United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Buffalo, NY,
Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0464
Issued: October 4, 2017

Case Submitted on the Record

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

JURISDICTION
On December 28, 2016 appellant, through counsel, filed a timely appeal from a July 26,
2016 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 the case.3
1

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

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted evidence to OWCP subsequent to the July 26, 2016 decision and with
her appeal to the Board. The Board cannot consider this evidence for the first time on appeal as its jurisdiction is
limited to the evidence that was before OWCP at the time it issued its final decision. 20 C.F.R. § 501.2(c)(1); P.W.,
Docket No. 12-1262 (issued December 5, 2012).

ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount $18,366.83 for the period April 29 through November 28, 2014 because she was not
entitled to wage-loss compensation for that period; and (2) whether OWCP properly found
appellant at fault and thus not entitled to waiver.
On appeal counsel asserts that OWCP improperly issued the July 26, 2016 overpayment
decision because on December 5, 2014 appellant timely requested reconsideration of a
December 17, 2013 OWCP merit decision that denied modification of OWCP’s March 18, 2013
suitable work termination. He asserts that, as OWCP based its conclusions in the overpayment
decision on its March 18, 2013 suitable work termination, the July 26, 2016 decision was
improperly issued. Counsel further asserts that he timely submitted additional evidence
following the preliminary overpayment finding, including a request for a prerecoupment hearing.
FACTUAL HISTORY
On December 7, 2011 OWCP accepted appellant’s traumatic injury claim (Form CA-1)
for a left sprain of shoulder and rotator cuff, which occurred on November 15, 2011.
Dr. Donald P. Douglas, a Board-certified orthopedic surgeon, performed arthroscopic
debridement of the left shoulder on May 22, 2012. Appellant did not return to work following
the surgery.
On January 15, 2013 the employing establishment offered appellant a secretary
(automation) position, based on the restrictions provided by Dr. Robert Ungerer, a Boardcertified orthopedic surgeon and OWCP referral physician who examined her on February 15
and December 19, 2012.
By letter dated January 15, 2013, OWCP advised appellant that the position offered was
suitable. Appellant was notified that if she failed to report to work or failed to demonstrate that
the failure was justified, pursuant to section 8106(c)(2) of FECA, her right to compensation for
wage loss or a schedule award would be terminated. She was given 30 days to respond.
Appellant refused the offered position on January 28, 2013, stating that she was disabled
from work due to the accepted employment injury. On February 1, 2013 she disagreed with the
proposed termination. By letter dated February 19, 2013, OWCP advised appellant that her
reasons for refusing the offered position were not valid. Appellant was given an additional 15
days to accept. In medical reports dated February 25, 2013, Dr. Douglas noted that she
continued to have left shoulder pain and limited motion. He advised that appellant was totally
disabled. Appellant did not accept the position.
By decision dated March 18, 2013, OWCP terminated appellant’s wage-loss
compensation and schedule award benefits pursuant to section 8106(c) of FECA, effective
March 15, 2013. Appellant requested reconsideration on October 24, 2013. She submitted
additional reports from Dr. Douglas dated April 8 to October 16, 2013 in which he diagnosed
chronic left shoulder pain and adhesive capsulitis and advised that she was totally disabled. On
June 10, 2013 Dr. Douglas requested authorization for additional surgery.

2

In a merit decision dated December 17, 2013, OWCP denied modification of its
March 18, 2013 decision.
OWCP authorized additional surgery, and on April 29, 2014 Dr. Douglas performed
arthroscopic manipulation of left shoulder for adhesive capsulitis. On July 26, 2014 appellant
filed a claim for recurrence of disability (Form CA-2a). On July 31, 2014 OWCP accepted
appellant’s claim for a recurrence beginning April 29, 2014. Appellant was paid wage-loss
compensation beginning that day.
On December 5, 2014 appellant, through counsel, timely requested reconsideration of the
December 17, 2013 decision that denied modification of the March 18, 2013 suitable work
termination. He asserted that the position offered to appellant was not suitable, based on the
medical evidence, and that OWCP had not accepted all compensable injuries caused by the
November 15, 2011 employment injury. Counsel also submitted a February 21, 2014 report in
which Dr. Douglas reiterated his request for surgery due to arthrofibrosis/scarring of the
shoulder.
Following inquiries by the employing establishment in August and September 2014 and
January 2015,4 by decision dated February 9, 2015, OWCP found that appellant was not entitled
to wage-loss compensation for the period December 1, 2014 and continuing. It noted that the
March 18, 2013 termination decision remained in effect and she had erroneously been paid
compensation for the period April 29 through November 28, 2014. In separate correspondence
dated February 9, 2015, OWCP issued a preliminary finding that an overpayment of
compensation in the amount of $18,366.83 had been created because appellant received
compensation for the period April 29 through November 28, 2014 to which she was not entitled
because her entitlement to wage-loss benefits had been terminated in March 2013. Appellant
requested a prerecoupment hearing with OWCP’s Branch of Hearings and Review and by
decision dated September 4, 2015, an OWCP hearing representative remanded the case to
OWCP because it had not properly rescinded acceptance of the recurrence of disability which
formed the basis of the overpayment.
On December 8, 2015 OWCP issued a notice of proposed rescission of acceptance of the
recurrence of disability for which appellant was paid compensation for the period April 29
through November 28, 2014. It found that the July 31, 2014 decision had been issued in error
because her entitlement to wage-loss and schedule award compensation benefits had been
terminated by decision dated March 18, 2013 based on her refusal to accept suitable
employment. OWCP finalized the rescission on January 20, 2016. In a separate January 20,
2016 decision, it denied appellant’s claim for a recurrence of disability beginning April 29, 2014
and continuing through November 28, 2014.5

4

The employing establishment noted that appellant had not worked since May 2012, and that OWCP had issued a
March 17, 2013 decision terminating her entitlement to monetary compensation because she refused an offer of
suitable work.
5

Appellant, through counsel, filed an appeal with the Board from both January 20, 2016 decisions. The Board
assigned Docket No. 16-1467 to this appeal, which will be adjudicated separately.

3

In correspondence dated May 10, 2016 and received by OWCP on May 16, 2016,
appellant, through counsel, requested reconsideration of the February 9, 2015 decision in which
OWCP found that appellant was not entitled to wage-loss compensation for the period
December 1, 2014 and continuing.
On June 20, 2016 OWCP again issued a preliminary finding that an overpayment of
compensation in the amount of $18,366.83 had been created because appellant received
compensation for the period April 29 through November 28, 2014 to which she was not entitled
because her entitlement to wage-loss benefits had been terminated in March 2013. It found her
at fault because she accepted payments that she knew or reasonably should have known was
incorrect. The preliminary decision provided an explanation of the calculation of the
overpayment. Appellant was provided an overpayment action request and an overpayment
questionnaire (Form CA-20). She was informed of the actions that she could take and was
allotted 30 days to respond. An overpayment worksheet indicated that appellant received FECA
compensation totaling $18,366.83 for the period April 29 through November 28, 2014.
By decision dated July 26, 2016, OWCP finalized the preliminary finding that appellant
was at fault in the creation of an overpayment of $18,366.83 from April 29 through
November 28, 2014. It noted that no response was received following the preliminary finding.
OWCP directed that appellant repay the overpayment in full or contact it to make appropriate
arrangements.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.6 When an overpayment has been made to an individual because of an error
of fact or law, adjustment shall be made under regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled.7
Section 8106(c)(2) of FECA states that a partially disabled employee who refuses to seek
suitable work or refuses or neglects to work after suitable work is offered to, procured by or
secured for her is not entitled to compensation.8 The implementing regulations provide that a
partially disabled employee who refuses to seek suitable work, or refuses to or neglects to work
after suitable work is offered to or arranged for him or her, is not entitled to compensation,
including compensation for a schedule award under section 8107 of FECA.9
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
6

5 U.S.C. § 8102(a).

7

Id. at § 8129(a).

8

Id. at § 8106(c)(2).

9

20 C.F.R. § 10.517.

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The basis for each OWCP decision issued by OWCP subsequent to its acceptance of the
April 29, 2014 recurrence of disability flows from its March 18, 2013 decision in which
appellant’s entitlement to wage-loss and schedule award compensation was terminated in
accordance with section 8106(c) of FECA because she failed to accepted suitable employment.
As noted by counsel in this appeal, in a merit decision dated December 17, 2013, OWCP denied
modification of the March 18, 2013 decision. The record before the Board in this case indicates
that appellant, through counsel, timely filed a request for reconsideration of the December 17,
2013 decision with OWCP on December 5, 2014. The record before the Board does not contain
an OWCP decision responsive to this request.
The next OWCP decision of record is the February 9, 2015 merit decision in which
OWCP found that appellant was not entitled to wage-loss compensation for the period
December 1, 2014 and continuing. On that date OWCP also issued a preliminary overpayment
finding that an overpayment of compensation had been created because appellant received
$18,366.83 in FECA compensation in error for the period April 29 through November 28, 2014,
after her entitlement to wage-loss compensation had been terminated. The preliminary
overpayment decision was remanded to OWCP by its Branch of Hearings and Review on
September 4, 2015. The hearing representative noted that OWCP had not properly rescinded
acceptance of the April 29, 2014 recurrence of disability which formed the basis of the
overpayment. On December 8, 2015 OWCP then issued a notice of proposed rescission of
acceptance of the April 29, 2014 recurrence of disability, and finalized the rescission by decision
dated January 20, 2016. In a separate January 20, 2016 decision, it denied appellant’s claim for a
recurrence of disability beginning on April 29, 2014.
On June 20, 2016 OWCP again issued a preliminary finding that appellant was at fault in
the creation of an overpayment of compensation in the amount of $18,366.83 for the period
April 29 through November 28, 2014 because her entitlement to wage-loss benefits had been
terminated in March 2013. By decision dated July 26, 2016, OWCP finalized the preliminary
overpayment finding and directed that appellant repay the overpayment in full or contact it to
make appropriate arrangements.
Proceedings under FECA are not adversarial in nature. OWCP shares in the
responsibility to develop the evidence and has an obligation to see that justice is done.10 The
July 26, 2016 overpayment decision at issue in this case flowed from OWCP’s March 18, 2013
suitable work termination decision that was affirmed in a merit decision dated
December 17, 2013. Appellant, through counsel, timely filed a reconsideration request from the
December 17, 2013 decision. In the December 5, 2014 reconsideration request, counsel made
cogent arguments and submitted an additional medical report.
The Board has long held that OWCP shall review all evidence submitted by a claimant
and received by OWCP prior to issuance of its decision.11 OWCP procedures also provide that a

10

P.K., Docket No. 08-2551 (issued June 2, 2009).

11

See Kenneth R. Love, 50 ECAB 193 (1998).

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final decision on a reconsideration request must be issued, and the goal for issuing such decision
is 90 days from receipt of the request.12
In the case Kenneth E. Harris, the Board held that OWCP issued a decision in error, as
there was an outstanding request for reconsideration which remained unadjudicated.13 In the
case at hand, it was improper for OWCP to issue further decisions, including the January 20,
2016 decisions before the Board in the present appeal, without addressing the arguments and
evidence submitted with appellant’s December 5, 2014 reconsideration request.14 Thus, this case
must be remanded to OWCP to issue an appropriate decision on her December 5, 2014
reconsideration request before addressing whether an overpayment of compensation was created.
In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds that this case is not in posture for decision.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2.b (October 2011).

13

54 ECAB 502 (2003).

14

Id.

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: October 4, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 15-579
Issued: May 8, 2015

Case Submitted on the Record

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

JURISDICTION
On January 16, 2015 appellant, through counsel, filed a timely appeal from a nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) dated October 24, 2014.
As the last merit decision issued in this case was dated July 17, 2013, pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does
not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 5, 2012 appellant, then a 50-year-old mail clerk, filed a Form CA-2 claim for
benefits based on an occupational disease, alleging that she developed neck, back, and bilateral
1

5 U.S.C. § 8101 et seq.

conditions causally related to factors of employment. She stated on the form that she sustained a
medical condition as a result of repeatedly opening and closing heavy bay doors on vehicles.
By letter dated November 27, 2012, OWCP asked appellant to submit additional factual
and medical evidence to determine whether she was eligible for compensation benefits. It asked
her to submit a comprehensive medical report from her treating physician describing her
symptoms and the medical reasons for her condition, and an opinion as to whether her claimed
condition was causally related to her federal employment. OWCP requested that appellant
submit the additional evidence within 30 days.
By decision dated January 4, 2013, OWCP denied the claim, finding that appellant failed to
submit a report from her treating physician which adequately described the work duties that
allegedly caused her claimed conditions; therefore, she failed to submit sufficient evidence to
establish fact of injury.
By letter dated January 14, 2013, appellant, through counsel, requested an oral hearing,
which was held on April 10, 2013. On June 12, 2013 an OWCP hearing representative affirmed
the January 14, 2013 decision.
In a report dated March 12, 2013, received by OWCP on June 24, 2013, Dr. Felix A.
Almentero, Board-certified in physical medicine and rehabilitation, stated that he initially treated
appellant on December 21, 2010 for right shoulder pain, which was radiating to the arm and right
hand; he related these symptoms to a December 1, 2010 employment injury. He advised that she
underwent a magnetic resonance imaging (MRI) scan of her right shoulder on April 27, 2010
which showed no evidence of rotator cuff or detached labral tear. Dr. Almentero stated that
appellant was diagnosed with cervical root lesion and degeneration of cervical intervertebral disc
and that she had a positive Spurling’s test on examination. Appellant underwent an
electromyelogram and nerve conduction study of the upper extremities on December 20, 2010
because she was experiencing neck pain radiating to her right shoulder; this test showed no
evidence of cervical radiculopathy. In a follow-up examination dated January 3, 2011, she
reported having right shoulder pain.
Dr. Almentero advised that on February 10, 2011 appellant underwent an MRI scan of
her cervical spine which showed cervical spondylitic and discogenic changes at C4-7 and disc
herniation at C4-5 with extrusion of disc material. He administered cervical facet injections on
March 3 and 31, 2011 which reduced her pain by more than 60 percent. Appellant underwent
radiofrequency ablation at the right C5-6 and C6-7 levels on July 5, 2011, and radiofrequency
neuro-ablation at C5-6 and C6-7 with rhizotomy of the medial branch of the dorsal C5-6, C6-7
on November 8, 2011. On March 12, 2012 she underwent x-rays of the lumbar spine which
showed mild degenerative disc disease at L4-5, mild dextroconvex scoliosis, and no evidence of
dynamic instability. Dr. Almentero advised that an MRI scan of the lumbar spine taken on
March 12, 2012 showed degenerative disc disease at L4-5 and L5-S1, with disc bulging at L4-5
and mild bilateral foraminal narrowing and a small left paracentral disc protrusion at L5-S1
minimally indenting the left ventral thecal sac. Appellant underwent left-sided L4-5 and L5-S1
facet injections on May 24 and June 29, 2012.

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Dr. Almentero asserted that appellant’s condition was the result of soft tissue scarring and
nerve root impingement. He advised that individuals who sustain such traumatic injury of the
cervical spine, lumbar spine, and shoulders have a tendency to experience acute exacerbations of
pain involving these areas at later dates; these episodes might be caused by minor or incidental
trauma and might interfere with normal activities of daily living, as was the case with appellant.
Dr. Almentero stated that such traumatic injuries may have also predisposed her to the premature
development of osteoarthritis involving the cervical spine, lumbar spine, and right shoulder. He
diagnosed cervical spondylitis, cervical facet syndrome, lumbar radiculopathy, and lumbar facet
syndrome. Dr. Almentero advised that appellant’s subjective signs and symptoms were within
the normal limits of an average person subjected to this type of trauma and that the objective
findings, including positive examination, and diagnostic tests, confirm the presence of these
injuries. He opined that, after assessment of her condition, based on her history, complaints,
examinations, test results, lack of previous symptoms, and his professional experience with
similar cases, the above-mentioned injuries were directly and causally related to the work-related
incident which occurred on December 1, 2010. Dr. Almentero stated that in all likelihood these
areas would be permanently weakened and that appellant would experience future exacerbations
of her condition; he opined that future arthritic degenerative changes of the cervical spine and
lower extremities might result as a direct result of this injury.
By letter dated June 24, 2013, counsel requested reconsideration.
By decision dated July 17, 2013, OWCP denied modification of the January 4, 2013
decision.
By letter dated August 23, 2013, counsel requested reconsideration.
In an August 22, 2013 report, Dr. Almentero essentially reiterated the findings of his
March 12, 2013 report. He indicated that the August 22, 2013 report was an amended version of
the March 12, 2013 report and attributed appellant’s claimed conditions to the long term effect of
her work duties rather than a previous traumatic injury. Dr. Almentero reiterated that she was
initially treated on December 21, 2010 for right shoulder pain radiating to the right arm and
hand; he, however, stated that she related these symptoms to her occupational, job-related duties.
He related a September 2006 work injury and stated that the work that appellant had performed
at the employing establishment had caused or aggravated her neck, lumbar, and shoulder
conditions and that her duties after March 13, 2010 worsened her right shoulder condition, her
work post-2007 aggravated her back condition, and the duties throughout her career had caused
or aggravated her neck and left shoulder conditions.
Dr. Almentero stated that individuals who sustain occupational disease of the cervical
spine, lumbar spine, and shoulders due to job duties have a tendency to experience acute
exacerbations of pain involving these areas at later dates, which might be caused by minor or
incidental trauma and which might interfere with one’s normal activities of daily living, as has
been the case with appellant. He stated that such occupational duties might also predispose her
to the premature development of osteoarthritis involving the cervical spine, lumbar spine, and
right shoulder; her subjective signs and symptoms were within the normal limits of the average
person subjected to this type of occupational disease. Dr. Almentero concluded that, after
reviewing her condition, based on her history, complaints, examinations, test results, lack of

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previous symptoms and his experience with similar cases, her above-mentioned occupational
diseases were directly and causally related to the work-related duties of her occupation.
By decision dated November 21, 2013, OWCP denied appellant’s application for review
as it neither raised substantive legal questions nor included new and relevant evidence sufficient
to require OWCP to review its prior decision.
In a November 18, 2013 report, received by OWCP on November 25, 2013,
Dr. Almentero essentially reiterated his previous findings and conclusions and he indicated that
this report was an amended version of the March 12, 2013 report. This report was identical to
his previously submitted “amended” report dated August 22, 2013, except that it added a
notation that appellant was last seen in his practice on May 7, 2013, by Dr. Hajela who
prescribed Voltaren, Zanaflex, and Oxycondone and recommended that appellant follow up with
a surgeon.
By letter dated December 6, 2013, counsel requested reconsideration.
By decision dated October 24, 2014, OWCP denied appellant’s application for review as
it neither raised substantive legal questions nor included new and relevant evidence sufficient to
require OWCP to review its prior decision.
LEGAL PRECEDENT
Section 8128 (a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.2 Under OWCP’s regulations at 20 C.F.R.
§ 10.606(b), a claimant may obtain review of the merits of his or her claim by showing that
OWCP erroneously applied or interpreted a specific point of law; by advancing a relevant legal
argument not considered by OWCP; or by submitting relevant and pertinent evidence not
previously considered by OWCP.3 Evidence that repeats or duplicates evidence already in the
case record has no evidentiary value and does not constitute a basis for reopening a case.4
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP.
Appellant submitted a new report dated November 18, 2013 from Dr. Almentero, which
he stated was an amended version of the March 12, 2013 report. This report, however, was
identical to his previously submitted “amended” report dated August 22, 2013, except that it
noted that he was seen for reevaluation by Dr. Hajela on May 7, 2013 and prescribed
medications. The Board has held that the submission of evidence which does not address the
2

Id. at § 8128(a); see also J.W., 59 ECAB 507 (2008).

3

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

4

Howard A. Williams, 45 ECAB 853 (1994).

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particular issue involved in the case does not constitute a basis for reopening the claim.5 The
new evidence presented in this report, i.e., that appellant was seen by Dr. Hajela on May 7, 2013
is not pertinent to the issue on appeal; whether Dr. Hajela has established that appellant sustained
a work-related back, neck, or bilateral shoulder condition caused or aggravated by her work
duties. This report from Dr. Almentero dated November 18, 2013, otherwise only reiterated
findings and conclusions he made in his August 22, 2013 report; that appellant’s claimed
condition was attributable to an “occupational work duties” and “occupational disease.” OWCP
previously considered his findings and conclusions in reviewing the August 22, 2013 report in its
November 21, 2013 nonmerit decision. This report is therefore cumulative and duplicative and
is not relevant to the issue presented in the instant case.6
On appeal, counsel contends that OWCP abused its discretion by failing to conduct a
merit review given that appellant submitted new medical evidence; i.e., Dr. Almentero’s
amended November 18, 2013 report, to support an occupational disease claim. He contends that
Dr. Almentero demonstrated his awareness of appellant’s work duties and medical history in his
March 12, 2013 report, and subsequently clarified his opinion that she aggravated her neck and
back conditions as a result of performing her work duties for the employing establishment.
Counsel therefore requests that the Board: (a) reverse OWCP’s July 17, 2013 merit decision and
accept appellant’s claim; or (b) vacate and remand for further development of the medical
evidence pertaining to the issue of whether she submitted sufficient medical evidence to establish
a causal relationship between the medical conditions and her work exposure. The Board,
however, as previously noted, does not have jurisdiction over the merits of the claim as this
appeal was not filed within 180 days of the last merit decision issued on July 17, 2013.7 For the
reasons stated above, the Board does not accept counsel’s argument and denies his request. The
Board affirms OWCP’s October 24, 2014 decision.
Appellant’s reconsideration request failed to show that OWCP erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
OWCP. OWCP did not abuse its discretion in refusing to reopen appellant’s claim for a review
on the merits in its October 24, 2014 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

5

See David J. McDonald, 50 ECAB 185 (1998).

6

See Patricia G. Aiken, 57 ECAB 441 (2006).

7

20 C.F.R. § 501.3(e).

5

ORDER
IT IS HEREBY ORDERED THAT the October 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 8, 2015
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EAST ORANGE-VA NEW JERSEY HEALTH
CARE SYSTEM, East Orange, NJ, Employer
__________________________________________

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

Docket No. 20-1331
Issued: March 24, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 8, 2020 appellant filed a timely appeal from a May 7, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, she asserted that oral argument should be granted because the
overpayment was created through no fault of her own and that she was unable to repay it. The Board, in exercising
its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is
based on the case record as submitted to the Board.

Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.3
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $68,041.59, for which she was without fault, as
she concurrently received Social Security Administration (SSA) age-related retirement benefits
and FECA wage-loss compensation for the period February 1, 2004 through March 3, 2018
without appropriate offset; (2) whether OWCP properly denied waiver of recovery of the
overpayment; and (3) whether OWCP properly required recovery by deducting $478.12 from
appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On March 2, 2004 appellant, then a 62-year-old office assistant, filed an occupational
disease claim (Form CA-2) alleging that she had sustained bilateral carpal tunnel syndrome and
left de Quervain’s tenosynovitis due to keyboarding and filing on or before January 21, 2004 while
in the performance of duty. Appellant’s retirement coverage was listed on the claim form as
Federal Employees Retirement System (FERS).
OWCP accepted the claim for bilateral carpal tunnel syndrome and right cubital tunnel
syndrome. It later expanded its acceptance of the claim to include bilateral tenosynovitis.
Appellant stopped work on June 15, 2004, the date she underwent authorized right wrist flexor
tenosynovectomy and right carpal tunnel release.4 She remained off work.
On October 28, 2004 OWCP issued a letter advising appellant to notify OWCP upon
receipt of SSA retirement benefits. Section 8116(d)(2) of FECA required that a claimant’s
continuing compensation benefits be reduced if he or she began receiving SSA retirement benefits
based on his or her age and federal service. OWCP noted that it was notifying her of this
requirement as she had attained 62 years of age, the minimum age at which an individual is eligible
to receive SSA retirement benefits. It noted that failure to report receipt of such retirement benefits
to OWCP could result in an overpayment of compensation, which could be subject to recovery.
Consequently, if she had been approved for SSA retirement benefits, or were currently receiving
SSA retirement benefits, to contact OWCP immediately so that it could begin the process of
making any necessary adjustments to her compensation benefits. On November 8, 2004 appellant
elected FECA benefits retroactive to June 15, 2004. OWCP paid her wage-loss compensation

2

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the May 7, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.
4

Appellant also underwent authorized left carpal tunnel release on October 12, 2004.

2

retroactively to June 15, 2004. It paid appellant wage-loss compensation on the periodic rolls
effective October 1, 2007.
On February 14, 2018 OWCP provided SSA a dual benefits calculation form. It listed the
computation period as December 31, 2004 to the present.
On March 13, 2018 OWCP received the completed FERS/SSA dual benefits calculation
form, wherein SSA calculated SSA benefit rates with a FERS offset and without a FERS offset
from February 2004 through December 2017. Beginning February 1, 2004, the SSA rate with
FERS was $253.20 and without FERS was $772.20. Beginning March 1, 2004, the SSA rate with
FERS was $957.20 and without FERS was $772.20. Beginning November 1, 2007, the SSA rate
with FERS was $1,333.50 and without FERS was $852.70. Beginning December 1, 2007, the
SSA rate with FERS was $1,364.20 and without FERS was $872.30. Beginning December 1,
2008, December 1, 2009, and December 1, 2010 the SSA rate with FERS was $1,443.30 and
without FERS was $922.90. Beginning December 1, 2011, the SSA rate with FERS was $1,495.20
and without FERS was $956.00. Beginning December 1, 2012, the SSA rate with FERS was
$1,520.50 and without FERS was $972.30. Beginning December 1, 2013, the SSA rate with FERS
was $1,543.30 and without FERS was $986.90. Beginning December 1, 2014 and December 1,
2015, the SSA rate with FERS was $1,569.40 and without FERS was $1,003.60. Beginning
December 1, 2016, the SSA rate with FERS was $1,574.10 and without FERS was $1,006.60.
Beginning December 1, 2017, the SSA rate with FERS was $1,605.50 and without FERS was
$1,026.70.
By letter dated March 20, 2018, OWCP informed appellant that the portion of SSA agerelated retirement benefits attributable to her federal service would be deducted from her 28-day
periodic rolls compensation payments beginning March 31, 2018, in the amount of $534.28.
In a FERS offset calculation form dated March 31, 2020, OWCP used the information
provided by SSA to calculate the 28-day FERS offset for the relevant periods, and calculated a
total overpayment in the amount of $68,041.59. It found that during the period February 1
through 29, 2004, an overpayment had not been created as the SSA rate with FERS was $253.20
and the SSA rate without FERS had been $772.20. For the period March 1 through September 30,
2004, an overpayment had been created in the amount of $1,305.16; for the period November 1
through 30, 2007, an overpayment had been created in the amount of $475.52; for the period
December 1, 2007 through November 30, 2008, an overpayment had been created in the amount
of $5,935.23; for the period December 1, 2008 through November 30, 2011, an overpayment had
been created in the amount of $18,785.87; for the period December 1, 2011 through November 30,
2012, an overpayment had been created in the amount of $6,505.95; for the period December 1,
2012 through November 30, 2013, an overpayment had been created in the amount of $6,596.47;
for the period December 1, 2013 through November 30, 2014, an overpayment had been created
in the amount of $6,695.14; for the period December 1, 2014 through November 30, 2015, and
overpayment had been created in the amount of $6,808.25; for the period December 1, 2015
through November 30, 2016, an overpayment had been created in the amount of $6,826.91; for the
period December 1, 2016 through November 30, 2017, an overpayment had been created in the
amount of $6,828.71; for the period December 1, 2017 through March 3, 2018, an overpayment
had been created in the amount of $1,774.56. OWCP added the overpaid amounts to equal
$68,041.59.
3

On April 3, 2020 OWCP issued a preliminary determination that appellant was overpaid
compensation in the amount of $68,041.59 for the period February 1, 2004 through March 3, 2018
because the SSA/FERS offset was not applied to payments for this period. It determined that she
was without fault in the creation of the overpayment due to the complexity of benefits
administration and could not have reasonably known about the improper payments. OWCP
requested that appellant submit a completed overpayment recovery questionnaire (Form OWCP20) to determine a reasonable repayment method, and advised her that she could request waiver of
recovery of the overpayment. It requested financial information, including copies of income tax
returns, bank account statements, bills, pay slips, and any other records to support income and
expenses. OWCP advised appellant that it would deny waiver if she failed to furnish the requested
financial information within 30 days. It further notified her that, within 30 days of the date of the
letter, she could contest the overpayment and request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing. No response was received.
By decision dated May 7, 2020, OWCP determined that appellant had received an
overpayment of compensation in the amount of $68,041.59 because the SSA/FERS offset had not
been applied to payments for the period February 1, 2004 through March 3, 2018. It further found
that she was without fault in the creation of the overpayment, but denied waiver of recovery,
because she had not completed the Form OWCP-20. OWCP required recovery of the overpayment
by deducting $478.12 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.6
Section 10.421(d) of FECA’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA benefits that are attributable to federal service of
the employee.7 FECA Bulletin No. 97-09 provides that FECA benefits have to be adjusted for the
FERS portion of SSA benefits because the portion of the SSA benefit earned as a federal employee
is part of the FERS retirement package, and the receipt of FECA benefits and federal retirement
concurrently is a prohibited dual benefit.8

5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

8

FECA Bulletin No. 97-09 (February 3, 1997).

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $68,041.59 as she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for the period February 1, 2004 through
March 3, 2018 without appropriate offset.
As noted, a claimant cannot receive concurrent FECA wage-loss compensation and SSA
age-related retirement benefits attributable to federal service for the same period.9 The information
provided by SSA established that appellant had received SSA age-related retirement benefits that
were attributable to her federal service from February 1, 2004 through March 3, 2018.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. The SSA provided appellant’s
SSA rate with FERS and without FERS during the applicable period. OWCP found that, since
SSA benefits were paid monthly and FECA benefits were paid every 28 days, the monthly offset
had to be adjusted to a 28-day payment cycle amount. This amount differed for each period
beginning February 2004. OWCP calculated that the lack of offset from February 1, 2004 through
March 3, 2018 resulted in an overpayment total of $68,041.59. The Board has reviewed OWCP’s
calculations and finds that it properly determined that appellant received prohibited dual benefits
totaling $68,041.59, thus creating an overpayment of compensation in that amount, for the period
February 1, 2004 through March 3, 2018.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”10 Section 10.438 of OWCP’s regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.

9

Supra note 5. M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket No. 18-0795 (issued
January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).
10

5 U.S.C. § 8129.

11

20 C.F.R. § 10.438.

5

As OWCP found appellant without fault in the creation of the overpayment, waiver must
be considered, and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.12 Appellant,
however, had the responsibility to provide the appropriate financial information and
documentation to OWCP.13
In its preliminary determination dated May 3, 2020, OWCP explained the importance of
providing the completed Form OWCP-20 and financial information, including copies of income
tax returns, bank account statements, bills, pay slips, and any other records to support reported
income and expenses. It advised appellant that it would deny waiver of recovery of the
overpayment if she failed to furnish the requested financial information within 30 days. Appellant
did not timely submit a completed Form OWCP-20 or otherwise submit financial information
necessary for OWCP to determine whether recovery of the overpayment would defeat the purpose
of FECA or if recovery would be against equity and good conscience.
Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438 of OWCP’s regulations, necessary to determine her eligibility for waiver, the Board finds
that OWCP properly denied waiver of recovery of the overpayment.14
On appeal appellant contends that OWCP should waive the overpayment due to financial
hardship. She asserts that she timely requested a prerecoupment hearing, but did not receive a
response. The Board notes that OWCP did not receive a request for a prerecoupment hearing or
other response to the preliminary notice of overpayment prior to the issuance of the May 7, 2020
final overpayment determination.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.15

12

Id. at § 10.436.

13

Id. at § 10.438.

14

See T.E., Docket No. 19-0348 (issued December 11, 2019).

15
20 C.F.R. § 10.441(a); A.S., Docket No. 19-0171 (issued June 12, 2019); Donald R. Schueler, 39 ECAB 1056,
1062 (1988).

6

ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$478.12 from appellant’s continuing compensation payments every 28 days.
OWCP provided appellant a Form OWCP-20 with its April 3, 2020 preliminary
determination. It afforded her the opportunity to provide appropriate financial information and
documentation to OWCP. Appellant, however, did not complete the Form OWCP-20 or otherwise
provide the necessary financial information to support her income and expenses prior to the final
May 7, 2020 overpayment decision. The overpaid individual is responsible for providing
information about income, expenses, and assets as specified by OWCP.16 When an individual fails
to provide requested financial information, OWCP should follow minimum collection guidelines
designed to collect the debt promptly and in full.17 As appellant did not submit financial
information as requested, the Board finds that OWCP properly required recovery of the $68,041.59
overpayment at the rate of $478.12 every 28 days from appellant’s continuing compensation
payments.18
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$68,041.59, for which she was without fault, as she concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation for the period February1, 2004 through
March 3, 2018 without appropriate offset. The Board further finds that OWCP properly denied
waiver of recovery of the overpayment and properly required recovery of the overpayment by
deducting $478.12 every 28 days from her continuing compensation payments.

16

Id. at § 10.438(a).

17

See J.A., Docket No. 19-1946 (issued July 13, 2020); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2 (September 2018).
18
J.C., Docket No. 20-1062 (issued January 4, 2021); see J.A., id.; E.K., Docket No. 18-0587 (issued October 1,
2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2020 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0667
Issued: May 18, 2016

Case Submitted on the Record

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

JURISDICTION
On February 22, 2016 appellant, through counsel, filed a timely appeal of a December 9,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish osteoarthritis of
the left hip due to factors of his federal employment.
On appeal counsel argues that the July 31, 2014 report of Dr. Byron V. Hartunian, an
orthopedic surgeon, was sufficient to meet appellant’s burden of proof. He provided his
disagreement with each of the points raised by OWCP’s hearing representative in regard to
Dr. Hartunian’s report.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 20, 2014 appellant, then a 67-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed an acceleration of his osteoarthritis in his
right knee due to his employment duties. He indicated that he first became aware of his
condition and first attributed his condition to his employment on June 18, 2014. On the reverse
of the form, appellant’s supervisor indicated that he had retired from the employing
establishment on August 31, 2011.
Appellant noted that he was not certain when his right knee arthritis began, but believed
that this condition was evidenced on x-rays in 2010. He further indicated that his hip arthritis
was diagnosed in 2010 at the same time as trochanteric bursitis. Appellant described his job
duties of climbing in and out of his truck 400 times a day, loading and unloading mail and
parcels, climbing stairs to make deliveries, lifting, carrying, pushing, pulling, climbing, bending,
stooping, driving a truck, and maneuvering heavy equipment weighing up to 1,000 pounds. He
indicated that his route required both collections and deliveries and that he spent 8 to 10 hours a
day performing his job activities.
Dr. Christopher W. Digiovanni, a Board-certified orthopedic surgeon, examined
appellant on September 11 and October 2, 2003 due to complaints of right ankle pain. He
diagnosed early arthrosis and opined that this was a preexisting condition exacerbated by
appellant’s job duties. In a note dated January 20, 2010, Dr. Randal Kaufman, a Board-certified
internist and cardiologist, diagnosed “arthritic type” pain in the knees and ankles.
On January 28, February 11, and June 18, 2010, and February 3 and August 8, 2011
Dr. Amparo Gordian, a Board-certified internist and rheumatologist, diagnosed trochanteric
bursitis, osteoarthritis right hip, bilateral knee osteoarthritis, patellafemoral syndrome,
osteoarthritis, and arthralgia bilateral lower extremities. He indicated that appellant pointed to
his left trochanteric bursa and described burning pain when walking or sitting.
Dr. Saul Magitsky, a Board-certified orthopedic surgeon, treated appellant on February 2,
2010 for bilateral knee pain, as well as right hip, ankle, and heel pain. He reviewed radiographs
of the knees and right ankle and found evidence of degenerative changes consistent with loss of
joint space in the medial compartment and early osteophyte formation.
Dr. Robert M. Shalvoy, a Board-certified orthopedic surgeon, examined appellant on
December 20, 2012 and reported findings of bilateral knee and right hip pain. He noted that he
had previously treated appellant for knee osteoarthritis. Appellant had undergone a left knee
arthroscopy in the past. Dr. Shalvoy found that appellant’s hip motions were full bilaterally
without any pain or instability. He also found mild varus alignment in appellant’s knees with
crepitance and diffuse tenderness. Dr. Shalvoy examined x-rays including anteroposterior views
of the pelvis and lateral views of the right hip and found some sclerosis on the superior rim of the
acetabulum and some calcification off the greater tuberosity. He concluded that these x-rays
otherwise demonstrated normal osseous anatomy. Dr. Shalvoy diagnosed right hip strain and
bilateral knee osteoarthritis.

2

In a report dated January 24, 2013, Dr. Digiovanni examined appellant due to heel and
ankle pain.
Appellant’s pelvic x-rays dated March 14, 2014 demonstrated osteoarthritis of the hips
and lumbosacral spine with mild narrowing of the hip joints, spurring of the acetabula and
femoral heads, evidence of possible old fractured spurs, and large left lumbosacral osteophytes
as well as calcification of the bilateral sacrotuberal ligaments.
Dr. Hartunian completed a report on July 31, 2014. He noted reviewing appellant’s
medical records and job description. Dr. Hartunian described appellant’s right ankle condition
and treatment as well as his right knee pain beginning in 2010. He indicated that in
February 2010 appellant received a diagnosis of right hip bursitis. Dr. Hartunian reviewed
Drs. Gordian’s and Shalvoy’s reports regarding appellant’s lower extremities including left knee
arthroscopy in 2006. He found that Dr. Gordian followed appellant for left hip pain and
diagnosed osteoarthritis and bursitis. Dr. Hartunian examined the December 20, 2012 x-rays
from Dr. Shalvoy and found arthritis of the hip specifically the superior rim of the acetabulum on
the right. He found that x-rays indicated that the femoral heads were spherical with narrowing of
the medial femoralacetabular joint bilaterally to two millimeters of cartilage interval.
Dr. Hartunian noted that there was no separate radiological report of the December 20, 2012
x-rays, but that the record of Dr. Shalvoy was consistent with this assessment.
Dr. Hartunian examined appellant and found palpable tenderness over the greater
trochanter area of the hips bilaterally, with limited range of motion, and groin pain on combined
flexion and rotation. He diagnosed right and left hip trochanteric bursitis and arthritis with two
millimeters of cartilage interval at the medial femoralacetabular joint, right knee arthritis with
three millimeters of cartilage interval at the medial femorotibial, and knee joint arthritis on the
left.
Dr. Hartunian defined arthritis as a failure and loss of articular cartilage surface. He
opined that the progression of arthritis was accelerated through a process of impact loading
resulting from repeated local stresses causing chronic inflammation. Dr. Hartunian noted that
appellant’s job required constant and repetitive walking, squatting, stooping, climbing, bending,
lifting, carrying, stair climbing, and twisting. He found, “It is the impact loading resulting from
these heavy physical duties and the constant and continuous repeated local stresses regularly
occurring over the course of a workday and which is repeated day after day that accelerates the
progression of the underlying arthritis.” Dr. Hartunian further indicated, “The primary chemical
change is the loss of proteoglycans and is initiated by activation of degradative enzymes
associated with inflammation. These proteoglycans are responsible for cartilage resilience and
their loss from the cartilage results in a stiffer material that is more easily damages by ‘wear and
tear.’” He concluded that appellant’s job duties were causative contributing factors to the
development and progression of lower extremity arthritis. Dr. Hartunian noted that had
appellant’s work-related activities been of sedentary nature those activities would not have
contributed to the progression of his bilateral hip and right knee arthritis to the same extent.
In a letter dated October 3, 2014, OWCP requested that appellant provide evidence that
his claim was timely as well as supportive factual and medical evidence. It noted that he had
previously filed a Form CA-2 for right hip, bilateral knee, right ankle, and right heel on

3

January 28, 2010. Appellant responded and indicated that he was not aware of the relationship
between his employment and his conditions until he was examined by Dr. Hartunian on
June 18, 2014. He further noted that OWCP denied his prior claim on March 30, 2010.
Appellant submitted his medical records from Dr. Shalvoy’s office regarding his left knee
dated from August 24, 2006, including the September 8, 2006 surgery, through June 2007.
OWCP referred the medical evidence in appellant’s claim to the OWCP medical adviser
on February 3, 2015. The medical adviser reviewed this evidence on February 5, 2015 and
found that appellant had a history of right knee and right hip symptoms which were in part
related to his work duties. He found that appellant’s work-related duties aggravated the
underlying degenerative changes in the right knee and hip advancing his osteoarthritis. The
medical adviser further found that there was no evidence to support ongoing left hip issues. He
noted that Dr. Hartunian found that Dr. Gordian was treating appellant for a left hip condition,
but that the medical evidence did not support this finding. The medical adviser found that on
January 28, 2010 Dr. Gordian noted that appellant was experiencing problems with his left
trochanteric bursae, but noted no left hip abnormalities on examination on that date, nor on
February 11, 2010. He noted that Dr. Shalvoy did not mention left hip symptoms.
By decision dated February 11, 2015, OWCP accepted appellant’s claim for acceleration
of right hip and right knee osteoarthritis, but denied acceptance of the left hip osteoarthritis.
Counsel requested an oral hearing with OWCP’s Branch of Hearings and Review
(BH&R) on February 23, 2015. In a memorandum dated September 23, 2015, he argued that
Dr. Hartunian’s report was sufficiently detailed and well reasoned to establish appellant’s claim
for left hip osteoarthritis as well as the two other conditions accepted by OWCP. Counsel
appeared at the oral hearing before a hearing representative of OWCP’s BH&R on
September 23, 2015 and argued that x-rays supported the diagnosis of left hip osteoarthritis due
to appellant’s employment duties.
By decision dated December 9, 2015, OWCP’s hearing representative found that the
medical evidence did not establish appellant’s claim for a left hip condition due to his federal job
duties.
LEGAL PRECEDENT
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The evidence required to establish causal relationship is rationalized medical opinion evidence,
based upon a complete factual and medical background, showing a causal relationship between

4

the claimed condition and identified factors. The belief of a claimant that a condition was caused
or aggravated by the employment is not sufficient to establish causal relation.2
ANALYSIS
The Board finds that appellant has not submitted the necessary medical evidence to
establish a causal relationship between his diagnosed left hip osteoarthritis and his accepted
employment duties.
Appellant submitted a report dated July 31, 2014 from Dr. Hartunian addressing the
causal relationship between appellant’s left hip condition and his employment duties. He relied
on appellant’s medical record finding that Dr. Gordian diagnosed left hip pain with osteoarthritis
and bursitis. The Board found in reviewing Dr. Gordian’s reports that he indicated that appellant
pointed to his left trochanteric bursa and described burning pain when walking or sitting. While
Dr. Gordian diagnosed right knee and hip osteoarthritis he did not diagnose any left lower
extremity condition other than arthralgia bilateral lower extremities. Given his clear diagnosis of
osteoarthritis when addressing appellant’s right lower extremity conditions, the Board finds this
distinction with regard to appellant’s left hip compelling evidence that he was not supporting
osteoarthritis of the left hip.
Dr. Hartunian further relied on December 20, 2012 x-rays taken by Dr. Shalvoy finding
that these demonstrated left hip osteoarthritis. Dr. Shalvoy reviewed these x-rays in his
December 20, 2012 report, but did not explicitly diagnose left hip osteoarthritis or any left hip
condition. He found some sclerosis on the superior rim of the acetabulum and some calcification
of the greater tuberosity on the right hip. Dr. Shalvoy concluded that these x-rays otherwise
demonstrated normal osseous anatomy. He diagnosed right hip strain. The Board is unable to
determine how Dr. Hartunian extrapolated Dr. Shalvoy’s findings and conclusions based on
review of his report without a separate review of the prior x-rays or a separate x-ray report
including additional findings of cartilage intervals and specific findings on the left.
The Board finds that the first clear and exact diagnosis of left hip osteoarthritis is made in
appellant’s pelvic x-rays dated March 14, 2014. Dr. Hartunian’s July 31, 2014 report also
provided findings on physical examination and a diagnosis of both left hip trochanteric bursitis
and arthritis. Although he explained how appellant’s employment duties accelerated the
previously diagnosed conditions of right knee and right hip osteoarthritis, Dr. Hartunian did not
provide a separate explanation of how or why appellant’s left hip osteoarthritis would be
impacted by his employment almost three years after this employment ended.
The Board further notes that OWCP’s medical adviser reviewed the medical record and
found that the evidence was insufficient to support Dr. Hartunian’s findings of left hip arthritis
accelerated by appellant’s employment. The medical adviser disagreed with Dr. Hartunian’s
characterization of Drs. Gordian’s and Shalvoy’s reports with regard to appellant’s ongoing left
hip condition. Only Dr. Shalvoy read appellant’s December 2012 x-rays on a date several
months after appellant’s employment ceased and he did not diagnose a specific left hip condition
2

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

5

based on those x-rays. Contrary to counsel’s arguments on appeal, the Board finds that as
Dr. Hartunian mischaracterized the contemporaneous medical evidence with regard to
appellant’s left hip condition, his report dated July 31, 2014, is not sufficiently detailed to
establish a causal relationship between appellant’s employment exposures ending in 2011 and his
left hip osteoarthritis diagnosed in 2014.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish left hip
osteoarthritis due to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the December 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, West Palm Beach, FL,
Employer
__________________________________________

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

Docket No. 11-146
Issued: September 13, 2011

Case Submitted on the Record

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

JURISDICTION
On October 25, 2010 appellant filed a timely appeal from May 28 and October 31, 2010
merit decisions of the Office of Workers’ Compensation Programs (OWCP) denying his
occupational injury claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he developed a
right inguinal hernia causally related to factors of his employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 2, 2010 appellant, then a 44-year-old supervisory transportation security officer,
filed an occupational disease claim (Form CA-2) alleging that he developed a hernia from the
constant lifting of luggage and bags. He stated that he first became aware of his condition on
June 6, 2008 and of its relationship to his employment on August 10, 2009. Appellant reported
that he delayed filing his claim for approximately two years because he did not specifically know
that he had a hernia.
Appellant stated that he went to the hospital and that the physician did not see the bulge
protruding in his crotch. This resulted in dismissal of a prior claim.2 Appellant noted continued
pain and returned to the hospital in 2010 when he was diagnosed with a hernia. The employing
establishment received notice of his alleged injury on April 2, 2010 and challenged his claim.
Appellant’s supervisor stated that he had no direct knowledge of a hernia nor had appellant ever
complained or reported injuring himself. Appellant did not stop work.
By letter dated April 6, 2010, OWCP informed appellant that the evidence of record was
insufficient to support his claim. Appellant was advised of the medical and factual evidence
needed and was directed to submit it within 30 days. In a letter of the same date, OWCP also
requested additional factual information from the employing establishment.
In an undated letter, appellant reported that in 2007 or 2008 he went to the Veterans
Administration Medical Clinic (VAMC) complaining of pain in his groin area. He stated that his
primary care physician thought his pain could be a result of a hernia and referred him to
Dr. Ernest Shwayri, a Board-certified surgeon, who did not detect any bulges and declared the
provisional diagnosis of a hernia to be incorrect. Appellant stated that the pain became worse
over time and the bulge became evidence under the skin. Upon returning to the emergency room
in 2010, Dr. Shwayri diagnosed him with a hernia. Appellant explained that he did not file a
claim earlier because he did not know that he had a hernia. He reported that he had been
employed by the Department of Homeland Security for eight years. Appellant’s duties often
included lifting heavy bags which he believed caused or aggravated his hernia.
In a March 22, 2010 prescription note, appellant’s physician reported that he was
evaluated and scheduled for surgery on April 8, 2010.
By letter dated April 2, 1010, appellant reiterated that his injury occurred approximately
two years earlier in 2008 and that a hernia was detected after returning to the hospital in 2010.
He noted that he was scheduled for surgery on April 8, 2010 and repeated that his injury had
been the result of his duties as a supervisory transportation security officer. In support of his
statement, appellant submitted an official job description for a supervisory transportation security
officer screener.

2

The appellant noticed groin pain in 2008 but was not diagnosed with a hernia until 2010.

2

In an April 16, 2010 prescription note, appellant’s physician reported that appellant
underwent surgery on April 8, 2010 and was limited to lifting no more than eight pounds until
June 2010.
By decision dated May 28, 2010, OWCP denied appellant’s claim finding that the
medical evidence did not demonstrate that the hernia was causally related to the established
work-related events.
In an undated letter, appellant requested reconsideration of OWCP’s decision. He
repeated his assertion that he had a hernia in 2007 and mistakenly though it might have been an
ilioinguinal sprain. Appellant further affirmed his belief that his misdiagnosed hernia was
directly related to his employment.
In support of his request, appellant submitted medical records dated June 22, 2007 to
April 16, 2010 from the VAMC. In a June 22, 2007 medical report, Darlene Papillion, a licensed
practical nurse, reported that appellant was experiencing pain in the right groin. Upon physical
examination, she noted that the prostate was soft nontender with mild bulging in the right groin
upon coughing and she referred him to a surgery consult for a right inguinal hernia.
In a July 11, 2007 progress note, Dr. Shwayri reported that appellant occasionally
experienced mild tenderness in the right inguinal suprapubic area after lifting. Upon
examination of the inguinal regions, he detected no defect, bulge or hernia by cough, squatting or
valsava.
In a March 4, 2010 progress note, Dr. Shabtab Karatela, Board-certified in internal
medicine, reported that a right inguinal hernia had been present for the past two to three years
and had become more prominent in the past month. He diagnosed appellant with a reducible
right inguinal hernia and recommended surgical repair.
In a March 22, 2010 progress note, Dr. Shwayri confirmed that appellant was scheduled
for a hernia repair on April 8, 2010. In an April 16, 2010 progress note, he reported that
appellant’s procedure went well and that he could return to work on April 23, 2010 but was to
avoid lifting greater than eight pounds for eight weeks.
By decision dated October 13, 2010, OWCP denied modification of its May 28, 2010
decision on the grounds that the medical evidence of record failed to establish the causal
relationship between the hernia and the related employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable 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

3

employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or occupational disease.4
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.5 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence.
To establish a causal relationship between the condition and any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting that causal
relationship.6 The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment factors identified by the claimant. This medical opinion must
include an accurate history of the employee’s employment injury and must explain how the
condition is related to the injury. The weight of medical evidence is determined by its reliability,
its probative value, its convincing quality, the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion.7
ANALYSIS
OWCP accepted that appellant was engaged in lifting luggage repetitively in his
employment activities as a supervisory transportation security officer. It denied his claim,
however, on the grounds that the evidence failed to establish a causal relationship between those
activities and his right inguinal hernia. The Board finds that the medical evidence of record is
insufficient to establish that appellant sustained a hernia causally related to factors of his
employment as a supervisory transportation security officer.
In a July 11, 2007 progress note, Dr. Shwayri reported that appellant occasionally
experienced mild tenderness in the right inguinal suprapubic area after lifting. Upon physical
examination, he detected no defect, bulge, or hernia by cough, squatting or valsava. In his
March 22, 2010 progress note, Dr. Shwayri diagnosed a right inguinal hernia and reported that
appellant was undergoing surgery on April 8, 2010. His April 16, 2010 progress note stated that

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

7

James Mack, 43 ECAB 321 (1991).

4

the procedure went well and that appellant should not lift greater than eight pounds and could
return to work on April 23, 2010.
Dr. Shwayri did not determine that appellant’s condition was work related and did not
offer a rationalized opinion on the causal relationship between appellant’s diagnosed condition
and the factors of employment implicated in the claim.8 While his July 11, 2007 medical report
noted that appellant was experiencing tenderness in the right inguinal subrapubic area after
lifting, he did not determine that this lifting was specifically a work-related activity or opine how
appellant’s employment would have caused this tenderness. That report tends to support that a
diagnosed hernia did not exist at the time of appellant’s 2007 examination. Though Dr. Shwayri
provided a diagnosis, none of his reports mentioned a work-related cause or aggravation of
appellant’s hernia. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.9 Without medical reasoning explaining how appellant’s employment factors
caused the right inguinal hernia, Dr. Shwayri’s report is insufficient to meet appellant’s burden
of proof.10
In a March 4, 2010 progress note, Dr. Karatela reported that appellant’s right inguinal
hernia had existed for the past two to three years but had become more prominent in the last
month. He diagnosed a reducible right inguinal hernia. While Dr. Karatela diagnosed
appellant’s injury, he did not identify its cause and did not mention appellant’s employment
activities. Without medical reasoning explaining how appellant’s employment factors caused his
hernia, Dr. Karatela’s report is insufficient to meet appellant’s burden of proof.11
The remaining evidence of record does not establish that appellant sustained a right
inguinal hernia causally related to his employment. The March 22 and April 16, 2010
prescription notes merely confirm that appellant had a hernia repair and provided his work
restrictions. The prescription notes did not address the cause of appellant’s injury. Further,
progress notes from VAMC nurses, to the extent that they offer medical opinions, are of no
probative value. Registered nurses, licensed practical nurses and physicians’ assistants are not
physicians as defined under FECA and medical opinions must be provided by physicians.12
Appellant’s honest belief that work caused his medical problem is not in question. But
that belief, however sincerely held, does not constitute the medical evidence necessary to
establish causal relationship. In the instant case, the record is without rationalized medical
8

Franklin 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).
9

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

10

C.B., Docket No. 08-1583 (issued December 9, 2008).

11

Id.

12

5 U.S.C. § 8102(2) of FECA provides as follows: (2) ‘physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law.

5

evidence establishing a causal relationship between the accepted factors of employment and
appellant’s right inguinal hernia. Thus, appellant has failed to meet his burden of proof.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his right
inguinal hernia is causally related to factors of his employment as a supervisory transportation
security officer.
ORDER
IT IS HEREBY ORDERED THAT the October 31 and May 28, 2010 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 13, 2011
Washington, DC

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

Alec J. Koromilas, 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.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camarillo, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1510
Issued: February 8, 2013

Case Submitted on the Record

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

JURISDICTION
On July 5, 2012 appellant, through her counsel, filed a timely appeal of a January 9, 2012
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability beginning February 17, 2011 causally related to her May 10, 2010 employment injury.

1
2

5 U.S.C. § 8101 et seq.

Counsel did not appeal OWCP’s May 29, 2012 decision granting appellant a schedule award for three percent
permanent impairment of the left lower extremity.

FACTUAL HISTORY
On May 10, 2010 appellant, then a 48-year-old letter carrier, sustained lower back pain
while lifting a mail tray. By decision dated June 11, 2010, OWCP accepted her traumatic injury
claim for lumbar sprain. Appellant returned to modified duty effective June 24, 2010 and
thereafter received partial wage-loss compensation for the period June 29 to September 4, 2010.
In a September 2, 2010 report, Dr. Brett M. Rosenberg, a Board-certified orthopedic
surgeon, related that appellant experienced lower back pain radiating to the left leg. On
examination, he observed left paraspinal muscle tenderness to palpation, 60-degree lumbar
flexion, 20-degree lumbar extension, 60-degree lateral lumbar rotation bilaterally, 20-degree
lateral lumbar flexion bilaterally and decreased L5 and S1 nerve root sensation. Dr. Rosenberg
also elicited a positive left straight leg raise test. He diagnosed lumbar radiculopathy and
advised appellant to avoid bending, stooping and lifting, and pushing and pulling items weighing
over 10 pounds.3
An October 4, 2010 note from Dr. Charles H. Avery, an internist, excused appellant from
work through October 15, 2010 as a result of an unidentified injury sustained on
September 20, 2010. The employing establishment later informed OWCP in an October 13,
2010 letter that she was involved in a motor vehicle accident during a scheduled day off on
September 20, 2010.4 In an undated statement, Gilbert de la Torre, a supervisor, maintained that
appellant showed him a cellular phone photograph of her vehicle, the right side of which
“appeared to be totaled.”
In October 14 and November 4, 2010 reports, Dr. Rosenberg examined appellant and
noted an improvement of her symptoms. An October 7, 2010 magnetic resonance imaging
(MRI) scan exhibited L4-5 degenerative changes and L5-S1 disc bulge. Dr. Rosenberg
diagnosed L5-S1 disc herniation, lumbar strain and lumbar radiculopathy. He recommended
light duty, but expected appellant to resume her regular work in approximately four weeks.
November 11 and 15, 2010 medical forms from Dr. Avery indicated that appellant was
injured in a nonindustrial automobile collision on September 20, 2010. The employing
establishment added in a November 17, 2010 letter to OWCP that she remained absent from
work since the day of the accident.
In a December 23, 2010 report, Dr. Rosenberg examined appellant and found 90-degree
lumbar flexion, 30-degree lumbar extension, 80-degree lateral lumbar rotation bilaterally and 30degree lateral lumbar flexion bilaterally. He diagnosed lumbar strain and resolved lumbar
radiculopathy, concluded that appellant was permanent and stationary as of December 23, 2010
and released her to regular duty without restrictions. Dr. Rosenberg cautioned, “[Appellant] is at
risk for a recurrence of symptoms.”

3

Dr. Rosenberg presented similar findings in a September 30, 2010 report.

4

According to the case record, as early as October 26, 2010, OWCP asked appellant to provide information about
the September 20, 2010 motor vehicle accident. Appellant did not respond to this inquiry.

2

In a January 6, 2011 report, Dr. Rosenberg remarked that appellant’s condition worsened
immediately following her discharge. On examination, he observed left lumbar spine tenderness
to palpation, 70-degree lumbar flexion, 10-degree lumbar extension, 60-degree lateral lumbar
rotation bilaterally, 20-degree lateral lumbar flexion bilaterally and decreased S1 nerve root
sensation. Dr. Rosenberg also elicited a positive left straight leg raise test. He advised appellant
to avoid prolonged ambulation and lifting, and pushing and pulling items weighing over 10
pounds.5
Dr. Vadim Lipel, an anesthesiologist, detailed in a February 25, 2011 report that
appellant complained of lower back and left leg symptoms. On examination, he observed lumbar
spine tenderness to palpation, limited flexion and extension secondary to pain, diminished left
lateral foot sensation to light touch and a positive left straight leg raise test. An MRI scan
demonstrated L4-S1 disc extrusion measuring four millimeters. Dr. Lipel diagnosed lumbar disc
disease and L5-S1 disc herniation due to the May 10, 2010 employment injury.
In a February 17, 2011 report, Dr. Rosenberg limited appellant to sedentary tasks and
prohibited postal route duties.6
The employing establishment notified OWCP in an April 12, 2011 letter that it attempted
to find a job that accommodated appellant’s new physical restrictions, but could not offer such a
position as of February 19, 2011. It also provided the following chronology: she was placed on
part-time modified assignment from June 26 to September 4, 2010, used personal leave from
September 7 to 18, 2010, was involved in a motor vehicle accident during a scheduled day off on
September 20, 2010, remained off the job until November 18, 2010 due to nonindustrial injury,
returned to light duty from November 18 to December 22, 2010, used personal leave from
December 23, 2010 to January 12, 2011 and resumed light duty from January 13 to
February 16, 2011.
Appellant filed
February 17, 2011.

multiple

claims

for

wage-loss

compensation

beginning

OWCP informed appellant in an April 26, 2011 letter that additional evidence was
needed to establish her recurrence of disability claim.7 It gave her 30 days to submit a medical
report from a physician explaining the connection between her present condition and the May 10,
2010 work injury.
In an April 5, 2011 report, Dr. Andrew D. Rah, a Board-certified orthopedic surgeon,
noted that a May 10, 2010 MRI scan exhibited L5-S1 disc bulge measuring one millimeter,
desiccation and minimal posterior annular defect while an October 7, 2010 MRI scan revealed
L4-5 and L5-S1 disc bulges, degenerative changes and evidence of posterior L5-S1 annular tear.
On examination of the lumbar spine, he observed tenderness, paraspinal spasms, 50-degree
5

Dr. Rosenberg presented similar findings in a February 3, 2011 report.

6

Dr. Rosenberg presented similar findings in subsequent reports for the period March 17 to May 12, 2011.

7

The case record does not indicate that appellant filed a Form CA-2a. Instead, OWCP treated her wage-loss
compensation claims as a recurrence of disability claim.

3

flexion, 20-degree extension, 50-degree lateral rotation bilaterally and 20-degree lateral flexion
bilaterally. Dr. Rah diagnosed L5-S1 annular tear and lumbar radiculitis due to the May 10,
2010 employment injury and opined that appellant was totally disabled.8
Dr. Elise L. Bukont, an osteopath and Board-certified family practitioner, stated in an
April 28, 2011 report that an individual may sustain disc herniation when he or she lifts an
object. In particular, when he or she bends forward or twists, the spine flexes and the
intervertebral disc is compressed. The disc is further strained when the person lifts from this
position, rupturing the outer capsule. Based solely on a review of the medical file, Dr. Bukont
attributed appellant’s L5-S1 disc herniation, lumbar strain and lumbar radiculopathy to the
May 10, 2010 employment incident.
On June 28, 2011 OWCP expanded appellant’s traumatic injury claim to include L5-S1
annular tear with radiculitis.
By decision dated July 6, 2011, OWCP denied appellant’s claim for recurrence of
disability, finding the evidence insufficient to establish that she experienced a spontaneous
change in her medical condition due to the May 10, 2010 employment injury.
Counsel requested reconsideration on October 11, 2011 and submitted an August 23,
2011 report from Dr. Rah, who commented that appellant had ongoing lower back and radicular
pain, but was unable to identify a specific dermatome distribution. Dr. Rah noted that his
objective findings were limited to range of motion deficiencies. He added that the medical
evidence did not demonstrate that appellant’s L5-S1 annular tear resolved.9
On January 9, 2012 OWCP denied modification of the July 6, 2011 decision.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.10
An employee who claims a recurrence of disability due to an accepted employment injury
has the burden of proof to establish by the weight of substantial, reliable and probative evidence
8

In a May 31, 2011 report, Dr. Rah presented similar findings and diagnoses. He added that appellant was
limited to walking and sitting, as needed, and should not lift or carry items weighing more than 10 pounds
precluded. If the employing establishment could not accommodate these restrictions, Dr. Rah recommended
vocational rehabilitation services.
9

Dr. Rah imposed similar physical restrictions for an indefinite duration. See id.

10

J.F., 58 ECAB 124 (2006); 20 C.F.R. § 10.5(x).

4

that the disability for which he or she claims compensation is causally related to the accepted
injury. This burden requires that an employee furnish medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical reasoning.11 Where no such rationale is present, the medical evidence is of diminished
probative value.12 While the opinion of a physician supporting causal relationship need not be
one of absolute medical certainty, it must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty.13
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain and L5-S1 annular tear with
radiculitis while in the performance of duty on May 10, 2010 and paid partial wage-loss
compensation for the period June 29 to September 4, 2010. Appellant was assigned to light duty
effective June 24, 2010, performed in this capacity through February 16, 2011 and subsequently
filed claims for wage-loss compensation beginning February 17, 2011. Dr. Rosenberg related in
a January 6, 2011 report that her symptoms reemerged sometime after he released her to regular
duty without restrictions on December 23, 2010. In addition, according to the employing
establishment’s chronology, the events of which were not disputed by either appellant or her
counsel, she used personal leave from December 23, 2010 to January 12, 2011. The case record
does not indicate that her light-duty assignment during this period was withdrawn or altered so as
to exceed her then-established physical restrictions. Thus, the question is whether appellant
experienced a spontaneous change in the nature and extent of a medical condition attributable to
the May 10, 2010 employment injury.
Medical evidence of bridging symptoms must demonstrate that the claimed recurrence
was caused, precipitated, accelerated or aggravated by the accepted injury.14 In a December 23,
2010 report, Dr. Rosenberg evaluated appellant, diagnosed lumbar strain and resolved lumbar
radiculopathy and discharged her to regular duty. Two weeks later, he commented in a
January 6, 2011 report that her condition deteriorated. On February 17, 2011 Dr. Rosenberg
removed appellant from her postal route and placed her on sedentary work. None of his reports
for the period January 6 to May 12, 2011, however, explained with sound medical reasoning how
this recurrence was connected to the May 10, 2010 injury. Moreover, Dr. Rosenberg did not
obtain a complete and accurate factual history: he was unaware that appellant was injured in a
nonindustrial motor vehicle collision on September 20, 2010 and was on personal leave from
December 23, 2010 to January 12, 2011.15

11

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

12

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Robert H. St. Onge, 43 ECAB 1169 (1992).

13

Ricky S. Storms, 52 ECAB 349 (2001).

14

Storms, id. See also Richard McBride, 37 ECAB 748, 753 (1986).

15

See M.W., 57 ECAB 710 (2006); James A. Wyrick, 31 ECAB 1805 (1980) (medical opinions based on an
incomplete or inaccurate history are of diminished probative value).

5

Dr. Rah opined in reports for the period April 5 to August 23, 2011 that the May 10, 2010
employment injury, namely L5-S1 annular tear with radiculitis, led to appellant’s recurrence of
disability. Nevertheless, he did not fortify his conclusion with medical rationale.16 As noted, the
need for rationalized medical opinion evidence is particularly important because the case record
indicates that appellant sustained a nonindustrial injury on September 20, 2010 and claimed that
her recurrence occurred sometime before January 6, 2011 when she was on personal leave.17
The remaining evidence from Dr. Lipel and Dr. Bukont did not address recurrence of disability
and thus offered limited probative value on the matter.18 In the absence of rationalized medical
opinion evidence, appellant did not meet her burden of proof.
Counsel contends on appeal that Dr. Rosenberg’s December 23, 2010 report was
influenced by appellant’s request to be released to regular duty due to mounting financial
pressure rather than medical rationale. The case record does not corroborate this assertion:
Dr. Rosenberg indicated in October 14 and November 4, 2010 reports that appellant’s lumbar
condition was improving to such an extent that he expected her to resume regular work.19
Appellant may submit new evidence or argument as part of a formal written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that she sustained a recurrence of
disability causally related to her May 10, 2010 employment injury.

16

George Randolph Taylor, 6 ECAB 986, 988 (1954).

17

See L.R., Docket No. 10-744 (issued October 25, 2010) (recurrence of disability does not occur where the
claimant’s work stoppage is caused by a new or intervening injury, even if the new injury involves the same part of
the body previously injured); A.M., Docket No. 09-1895 (issued April 23, 2010) (when a claimant stops work for
reasons unrelated to the accepted employment injury, there is no disability within the meaning of FECA).
18

C.M., Docket No. 10-2191 (issued July 12, 2011).

19

The Board notes that appellant cited Cheryl A. Weaver, 51 ECAB 308 (2000) for the proposition that an
employee’s short-lived and unsuccessful attempt to return to duty does not automatically discharge OWCP’s burden
to justify termination of compensation. Because the present case is concerned with recurrence of disability, Weaver
is inapposite.

6

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 8, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7