United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.F., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 17-0733
Issued: October 16, 2017

Case Submitted on the Record

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

JURISDICTION
On February 14, 2017 appellant filed a timely appeal from a December 22, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision dated October 28, 2015 to the date of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP first accepted that on April 9, 2003 appellant, then a 46-year-old agricultural
quarantine inspector, slipped and fell on gangway steps while boarding a vessel, striking his left
knee and resulting in a left medial meniscal tear and consequential osteoarthritis, OWCP File
No. xxxxxx449.2 He stopped work on the date of injury.3
Dr. Frank Giacobetti, an attending Board-certified orthopedic surgeon, noted on May 14,
2003 that appellant had undergone an open meniscectomy of the left knee in 1982, with
resolution of symptoms following the procedure. He diagnosed a new left medial meniscus tear
with patellofemoral chondromalacia and recommended an arthroscopic partial meniscectomy.
Dr. Giacobetti performed a partial left meniscectomy on July 9, 2003. Following a course of
physical therapy, he released appellant to full, unrestricted duty as of August 25, 2003.
Appellant returned to full duty on August 29, 2003.
OWCP later accepted, under File No. xxxxxx638, that on April 13, 2004 appellant was
struck by a falling 50-pound sack of pumpkin seeds, causing a cervical sprain. In an April 13,
2004 report, Dr. Perez diagnosed myofascial strains of the cervical and lumbosacral spine. He
released appellant to full duty with no restrictions as of May 14, 2004. Under File No.
xxxxxx755, OWCP also accepted thoracic and lumbar sprains due to a January 20, 2006 workrelated motor vehicle accident. Dr. Perez released appellant to full duty with no restrictions as of
February 17, 2006.4 OWCP File Nos. xxxxxx638 and xxxxxx755 were combined with the
present claim, OWCP File No. xxxxxx449, with the latter serving as the master file.
Appellant again stopped work on April 9, 2006 due to left knee pain. On May 25, 2006
OWCP accepted a “recurrence of left knee medial meniscus tear.”5 On June 14, 2006
Dr. Giacobetti performed an authorized left knee arthroscopy with partial medial meniscus
resection, chondroplasty of the medial femoral condyle and medial tibial plateau, and
synovectomy. OWCP paid wage-loss compensation from April 10 to June 10, 2006. It placed
appellant’s case on the periodic compensation rolls effective June 11, 2006.
The employing establishment separated appellant from federal service effective
August 25, 2006, as he failed a required background check due to criminal convictions. OWCP
continued to issue wage-loss compensation on the periodic rolls.
2

The employing establishment issued an authorization for examination or treatment (Form CA-16) on
April 9, 2003. Appellant was first treated on April 9, 2003 by Dr. Mark Perez, an attending Board-certified family
practitioner, who diagnosed a left knee contusion and held appellant off work through May 1, 2003.
3

An April 24, 3003 magnetic resonance imaging (MRI) scan of appellant’s left knee showed effusion, a tear of
the posterior horn of the medial meniscus, blunting of the anterior horn of the medial meniscus, and chondromalacia
of the patella and medial joint space compartment.
4

A February 12, 2006 MRI scan of the thoracic spine showed early spondyloarthritic and degenerative disc
disease from T7 through T11, and 1 to 2 millimeter posterior disc bulges from T7 through T11 without neurological
impairment.
5

A May 10, 2006 MRI scan of the left knee showed increased chondromalacia of the medial compartment, a
horizontal degenerative flap tear of the medial meniscus, and tricompartmental osteoarthritis.

2

In order to determine appellant’s work capacity, on February 7, 2007 OWCP obtained a
second opinion from Dr. William C. Boeck, Jr., a Board-certified orthopedic surgeon. Dr. Boeck
reviewed the medical evidence and a statement of accepted facts (SOAF). He opined that
appellant had sustained a permanent aggravation of the accepted left knee conditions, but found
appellant able to perform full-time light-duty work with restrictions.6
In an October 10, 2008 report, Dr. Giacobetti related appellant’s complaints of increased
left knee pain. On examination, he found an equivocal medial McMurray sign for meniscus
pathology, and flexion limited to 120 degrees. Dr. Giacobetti obtained x-rays showing
“degenerative arthritic changes with worsening of the joint space narrowing.” He found
appellant able to perform modified work “with no climbing, no squatting, and kneeling and no
lifting greater than 20 pounds with no prolonged standing or walking.”7 Dr. Giacobetti provided
periodic reports renewing work restrictions.
Dr. Perez provided an October 29, 2008 report, diagnosing cervical, thoracic, and left arm
and shoulder sprains. He released appellant to modified work effective that day.8
Dr. Giacobetti opined on May 21, 2010 that appellant required a repeat left knee
arthroscopy to address a recurrent meniscal tear. On May 28, 2010 OWCP authorized left knee
arthroscopy
In a December 8, 2010 report, Dr. Kambiz Hannani, an attending Board-certified
orthopedic surgeon, diagnosed spinal cord compression at C5 with myelomalacia, and left C6
radiculopathy.
On March 16, 2011 OWCP again attempted to determine appellant’s work capacity and
referred him for a second opinion from Dr. G.B. Ha’Eri, a Board-certified orthopedic surgeon.
Dr. Ha’Eri reviewed the medical evidence of record and a SOAF. He noted nonoccupational
conditions of hypertension, diabetes mellitus type 2, and hyperlipidemia, with a history of a
retinal detachment procedure in the right eye which did not restore appellant’s vision. On
examination, Dr. Ha’Eri found limited cervical spine motion, surgical scars on the left knee, left
knee flexion limited to 100 degrees with crepitus, and tenderness to palpation above the joint
line. He opined that the accepted left knee injury had resolved and he had similar degenerative
findings in the right knee due to idiopathic causes. Dr. Ha’Eri commented that appellant might
require a total left knee arthroplasty in the future. He also found that the accepted cervical and
thoracolumbar strains had resolved without residuals. Dr. Ha’Eri characterized appellant’s
symptoms to nonindustrial degenerative changes and congenital cervical stenosis. He found
appellant able to perform full-time modified duty, with pushing, pulling, and lifting limited to 10
pounds, and walking, standing, and bending limited to one hour.
6

Appellant participated in a vocational rehabilitation effort in 2008. OWCP closed the vocational rehabilitation
effort on March 12, 2009 due to unresolved medical issues.
7

An October 30, 2008 left knee MRI scan showed tricompartmental osteoarthritis, a small joint effusion, status
post partial medial meniscectomy, high grade chondromalacia of the medial compartment “with pseudoextrusion of
the remnant of the medical meniscus,” and mild chondromalacia of the patella.
8

Appellant participated in physical therapy for cervical and lumbosacral strains from March through May 2010.

3

In a May 20, 2011 report, Dr. Giacobetti disagreed with Dr. Ha’Eri’s recommendation of
a left knee surgery as appellant’s osteoarthritis was “not severe enough at his age.”
In a June 16, 2011 report, Dr. Kourosh K. Shamlou, an attending Board-certified
orthopedic surgeon, reviewed medical reports. He obtained left knee x-rays showing bone on
bone osteoarthritis. Right knee imaging studies showed internal derangement and a medial
meniscus tear. Dr. Shamlou opined that appellant’s long history of left knee injuries and
surgeries caused “compensatory injury to the right knee,” requiring a right knee arthroscopy. He
also found that the accepted April 13, 2004 employment injury was sufficient to cause C5
myelomalacia and current C6 radiculopathy. Dr. Shamlou recommended an anterior cervical
discectomy and fusion. He found appellant totally disabled for work.
OWCP determined that there was a conflict of medical opinion between Dr. Ha’Eri, for
the government, who opined that the accepted conditions had ceased without residuals, and
appellant’s physicians, who found continuing work-related residuals. To resolve the conflict, it
selected Dr. Blair C. Filler, a Board-certified orthopedic surgeon, as the impartial medical
specialist.
Dr. Filler provided a December 4, 2012 report reviewing the medical evidence of record
and SOAF. On examination, he found no paraspinal spasm or other abnormality of the cervical,
thoracic, and lumbar spines. There was a normal motor and sensory examination, full range of
upper extremity motion, and slight loss of left knee flexion. Dr. Filler found that the accepted
April 9, 2003 left knee injury had ceased without residuals, as it was fully resolved by the July 9,
2003 and June 14, 2006 surgeries. Any subsequent findings or symptoms were due only to
idiopathic causes. Dr. Filler also opined that the accepted cervical, thoracic, and lumbar
conditions resolved without residuals, and that any ongoing symptoms were due to a
nonindustrial degenerative process. He found appellant able to perform full-time light duty
within specified restrictions.9
In a May 20, 2013 statement, appellant alleged that Dr. Filler repeatedly used racial slurs
during the examination and stuck him “more than 50 times with a safety pin.”
In an April 9, 2013 report, Dr. Giacobetti found that appellant could perform modifiedduty work, but checked a box on a form report finding him temporarily totally disabled.
By notice dated January 21, 2014, OWCP notified appellant and his attorney of its
proposal to terminate his wage-loss and medical compensation benefits, based on Dr. Filler’s
opinion as impartial medical examiner. It afforded appellant 30 days to submit additional
evidence or argument. Appellant did not submit any additional evidence or response.

9

By pretermination notice dated March 21, 2013 and finalized April 29, 2013, OWCP terminated appellant’s
wage-loss compensation and medical benefits that day, based on Dr. Filler’s opinion as the special weight of the
medical evidence. In an October 29, 2013 letter, counsel contended that OWCP had not provided him with a copy
of the April 29, 2013 termination decision and asked that the decision be reversed. On December 19, 2013 OWCP
reversed the April 29, 2013 termination decision, finding that OWCP had improperly failed to provide counsel with
a copy of the pretermination notice and the termination decision.

4

By decision dated February 24, 2014, OWCP finalized the January 21, 2014 notice, and
terminated appellant’s wage-loss and medical compensation benefits effective that day. It found
that Dr. Filler’s opinion established that the accepted left knee, cervical, thoracic, and lumbar
spine injuries had ceased without residuals.
In a March 5, 2014 letter, counsel requested a telephonic hearing before OWCP’s Branch
of Hearings and Review, held September 10, 2014. At the hearing, he contended that Dr. Filler’s
report was insufficiently rationalized to resolve the conflict of medical opinion between
appellant’s physicians and Dr. Ha’Eri.
By decision dated November 25, 2014, OWCP’s hearing representative affirmed
OWCP’s February 24, 2014 decision.
Appellant requested reconsideration on July 15, 2015. He alleged that Dr. Ha’Eri
examined him for less than three minutes. Appellant reiterated that Dr. Filler used ethnic slurs,
stuck him more than 50 times with a safety pin, and conducted himself in a hostile and
unprofessional manner. Additional evidence included a February 17, 2015 report from
Dr. Shamlou, who recommended a total left knee arthroplasty, cervical spine decompression and
fusion, pain management for lumbar spine, and possible lumbar surgery.
Dr. William W. Brien, an attending Board-certified orthopedic surgeon, provided
April 13 and May 13, 2015 reports reviewing appellant’s history of injury and treatment. He
diagnosed cervical degenerative disc disease, cervical spine strain, lumbar degenerative disc
disease, lumbar spondylosis, bilateral knee osteoarthritis. Dr. Brien opined that all diagnoses
appeared to be industrially related.
In a June 9, 2015 memorandum, the Department of Veterans Affairs indicated that
appellant received Veteran’s benefits for a right eye condition, left meniscal tear, and right knee
strain. Effective December 1, 2014, appellant received $1,159.36 a month.
By decision dated October 28, 2015, OWCP denied modification, finding that the
additional evidence submitted was insufficiently rationalized to outweigh Dr. Filler’s opinion.
On October 7, 2016 appellant requested reconsideration. In an undated statement
received on November 8, 2016, he reviewed his history of treatment. Appellant contended that
OWCP had not adequately assisted him with vocational retraining and election of benefits, and
failed to provide adequate medical supervision. He repeated his allegations against Dr. Filler.
Appellant provided July 18, 2016 nerve conduction velocity and electromyography
(NCV/EMG) studies showing possible mild left carpal tunnel syndrome, and possible left C6-7
nerve root irritation.
In a September 17, 2016 report, Dr. Christopher Ninh, an attending Board-certified
orthopedic surgeon, related appellant’s history of injury and treatment, beginning with a 1981
left knee injury, and the accepted occupational injuries. On examination of the left knee, he
found swelling and a positive McMurray’s sign. Dr. Ninh opined that unspecified x-rays
demonstrated “severe medial compartment arthritis, bone on bone.” He recommended a total left
knee arthroplasty and right knee arthroscopic surgery.
5

By decision dated December 22, 2016, OWCP denied appellant’s request for a further
review of his case on the merits, finding that the additional evidence submitted was cumulative
or irrelevant. It found that his statement was repetitive of his contentions previously of record.
Additionally, Dr. Ninh’s report was irrelevant as he did not address the critical issue of why the
proposed surgeries would be necessitated by the accepted injuries.
LEGAL PRECEDENT
To require the office to reopen a case for merit review under section 8128(a) of FECA,10
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.11 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(3), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.12
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.13 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.14 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.15
ANALYSIS
OWCP accepted that appellant sustained a left meniscal tear, osteoarthritis, cervical,
thoracic, and lumbar sprains. Appellant underwent a partial left meniscectomy on July 9, 2003,
authorized by OWCP. He stopped work on April 9, 2006 and did not return. Appellant
underwent a June 14, 2006 left knee arthroscopy with partial medial meniscus resection,
authorized by OWCP.
On March 26, 2011 Dr. Ha’Eri, an OWCP referral physician, opined that the accepted
conditions had ceased without residuals, and that appellant could perform full-time modified
duty. Dr. Shamlou, an attending physician, found appellant totally disabled for work as of
June 16, 2011 due to the accepted injuries. Dr. Giacobetti, a treating physician, also found that
the accepted left knee injury remained present and active. OWCP found a conflict of medical
10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(3).

12

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

13

Helen E. Tschantz, 39 ECAB 1382 (1988).

14

See supra note 11. See also Mark H. Dever, 53 ECAB 710 (2002).

15

Annette Louise, 54 ECAB 783 (2003).

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opinion, and selected Dr. Filler, a Board-certified orthopedic surgeon, to resolve it. Dr. Filler’s
December 4, 2012 report found that the accepted left knee and paraspinal conditions had ceased
without residuals. Based on his opinion, OWCP terminated appellant’s wage-loss compensation
and medical benefits. An OWCP hearing representative affirmed the termination on and, on
October 28, 2015, OWCP denied modification of the November 25, 2014 decision.
Appellant requested reconsideration on October 7, 2016. In support of his request, he
provided a November 8, 2016 statement repeating his allegations against Dr. Filler, and
discussing election of benefits and vocational training. He also provided July 18, 2016
NCV/EMG studies of the upper extremities, and a September 17, 2016 report from Dr. Ninh
recommending a total left knee arthroplasty. By decision dated December 22, 2016, OWCP
denied reconsideration, finding that the additional evidence submitted was irrelevant or
cumulative.
The Board finds that OWCP properly denied reconsideration. The critical issue in the
October 28, 2015 merit decision was whether appellant’s physicians had provided sufficient
medical rationale to support that the accepted left knee and spinal conditions had not ceased. To
be relevant, the evidence submitted on reconsideration must address that issue.
Appellant’s statement, received by OWCP on November 8, 2016, discussed election of
benefits and vocational rehabilitation, matters irrelevant to the critical issue of causal
relationship. Similarly, he submitted July 18, 2016 electrodiagnostic studies and Dr. Ninh’s
September 17, 2016 report, neither of which addressed causal relationship. As these documents
do not discuss the critical question of whether appellant’s ongoing condition remained related to
the accepted injuries, they do not comprise a basis for reopening the case.16 Additionally,
appellant’s unsubstantiated accusations against Dr. Filler are repetitive and insufficient to
warrant reopening a claim for merit review.17
A claimant may be entitled to a merit review by submitting pertinent new and relevant
evidence or argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant contends that he filed a timely request for reconsideration. The
Board notes that the timeliness of his request is not at issue. Appellant also alleges that OWCP
wrongfully denied him medical treatment and vocational rehabilitation. These arguments pertain
to the merits of the claim, which are not before the Board on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

16

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

17

Denis M. Dupor, 51 ECAB 482 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2016 is affirmed.
Issued: October 16, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Washington, DC, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 14-1377
Issued: June 23, 2015

Oral Argument January 28, 2015

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 30, 2014 appellant filed a timely appeal from a May 19, 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 the appeal.
ISSUES
The issues are: (1) whether OWCP abused its discretion by recovering travel
reimbursement for the period February 27, 2007 through August 7, 2012; (2) whether appellant
received an overpayment of compensation in the amount of $1,969.31 for the same period;
(3) whether OWCP properly found that she was at fault in creation of the overpayment, thereby
precluding waiver of recovery of the overpayment; and (4) whether it properly recovered the
overpayment by withholding $1,969.31 from continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

On appeal appellant contends that she did not commit fraud as she accurately reported
mileage for travel from her home in Greenville, North Carolina to Duke University and Temple
Hills, Maryland.
FACTUAL HISTORY
On February 15, 1993 appellant, then a 38-year-old former distribution clerk, filed an
occupational disease claim alleging that she sustained left hand, wrist, and finger injuries as a
result of pulling cases at work. OWCP accepted her claim for right and left ulnar entrapment,
herniated nucleus pulposus at C7-T1 and C4-5, and left carpal tunnel syndrome. It authorized
C7-T1 anterior fusion and discectomy performed on March 10, 1995.
In a May 16, 1996 decision, OWCP granted appellant a schedule award for 42 percent
impairment of the left upper extremity. The period of the award ran from April 28, 1996 to
August 22, 1998. In an August 17, 1998 decision, OWCP amended the May 16, 1996 decision
to reflect an award period of April 28, 1996 to November 2, 1998.
By letter dated May 8, 2008, OWCP expanded the acceptance of appellant’s claim to
include left carpal tunnel syndrome. In a January 23, 2014 decision, it granted appellant a
schedule award for an additional six percent impairment to the left arm. OWCP noted that she
had previously received a schedule award for 42 percent impairment of the left arm. It also
granted appellant a schedule award for seven percent impairment of the right arm.
On November 8, 2013 a special agent in the employing establishment’s Office of
Inspector General (OIG) submitted an investigative report covering the period August 8, 2012 to
September 11, 2013 with exhibits that included OWCP-957 forms dated December 2006 to
July 2012 claiming travel reimbursement.
The investigation determined that, from
December 2006 to August 2012, appellant claimed approximately 3,862 miles from her
residence to medical facilities that were either inflated or not driven. As a minimum of 14
percent of the total mileage claimed was fraudulent, appellant received approximately $1,969.00
in fraudulent travel reimbursement from OWCP. A comparison of the mileage reported on travel
refund request forms (OWCP-957) by appellant for the period December 2006 to July 2012 and
mileage calculations on MapQuest.com, an internet-based service, indicated that she routinely
reported inflated travel mileage. The OIG contacted the medical facilities and practices where
appellant claimed she was seen and treated. On OWCP-957 forms she claimed that a medical
facility identified as Rehab Pain Management was 20 and 24 miles roundtrip from her residence.
The report stated that MapQuest.com showed that this facility was only 6.94 miles from
appellant’s residence, an inflation of 13.067 and 17.06 miles per trip. Appellant submitted
OWCP-957 forms for a facility identified as Duke Health Center, 932 Morreene Road, Durham,
North Carolina. She claimed she traveled 150 miles one way or 300 miles roundtrip each time to
this facility on January 15, 22 and October 15, 2010, and July 22, 2011. MapQuest.com
indicated that the roundtrip mileage from appellant’s residence to Duke Health Center was
222.26 miles, an inflation of 77.24 miles per trip. Appellant claimed that she traveled 482 miles
to National Medical Rehabilitation (NMR), 3611 Branch Avenue, Suite 309, Temple Hills,
Maryland on August 10, 2007. The facility’s copy of her dates of service indicated that she was
not seen on that date. Appellant claimed back-to-back trips to Maryland on March 25 and 26,
2007, 448 miles roundtrip from her residence. The report noted that it seemed unlikely that she

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would drive 448 miles home, only to return for a doctor visit the next day, again driving 448
miles. Appellant claimed back-to-back trips to NMR on October 29 to 30, 2007 and July 9
and 10, 2008. A consultation report from the medical practice of Dr. Hampton Jackson, located
at 6144 Oxon Hill Road, Oxon Hill, Maryland revealed that she was only seen on
August 3, 2010. The report stated that it was unclear why appellant had travelled over 4½ hours
one way for medical treatment. Appellant claimed back-to-back roundtrips when she travelled
472 miles from her residence to Dr. Jackson’s office on August 3, 2010 and 448 miles from her
residence to NMR on August 4, 2010. Several documents were attached to the report which
included a General Services Administration privately-owned vehicle (POV) mileage rates chart
for reimbursement, the employing establishment’s injury compensation performance analysis
systems case cost as of October 16, 2013, and reports from MapQuest.com reflecting the
distance between appellant’s residence and medical facilities from which she sought medical
treatment.
On April 17, 2014 OWCP made a preliminary finding that appellant received a $1,969.31
overpayment of compensation because she received travel expense reimbursement from
February 27, 2007 through August 7, 2012 for reported inflated mileage. It found her at fault in
the creation of the overpayment because she accepted a payment that she knew or should have
known was incorrect. Appellant was advised to complete an accompanying overpayment
recovery questionnaire and submit supporting financial documents. Additionally, she was
advised 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.
In a May 15, 2014 letter, appellant denied falsifying her travel mileage. She stated that,
she lived in Greenville, North Carolina. If OWCP had made a mistake in thinking that she lived
in Greensboro, North Carolina then appellant could understand that this city was 117 miles from
the clinic in Durham, North Carolina.
By decision dated May 19, 2014, OWCP finalized the fact and amount of the preliminary
overpayment determination and the finding of fault.2 It directed recovery of the overpayment by
deducting $1,969.31 from appellant’s continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8103 of FECA 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 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.3 While OWCP is obligated to pay for treatment of employment-related

2

In a prior decision dated January 22, 2014 decision, OWCP found that appellant received an overpayment of
compensation in the amount of $2,365.36 because she received benefits from the Office of Personnel Management
and under FECA for the same time period. On April 10, 2014 it indicated that the overpayment had been repaid in
full.
3

5 U.S.C. § 8103; see Dona M. Mahurin, 54 ECAB 309 (2003).

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conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.4
Section 10.310(a) of the implementing regulations provide that an employee is entitled to
receive all medical services, appliances, or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related injury.5 OWCP
procedures provide that nonmedical equipment such as waterbeds, saunas, weight-lifting sets,
exercise bicycles, etc., may be authorized only if recommended by the attending physician and if
OWCP finds that the item is likely to cure, give relief, reduce the degree or the period of
disability, or aid in lessening the amount of monthly compensation.6
Section 10.315 of OWCP regulations provide, in relevant part that the employee is
entitled to reimbursement of reasonable and necessary expenses, including transportation needed
to obtain authorized medical services, appliances, or supplies. To determine what is a reasonable
distance to travel OWCP will consider the availability of services, the employee’s condition, and
the means of transportation. Generally, 25 miles from the place of injury, the work site or the
employee’s home, is considered a reasonable distance to travel.7
In interpreting section 8103(a) of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under FECA to ensure that an employee recovers from
his or her injury to the fullest extent possible in the shortest amount of time. OWCP has
administrative discretion in choosing the means to achieve this goal and the only limitation on
OWCP’s authority is that of reasonableness.8 It has broad discretion in considering whether to
reimburse or authorize travel expenses.9 Proof of causal relationship must include supporting
rationalized medical evidence.10
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for right and left ulnar entrapment, herniated nucleus
pulposus at C7-T1 and C4-5, and left carpal tunnel syndrome, and authorized C7-T1 anterior
fusion. It found that the mileage she reported for reimbursement of travel from February 27,
2007 through August 7, 2012 was fraudulent.

4

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

5

20 C.F.R. § 10.310(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)(5)
(October 1995).
7

20 C.F.R. § 10.315; see W.J., Docket No. 10-1944 (issued June 1, 2011).

8

R.L., Docket No. 08-855 (issued October 6, 2008).

9

See W.T., Docket No. 13-197 (issued June 3, 2013).

10

M.B., 58 ECAB 588 (2007).

4

An OIG investigation revealed that appellant listed travel from her home in Greenville,
North Carolina to medical facilities and practices in North Carolina and Maryland in numerous
medical travel refund request forms. The OIG investigation claimed to find that the mileage was
either inflated or not driven. Although the investigative report indicated that appellant’s OWCP957 forms were included as exhibits, no such forms were contained in the record.
It is particularly important to be able to review these forms because OWCP subsequently
issued a decision finding that appellant received an overpayment of compensation for which she
was at fault in creating. OWCP found that her signature on each OWCP-957 form certified that
any information she provided was true and correct and that she could be subjected to civil
penalties and/or criminal prosecution for knowingly making any false statement or
misrepresentation to obtain reimbursement. The Board finds, therefore, that OWCP has not
established that the mileage claimed by appellant was incorrect. The Board will set aside the
May 19, 2014 OWCP decision and remand the case to OWCP for reconstruction of the record,
including obtaining the OWCP-957 forms completed and signed by appellant for the claimed
reimbursement period. Following reconstruction of the record, OWCP shall issue a de novo
decision on the merits of the claim.11
CONCLUSION
As the case is not in posture for a decision regarding appellant’s claim for reimbursement
of medical travel expenses, it is premature to address the issues of fact and amount of
overpayment, fault, and recovery. The second, third, and fourth issues are therefore moot.

11

OWCP’s decision shall also cite the legal authority by which the existence of an overpayment in this case is
established and explain the calculation methods used and their validity.

5

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2014 decision of the Office of
Workers’ Compensation is set aside and the case remanded for further action consistent with this
decision of the Board.
Issued: June 23, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.Y., Appellant
and
DEPARTMENT OF THE AIR FORCE, SPACE
& MISSILE SYSTEMS CENTER,
LOS ANGELES AIR FORCE BASE, CA,
Employer
__________________________________________

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Appearances:
Toby Rubenstein, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1108
Issued: November 24, 2021

Case Submitted on the Record

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

JURISDICTION
On May 6, 2020 appellant, through her representative, filed a timely appeal from a
November 8, 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On May 16, 2016 appellant, then a 59-year-old logistics management specialist, filed an
occupational disease claim (Form CA-2) alleging that, due to factors of her federal employment,
she sustained emotional conditions, including major depressive disorder (recurrent, severe
episodes), headaches, nervous stomach, extreme fatigue, and neck/shoulder tenseness. She alleged
that M.E., her immediate supervisor, told her that R.L., a manager, was not taking his
recommendations for managing the Sonalysts contract, and that M.E. stated that he hated putting
appellant “in the middle.” Appellant asserted that this and other projects she worked on took a toll
on her mentally and physically. She noted that she first became aware of her claimed condition
and its relation to her federal employment on April 21, 2016. Appellant stopped work on
April 21, 2016.
Appellant submitted an April 21, 2016 report from Dr. Eugene Y. Kwon, a Board-certified
internist, who diagnosed major depressive disorder (recurrent episode, severe) and noted that she
was placed off work from April 21 through 26, 2016. In an April 26, 2016 report, Dr. Paul J. Jaffe,
a Board-certified psychiatrist, diagnosed “occupational problems or work circumstances” and
indicated that appellant was placed off work from May 9 through 16, 2016. Appellant also
submitted an April 26, 2016 report of Ladan Alamdar, a marriage and family therapist, and an
April 29, 2016 report of Josephine Lynch, a licensed clinical social worker, which placed the
appellant off work.
In a development letter dated June 1, 2016, OWCP advised appellant of the factual and
medical evidence necessary to establish her claim and attached a questionnaire for her completion.
In a separate development letter of even date, it requested that the employing establishment provide
additional information regarding her alleged injury, including comments from a knowledgeable
supervisor regarding the accuracy of her allegations and an explanation of any areas of
disagreement. OWCP afforded both parties 30 days to respond.
In response, appellant submitted a June 28, 2016 statement in which she alleged that the
development of her claimed conditions started when she was assigned to work on two very
complicated global positioning system (GPS) projects starting in January 2016, i.e., the Raytheon
(OCX) and Sonalysts projects. She indicated that working on the two projects was time consuming
and that having to be away from her desk for ongoing meetings and going on numerous trips to
Colorado Springs, Colorado, became too much for her to handle.3 Appellant asserted that she
developed depression in the following months, which worsened when M.E. and R.L. added
assignments to appellant’s workload without regard to the fact that she was already juggling more
program issues than anybody else in her unit. She indicated that she told R.L. in April 2016 that
she was becoming stressed and that, although he told her he would reassign somebody else to one
3

Appellant indicated that her travel to Colorado Springs included taking three trips in January, March, and
April 2016, each lasting three days.

2

of her programs, he never did so. Appellant asserted that a number of aspects of the Sonalysts
project caused stress including the fact that officials related to that project bombarded her with
information to support their position on the project even though she did not have decisional
authority. She claimed that this problem was caused by M.E. who did not take any responsibility
for correcting the situation. M.E. distanced himself from the project and placed undue
responsibilities on herself and on others. Appellant asserted that she was misled about the
complexities of the Sonalysts contract when she was told that the acquisition and contingency
operations program aspects of the project were “low maintenance.” She asserted that both
programs had high visibility in that they were subject to congressional oversight and M.E. did not
provide her with adequate support. Appellant claimed that she believed that she was being set up
for failure. She indicated that she was the newest logistician in the unit with the least amount of
logistics experience yet she was assigned two difficult programs despite the fact that no other
person in her unit worked two systems. Appellant claimed that a coworker at a higher grade level
did not have to work on any similar projects. She asserted that the contingency operations program
was particularly demanding because it represented a new agency acquisition that needed its
product support element items accounted for by September 2016.
Appellant asserted that the employing establishment engaged in discriminatory practices
on the basis of race in the manner that it characterized the work experience of candidates for
promotion. She asserted that E.K. and D.Z. made stereotypical comments on the basis of race and
about the city where she lived, Compton, California, which made her uncomfortable and that
profanity was used in the workplace. Appellant claimed that the employing establishment
mishandled matters relating to telework, employee feedback surveys, allocation of travel funds,
documentation of travel expenses, and employee privacy. She believed that management retaliated
against her for not completing an employee feedback survey. Appellant claimed that in
February 2016 she asked if a coworker could provide help on her two projects , but that R.L.
opposed the idea. She asserted that in March 2016 R.L. tried to intimidate her by suggesting that
he could take away a project from an employee for poor management of that project. Appellant
asserted that management discriminated on the basis of sex and race in March 2016 with respect
to the manner in which it assigned people to oversee projects and required identification. She
claimed that in March 2013 R.L. violated chain of command protocol by failing to first contact
M.E. Appellant asserted that R.L. intentionally shamed her during a meeting in April 2016 by
referencing her failure to complete an employee feedback survey and that he unreasonably asked
her to relay messages from him to J.C., a coworker.
Appellant submitted an undated statement from J.C., who indicated that appellant was
“called out” several times for not completing an employee feedback survey. J.C. asserted that
appellant was the only person in her unit who had to work on two high visibility projects and that
she did not receive adequate support. She indicated that management allowed “profanity outburst
and conversations with racial overtones” to occur in the workplace.
Appellant also submitted additional medical evidence in support of her claim, including
reports of Dr. Jaffe.
In a June 30, 2016 statement, M.E. acknowledged that appellant was in fact working two
separate projects, but she was assigned a contractor support member to assist her with the larger
of the two projects and he did not think that the workload would be too much for her. He noted,

3

“[appellant] is a very intelligent, capable individual that has been known in the past to even ask
for more work at times when she was already significantly tasked. ” M.E. agreed that staff
members were required to travel for work and noted that, although he never asked appellant to stay
beyond working hours, he had awarded her travel compensation time on several occasions for
travel beyond duty hours. He asserted that she never told him that she needed relief from her work
projects and indicated that he provided her adequate support.
In a November 3, 2016 statement, M.E. acknowledged that an employee at a higher grade
level than appellant did not have a comparable project to work on, but he indicated that the
employee had just returned from the Middle East and management was still assessing how to best
employ him in the office. He indicated that the Sonalysts project did become slightly busier after
appellant began working on it, but he asserted that she had the skills to effectively work on the
project. M.E. acknowledged that appellant had to take three work trips during a four-month period
in 2016. He denied that she was subjected to discrimination on the basis of race or sex, or that she
was harassed in a meeting or at any other time. M.E. indicated that he could not confirm the
derogatory statements about the City of Compton alleged by appellant, but noted that when he
heard the subject discussed it was not done so in a disrespectful manner. He acknowledged that
he “hated putting [appellant] in the middle of an impasse where R.L. did not want to extend the
Sonalysts contract,” but he emphasized that he did not blame her for the fact that the contract was
not extended.
By decision dated January 11, 2017, OWCP denied appellant’s emotional condition claim
because she did not establish any compensable employment factors. It found that she had not
established her claims with respect to work duties, administrative matters, and harassment/
discrimination.
On January 7, 2018 appellant, through counsel, requested reconsideration of her claim.
Appellant submitted an additional statement from J.C. dated January 3, 2018, where she asserted
that appellant’s work duties were very demanding and that she had more responsibilities than her
similarly situated coworkers. She indicated that profanity was used in her presence in the
workplace and that she was aware of instances when private information about employees other
than she was improperly disseminated. J.C. discussed a conversation in the workplace about
bringing appellant flowers, which she felt was derogatory towards the City of Compton.
Appellant also submitted copies of disciplinary actions and additional medical evidence in
support of her claim.
By decision dated April 5, 2018, OWCP denied modification of the January 11, 2017
decision.
On April 4, 2019 appellant, through counsel, requested reconsideration of her claim. In an
April 2, 2019 statement, appellant again indicated that she was overworked at the employing
establishment and had a nervous breakdown in early-2016. She submitted a number of
administrative documents relating to position openings, disciplinary actions, requests for
reasonable accommodation of medical conditions, and a lawsuit she filed against the Kaiser
Foundation Health Plan, as well as e-mails regarding her applications for jobs.

4

Appellant also submitted additional medical evidence in support of her claim.
By decision dated November 8, 2019, OWCP denied modification of the April 5, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 4 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 filed within the applic able time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. 5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition. 7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA. 8 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment or to hold a
particular position. 9
A claimant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or

4

Supra note 2.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
7

See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
8

Lillian Cutler, 28 ECAB 125 (1976).

9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

5

adversely affected by employment factors. 10 This burden includes the submission of a detailed
description of the employment factors or conditions, which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors. 11
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding, which working conditions are deemed
compensable factors of employment and are to be considered by a physician when providing an
opinion on causal relationship, and which working conditions are not deemed factors of
employment and may not be considered. 12 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates th at factor. When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, it must base its decision on an analysis of the medical evidence. 13
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she sustained an emotional condition due to various incidents and
conditions at her place of work. Therefore, the Board must initially review whether these alleged
incidents and conditions are covered employment factors under the terms of FECA. 14 The Board
notes that some of appellant’s claims relate to her regular or specially assigned duties under Lillian
Cutler.15 In addition, appellant claimed that management committed error and abuse with respect
to various administrative/personnel matters. She also claimed that managers and coworkers
subjected her to harassment and discrimination.
The Board finds that appellant has established employment factors with respect to her
allegation of overwork. Appellant has established that she was assigned and worked on two GPS
acquisition and management projects starting in January 2016, i.e., the Raytheon (OCX) and
Sonalysts projects. Appellant’s immediate supervisor, M.E., acknowledged appellant’s work on
the projects and the complexity of the work by noting that appellant was assigned a contractor
support member to assist her with the larger of the two projects. M.E. noted that appellant took
on extra responsibility “at times when [appellant] was already significantly tasked.” The evidence
of record reflects that the projects required coordination of tasks with coworkers and involved
work travel, including three work trips that occurred within a four-month period in 2016.

10

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

11

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

12

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13

Id.

14

Y.W., Docket No. 19-1877 (issued April 30, 2020); Dennis J. Balogh, 52 ECAB 232 (2001).

15

See supra note 8.

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With respect to administrative or personnel matters, appellant claimed that management
officials mishandled matters relating to training, telework, employee feedback surveys, allocation
of travel funds, documentation of travel expenses, and employee privacy. She claimed that
supervisors mishandled work assignments and did not provide her adequate support when she
encountered difficulties at work. The Board has held that administrative and personnel matters,
although generally related to the employee’s employment, are administrative functions of the
employer rather than the regular or specially assigned work duties of the employee and are not
covered under FECA. 16 However, the Board has also held that, where the evidence establishes
error or abuse on the part of the employing establishment in what would otherwise be an
administrative matter, coverage will be afforded. 17 In determining whether the employing
establishment has erred or acted abusively, the Board will examine the factual evidence of record
to determine whether the employing establishment acted reasonably. 18
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. Appellant submitted documents that
concerned some of these administrative/personnel matters, but they did not show that the
employing establishment committed error or abuse with respect to these matters. There is no
indication that she obtained a final determination from an administrative body showing that the
employing establishment committed error or abuse. 19
Although appellant expressed
dissatisfaction with the actions of several superiors, the Board has held that mere dislike or
disagreement with certain supervisory actions will not be compensable absent error or abuse on
the part of the supervisor.20 She has not substantiated error or abuse committed by the employing
establishment in the above-noted matters and, therefore, she has not established a compensable
employment factor with respect to administrative or personnel matters.
Appellant also alleged harassment and discrimination by managers and coworker. She
asserted that she was discriminated against with respect to promotions and that discriminatory,
stereotypical, and profane comments were made in the workplace. Appellant claimed that
management embarrassed her in meetings and retaliated against her for not completing an
employee feedback survey. She asserted that M.E. set her up for failure by overloading her with
work. Appellant claimed that M.E. purposefully placed her “in the middle” of a stressful situation
with another manager, R.L. She also asserted that R.L. tried to intimidate her by suggesting that
he could take away a project from an employee for poor management of that project and tha t he
unreasonably asked her to relay messages from him to J.C., a coworker. To the extent that disputes
and incidents alleged as constituting harassment are established as occurring and arising from an
employee’s performance of his or her regular duties, these could constitute employment factors. 21
16

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
17

M.S., Docket No. 19-1589 (issued October 7, 2020); William H. Fortner, 49 ECAB 324 (1998).

18

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

19

See M.R., Docket No. 18-0304 (issued November 13, 2018).

20

T.C., Docket No. 16-0755 (issued December 13, 2016).

21

D.B., Docket No. 18-1025 (issued January 23, 2019); David W. Shirey, 42 ECAB 783, 795-96 (1991).

7

The Board has held that unfounded perceptions of harassment do not constitute an employment
factor.22 Mere perceptions are not compensable under FECA and harassment can constitute a
factor of employment if it is shown that the incidents constituting the claimed harassment actually
occurred.23
Appellant, however, did not submit sufficient corroborative evidence in support of her
allegations regarding harassment and discrimination. Although she submitted several witness
statements from a coworker, J.C., who asserted that she was subjected to harassing/discriminatory
actions, these statements were unspecific and vague to establish appellant’s claims. For example,
J.C. indicated that appellant was “called out” several times for not completing an employee
feedback survey and that management allowed profane and derogatory statements to occur in the
workplace. However, J.C. did not provide any detailed description of specific instances of such
conduct that occurred in appellant’s presence.24 Therefore, appellant has not established a
compensable employment factor with respect to the claimed harassment and discrimination.
In the present case, appellant has established compensable employment factors with respect
to overwork relating to two projects she worked on beginning in 2016. However, her burden of
proof is not discharged by the fact that she has established employment factors, which may give rise
to a compensable disability under FECA. To establish appellant’s occupational disease claim for an
emotional condition, she must also submit rationalized medical evidence establishing that she has an
emotional or psychiatric disorder, and that such disorder is causally related to an accepted
compensable employment factor. 25
As appellant has established compensable factors of employment, the case must be remanded
for an evaluation of the medical evidence with regard to the issue of causal relationship. 26 After
this and other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

22

See F.K., Docket No. 17-0179 (issued July 11, 2017).

23

See id.

24

See B.S., supra note 10. J.C. discussed a conversation in the workplace about bringing appellant flowers, which
she felt was derogatory towards the city of Compton. However, J.C. only provided a vague description of the
conversation and appellant was not present when it occurred.
25

See supra notes 7 and 13.

26

See M.D., Docket No. 15-1796 (issued September 7, 2016).

8

ORDER
IT IS HEREBY ORDERED THAT the November 8, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this decision.
Issued: November 24, 2021
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.D., Appellant
and
U.S. POSTAL SERIVCE, PROCESSING &
DISTRIBUTION CENTER, Richmond, VA,
Employer
__________________________________________

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

Docket No. 08-2419
Issued: June 15, 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 September 8, 2008 appellant filed a timely appeal from a June 17, 2008 merit
decision of the Office of Workers’ Compensation Programs, denying her occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant sustained an injury to her left forearm and right shoulder
due to factors of her federal employment.
FACTUAL HISTORY
On May 5, 2008 appellant, then a 26-year-old mail handler, filed an occupational disease
claim alleging that she sustained shooting pains in her left forearm and right shoulder due to
lifting and pushing during the course of her federal employment.

In a form dated May 2, 2008 listing emergency discharge instructions, a nurse
practitioner advised that appellant was unable to work from May 2 to 6, 2008. The nurse
provided her with aftercare instructions for the condition of radiculopathy.
By letter dated May 14, 2008, the Office requested additional factual and medical
information from appellant, including a comprehensive medical report from a physician
addressing how factors of her federal employment caused or contributed to a diagnosed
condition.
In a report dated May 7, 2008, a nurse practitioner found that appellant could resume
work in three days with restrictions on lifting, pushing and pulling until evaluated by an
orthopedist. In a physical therapy referral dated May 23, 2008, Dr. William K. Fleming, a
Board-certified orthopedic surgeon, diagnosed lumbar sprain and provided treatment
recommendations.
In a statement dated May 30, 2008, appellant related that her injury occurred on May 1,
2008 when she lifted mail from a bulk mail container. She lifted the tray of mail over her head
and felt a “sharp pain go down my left forearm to my left waist.” The next day the pain was
worse and appellant asked her supervisor if she could go to the emergency room. Appellant
initially believed that she had experienced a traumatic injury but then realized that she had
previously experienced similar pain.
By decision dated June 17, 2008, the Office denied the claim on the grounds that the
medical evidence was insufficient to establish that she sustained a diagnosed condition causally
related to factors of her federal employment.
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 filed within the applicable time limitation; that an injury was sustained while 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.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.3
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;4 (2) a
1

5 U.S.C. §§ 8101-8193.

2

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

3

See Ellen L. Noble, 55 ECAB 530 (2004).

4

Michael R. Shaffer, 55 ECAB 386 (2004).

2

factual statement identifying employment factors alleged to have caused or contributed to
presence or occurrence of the disease or condition;5 and (3) medical evidence establishing
employment factors identified by the claimant were the proximate cause of the condition
which compensation is claimed or, stated differently, medical evidence establishing that
diagnosed condition is causally related to the employment factors identified by the claimant.6

the
the
for
the

The medical evidence required to establish causal relationship generally is rationalized
medical opinion 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.7 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,8 must be one of reasonable medical certainty9 explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the
claimant.10
ANALYSIS
Appellant attributed her radiculopathy condition to lifting and pushing mail in the course
of her federal employment. The Office accepted the occurrence of the claimed employment
factors. The issue therefore is whether the medical evidence establishes a causal relationship
between the claimed conditions and the identified employment factors.
Appellant submitted May 2 and 7, 2008 reports from a physician’s assistant. The reports
of a physician’s assistant, however, are entitled to no weight as a physician’s assistant is not a
“physician” as defined by section 8102(2) of the Act.11
In a physical therapy referral dated May 23, 2008, Dr. Fleming diagnosed lumbar sprain
and provided treatment recommendations. He did not, however, address causation or list any
findings on examination. Medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship.12
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between her claimed condition and her

5

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

6

Beverly A. Spencer, 55 ECAB 501 (2004).

7

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

8

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

9

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

10

Judy C. Rogers, 54 ECAB 693 (2003).

11

See 5 U.S.C. § 8101(2); Allen C. Hundley, 53 ECAB 551 (2002).

12

Conard Hightower, 54 ECAB 796 (2003).

3

employment.13 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by her as causing his condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.14 Appellant failed to submit such evidence and therefore failed
to discharge her burden of proof.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury to her left
forearm and right shoulder due to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 17, 2008 is affirmed.
Issued: June 15, 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

13

D.D., 57 ECAB 734 (2006); Patricia J. Glenn, 53 ECAB 159 (2001).

14

Robert Broome, 55 ECAB 339 (2004).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 18-0785
Issued: November 16, 2018

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 March 1, 2018 appellant filed a timely appeal from a January 26, 2018 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 claim.2

1
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish that her lumbar
conditions are causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On July 10, 2017 appellant, then a 57-year-old mail handler, filed an occupational disease
claim (Form CA-2) alleging that she sustained lumbar injury as a result of her federal employment
duties.3 She attributed her lumbar spine conditions to loading and unloading mail trucks, using
manual force to open and close doors, and driving equipment. Appellant first became aware of
her condition and that it was caused or aggravated by her federal employment on August 3, 2016.
She retired effective June 30, 2017.
By letter dated July 20, 2017, OWCP advised appellant of the deficiencies in her claim. It
requested that she submit additional factual information and medical evidence, including a
comprehensive medical report from her treating physician which included a reasoned explanation
as to how the specific work factors identified by appellant had caused, contributed to, or aggravated
her claimed medical conditions. OWCP afforded appellant 30 days to submit the requested
information.
In response, OWCP received an August 3, 2017 statement from appellant outlining her
work duties, as well as a number of summary reports from Kaiser Permanente physicians dated
from August 3, 2015 to June 10, 2017.
In an August 3, 2015 note, Dr. Stuart Thomas Yee, a physiatrist, related appellant’s
treatment for neuropathic (nerve) pain. In September 18, November 3, and December 28, 2015
notes, Dr. Joanna Marie Duquette, a family practitioner, noted appellant’s treatment for sacral
radiculopathy. On January 15, 2016 Dr. Yee related that appellant was seen for back pain. In a
February 23, 2016 note, Dr. Neal Kenneth Sheade, a Board-certified physiatrist, noted treatment
for right-sided sciatica.
An August 2, 2016 magnetic resonance imaging (MRI) scan noted impressions of disc
extrusion at L4-5, disc protrusion at L3-4, canal stenosis L3 to L5, and neuroforaminal narrowing
at L3-4. The clinical history noted “Reason R sciatica x 1+ y[ea]rs without source identified on
phys[ical] exam[ination].”
In a September 27, 2016 note, Dr. Sheade indicated treatment for lumbar radiculopathy. In
a November 4, 2016 note, Dr. Nippon D. Vadehra, a Board-certified anesthesiologist, related that
appellant was seen for chronic low back pain. On December 14, 2016 and March 3, 2017
Dr. Vadehra updated appellant’s diagnosis to lumbar disc herniation with radiculopathy. In a
June 10, 2017 report, Dr. Anh Quan Quoc Nguyen, a Board-certified physiatrist, diagnosed lumbar
radiculopathy and chronic back pain, which had lasted more than three months.

3
Appellant indicated that she sustained “sciatica (right leg), chronic lower back pain, protruding disc, lumbar disc
herniation, [and] sacral radiculopathy.”

2

By decision dated September 15, 2017, OWCP denied the claim. It found that the medical
evidence of record was insufficient to establish that the diagnosed medical conditions were
causally related to the accepted work factors.
On October 4, 2017 appellant requested a review the written record by an OWCP hearing
representative.
In a September 28, 2017 medical report, Dr. Duquette noted that she had been treating
appellant for a little over two years as her primary care physician. She indicated that in a June 3,
2015 history and physical examination, appellant had described right lower extremity paresthesias
radiating from her back down through her posterior leg to her foot. Dr. Duquette noted that
appellant had experienced these symptoms for the previous six months, without any preceding
traumatic injury. She noted that appellant’s August 3, 2015 nerve conduction testing revealed
sacral radiculopathy and that the August 2, 2016 MRI scan showed significant L3-4 and L5-S1
disc herniation impinging on the spinal cord roots. Dr. Duquette noted that appellant indicated
that, when she was working, she was bending while lifting stall doors over 50 pounds, pushing
equipment greater than 50 pounds, driving a forklift for 6 hours without a break, and walking and
standing on a concrete floor for more than 4 hours without a break. She concluded that “excessive
pushing, lifting, pulling and rigorous physical exertion likely contributed to [appellant’s] medical
condition.”
By decision dated January 26, 2018, an OWCP hearing representative affirmed the
September 15, 2017 decision. She found that appellant had not submitted rationalized medical
evidence, based upon a complete factual background, establishing causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation, that an injury was sustained while 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.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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.7 To establish that an injury was
sustained in the performance of duty in an occupational disease claim, a claimant must submit:
(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
4

5 U.S.C. § 8101 et seq.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

20 C.F.R. § 10.5(q).

3

caused or contributed to the presence or occurrence of the disease or condition; and (3) medical
evidence establishing that the diagnosed condition is causally related to the identified employment
factors.8
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.10 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her lumbar
conditions were causally related to the accepted employment factors.
In support of her claim, appellant submitted reports dated August 3, 2015 to June 10, 2017
from Kaiser Permanente physicians in which these physicians diagnosed treatment for neuropathic
pain, sacral radiculopathy, back pain, right-sided sciatica, lumbar radiculopathy and lumbar disc
herniation with radiculopathy. However, these reports all failed to offer an opinion regarding the
cause of appellant’s diagnosed lumbar spine conditions. 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.12 As such, the August 15, 2016 to June 10, 2017 Kaiser Permanente reports are insufficient
to establish appellant’s claim.
OWCP also received a September 28, 2017 report wherein Dr. Duquette noted appellant’s
employment duties. Dr. Duquette also related findings from appellant’s August 3, 2015 nerve
conduction testing, which revealed sacral radiculopathy, and her August 2, 2016 MRI scan, which
showed significant L3-4 and L5-S1 disc herniation impinging on the spinal cord roots. She
concluded that “excessive pushing, lifting, pulling and rigorous physical exertion likely
contributed to [appellant’s] medical condition.” However, the opinion of a physician supporting
causal relationship must not be speculative or equivocal.13 Dr. Duquette’s statement on causation
also failed to provide a medically sound explanation as to how the specific employment factors,
8

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
10

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018); S.E.,
Docket No. 08-2214 (issued May 6, 2009); see also C.B., Docket No. 09-2027 (issued May 12, 2010).
13

D.D., 57 ECAB 734 (2006).

4

physiologically, caused or aggravated appellant’s conditions.14 She failed to provide discussion
of the underlying degenerative condition and how such condition worsened as a result of
appellant’s work activities.15 As Dr. Duquette’s opinion was conclusory and without sufficient
rationale, her report is insufficient to establish causal relationship.16
As appellant has not submitted medical opinion evidence sufficient to establish her claim,17
she has not met her burden of proof.
On appeal appellant contends that a revised statement from her physician establishes causal
relationship. As previously noted, the Board is unable to review new evidence on appeal.18
Appellant has not established causal relationship between her diagnosed lumbar conditions and
the accepted factors of her federal employment and, therefore, she has failed to meet her burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her lumbar
conditions are causally related to the accepted factors of her federal employment.

14

T.G., Docket No. 14-0751 (issued October 20, 2014).

15

See S.W., Docket 08-2538 (issued May 21, 2009).

16

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006); Roma A. MortensonKindschi, 57 ECAB 418 (2006).
17

See P.M., Docket No. 17-1320 (issued October 16, 2017).

18

See supra note 2.

5

ORDER
IT IS HEREBY ORDERED THAT the January 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 16, 2018
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Babylon, NY, Employer
__________________________________________

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

Docket No. 14-494
Issued: June 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 2, 2014 appellant, through her attorney, filed a timely appeal from an
August 8, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) denying
her traumatic injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained a traumatic left knee
injury in the performance of duty.
On appeal, counsel contends that OWCP committed legal error by denying appellant’s
claim as the medical evidence and legal arguments submitted on reconsideration established fact
of injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 9, 2012 appellant, then a 47-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 7, 2012 she twisted her left knee when stepping
from her postal truck. She sought treatment on February 8, 2012 from Dr. Anthony Termini, an
attending osteopathic physician, who diagnosed a possible ruptured popliteal cyst.2 Appellant
stopped work on February 10, 2012.
Dr. Kevin G. Vesey, an attending Board-certified orthopedic surgeon, followed appellant
beginning February 15, 2012. In February 15 and 17, 2012 reports, he provided a history of the
February 7, 2012 injury. On examination, Dr. Vesey found mild effusion of the left knee with
medial joint line tenderness. He diagnosed a Baker’s cyst and possible torn medial meniscus. In
a February 24, 2012 report, Dr. Vesey opined that a magnetic resonance imaging (MRI) scan of
the left knee showed degenerative arthritis and slight degeneration of the “medial meniscus with
a possible slight tear” and a possible ruptured popliteal cyst. He held appellant off work.
In a March 7, 2012 letter, OWCP advised appellant of the additional evidence needed to
establish her claim, including a statement from her doctor explaining the medical reasons why
stepping out of her postal vehicle would cause the claimed knee injury. It afforded her 30 days
to submit such evidence.
In response, appellant submitted a March 16, 2012 report from Dr. Vesey noting
continued medial joint line tenderness and stiffness in the left knee despite participation in
physical therapy. Dr. Vesey opined that she should undergo left knee arthroscopy as she was not
improving. He stated that appellant related “the onset of these symptoms to an on-the-job injury,
where she twisted her knee while getting out of a postal truck. There is good correlation between
the location of [appellant’s] symptoms and the findings of the MRI scan. [T]he history, as given
by [her], supports causal nature of the injury in development of [her] complaint.” Dr. Vesey
requested authorization for arthroscopic medial meniscectomy, debridement and chondroplasty.
By decision dated April 9, 2012, OWCP denied appellant’s claim on the grounds that
causal relationship was not established. It accepted that the February 7, 2012 incident occurred
at the time, place and in the manner alleged. OWCP found, however, that appellant’s physicians
did not provide medical reasoning explaining how stepping out of her postal vehicle on
February 7, 2012 would cause the diagnosed left knee conditions.

2

February 9, 2012 left knee x-rays were negative for fracture and dislocation. A February 9, 2012 sonogram of
the left knee showed a left popliteal cyst extending into the proximal left calf, measuring 6.4 x 1.0 x 2.1 centimeters.
A February 11, 2012 venous Doppler study of the left lower extremity was negative for deep venous thrombosis.

2

In an April 24, 2012 letter, appellant requested a review of the written record. She again
asserted that she sustained an “on-the-job injury do to my stepping out of my truck and twisting
my knee which caused pain and a pop in my knee.” Appellant submitted a February 8, 2012
employing establishment form in which she refused medical attention after reporting her left
knee injury.
A February 20, 2012 MRI scan of the left knee showed mild effusion with “slight
scattered irregular synovial thickening,” a “lobulated posteromedial popliteal cyst” associated
with “edema within the [adjacent] soft tissues posteriorly about the knee extending into the
visualized proximal leg and contiguous with the posteromedial popliteal cyst and possibility of
cyst rupture,” degenerative osteoarthritis of the patellofemoral and medial compartments, slight
degeneration and a possible tear of the posterior horn of the medial meniscus and cystic synovial
proliferation adjacent to the anterior aspect of the medial compartment.
In an April 18, 2012 report, Dr. Vesey stated that appellant had “a causal relationship
being that she twisted her left knee on the date of injury as given by her as February 7, 2012.
Appellant has persistent medial joint line pain” without radiographic evidence of osteoarthritis.
An MRI scan demonstrated subclinical osteoarthritis, insufficient to cause her symptoms.
By decision issued August 23, 2012, an OWCP hearing representative affirmed the
April 9, 2012 decision, finding that Dr. Vesey did not explain how stepping from a postal vehicle
on February 7, 2012 would cause or aggravate any of the diagnosed left knee conditions.
In a September 2, 2012 letter, appellant requested reconsideration. She noted that she
had been off work from February 7 to July 23, 2012 due to left knee pain and April 30, 2012
surgery. Appellant again stopped work on September 7, 2012 pending left knee surgery
scheduled for September 10, 2012. Counsel submitted a May 9, 2013 brief asserting that new
medical evidence from Dr. Vesey was sufficient to establish causal relationship.3 Appellant
submitted additional medical evidence.
In an April 30, 2012 report, Dr. Vesey noted performing a left knee arthroscopy and
partial medial meniscectomy. He diagnosed a medial meniscus tear.
In a March 25, 2013 report, Dr. Vesey noted that appellant “was getting out of her truck
at her job and twisted her left knee on February 7, 2012,” with the onset of pain localized to the
medial joint line. “[Appellant] reported no prior injury to the knee at any time in the past.” He
noted mild, transient left knee symptoms prior to February 7, 2012 for which she received no
evaluation or treatment. Dr. Vesey noted that the very mild, subclinical osteoarthritis visible on
MRI scan was of no clinical or symptomatic significance. He explained that on April 30, 2012
arthroscopy he found a “radial tear of the medial meniscus” with “mild degenerative changes
mostly around the patella.” Three weeks after surgery, Dr. Vesey aspirated the Baker’s cyst.
After a return to limited duty from June to August 2012, appellant again stopped work due to
increasing left knee symptoms. Dr. Vesey performed a September 10, 2012 repeat left knee
arthroscopy with “further resection of the medial meniscus and debridement of the
patellofemoral joint, medial femoral condyle.” He also reaspirated the Baker’s cyst. Dr. Vesey
3

On May 20, 2013 OWCP issued a decision approving an attorney’s fee request. This decision is not before the
Board on the present appeal.

3

diagnosed mild osteoarthritis of the left knee and a torn meniscus. He explained that “[t]he torn
meniscus is felt to be related to the trauma sustained when she was getting off her truck. The
osteoarthritis of the knee cannot be explained fully by the traumatic incident.”
By decision issued August 8, 2013, OWCP denied modification on the grounds that the
evidence submitted in support of appellant’s request for reconsideration was insufficient to
warrant modifying the prior decision. It found that Dr. Vesey’s March 25, 2013 report was
speculative due to his use of the term “felt to be” and therefore insufficient to establish causal
relationship.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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 filed within the applicable time
limitation; that an injury was sustained while 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.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee sustained a traumatic 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 that must be considered in
conjunction with one another. First, the employee must submit sufficient evidence to establish
that he or she actually experienced the employment incident that is alleged to have occurred.7
An employee has not met his or her burden of proof of establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim.8 Second, the employee must submit sufficient evidence, generally only in the form of
medical evidence, to establish that the employment incident caused a personal injury.9
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
4

5 U.S.C. §§ 8101-8193.

5

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

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001).

8

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

9

Deborah L. Beatty, 54 ECAB 340 (2003).

10

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

4

ANALYSIS
Appellant claimed that she injured her left knee on February 7, 2012 when stepping from
her postal vehicle. OWCP accepted that the February 7, 2012 incident occurred at the time,
place and in the manner alleged. It denied the claim on the grounds that causal relationship was
not established.
Dr. Vesey, appellant’s attending Board-certified orthopedic surgeon, consistently opined
that stepping from the truck on February 7, 2012 caused appellant’s torn left medial meniscus.
He provided a complete, accurate and consistent history of injury in his reports from
February 15, 2012 through March 25, 2013. In February 15, 17, March 16, April 18 and
March 25, 2013 reports, Dr. Vesey stated that, on February 7, 2012, appellant twisted her left
knee while stepping from her postal truck. The Board notes that there is no other medical
opinion or factual statement of record alleging a different mechanism of injury.
Dr. Vesey also provided consistent, detailed support for a causal relationship between the
February 7, 2012 incident and the diagnosed radial medial tear as visualized during April 30 and
September 10, 2012 arthroscopies. He explained that appellant’s left knee pain since its onset on
February 7, 2012 was localized to the medial joint line, indicative of a meniscal tear,
differentiated from subclinical osteoarthritis of the left knee visible on imaging studies. In his
March 16, 2012 report, Dr. Vesey stated that there was “good correlation between the location of
her symptoms and the findings of the MRI scan. [T]he history, as given by [appellant], supports
causal nature of the injury in development of [her] complaint.” Dr. Vesey opined on
March 25, 2013 that “[t]he torn meniscus is felt to be related to the trauma sustained when she
was getting off her truck. The osteoarthritis of the knee cannot be explained fully by the
traumatic incident.” Dr. Vesey thus supports a causal relationship between the February 7, 2012
incident and the left meniscal tear, while explaining that the subclinical osteoarthritis was not
related.
The Board finds that, while Dr. Vesey’s opinion is not sufficiently rationalized11 to meet
appellant’s burden of proof in establishing her claim, there are no opposing medical opinions of
record. Coupled with the consistent history of injury and OWCP’s acceptance of the
February 7, 2012 incident as factual, Dr. Vesey’s reports are of sufficient quality to require
further development of the case by OWCP.12
However, OWCP did not undertake further development of the medical record, such as
referring the record to an OWCP medical adviser or referring appellant for a second opinion
examination. In view of the above evidence, the Board finds that it should have referred the
matter to an appropriate medical specialist to determine whether stepping out of the truck on
February 7, 2012 caused or aggravated a left knee injury.

11

See Frank D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
12

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 280 (1978).

5

Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.13 The case must be remanded to OWCP for preparation of a statement of accepted facts
and referral of the matter to an appropriate medical specialist, consistent with OWCP’s
procedures, to determine whether appellant sustained a left knee injury in the performance of
duty as alleged. Following this and any other development deemed necessary, OWCP shall issue
an appropriate decision in the case.
On appeal, counsel contends that OWCP committed legal error by denying appellant’s
claim as the medical evidence and legal arguments submitted on reconsideration established fact
of injury. As stated, the case is not in posture for decision. The case will be remanded for
further development.
CONCLUSION
The Board finds that the case is not in posture for a decision. The case will be remanded
to OWCP for additional development.

13

Jimmy A. Hammons, 51 ECAB 219 (1999); Marco A. Padilla, 51 ECAB 202 (1999); John W. Butler, 39 ECAB
852 (1988).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 8, 2013 is set aside, and the case remanded for additional
development consistent with this decision and order.
Issued: June 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

7