which OWCP authorized. This time she had partial
medial and partial lateral meniscectomies with limited debridement. Ultimately, OWCP
expanded appellant’s claim to include unspecified right knee internal derangement (ICD-9 717.9)
and permanent aggravation of right knee osteoarthritis (ICD-9 715.36). Additionally, it
authorized a January 11, 2012 right total knee arthroplasty. Following her latest surgery,
appellant received wage-loss compensation for temporary total disability. On April 30, 2012 she
returned to work in a full-time, limited-duty capacity with no loss in pay.3
On January 10, 2013 appellant filed a claim for a schedule award (Form CA-7). She did
not identify any dependents on her claim form.
In a report dated January 10, 2013, Dr. Marc J. Mihalko, a Board-certified orthopedic
surgeon and appellant’s treating physician, advised that she reached maximum medical
improvement following her right total knee replacement. Based on the results of appellant’s
January 11, 2012 surgery, Dr. Mihalko found that she had 25 percent right lower extremity
impairment (RLE) under Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 511 (6th ed.
2009).
On January 14, 2013 the DMA reviewed the record, including Dr. Mihalko’s January 10,
2013 report, and concurred with his 25 percent RLE impairment rating under Table 16-3,
A.M.A., Guides 511. The DMA noted the rating was based on the “good results” of appellant’s
total knee arthroplasty.
On January 16, 2013 OWCP granted a schedule award for 25 percent permanent RLE
impairment.4
The award covered a 72-week period from January 10, 2013 through
May 28, 2014. OWCP paid appellant at the augmented (¾) compensation rate.
Effective January 31, 2013, appellant voluntarily retired and subsequently received a
nondisability retirement annuity from the Office of Personnel Management (OPM).5
On March 6, 2013 OWCP issued a loss of wage-earning capacity determination finding
that appellant’s May 22, 2012 limited-duty, sedentary work assignment fairly and reasonably
2

In an April 8, 2004 report, OWCP’s district medical adviser (DMA) found 10 percent right lower extremity
impairment under the fifth edition of the American Medical Association, Guides to the Evaluation of permanent
Impairment (A.M.A., Guides) (2001). See Table 17-33, A.M.A., Guides 546 (5th ed. 2001).
3

Appellant was limited to sedentary work only. On May 8, 2012 the employing establishment offered her a
limited-duty assignment performing sedentary work, sitting for eight hours daily, which she accepted on
May 22, 2012.
4

For complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

5

During a February 21, 2013 telephone conversation (CA-110 notes), appellant advised OWCP that she retired
on January 31, 2013 “because [appellant] was eligible and for no other reason.”

2

represented her wage-earning capacity. The decision noted that the position was considered
suitable to her partially disabled condition, and further noted that she performed the position for
at least two months prior to her voluntary retirement effective January 31, 2013.
On February 26, 2014 appellant submitted a financial disclosure (EN/CA-1032) form
indicating, that she was unmarried and had no other eligible dependents.
On October 16, 2014 OWCP issued an amended schedule award. The decision explained
that OWCP previously failed to take into account appellant’s prior 10 percent RLE award when
issuing its January 16, 2013 schedule award for 25 percent. In light of the prior award, appellant
was only entitled to an additional 15 percent, representing a total right lower extremity
permanent impairment of 25 percent. OWCP further explained that the January 16, 2013
schedule award was based on the augmented compensation rate (¾) despite her having no
eligible dependents. The October 16, 2014 amended award (15 percent) represented 43.2 weeks
of compensation, which covered the period January 10 through November 8, 2013.6
Additionally, OWCP recalculated the schedule award based on the regular (⅔) compensation
rate.
On October 27, 2014 OWCP issued a preliminary finding of overpayment in the amount
$27,558.81 covering the period January 10, 2013 through May 28, 2014. It reiterated that
appellant was only entitled to an additional 15 percent for her right lower extremity impairment.
She was also not entitled to receive compensation at the augmented (¾) rate. OWCP further
explained that appellant was not at fault in creating the overpayment.
Appellant requested a prerecoupment hearing, which was held before an OWCP hearing
representative on June 16, 2015. Prior to the hearing, she submitted an overpayment recovery
questionnaire (OWCP-20) with supporting documentation. Appellant initially reported monthly
OPM retirement income (net) of $2,249.03 and monthly expenses of $2,059.65. She also
reported assets totaling $10,829.00.7 At the prerecoupment hearing appellant indicated that her
monthly OPM retirement annuity increased to $2,286.72 as of December 2014. She also
indicated that her previously reported savings ($4,073.00) had been reduced by $2,000.00.
Additionally, appellant testified that she had $4,800.00 in her Thrift Savings Plan (401(k))
account, which she had not previously reported. Lastly, she testified that her previously reported
monthly expenses remained the same.
By decision dated September 2, 2015, the OWCP hearing representative determined that
appellant received an overpayment of compensation in the amount of $27,558.81 for the period
January 10, 2013 through May 28, 2014. She also found that appellant was not at fault in
creating the overpayment. As to the issue of waiver, the hearing representative determined that
appellant’s monthly income ($2,286.72) exceeded her monthly expenses ($2,059.65) by more
than $225.00 per month. She also noted that appellant had sufficient assets such that recovery of
the overpayment would not defeat the purpose of FECA. The hearing representative further
found that recovery of the overpayment would not be against equity and good conscience. Based
6

See supra note 4.

7

Appellant’s reported assets included a vacant parcel of land with a tax assessed value of $5,850.00.

3

on the documented monthly surplus, appellant would not experience severe financial hardship in
attempting to repay the debt. Also, she had not alleged, nor did the record support that she
relinquished a valuable right or changed her position for the worse based on notice or receipt of
the January 16, 2013 schedule award. Consequently, the hearing representative denied waiver of
recovery of the overpayment.8
LEGAL PRECEDENT -- ISSUE 1
FECA and its implementing regulations provide for the reduction of compensation for
subsequent injury to the same scheduled member.9 Benefits payable under 5 U.S.C. § 8107(c)
shall be reduced by the period of compensation paid under the schedule for an earlier injury if:
(1) compensation in both cases is for impairment of the same member or function or different
parts of the same member or function; and (2) the latter impairment in whole or in part would
duplicate the compensation payable for the preexisting impairment.10
Compensation for impairment is computed based on the employee’s effective pay rate
and whether he or she has any eligible dependents.11 Depending on whether the employee has at
least one eligible dependent, compensation will be paid at either ⅔ or ¾ of the effective pay
rate.12 For purposes of entitlement to augmented (¾) compensation, a dependent includes: (1) a
wife or husband; (2) an unmarried child under 18 years of age; (3) an unmarried child over 18
who is incapable of self-support; (4) a student, until he/she reaches 23 years of age or completes
four years of school beyond the high school level; and (5) a wholly dependent parent.13
ANALYSIS -- ISSUE 1
Appellant does not challenge OWCP’s latest finding of 25 percent permanent impairment
of the right lower extremity. In January 2013, her then-treating physician, Dr. Mihalko, found 25
percent permanent right lower extremity impairment based on appellant’s status post right total
knee arthroplasty. Moreover, the DMA concurred with Dr. Mihalko’s rating under Table 16-3,
A.M.A., Guides 511.
In June 2004, appellant received a schedule award for 10 percent permanent impairment
based on an earlier right knee arthroscopic procedure. Her latest rating of 25 percent due to the
January 11, 2012 right total knee arthroplasty established an additional impairment of 15 percent
of the right lower extremity. However, OWCP failed to offset the current rating by the prior
8

The hearing representative found that appellant was capable of repaying the debt in regular monthly installments
of $175.00.
9

5 U.S.C. § 8108; 20 C.F.R. § 10.404(c) (2014).

10

Id. at § 10.404(d)(1), (d)(2).

11

See 5 U.S.C. §§ 8107 and 8110; id. at § 10.404(c).

12

Id. at § 10.404(c); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent
Disability Claims, Chapter 2.808.7(f) (February 2013).
13

5 U.S.C. § 8110(a); 20 C.F.R. § 10.405(a) and (b).

4

award, and mistakenly paid appellant the full 25 percent impairment. After realizing its mistake,
it issued an amended award on October 16, 2014 finding her entitled to only an additional
15 percent permanent impairment of the right lower extremity. Thus, instead of the 72 weeks of
compensation (25 percent) previously paid, appellant was only entitled to 43.2 weeks of
compensation (15 percent). The Board finds that her current rating of 25 percent permanent
impairment of the right lower extremity was appropriately reduced based on the June 3, 2004
schedule award for 10 percent permanent right lower extremity impairment.14
The Board also finds that appellant was not entitled to receive compensation at the
augmented (¾) rate. When appellant filed her claim (Form CA-7) for a schedule award in
January 2013, she did not list any dependents,15 and her latest financial disclosure (EN/CA-1032)
form indicates appellant is unmarried and has no other eligible dependents.16 Accordingly,
appellant’s schedule award beginning January 10, 2013 should have been paid at the
regular/basic compensation rate (⅔) rather than the augmented (¾) rate.17
By the time OWCP realized both errors, the January 16, 2013 schedule award had been
paid in full. OWCP’s fiscal records reflect schedule award disbursements totaling $60,062.73
for the 72-week period beginning January 10, 2013 and ending May 28, 2014. When
recalculated based on a 43.2-week period (January 10 through November 8, 2013) at the basic
rate (⅔), appellant was entitled to $32,503.92 for her additional 15 percent permanent
impairment. The difference between what she received and what she was entitled to receive
represented an overpayment of compensation in the amount of $27,558.81. Accordingly, the
record establishes that appellant received an overpayment of compensation in the amount of
$27,558.81 for the period January 10, 2013 through May 28, 2014. As such, the Board affirms
OWCP’s findings with respect to the fact and amount of overpayment. The Board also affirms
OWCP’s determination that appellant was without fault in either creating or accepting the
overpayment.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of FECA or would be against equity and good conscience.18 Recovery of an overpayment will
defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
her current income, including compensation benefits, to meet current ordinary and necessary
14

Supra note 10.

15

Appellant previously claimed her son as an adult dependent college student, but based on his February 17, 1983
date of birth, any period of eligibility has long since expired.
16

Appellant’s February 26, 2014 (EN/CA-1032) covers the prior 15-month period dating back to
November 2012.
17

20 C.F.R. § 10.404(c).

18

5 U.S.C. § 8129(b); id. at §§ 10.433, 10.434, 10.436, 10.437.

5

living expenses, and the beneficiary’s assets do not exceed a specified amount as determined by
OWCP.19 Additionally, recovery of an overpayment is considered to be against equity and good
conscience when an individual who received an overpayment would experience severe financial
hardship in attempting to repay the debt or when an individual, in reliance on such payment or on
notice that such payments would be made, relinquished a valuable right or changed her position
for the worse.20
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP.21 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.22 The information is
also used to determine an appropriate repayment schedule, if necessary.23 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.24
ANALYSIS -- ISSUE 2
Appellant requested waiver of recovery of the above-noted overpayment. She submitted
an overpayment recovery questionnaire (OWCP-20) and provided documentation regarding her
income, assets, and various expenses. At the prerecoupment hearing, appellant indicated that her
monthly OPM retirement annuity was $2,286.72. She did not identify any additional sources of
income. On her November 20, 2014 OWCP-20 appellant reported total monthly expenses of
$2,059.65. At the subsequent prerecoupment hearing, she indicated that her previously reported
monthly expenses had not changed. Based on the reported income and expenses, the OWCP
hearing representative correctly noted that appellant had a monthly surplus in excess of $225.00.
An individual is deemed to need substantially all of his or her current income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.25 Because appellant has a monthly surplus of approximately
$225.00, recovery of the overpayment would not defeat the purpose of FECA.26 For the same

19

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

Id. at § 10.437(a), (b).

21

Id. at § 10.438(a).

22
23

Id.
Id.

24

20 C.F.R. § 10.438(b).

25

Supra note 19 at Chapter 6.200.6a(1)(b).

26

20 C.F.R. § 10.436(a).

6

reason, recovery would not be against equity and good conscience. The record does not support
that appellant would experience severe financial hardship in attempting to repay the debt.27
Although appellant had not previously alleged detrimental reliance, on appeal she
claimed that her decision to retire effective January 31, 2013 was based on OWCP’s January 16,
2013 schedule award. Notwithstanding the temporal relationship between the erroneous
schedule award and the effective date of her voluntary retirement, there is no evidence to
substantiate her claim of detrimental reliance. Specifically, other than her statements there is no
evidence that appellant chose to retire once she learned of the January 16, 2013 schedule award.
Moreover, the record contradicts her recent claim of detrimental reliance. According to the
February 21, 2013 CA-110 notes, appellant advised OWCP that she retired on January 31, 2013
“because she was eligible and for no other reason.” The Board finds that the record does not
support her claim of detrimental reliance. There is no evidence that appellant changed her
position for the worse or relinquished a valuable right based “chiefly or solely” in reliance on the
January 16, 2013 schedule award.28 As such, she failed to establish that recovery of the
overpayment would be against equity and good conscience. Accordingly, the Board finds that
OWCP properly denied waiver of recovery of the overpayment.
CONCLUSION
Appellant received an overpayment of compensation in the amount of $27,558.81 for the
period January 10, 2013 through May 28, 2014. Although she was not at fault in creating the
overpayment, she is not entitled to waiver of recovery.

27

Id. at § 10.437(a).

28

Id. at § 10.437(b).

7

ORDER
IT IS HEREBY ORDERED THAT the September 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 10, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Minneapolis, MN, Employer
)
___________________________________________ )
M.F., Appellant

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

Docket No. 08-1745
Issued: January 9, 2009

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 April 9, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated June 29, 2007, finding that she failed to establish
an injury as alleged. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the issue in this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained an injury in the performance of duty on April 11, 2007.
FACTUAL HISTORY
On May 3, 2007 appellant, then a 47-year-old rural carrier, filed a traumatic injury claim
alleging that he sustained an injury to her hip on April 11, 2007 when she fell from her chair at
work while attempting to take a telephone message. She did not stop work.
By letter dated May 29, 2007, the Office advised appellant that additional factual and
medical evidence was needed. It explained that a physician’s opinion was crucial to her claim
and provided 30 days within which to submit additional information. Appellant did not respond.

By decision dated June 29, 2007, the Office denied appellant’s claim. It found that the
evidence supported that the April 11, 2007 incident occurred; however, appellant failed to submit
any medical evidence that provided a diagnosis which could be related to the accepted incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally this can be established only by medical evidence.6 The employee must also submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7 The medical evidence required to establish
causal relationship is usually rationalized medical evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors. 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.8

1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

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

5

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

6

See id.

7

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

8

Id.

2

ANALYSIS
Appellant alleged that she was taking a telephone message at work on April 11, 2007
when she fell from her chair. The Office accepted that the claimed incident occurred. The
Board finds that appellant fell from her chair at work, as alleged.
However, the evidence is insufficient to establish that the accepted employment incident
caused an injury. In this regard, appellant failed to submit any medical evidence in support of
her claim. In a letter dated May 29, 2007, the Office advised appellant of the deficiency in the
medical evidence, but she did not respond. There is no medical report from a physician which
provides a history of the accepted incident or a diagnosis related to her employment on that day.
Appellant has failed to provide a prima facie claim for compensation.9 She, therefore, failed to
meet her burden of proof.10
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury on April 11, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2007 is affirmed.
Issued: January 9, 2009
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
9

See Donald W. Wenzel, 56 ECAB 390 (2005).

10

The Board notes that subsequent to the Office’s June 29, 2007 decision, appellant submitted additional
evidence. The Board has no jurisdiction to review this evidence for the first time on appeal. 20 C.F.R. § 501.2(c);
James C. Campbell, 5 ECAB 35 (1952).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 21-1372
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On September 13, 2021 appellant filed a timely appeal from a May 28, 2021 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 has established right plantar fasciitis causally related to the
accepted factors of his federal employment.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 28, 2021 OWCP decision, appellant submitted additional evidence to
the Board. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On April 19, 2021 appellant, then a 52-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed plantar fasciitis due to factors of his federal
employment, including wearing ice grippers on his feet to deliver mail during two to three weeks
of icy conditions. He reported worsening pain and soreness in the sole of his right foot, near his
heel, which persisted even after he stopped wearing the ice grippers. Appellant reported that he
first became aware of his condition and its relation to his federal employment on
February 18, 2021. He explained that he delayed filing his claim because he hoped the pain would
go away after he stopped wearing the ice grippers. On the reverse side of the claim form,
appellant’s supervisor indicated that appellant first reported his condition on March 31, 2021 and
was last exposed to the conditions alleged to have caused his condition on April 1, 2021.
In support of his claim, appellant submitted a duty status report (Form CA-17) dated
March 30, 2021, bearing an illegible signature. The provider diagnosed plantar fasciitis and
recommended work restrictions limiting appellant’s standing, walking, climbing, kneeling,
bending, stooping, twisting, pulling, and pushing.
In a development letter dated April 27, 2021, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. In a separate development letter of even date, OWCP requested
that the employing establishment provide comments from a knowledgeable supervisor regarding
the accuracy of appellant’s allegations. It afforded both parties 30 days to respond.
Appellant subsequently submitted an April 26, 2021 medical report from Dr. Steven Fish,
a Board-certified orthopedic surgeon, relating appellant’s history of injury and treatment. Dr. Fish
noted that appellant had been having difficulties with his right heel since February 18, 2021 as a
result of walking on ice with ice scrapers on his shoes. His examination revealed-moderate
bilateral pes planus, fullness along the medial aspect of the right plantar heel, tenderness along the
plantar aspect of the heel at the insertion of the plantar fascia, and occasional pain radiating distally
along the plantar fascia. Dr. Fish reviewed previous x-rays, which revealed-moderate mid-foot
arthritis and some degree of pes planus. He diagnosed plantar fascial fibromatosis and bilateral
pes planus and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose him to this, but this started while
[appellant] was at work.” Dr. Fish prescribed custom orthotics, recommended physical therapy,
and advised that appellant should be off work for one week to rest before returning with
restrictions. In a disability certificate of even date, he advised that appellant was 100 percent
disabled from work from April 27 through May 4, 2021, after which he could return to work with
restrictions. In a Form CA-17 of even date, Dr. Fish related appellant’s history of injury and
diagnosed plantar fasciitis. He advised that appellant could return to work on May 4, 2021 with
restrictions.
On May 12, 2021 appellant responded to OWCP’s development questionnaire, relating that
he had worked as a full-time mail carrier for 15 years, walking 8 to 10 miles each day, and that he
believed that walking on icy sidewalks using ice grippers caused his claimed condition. He
explained that it was icy for two to three weeks and he wore his ice grippers while delivering mail
during most of that time. Appellant began to feel pain while working on or around

2

February 18, 2021. The pain was constant, but fluctuated in severity, worsening with walking and
improving with daily foot soaks and ice. Appellant clarified that he did not stop working on
April 1, 2021. He indicated that he did not have any exposure that could have caused the condition
outside of his federal employment and had no other conditions affecting his foot.
In a May 14, 2021 letter, an employing establishment human resource management (HRM)
specialist, noted that appellant did not stop working on March 30, 2021, but rather was working
with restrictions. The HRM specialist reported that appellant was out of work from April 27
through May 4, 2021 and returned to work on May 5, 2021 with restrictions.
Appellant submitted an additional statement, dated May 23, 2021, providing further
information about his employment duties, including walking 5 to 7 hours each day delivering mail
and parcels, totaling over 20,000 miles during his roughly 15 years of federal employment. He
explained that the employing establishment authorized and issued “ice grippers,” adaptive wear
worn over boots with screws on the bottom to provide traction and minimize slips and falls on icy
sidewalks. Appellant described how, during the two to three weeks of icy conditions, each time
he stepped out of his truck on the right side, his right foot/heel was the first thing that touched the
ground in order to secure good traction with the ice grippers while dismounting. He opined that
“[a]s the screws hit the ice and get traction, some reverse energy or force, I’m sure will go to your
feet and body.” Appellant’s pain began in the bottom of his right foot while wearing the ice
grippers and gradually worsened over time as he walked. On March 30, 2021 the pain was so
severe that he could not finish work and he sought treatment at an urgent care facility. The pain
did not improve when appellant stopped wearing the ice grippers. In the last five years, he had not
participated in any strenuous activities outside of his work, only household chores.
By decision dated May 28, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish that his medical condition was
causally related to the accepted factors of his federal employment.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

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

3

To establish that an injury was sustained in the perf ormance of duty in an occupational
disease claim, a claimant must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the identified employment factors. 6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is a causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s). 9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition. 10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.
In his April 26, 2021 report, Dr. Fish noted that appellant began to experience plantar heel
pain as a result of walking on ice with ice scrapers on h is shoes. He diagnosed plantar fascial
fibromatosis and opined that the right plantar fasciitis was work related, stating that appellant “does
have some preexisting plantar fasciitis, which might predispose [appellant] to this, but this started
while [appellant] was at work.” While Dr. Fish provided an affirmative opinion suggestive of
causal relationship, he did not offer medical rationale sufficient to explain how appellant’s
employment duties resulted in or contributed to his diagnosed condition. Without explaining how

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
G.T., Docket No. 21-0170 (issued September 29, 2021); D.W., Docket No. 20-0674 (issued September 29, 2020);
V.W., Docket No. 19-1537 (issued May 13, 2020); N.C., Docket No. 19-1191 (issued December 19, 2019); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

4

appellant’s employment duties caused or aggravated his condition, Dr. Fish’s report is of limited
probative value and is insufficient to meet appellant’s burden of proof. 11
In a Form CA-17 dated April 26, 2021, Dr. Fish diagnosed plantar fasciitis and described
appellant’s work restrictions. Similarly, in a disability certificate of even date , he described
appellant’s disability status. However, neither the Form CA-17, nor the disability certificate
offered an opinion on causal relationship. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship. 12 For these reasons, Dr. Fish’s remaining evidence is insufficient to
meet appellant’s burden of proof.
Appellant submitted a Form CA-17, dated March 30, 2021, bearing an illegible signature.
The Board has held that reports that are unsigned or bear an illegible signature cannot be
considered probative medical evidence as the author cannot be identified as a physician. 13
Therefore, this report is also of no probative value and is insufficient to establish appellant’s claim.
As appellant has not submitted rationalized medical evidence establishing that his right
plantar fasciitis is causally related to the accepted factors of his federal employment, the Board
finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request fo r reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish right plantar
fasciitis causally related to the accepted factors of his federal employment.

11

See A.P., Docket No. 19-0224 (issued July 11, 2019).

12

S.J., Docket No. 19-0696 (issued August 23, 2019); M.C., Docket No. 18-0951 (issued January 7, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
13

C.S., Docket No. 20-1354 (issued January 29, 2021); D.T., Docket No. 20-0685 (issued October 8, 2020);
Merton J. Sills, 39 ECAB 572, 575 (1988).

5

ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2022
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-522
Issued: October 4, 2010

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 December 16, 2009 appellant filed a timely appeal from the November 12, 2009 merit
decision of the Office of Workers’ Compensation Programs, which granted a schedule award.
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 has more than three percent impairment of the right upper
extremity and one percent impairment of the left upper extremity.
FACTUAL HISTORY
On March 12, 2008 appellant, a 54-year-old mail handler, filed an occupational disease
claim alleging that he developed bilateral wrist conditions as a result of repetitive employment
activities. The Office accepted his claim for bilateral carpal tunnel syndrome (CTS). Appellant
underwent approved surgery for right CTS release on July 22, 2008 and returned to full duty on
August 25, 2008. On October 31, 2008 he requested a schedule award.

Appellant submitted a February 16, 2009 report from Dr. Stuart J. Fischer, a Boardcertified orthopedic surgeon, who stated that appellant had reached maximum medical
improvement on August 25, 2008, when he returned to full duty. Dr. Fischer noted no subjective
complaints, no restrictions of movement and “no other pertinent findings.” He opined that
appellant had a two percent permanent impairment.
The Office referred appellant to Dr. Jeffrey Lakin, Board-certified in the field of
diagnostic radiology, for an examination and an opinion as to the degree of permanent
impairment to his upper extremities. In an April 3, 2009 report, Dr. Lakin reviewed appellant’s
medical history and provided examination findings. Examination of the left upper extremity
revealed full active range of motion of the bilateral shoulders, elbows, wrists and digits. The
shoulders and elbows were nontender, with no deformity and no instability. There was a
negative Tinel’s response in the left wrist; two-point discrimination was six millimeters (mm) on
all digits tested and there was no thenar or hypothenar atrophy. Grip and pinch strength were
5/5. Sensation was intact to light touch.
Examination of the right upper extremity showed well-healed incisions in the wrist crease
and the proximal portion of the hand consistent with the July 22, 2008 surgery. Two-point
discrimination was six mm on all digits tested. Grip and pinch strength were 4/5. There was no
evidence of any thenar or hypothenar atrophy. Results of Tinel’s, Phalen’s and carpal
compression testing were negative. The examination of both upper extremities was negative for
Tinel’s test of the median nerve at the proximal forearm and elbow.
Dr. Lakin referred to Tables 15-14, 15-21, 15-23 of the 6th edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides), to
determine the degree of appellant’s impairment due to his accepted carpal tunnel syndrome.
Based on normal physical findings, but abnormal electromyogram/nerve conduction velocity
(EMG/NCV), he concluded that appellant had a one percent impairment of the left upper
extremity. Dr. Lakin opined that a mild motor deficit in the right upper extremity corresponded
to a three percent impairment of the right upper extremity. He stated that appellant reached
maximum medical improvement as of the date of his return to work on August 24, 2008.
In a report dated April 26, 2009, the district medical adviser (DMA) concurred with
Dr. Lakin’s rating. He noted that Dr. Lakin had assigned a one percent impairment rating based
on normal physical findings but abnormal EMG and NCV in the left upper extremity and a three
percent impairment rating due to a motor deficit in the right upper extremity. The DMA opined
that Dr. Lakin’s April 3, 2009 report and physical findings were “complete and accurate to
within a reasonable degree of medical certainty,” and that he properly referred to Tables 15-14,
15-21 and 15-23 of the 6th edition of the A.M.A., Guides in reaching his conclusion. He agreed
that August 24, 2008 was the date of maximum medical improvement.
By decision dated May 12, 2009, the Office granted a schedule award for three percent
impairment of the right upper extremity and one percent impairment of the left upper extremity.
The award covered the period August 24 through November 19, 2008.

2

On May 26, 2006 appellant requested a telephonic hearing, which was held on
September 11, 2009. At the hearing, he testified that residuals from his accepted carpal tunnel
syndrome dramatically limited his ability to function. Appellant was provided 30 days to
provide additional medical evidence.
In a November 12, 2009 decision, an Office hearing representative affirmed the May 12,
2009 decision. He found that Dr. Lakin provided a thorough report of his clinical findings and
diagnostic tests, with reference to the appropriate tables from the A.M.A., Guides.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.1 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice under the law, good administrative practice requires the use of uniform
standards applicable to all claimants. The implementing regulations have adopted the A.M.A.,
Guides as the appropriate standard for evaluating schedule losses.2 Effective May 1, 2009,
schedule awards are determined in accordance with the A.M.A., Guides (6th ed. 2008).3
ANALYSIS
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Entrapment neuropathy, such as carpal tunnel syndrome, is addressed at
section 15-4f.4 Having established the diagnosis of carpal tunnel syndrome, the next step in the
rating process is to consult Table 15-23, entitled “Entrapment/Compression Neuropathy
Impairment.”5 The table provides a series of grade modifiers from zero to four and a range of
corresponding upper extremity impairments from zero to nine percent. Grade modifiers are
assigned based on a combination of factors including test findings, history and physical
findings.6
Dr. Lakin cited Tables 15-14, 15-21 and 15-23 as the basis for his impairment rating. He
concluded based on normal physical findings but abnormal EMG/NCV, that appellant had a one
percent impairment of the left upper extremity. Dr. Lakin opined that a mild motor deficit in the
1

For a total loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1) (2006).
2

5 U.S.C.

20 C.F.R. § 10.404 (2009).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
4

A.M.A., Guides 432.

5

Id. at 448-49.

6

Id. Additional grade modifications are permitted using the QuickDASH (Disabilities of the Arm, Shoulder and
Hand) functional assessment tool.

3

right upper extremity corresponded to a three percent impairment of the right upper extremity.
He did not, however, explain how he arrived at his rating.
Dr. Lakin did not assign grade modifiers, as prescribed by the A.M.A., Guides.7 For the
left upper extremity, under Table 15-23 normal physical findings but abnormal test findings
would result in a Grade 1 modifier. The default impairment value for a Grade 1 modifier under
Table 15-23 is two percent impairment of the upper extremity. Dr. Lakin did not provide any
salient explanation as to why he awarded appellant one percent impairment rating for the left
upper extremity, and the justification for such an award is not readily discernable from his report.
For the right upper extremity, a mild motor deficit would result in a Grade 3 modifier, with a
default rating of eight percent. Dr. Lakin did not explain why his three percent impairment
rating is appropriate under the A.M.A., Guides.
The DMA stated that Dr. Lakin’s report and physical findings were “complete and
accurate to within a reasonable degree of medical certainty,” and that he properly referred to
Table 15-14, Table 15-21 and Table 15-23 of the 6th edition of the A.M.A., Guides in reaching
his conclusion. He did not, however, explain how he arrived at the proposed impairment rating
by applying the provisions of the 6th edition of the A.M.A., Guides. Accordingly, the Board
finds that the case is not in posture for decision. The matter will be remanded to the Office for
clarification of the basis for the three percent impairment of the right upper extremity and one
percent impairment of the left upper extremity under the A.M.A., Guides.
CONCLUSION
The Board finds that the case is not in posture for decision as to the extent of appellant’s
upper extremity impairment.

7

A.M.A., Guides 448.

4

ORDER
IT IS HEREBY ORDERED THAT the November 12, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded for further action
consistent with this decision.
Issued: October 4, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, FEDERAL
)
BUREAU OF PRISONS, Mendota, CA, Employer )
__________________________________________ )
A.M., Appellant

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

Docket No. 16-0478
Issued: May 23, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 15, 2016 appellant filed a timely appeal from a December 15, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to the accepted February 15, 2015 employment incident.
On appeal, appellant argues that his case should not have been denied as his doctor
diagnosed an employment-related injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 19, 2015 appellant, then a 39-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging that on February 15, 2015, he was walking on rocks while
conducting a fence check when the ground beneath his feet gave way causing his left ankle to
roll underneath. He stated that he fell onto his knees and into the rocks, thereby rolling his left
ankle and straining his left and right knee. He stopped work on February 15, 2015.
Appellant had filed a prior claim for a traumatic work injury, wherein he alleged that he
fell down a flight of stairs on January 15, 2014. This claim was accepted by OWCP for bilateral
contusion of the knees and lower legs.2 Appellant stopped work on January 16, 2014, returned to
his job part time with restrictions on April 23, 2014, and returned to his job full time on
February 4, 2015.
In support of his claim with regard to the alleged February 15, 2015 incident, appellant
submitted literature from Johns Hopkins Medicine regarding peroneal nerve injury. He also
submitted a work capacity evaluation (Form OWCP 5-c) dated February 16, 2015 from a
provider with an illegible signature indicating that appellant was not to work on that date and that
starting February 17, 2015 appellant had work restrictions prohibiting walking, standing,
squatting, kneeling, and climbing.
By letter dated February 27, 2015, OWCP noted that as appellant’s injury initially
appeared to be a minor injury resulting in minimal or no lost time from work, and because the
employing establishment had not controverted continuation of pay or challenge the merits of the
case, a limited amount of medical expenses were administratively approved, but that the merits
of the claim had not been formally considered. It informed appellant that additional information
was now necessary to approve his claim and listed the evidence that must be submitted.
Appellant was informed that he should submit a medical report with a diagnosis, and a
rationalized medical opinion explaining how the diagnosed condition was causally related to the
alleged employment incident. He was afforded 30 days to submit the requested information.
In response, appellant indicated that he had a prior claim in case number xxxxxx114
which had been accepted for foot drop, but that the prior condition had not contributed to his fall
on February 15, 2015. He noted that as a result of his recent accident he had reinjured his knee
and had increased pain.
On March 10, 2015 the employing establishment indicated that appellant was off work
for approximately six months for a prior accepted claim for sprain of the knee (date of injury
January 15, 2014). It noted that within a week of returning to full-duty work, appellant filed a
new claim for sprain of the knee with a date of injury of February 15, 2015.
In a decision dated March 30, 2015 and revised on April 6, 2015, OWCP accepted that
the February 5, 2015 incident occurred as alleged, but denied appellant’s claim because the
medical evidence of record did not establish a diagnosed condition in connection with the
accepted work factors.
2

OWCP File No. xxxxxx114.

2

On April 2, 2015 appellant requested an oral hearing before an OWCP hearing
representative. The hearing was held on October 20, 2015. At that time appellant indicated that
his doctor, who signed the work form, was Dr. Elazier. He noted that he had two falls on
February 16, 2015, one when he fell while walking upstairs, and the other when he fell while
walking the fence. Appellant testified that it was the first time that he did fence check and that
he was not familiar with the area. He noted that as a result of this fall, he had very intense
swelling, bruising, cuts, and a lot of muscle spasms. Appellant indicated that he has pain daily.
He noted that his ankle was injured in addition to his knee, and noted that he was preparing to
undergo surgery on his knee.
In a November 11, 2015 form report, Dr. Peter T. Simonian, a Board-certified orthopedic
surgeon, noted that appellant could not work from the date of his surgery on December 3, 2015
until his next appointment on December 10, 2015.
In a February 16, 2015 primary treating physician’s report Dr. Stefan Elazier, appellant’s
treating family practitioner, listed the date of injury as January 15, 2014. He indicated that
appellant stated that he had two falls on February 15, 2015, one while going up stairs and other
while walking the fence. Dr. Elazier diagnosed joint pain in the left leg and prepatellar bursitis.
He indicated that he will keep appellant off work until injections were given. In a February 23,
2015 report, Dr. Elazier indicated that appellant could return to modified work on this date. He
listed diagnoses of joint pain in left leg and prepatellar bursitis. Dr. Elazier noted that appellant
still complained of left knee pain, and stated that there had been no improvement. In a
November 12, 2015 work capacity evaluation, he noted that appellant was unable to perform his
job due to left knee pain and weakness. Dr. Elazier placed work restrictions on appellant of
walking and standing limited to one hour and prohibited squatting, kneeling, and climbing. He
noted that appellant had limited strength and instability to left lower leg. In a November 12,
2015 certificate to return to work, Dr. Elazier indicated that appellant’s February 2015 “fall
injury was exacerbation of current injury.”
By decision dated December 15, 2015, the hearing representative affirmed OWCP’s
decision with modification. He found that there was no evidence to corroborate appellant’s
claim that he fell on the stairs on February 15, 2015, but noted that it was not disputed that
appellant fell while walking the fence line on February 15, 2015. The hearing representative
found, however, that the medical evidence of record was insufficient to establish the medical
component of fact of injury. He found that although Dr. Elazier’s February 16, 2015 report
established a medical diagnosis, appellant failed to establish causal relationship between the
accepted work incident and the medical diagnosis.
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 disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every

3

compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components, which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident or exposure, which is alleged to have occurred.4 In order to meet his or her
burden of proof to establish the fact that he or she sustained an injury in the performance of duty,
an employee must submit sufficient evidence to establish that he or she actually experienced the
employment injury or exposure at the time, place, and in the manner alleged.5
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.6 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. 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
ANALYSIS
Appellant alleged that he sustained an injury when he fell while performing a fence
check. It is not disputed that the incident occurred as alleged, and OWCP determined that
appellant established a medical diagnosis. However, OWCP denied appellant’s claim as it found
that he failed to establish causal relationship between the accepted employment incident and the
diagnosed condition.
In support of his claim, appellant submitted medical reports by Drs. Simonian and
Elazier. Dr. Simonian offered no opinion regarding the cause of appellant’s injury and does not
discuss appellant’s employment. Rather, his report simply noted appellant’s work restrictions.
As such, his report is of limited probative value in establishing that appellant sustained an
employment-related injury on February 15, 2015.8

3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

5

Linda S. Jackson, 49 ECAB 486 (1998).

6

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

7

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

8

See supra note 7.

4

Dr. Elazier did note that appellant fell while walking the fence and he diagnosed joint
pain and prepatellar bursitis. However, he did not provide a well-rationalized medical opinion
explaining how the accepted employment incident resulted in the medical diagnosis. Dr. Elazier
did not explain the process by which appellant’s particular work incident caused or contributed
to the diagnosed condition or whether such condition was due to nonwork factors.9 His reports
are therefore insufficient to meet appellant’s burden of proof.10
OWCP also received medical literature from Johns Hopkins Medicine regarding peroneal
nerve injury. The Board has previously held that medical literature does not constitute probative
medical evidence because it does not contain rationale by a physician relating appellant’s
condition to an employment incident.11
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.12 As appellant did not establish that his diagnosed condition was
causally related to the accepted February 15, 2015 employment incident, he has failed to meet
his burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury
causally related to the accepted employment incident.

9

J.S., Docket No. 14-818 (issued August 7, 2014).

10

Id.

11

See D.G., Docket No. 15-948 (issued February 10, 2016).

12

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 15, 2015 is affirmed.
Issued: May 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6