United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Worchester, MA, Employer
__________________________________________

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Appearances:
David P. McCormack, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1475
Issued: May 23, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 22, 2017 appellant, through counsel, filed a timely appeal from a January 24, 2017
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).2 As more than
180 days elapsed from OWCP’s last merit decision dated December 14, 2015, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of the claim.

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

Appellant timely requested oral argument before the Board. By order dated December 19, 2017, the Board
exercised its discretion and denied the request as the matter could be adequately adjudicated based on a review of the
case record. Order Denying Oral Argument, Docket No. 17-1475 (issued December 19, 2017).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 18, 2012 appellant, then a 64-year-old retired letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a permanent aggravation of right ankle
osteoarthritis causally related to factors of his federal employment.4 He attributed his ankle
condition to walking with an altered gait while awaiting surgery for a prior employment-related
left knee injury.5 Appellant received treatment following his work injury from Dr. Byron V.
Hartunian, an orthopedic surgeon. On May 14, 2012 Dr. Hartunian opined that he sustained an
acceleration of his underlying arthritis due to work duties, which included lifting, carrying,
standing, and climbing.
OWCP referred appellant to Dr. Steven A. Silver, a Board-certified orthopedic surgeon,
for a second-opinion examination. It requested that he address whether either appellant’s work
duties or his prior left knee injury under OWCP File No. xxxxxx836 caused or aggravated his right
ankle condition. On October 25, 2012 Dr. Silver opined that appellant sustained a temporary
aggravation of preexisting degenerative arthritis of the right ankle when he favored his left knee
after an injury. He found that work activities did not cause appellant’s right ankle arthritis, noting
that he had underlying gout.
On November 7, 2012 OWCP accepted the present claim for a temporary aggravation of
preexisting right ankle osteoarthritis that had resolved as of August 2009.
Appellant, on February 13, 2013, filed a claim for a schedule award (Form CA-7). He
submitted a January 25, 2013 impairment evaluation from Dr. Hartunian, who opined that he had
five percent permanent impairment of the right lower extremity under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).6 On April 24, 2013 Dr. Hartunian opined that appellant’s work duties had permanently
accelerated his right ankle arthritis.
OWCP subsequently found a conflict existed between Dr. Hartunian and Dr. Silver
regarding whether appellant sustained an employment-related temporary or permanent
aggravation of his right ankle arthritis. It referred him to Dr. John H. Chaglassian, a Boardcertified orthopedic surgeon, for an impartial medical examination to determine whether he
sustained a temporary or permanent employment-related aggravation of a preexisting right ankle
4

The employing establishment advised that appellant had retired on March 22, 2011 and was last exposed to the
conditions alleged to have caused his condition around September 2010. OWCP assigned the claim File No.
xxxxxx190.
5

Appellant’s prior claim was assigned File No. xxxxxx836. That claim was accepted for left medial meniscal tear
and sprains of the left medial collateral ligament and left cruciate ligament
6

A.M.A. Guides (6th ed. 2009).

2

condition and, if he sustained a permanent aggravation, to rate any permanent impairment of the
right lower extremity in accordance with the A.M.A., Guides. OWCP provided Dr. Chaglassian
with an attachment setting forth the definition of aggravation, acceleration, and precipitation.
On March 5, 2014 Dr. Chaglassian discussed appellant’s history of work injuries to his left
knee and right ankle. He found that his arthritis was unrelated to his employment, but was instead
due to obesity, gout, plantar fasciitis, and weak arches. Dr. Chaglassian noted that appellant used
crutches for only one week after his left knee surgery, and that following this time he bore weight
on each leg equally. He found that he sustained a temporary aggravation of his preexisting right
ankle condition that lasted approximately six weeks after his left knee surgery. Dr. Chaglassian
determined that appellant had not sustained a permanent aggravation of his condition.
By decision dated February 20, 2015, OWCP denied appellant’s claim for a schedule
award. It found that Dr. Chaglassian’s opinion constituted the special weight of the evidence and
established that appellant had no permanent aggravation of his right ankle arthritis.
On March 6, 2015 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. He subsequently requested a review of the written record in lieu of an oral
hearing.
Dr. Hartunian, in a report dated September 10, 2015, asserted that Dr. Silver did not
address whether appellant’s work duties caused or contributed to the progression of his arthritis of
the right ankle. He cited medical research supporting that physical activity caused joint
inflammation and an acceleration of arthritis. Dr. Hartunian advised that Dr. Silver failed to
address whether appellant’s work duties contributed to his right ankle arthritis by causing chronic
inflammation.
By decision dated December 14, 2015, OWCP’s hearing representative affirmed the
February 20, 2015 decision. She found that the additional report from Dr. Hartunian, who was on
side of the conflict in opinion, was insufficient to either outweigh or create a new conflict with the
opinion of Dr. Chaglassian. The hearing representative noted that Dr. Hartunian did not address
how appellant’s right ankle progressed beyond that resulting from natural progression.
On December 12, 2016 appellant, through counsel, requested reconsideration. Counsel
contended that the hearing representative improperly framed the issue as whether appellant’s
January 23, 2009 left knee injury aggravated his right ankle arthritis. Instead, counsel framed the
issue as whether appellant’s 17-year tenure as a letter carrier contributed in any way to his right
ankle osteoarthritis, thus permanently aggravating the condition. He further asserted that OWCP
failed to provide Dr. Silver and Dr. Chaglassian with a complete definition of acceleration, citing
S.S.7 Counsel argued that, under Board case law, OWCP must provide physicians with accurate
and complete definitions of causation. He further maintained that Dr. Silver did not address
whether appellant’s work duties caused or contributed to his right ankle osteoarthritis, and thus,
his opinion was invalid and insufficient to create a conflict in medical opinion. Counsel alleged
that the hearing representative erred in finding Dr. Hartunian’s opinion insufficient.

7

Docket No. 10-1369 (issued November 9, 2010).

3

In a November 1, 2016 narrative statement, appellant asserted that he continued to have
right ankle problems after Dr. Chaglassian found that his temporary aggravation would have
resolved. He questioned why the physician did not ask whether he had continued right ankle pain.
Dr. Hartunian, in a report dated November 16, 2016, reviewed OWCP’s December 14,
2015 decision. He advised that medical research demonstrated that osteoarthritis did not have a
natural progression or course, but that instead symptoms usually fluctuated, with some individuals
having no trouble for years. Dr. Hartunian noted that if work duties contributed in any way to a
claimant’s condition it was compensable.
By decision dated January 24, 2017, OWCP denied appellant’s request for reconsideration
of the merits of his claim under section 8128(a). It found that he had not raised a relevant legal
argument and that the newly submitted report from Dr. Hartunian was cumulative in nature.
On appeal counsel asserts that OWCP failed to provide its referral physicians with the
proper standard of causation. He also raises arguments regarding the merits of the claim,
contending that Dr. Hartunian’s opinion is sufficient to meet appellant’s burden of proof to show
a permanent aggravation of arthritis due to his employment.
Counsel alleges that
Dr. Chaglassian’s opinion is of insufficient probative value to resolve the conflict in medical
opinion.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.8
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.9
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.10 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.11 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.12

8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010).

10

Id. at § 10.607(a).

11

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

12

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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ANALYSIS
In its last merit decision dated December 14, 2015, OWCP denied appellant’s schedule
award claim after finding that he sustained only a temporary employment-related aggravation of
his preexisting right ankle osteoarthritis that had resolved by August 2009. On December 12, 2016
appellant, through counsel, timely requested reconsideration. The issue is whether he submitted
evidence or argument in support of his reconsideration request sufficient to warrant reopening his
case for further merit review pursuant to section 10.606(b)(3).
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advanced a relevant legal argument not previously considered, or submitted
pertinent new and relevant evidence. On reconsideration, counsel argued that OWCP failed to
provide the referral physician, Dr. Silver, and the referee physician, Dr. Chaglassian, with a
complete definition of acceleration, as required by S.S. He maintained that, consequently,
Dr. Silver’s opinion was invalid and insufficient to create a conflict in medical opinion, and that
Dr. Chaglassian’s opinion was of no weight. In S.S., however, the Board found the case was not
in posture for decision when OWCP provided a referee physician with an inaccurate definition of
aggravation, noting that it informed the physician that an aggravation of symptoms of an
underlying condition was not an aggravation of the underlying condition. In this case, OWCP
provided Dr. Silver and Dr. Chaglassian with definitions of causation, aggravation, acceleration,
and precipitation that adequately confirmed to the definitions set forth in its procedures.13
Consequently, counsel’s contention lacks a reasonable color of validity.14 Where a legal argument
presented has no reasonable color of validity, OWCP is not required to reopen the case for merit
review.15
Counsel also alleged that the hearing representative failed to consider whether work duties
permanently aggravated appellant’s right ankle osteoarthritis. OWCP’s hearing representative,
however, found that the evidence was insufficient to show that factors of his federal employment
materially worsened his preexisting right ankle condition.
A claimant may be entitled to merit review by submitting relevant and pertinent evidence
not previously considered by OWCP. In a November 1, 2016 statement, appellant related that he
had continued right ankle problems after Dr. Chaglassian found that his temporary aggravation
had resolved. The issue, however, is whether the medical evidence is sufficient to show that he
sustained a permanent aggravation of his right ankle condition. Appellant’s lay opinion regarding

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

14
The Board notes that OWCP procedures do not affirmatively mandate that such definitions be sent to referral
physicians, but instead contemplate that OWCP will provide information appropriate to the question at issue. See
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statements of Accepted Facts, Chapter 2.809.7(f)
(September 2009) (when OWCP needs to define such terms as aggravation, precipitation or acceleration, it should do
so in a letter to the physician).
15

See D.F., Docket No. 17-0694 (issued June 22, 2017); D.T., Docket No. 14-1239 (issued December 9, 2014).

5

his condition is not relevant to the medical issue in this case, which can only be resolved through
the submission of probative medical evidence from a physician.16
In a report dated November 16, 2016, Dr. Hartunian maintained that medical research
found that osteoarthritis did not have a natural progression, but that instead symptoms in
individuals varied. He noted that causation was established if work factors contributed in any way
to a condition. Dr. Hartunian’s report, however, is general in nature rather than specific to
appellant and thus does not constitute pertinent new and relevant evidence sufficient to reopen his
claim for merit review.17
On appeal counsel contends that OWCP did not provide its physician with the appropriate
causation standard. As noted, however, it included definitions of causation, aggravation,
acceleration, and precipitation consistent with the definitions set forth in its procedures.18 Counsel
further argues the merits of the case, contending that Dr. Chaglassian’s opinion was of insufficient
probative value and that Dr. Hartunian’s opinion constitutes the weight of the evidence. As noted,
however, the Board does not have jurisdiction over the merits of this claim. Appellant did not
show that OWCP erroneously applied or interpreted a specific point of law, advance a relevant
legal argument not previously considered by OWCP or constitute pertinent new and relevant
evidence not previously considered. As he did not meet any of the necessary regulatory
requirements, he is not entitled to further merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

16

See L.G., supra note 8; Gloria J. McPherson, 51 ECAB 441 (2000).

17

See B.J., Docket No. 15-0795 (issued June 15, 2015).

18

See supra note 10.

6

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2018
Washington, DC

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

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

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

7


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

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

Docket No. 16-1628
Issued: February 17, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 10, 2016 appellant, through counsel, filed a timely appeal of a July 12, 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 to consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her lumbar
condition was caused or aggravated by her employment duties.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel argues that the decision is contrary to fact and law.
FACTUAL HISTORY
On August 8, 2014 appellant, then a 52-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that her employment duties of lifting, bending, carrying, pulling,
and preparing mail over the past 25 years caused her back pain. She noted that she first became
aware of the condition on June 23, 2014. In an attached July 25, 2014 statement, appellant
attributed her back pain to repetitious work activities of daily mail preparation for delivery,
standing, lifting, and bending.
On June 25, 2014 Dr. Krishna C. Chunduri, a treating Board-certified anesthesiologist,
diagnosed lumbago with right radiculopathy.
By letter dated August 27, 2014, OWCP informed appellant that the evidence of record
was insufficient to establish her claim. She was also advised as to the medical and factual
evidence required to support her claim and afforded 30 days to provide the requested
information.
A September 2, 2014 magnetic resonance imaging (MRI) scan, was interpreted by
Dr. Djordje Boskov, a neuroradiolgist, as revealing multilevel lumbar spondylosis with
hypertrophy and disc bulging with L4-5 most prominent and diffuse disc bulge at L4-5.
On September 25, 2014 Dr. Tian Xia, an osteopathic physician specializing in pain
management, provided a history of appellant’s complaints, medical history, and physical
examination findings. Examination findings included lumbar flexion, paravertebral muscle
tenderness more on the right side, positive bilateral straight leg raising test, negative Babinski’s
sign and right side patellar jerk was 1/4. He diagnosed a herniated lumbar disc.
Dr. Xia, in an October 21, 2014 visit note, diagnosed a herniated lumbar disc, noted
appellant’s medical history, and provided examination findings, which were unchanged from the
prior report. He reported that appellant’s back and radicular pain were unchanged.
By decision dated November 12, 2014, OWCP denied the claim. It found the evidence
insufficient to establish a causal relationship between the diagnosed condition and the identified
employment factors.
In visit notes dated November 24, December 4 and 27, 2014, February 10, March 12, and
May 28, 2015, Dr. Xia noted that appellant had been off work since July. Physical examination
findings were unchanged from the September 25, 2014 report. Dr. Xia again diagnosed a
herniated lumbar disc.
In a letter dated December 9, 2014, counsel requested a telephonic hearing before an
OWCP hearing representative, which was held on June 10, 2015.
By decision dated July 21, 2015, OWCP’s hearing representative affirmed the
November 12, 2014 decision. She found the medical evidence of record was insufficient to
establish that appellant’s lower back condition was causally related to her employment.
2

On July 30, 2015 OWCP received a July 9, 2015 report wherein Dr. Xia related that
appellant’s knee and back problems began after she fell at work on February 4, 2011. Dr. Xia
further noted that appellant had always had back pain and that her back pain worsened after her
knee surgery. He also noted that she claimed back, knee, and right shoulder injuries due the
February 2011 work incident. Dr. Xia diagnosed a lumbar herniated disc and opined that
appellant’s back pain was due to the February 2011 fall.
On April 25, 2016 OWCP received counsel’s request for reconsideration.
In a December 15, 2015 report, Dr. Anatoly Rozman, Board-certified in physical
medicine and rehabilitation, noted that he had treated appellant since June 2014. He described
her primary complaint as severe lower back radiating into her lower extremities. A review of a
September 2, 2015 MRI scan revealed multilevel lumbar spondylosis with most prominent L4-5
and L5-S1 disc bulging and hypertrophy. Dr. Rozman noted that appellant continued to have
severe lower back pain which radiated into her lower extremity and caused difficulty walking.
According to him her difficulty walking was due to her knee arthritis, lumbar disease/lower back
pain, and decreased knee strength from the arthritis. Physical examination findings included
decreased sensation and positive straight leg raising, which was not related to the knee arthritis.
Diagnoses included lumbar disc disease, osteoarthritis, and lumbar spondylosis. Dr. Rozman
referenced a medical journal entitled Guides to the Evaluation of Disease and Injury, to support
his opinion that appellant’s back condition had been caused by her work activity. Specifically he
noted her work activities of pushing, lifting, carrying heavy objects, squatting, lifting above the
shoulder, kneeling, bending, flexion, and twisting all have strong associations as the cause of
appellant’s back condition. Dr. Rozman opined there was a causal relationship between
appellant’s many years of city carrier work duties and the development of osteoarthritis and
lumbar disc disease and lower back pain.
By decision dated July 12, 2016 OWCP denied modification. It found the evidence of
record was insufficiently rationalized and failed to establish a causal relationship between her
low back condition and her employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

3

Id.

4

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

5

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

3

To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.9
ANALYSIS
Appellant attributed her low back condition to the performance of her city carrier work
duties, including lifting, bending, carrying, standing, walking, and preparing mail. OWCP
accepted the occurrence of the claimed employment factors. The Board finds that the medical
evidence is insufficiently rationalized to establish that appellant sustained a work-related lumbar
condition, caused or aggravated by her alleged employment duties.
In his December 15, 2015 report, Dr. Rozman related that appellant had been his patient
since June 2014, that she had worked many years as a city carrier, and noted the physical
activities of the position. He diagnosed osteoarthritis and lumbar disc disease/lower back pain,
which he attributed to her city carrier duties. Dr. Rozman noted findings from a September 2015
MRI scan and pertinent examination findings. He explained that according to a medical journal
entitled Guides to the Evaluation of Disease and Injury there was a definite causal relationship
between appellant’s city carrier activities and her lumbar condition. Specifically, Dr. Rozman
noted that he was basing his opinion on appellant’s lengthy work history and activities of
bending, twisting, flexion, pushing, lifting, carrying heavy objects, squatting, kneeling, and
lifting above the shoulder.
While Dr. Rozman generally noted appellant’s employment activities, he did not provide
any discussion as to the relevance of the medical journal or provide any knowledge of the actual
duties appellant performed or how often. He further did not explain how appellant’s city carrier
6

D.U., Docket No. 10-144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L. Humphrey, 57 ECAB 238
(2005); Donald W. Wenzel, 56 ECAB 390 (2005).
7

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
8

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

9

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

4

activities would have caused or aggravated the specific diagnosed conditions, especially in light
of her degenerative changes.10 It is appellant’s burden to establish through the production of
competent and probative rationalized medical opinion evidence based on a complete factual and
medical background, that her conditions were caused or aggravated by the alleged employment
duties. As Dr. Rozman only generally discussed that duties similar to those in appellant’s
position have a strong association as the cause of back problems, his reports are insufficient to
meet appellant’s burden of proof.11
The record also contains reports from Dr. Chunduri and Dr. Boskov. Dr. Chunduri
diagnosed lumbago with right radiculopathy, but offered no opinion as to the cause of the
condition. Dr. Boskov also diagnosed multilevel lumbar spondylosis with hypertrophy, with disc
bulging at L4-5. However he offered no opinion regarding the cause of these diagnosed
conditions. The Board has held that medical reports that lack a rationalized opinion on causal
relationship are of limited probative value.12
Similarly, Dr. Xia, in multiple reports, diagnosed a herniated lumbar disc without
offering any opinion causally related this condition to the accepted work duties. Rather he
related appellant’s diagnosed conditions to her earlier February 2011 fall. Thus, these reports are
insufficient to establish appellant’s claim.
The medical evidence of record does not establish that appellant’s diagnosed conditions
were caused or aggravated by her alleged employment duties. Appellant has failed to submit a
rationalized physician’s report, based on an accurate history, which explains how her work
activities caused or aggravated her lumbar conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
lumbar condition was caused or aggravated by her employment duties.

10

N.M., Docket No. 16-0403 (issued June 6, 2016).

11

Id.

12

See F.H., Docket No. 09-0255 (issued September 10, 2009).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 12, 2016 is affirmed.
Issued: February 17, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jamaica, NY, Employer
__________________________________________

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)

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

Docket No. 20-1559
Issued: August 5, 2021

Case Submitted on the Record

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

JURISDICTION
On August 27, 2020 appellant, through counsel, filed a timely appeal from a March 5, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the March 5, 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.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted November 26, 2011 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On November 27, 2011 appellant, then a 53-year-old express mail clerk, filed a traumatic
injury claim (Form CA-1) alleging that on November 26, 2011 she was carrying heavy bags and
placing them into a postal container when she felt pain in her left leg and hip while in the
performance of duty.
By decision dated March 14, 2012, OWCP denied appellant’s claim. It found that the
medical evidence submitted was insufficient to establish a firm medical diagnosis in connection
with the accepted November 26, 2011 employment incident. OWCP noted that appellant’s
physician diagnosed low back, left thigh and hip pain; however, pain was a symptom, not a medical
diagnosis.
On March 29, 2012 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review and submitted additional medical evidence. By
decision dated July 11, 2012, the hearing representative affirmed the March 14, 2012 decision.
Appellant, through counsel, subsequently submitted multiple requests for reconsideration.
By decisions dated June 14, 2013, and February 19, July 8, and December 12, 2014, OWCP denied
modiﬁcation of its prior decisions.
On March 3, 2015 appellant, through counsel, appealed to the Board. By decision dated
January 15, 2016, the Board found that appellant had not met her burden of proof to establish that
her left hip and back conditions were causally related to the accepted November 26, 2011
employment incident.5
On January 3, 2017 appellant, through counsel, requested reconsideration and submitted
additional medical evidence.
A November 29, 2016 magnetic resonance imaging (MRI) scan of appellant’s left hip read
by Dr. Jonathan S. Luchs, a Board-certiﬁed diagnostic radiologist, demonstrated left greater
trochanteric bursitis, left gluteus medius tendinitis with intrasubstance longitudal partial tear
without full-thickness tear, and insertional left gluteus medius tendinosis without full-thickness
tear.

4

Docket No. 15-0830 (issued January 15, 2016), petition for recon. denied, Docket No. 15-0830 (issued
August 19, 2016); Docket No. 17-1460 (issued December 21, 2018), petition for recon. denied, Docket No. 17-1460
(issued April 22, 2019).
5

Id.

2

In a December 27, 2016 narrative report, Dr. Carlos Montero, a Board-certiﬁed orthopedic
surgeon, noted that appellant’s injury occurred while she was carrying and lifting heavy bags and
placing the heavy bags into a postal container. He noted that appellant initially saw Dr. Andrew D.
Brown, a Board-certified internist, who diagnosed a strain of the left hip with traumatic bursitis
and iliotibial band syndrome with aggravation of degenerative joint disease. Dr. Montero related
that appellant had a previous work-related injury on August 10, 2009, when a heavy box struck
her right foot, causing a contusion of the right foot, a lumbar sprain, and a right foot crushing
injury. He noted that the prior injury involved her right lower extremity and lumbar spine and that
appellant was examined by him for the ﬁrst time on November 10, 2016, with the chief complaint
of severe pain in the left trochanteric region related to the left thigh and knee. Dr. Montero
examined appellant and provided findings which included a history of left hip pain localized in the
left thigh. He also indicated that the examination disclosed full range of motion (ROM) in the left
hip, but painful at extremes. Dr. Montero noted that appellant walked with a cane due to the pain
in her left thigh and that an examination of the hip disclosed no evidence of contractions. He
related that appellant had an intact neurovascular examination, her x-rays were unremarkable, and
an MRI scan of the left hip revealed greater trochanteric bursitis, left gluteus medius tendinitis
with intrasubstance longitudinal partial tear, and left gluteus medius tendinitis. Dr. Montero
diagnosed chronic left greater trochanteric bursitis unresponsive to treatment with gluteus medius
tendinosis. He opined that appellant’s condition was related to her work injury on
November 26, 2011. Dr. Montero advised that her condition was permanent, that she might
require surgery, and that she was totally disabled from work.
By decision dated March 24, 2017, OWCP denied modification of its January 15, 2016
decision.
On June 19, 2017 appellant, through counsel, filed an appeal to the Board. By decision
dated December 21, 2018, the Board found that appellant had not met her burden of proof to
establish that her left hip or low back conditions were causally related to the accepted
November 26, 2011 employment incident.6
In a March 4, 2019 hospital report, Dr. Tadeusz Korszun, Board-certified in emergency
medicine, noted that appellant was seen for left hip pain.
A March 4, 2019 report from a physician assistant assessed calcific bursitis of the left
trochanter region. March 4, 2019 x-rays of the hip and femur revealed calcific bursitis on the left
greater trochanteric region and no acute fracture or dislocation.
On December 6, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence. The additional evidence consisted of copies of previously submitted reports
which included a June 7, 2018 MRI scan of the lumbosacral spine, a copy of a November 29, 2016
MRI scan of the left hip, and an April 3, 2014 report from Dr. Brown.
By decision dated March 5, 2020, OWCP denied modification of its prior decision.

6

Supra note 4.

3

LEGAL PRECEDENT
A claimant seeking benefits under FECA7 has the burden of proof to establish the essential
elements of his or her claim, including that the individual is an employee of the United States
within the meaning of FECA, that the claim was timely filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury. 8 These are the
essential elements of each and every compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.10
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.11 The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
specific employment incident identified by the employee.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 26, 2011 employment incident.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to March 24, 2017 as the Board considered that evidence in its
January 15, 2016 and December 21, 2018 decisions and found that appellant had not met her
burden of proof to establish an injury causally related to the accepted November 26, 2011

7

Supra note 2.

8

See V.L., Docket No. 20-0884 (issued February 12, 2021); L.C., Docket No. 19-1301 (issued January 29, 2020);
J.H., Docket No. 18-1637 (issued January 29, 2020); James E. Chadden, Sr., 40 ECAB 312 (1988).
9
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
11

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
12

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

employment incident. Findings made in prior Board decisions are res judicata absent any further
review by OWCP under section 8128 of FECA.13
Appellant subsequently submitted reports dated March 4, 2019, in which Dr. Korszun
noted that appellant was seen for left hip pain. However, as the Board has held, pain is a symptom,
not a specific medical diagnosis.14 It is appellant’s burden of proof to obtain and submit medical
documentation containing a firm diagnosis.15 This report is, therefore, insufficient to establish
appellant’s claim.
A March 4, 2019 report from a physician assistant indicated a diagnoses of left trochanteric
bursitis. However, the Board has previously explained that reports from a physician assistant do
not constitute competent medical evidence because physician assistants are not considered
physicians as defined under FECA.16 This report is, therefore, also insufficient to establish
appellant’s claim.
March 4, 2019 x-rays of the hip and femur revealed calcific bursitis on the left greater
trochanteric region and no acute fracture or dislocation. The Board has held that diagnostic studies
standing alone lack probative value, as they do not address whether the employment incident
caused a diagnosed condition.17 This report is, therefore, insufficient to establish causal
relationship between appellant’s diagnosed condition and the accepted November 26, 2011
employment incident.
The Board, therefore, ﬁnds that appellant has not met her burden of proof as there is no
medical evidence of record which contains a rationalized medical opinion of how the
November 26, 2011 employment incident caused or aggravated a medical condition.18 Thus,
appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
13
See S.M., Docket No. 19-1961 (issued January 28, 2021); V.G., Docket No. 19-0038 (issued June 18, 2019);
B.W., Docket No. 17-0366 (issued June 7, 2017); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
14

See C.W., Docket No. 19-0468 (issued July 16, 2019); E.M., Docket No. 18-1599 (issued March 7, 2019); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012) (findings of pain or
discomfort alone do not satisfy the medical aspect of the fact of injury medical determination).
15

E.M., id.

16

Section 8101(2) of FECA provides that physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals
such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under
FECA); see also C.K., Docket No. 19-1549 (issued June 30, 2020) (physician assistants are not considered physicians
under FECA).
17

See J.S., Docket No. 19-0345 (issued August 11, 2020); J.S., Docket No. 17-1039 (issued October 6, 2017).

18

See C.C., Docket No. 17-1841 (issued December 6, 2018); George Randolph Taylor, 6 ECAB 986, 988 (1954)
(where the Board found that a medical opinion not fortified by medical rationale is of little probative value).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted November 26, 2011 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 5, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 5, 2021
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.M., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, Ozark, AR, Employer
__________________________________________

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

Docket No. 19-1069
Issued: November 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 15, 2019 appellant, through counsel, filed a timely appeal from a March 11, 2019
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her right lower extremity (RLE) warranting a schedule award, or more than nine
1

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

5 U.S.C. § 8101 et seq.

percent permanent impairment of her left lower extremity (LLE) for which she previously received
a schedule award.
FACTUAL HISTORY
On May 13, 2010 appellant, then a 54-year-old cook, filed a traumatic injury claim (Form
CA-1) alleging that on May 1, 2010 she injured her lower back lifting a 40-pound package of beef
while in the performance of duty. She stopped work on May 3, 2010 and resumed work on
May 11, 2010. On August 18, 2010 OWCP accepted appellant’s claim for lumbar degenerative
disc disease at L4-5 and L5-S1 and annulus rupture(s) at L4-5 and L5-S1.
On November 12, 2010 appellant underwent authorized lumbar decompression and fusion
surgery. OWCP paid wage-loss compensation for temporary total disability and placed appellant
on the periodic compensation rolls beginning November 21, 2010.3
Appellant continued to receive medical treatment. In an August 7, 2017 electromyography
and nerve conduction velocity (EMG/NCV) study, Dr. William Knubley, a Board-certified
neurologist, recounted appellant’s history of bilateral lower extremity pain. He indicated that the
NCV study performed on both lower extremities was abnormal. Dr. Knubley noted that needle
examination was performed on the LLE and showed slight decreased and large amplitude motor
units. He assessed mild neurogenic changes in left L5, S1 distribution, mild neuropathy of both
lower extremities, and no evidence of active ongoing radiculopathy.
On January 12, 2018 appellant filed a claim for a schedule award (Form CA-7). She
submitted a November 25, 2017 handwritten note by an unknown provider with an illegible
signature, which indicated that appellant had reached maximum medical improvement (MMI).
In a development letter dated January 16, 2018, OWCP advised appellant that the medical
evidence submitted was insufficient to establish her schedule award claim. It requested that she
provide a medical report from her attending physician which included a statement that the accepted
condition had reached MMI and an impairment rating utilizing the appropriate portions of the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).4 OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP referred appellant’s claim, along with a statement of accepted facts (SOAF) and
the medical record, to Dr. Timothy G. Pettingell, Board-certified in physical medicine and
rehabilitation, for a second-opinion examination in order to determine whether she had permanent
impairment due to her May 1, 2010 employment injury. In an April 2, 2018 report, Dr. Pettingell
reviewed appellant’s history of injury, including the SOAF, and discussed her history of injury.
3

Appellant returned to part-time, limited-duty work on May 22, 2011 and she worked 24 hours per week. She was
compensated for 16 hours of lost wages per week on the supplemental rolls by OWCP. Effective July 29, 2012,
OWCP placed appellant on the periodic compensation rolls. By decision dated May 15, 2013, it determined that
appellant’s position as a part-time, modified cook with weekly wages of $494.88 fairly and reasonably represented
her wage-earning capacity. As her actual earnings were less than the then-current weekly pay rate of her date-ofinjury position, OWCP paid her compensation based on her loss of wage-earning capacity.
4

A.M.A., Guides (6th ed. 2009).

2

He examined appellant’s back and noted perceived diminished light-touch sensation throughout
the LLE without deficits of a peripheral nerve or nerve root distribution as compared to the right.
Dr. Pettingell referenced The Guides Newsletter, Rating Spinal Nerve Extremity Impairment
Using the Sixth Edition (The Guides Newsletter) (July/August 2009) and determined that appellant
had 11 percent permanent impairment of the LLE due to L5 radiculopathy and no impairment of
the RLE.
Appellant also received treatment from Dr. M. Stephen Wilson, a Board-certified
orthopedic surgeon, who, in an April 18, 2018 report, reviewed appellant’s history and conducted
an examination. Dr. Wilson diagnosed lumbar degenerative disc disease, status post minimally
invasive transforaminal lumbar interbody fusion at L3/4 and L4/5. He indicated that appellant was
at MMI. Utilizing proposed Table 2 of the A.M.A., Guides, Spinal Nerve Impairment: Lower
Extremity Impairments, Dr. Wilson determined that appellant had 7 percent RLE permanent
impairment due to mild sensory and motor deficits at L4 and 9 percent RLE permanent impairment
due to mild sensory and motor deficits at L5 for a combined total of 16 percent permanent RLE
impairment. Regarding appellant’s LLE, he calculated that she had 7 percent permanent
impairment due to mild sensory and motor deficits at L4 and 9 percent permanent impairment due
to mild sensory and motor deficits at L5 for a combined total of 16 percent LLE permanent
impairment.
OWCP declared a conflict in the medical opinion evidence and referred appellant for an
impartial medical examination. In a July 23, 2018 report, Dr. Andrew Olshen, Board-certified in
physical medicine and rehabilitation serving as an impartial medical examiner, discussed
appellant’s history of injury and reviewed her medical records. He recounted that appellant still
complained of persistent lower back pain radiating into her legs. Upon examination of appellant’s
lumbar spine, Dr. Olshen observed 5/5 positive Waddell’s sign. He indicated that range of motion
was minimal. Straight leg raise testing was positive. Dr. Olshen reported subjective decrease in
sensation in the entire LLE and 4/5 strength throughout the LLE. He noted 5/5 strength throughout
the RLE.
Dr. Olshen reported that he agreed with Dr. Pettingell that appellant had reached MMI and
noted that the appropriate date of MMI was December 5, 2011. He related that the August 7, 2017
EMG/NCV study showed mild neurogenic changes at the left L5/S1 nerve root and mild
neuropathy of both lower extremities. Dr. Olshen indicated that there was nothing in the medical
evidence of record to suggest a permanent impairment of the RLE, so no impairment rating would
be calculated. He referenced The Guides Newsletter, Exhibit 4, July/August 2009, Proposed Table
2 and noted that mild sensory deficits of L5 equaled one percent impairment. Dr. Olshen indicated
that, based upon EMG findings, there would be a +1 (moderate findings) for a class D impairment
of two percent permanent impairment. He also reported that, for the mild motor deficit (no
atrophy, minimal findings), appellant was class D for seven percent permanent impairment due to
EMG findings for a combined nine percent LLE impairment. Dr. Olshen explained that there was
nothing in the medical record to suggest that there was an impairment of other spinal levels of the
LLE.
By decision dated August 30, 2018, OWCP granted appellant a schedule award for nine
percent permanent impairment of the LLE and zero percent permanent impairment of the RLE.

3

The award ran for 25.92 weeks from April 6 to October 4, 2016. OWCP noted that the schedule
award was based on the July 23, 2018 report of Dr. Olshen, the impartial medical examiner.
On September 5, 2018 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
February 8, 2019.
By decision dated March 11, 2019, OWCP’s hearing representative affirmed the
August 30, 2018 decision. She found that Dr. Olshen’s July 23, 2018 opinion represented the
special weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such
adoption.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule
awards.8
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.9 Furthermore, the
back is specifically excluded from the definition of organ under FECA.10 The sixth edition of the
A.M.A., Guides does not provide a separate mechanism for rating spinal nerve injuries as
impairments of the extremities. Recognizing that FECA allows ratings for extremities and
precludes ratings for the spine, The Guides Newsletter offers an approach to rating spinal nerve
impairments consistent with sixth edition methodology. For peripheral nerve impairments to the
upper or lower extremities resulting from spinal injuries, OWCP procedures indicate that The
Guides Newsletter is to be applied.11
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at 10.404(a); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); See B.W., Docket No. 18-1415 (issued March 8, 2019); J.M.,
Docket No. 18-0856 (issued November 27, 2018); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
10

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

11

Supra note 8 at Chapter 3.700. The Guides Newsletter is included as Exhibit 4.

4

appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination.12 This is called an impartial medical examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.13 When there exists opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a permanent
impairment of her RLE extremity warranting a schedule award, or more than nine percent
permanent impairment of her LLE, for which she previously received a schedule award.
OWCP found a conflict in the medical opinion evidence between appellant’s attending
physician, Dr. Wilson, and its second opinion physician, Dr. Pettingell, regarding permanent
impairment of the lower extremities due to her accepted spinal injury. It properly referred
appellant’s case to Dr. Olshen pursuant to 5 U.S.C. § 8123(a) for an impartial medical examination
in order to resolve the conflict in medical opinion. In his July 23, 2018 report, Dr. Olshen reviewed
appellant’s history of injury, the relevant medical evidence, including appellant’s August 7, 2017
EMG/NCV study, and provided physical examination findings. He noted appellant’s accepted
lumbar conditions and opined that, based on his clinical evaluations and diagnostic testing,
appellant had two percent permanent impairment for class D mild sensory deficits and seven
percent permanent impairment for class D mild motor deficits of the LLE for a combined nine
percent LLE impairment. Dr. Olshen indicated that there was nothing in the medical record to
suggest a nerve root impairment of the RLE.
As noted above, when a case is referred to an impartial medical specialist for the purpose
of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.15 The Board finds that
Dr. Olshen’s July 23, 2018 report is entitled to special weight and established that appellant had
nine percent permanent impairment of the LLE and no ratable impairment of the RLE.16
Dr. Olshen’s opinion was based on a proper factual and medical history, which he reviewed, and
on the proper tables and procedures in the A.M.A., Guides. He referenced The Guides Newsletter
and explained that appellant had nine percent permanent impairment of the LLE. Dr. Olshen based
his impairment rating on the medical evidence in the record, correctly applied the A.M.A., Guides
and The Guides Newsletter, and provided medical rationale for his impairment rating.17 As
12

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
13

20 C.F.R. § 10.321.

14

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

15

Id.

16

D.S., Docket No. 18-0336 (issued May 29, 2019); T.C., Docket No. 17-1741 (issued October 9, 2018).

17

See D.B., Docket No. 17-0930 (issued July 11, 2018).

5

appellant has not provided a rationalized medical opinion to dispute Dr. Olshen’s impairment
rating, the Board finds that she has not established permanent impairment of her RLE or more than
nine percent permanent impairment of her LLE due to her accepted lumbar injury.
On appeal counsel argues that OWCP’s decision was contrary to fact and law. He did not,
however, provide evidence or additional explanation to support his argument. As explained above,
the medical evidence of record is insufficient to establish permanent impairment of her RLE and
more than nine percent permanent impairment of her LLE, for which she previously received a
schedule award. Accordingly, appellant has not met her burden of proof to establish that she is
entitled to a schedule award greater than that previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing a progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of her RLE, or more than nine percent permanent impairment of her LLE, for which
she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2019
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL LAW ENFORCEMENT TRAINING
CENTER, Glynco, GA, Employer
__________________________________________

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

Docket No. 20-0592
Issued: September 21, 2020

Case Submitted on the Record

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

JURISDICTION
On January 21, 2020 appellant filed a timely appeal from a December 17, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $14,719.44 for the period September 1, 2015 through October 12, 2019, for which he
was not at fault, as he concurrently received Social Security Administration (SSA) age-related
retirement benefits and FECA wage-loss compensation benefits without appropriate offset;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether it

1

5 U.S.C. § 8101 et seq.

properly required recovery of the overpayment by deducting $1,927.72 from appellant’s continuing
compensation benefits, every 28 days.
FACTUAL HISTORY
On October 8, 2003 appellant, then a 54-year-old supervisory law enforcement specialist,
filed an occupational disease claim (Form CA-2) alleging that employment-related stress resulted
in acid reflux which caused him to develop throat cancer. He noted that he first became aware of
his condition on August 14, 2001 and of its relationship to his federal employment on
March 11, 2003. On the reverse side of the claim appellant’s supervisor noted that appellant had
Federal Employees Retirement System (FERS) retirement coverage. By decision dated May 27,
2004, OWCP accepted the claim for gastroesophageal reflux disease and laryngeal carcinoma. It
later expanded acceptance of the claim to include major recurrent depression. Appellant stopped
work and OWCP paid him wage-loss compensation on the periodic rolls beginning August 8, 2004.
In EN1032 forms submitted beginning September 16, 2015, appellant indicated that he was
in receipt of SSA age-related retirement benefits as part of an annuity for federal service beginning
in September 2015.
On October 4, 2019 OWCP provided SSA with a FERS/SSA dual benefits calculation form.
On October 7, 2019 SSA returned the completed form which showed SSA age-related retirement
benefit rates with a FERS offset and without a FERS offset from September 2011 through
December 2018. The SSA rate with FERS/without FERS was reported as: $840.10/$548.10 as of
September 2015; $840.10/$548.10 as of December 2015; $842.60/$549.70 as of December 2016;
$859.40/$560.60 as of December 2017; and $883.40/$576.20 as of December 2018.
By letter dated October 18, 2019, OWCP notified appellant that he had been receiving SSA
age-related retirement benefits since September 1, 2015 and that the SSA had confirmed that a
portion of his SSA benefits were attributed to his years of federal service. It explained that his
federal service increased his monthly Social Security payment by $307.20, which must be offset
against his compensation benefits. OWCP explained that, effective November 9, 2019, his
compensation benefits would be offset by the portion of his SSA age-related retirement benefits
attributable to his federal service, resulting in a new net compensation payment of $7,710.99, every
28 days.
In an October 30, 2019 FERS offset calculation worksheet, OWCP found that an
overpayment of compensation benefits had been created in the amount of $14,719.44 for the period
September 1, 2015 through October 12, 2019. It related that, during the period September 1 through
November 30, 2015, appellant had received an overpayment of $876.00, from December 1, 2015
through November 30, 2016 an overpayment of $3,523.25, from December 1, 2016 through
November 30, 2017 an overpayment of $3,524.46, from December 1, 2017 through November 30,
2018 an overpayment of $3,595.45, and from December 1, 2018 through October 12, 2019 an
overpayment in the amount of $3,200.28, resulting in a total overpayment amount of $14,719.44.
On November 6, 2019 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $14,719.44 was created for the period September 1, 2015 through
October 12, 2019 because appellant’s FECA benefits were not reduced by the FERS portion of his
SSA age-related retirement benefits. It calculated the overpayment by determining the difference
2

between his SSA amount with and without FERS for each period. OWCP then multiplied the daily
offset amount by the number of days in each period to find a total overpayment of $14,719.44. It
further made a preliminary determination that appellant was without fault in the creation of the
overpayment. OWCP requested that he complete an enclosed overpayment recovery questionnaire
(Form OWCP-20) and submit supporting financial documentation. Additionally, it notified
appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence, or a prerecoupment hearing.
On November 19, 2019 appellant requested a decision based upon the written evidence
regarding possible waiver of recovery of his overpayment. He explained that he never asked for
FERS payments and did not know how such a large discrepancy could occur. With his request,
appellant returned an incomplete Form OWCP-20 in which he asserted that repayment of the
overpayment should be waived because it was a significant sum and the mistake was made by
someone else. He included a letter requesting waiver of recovery stating that he was unaware of an
overpayment until he received OWCP’s notice. Appellant explained that he was never asked when
he wanted to receive SSA or FERS benefits and requested someone call him regarding the matter.
No supporting financial information or documentation was received.
By decision dated December 17, 2019, OWCP finalized its preliminary overpayment
determination finding that appellant had received an overpayment of compensation in the amount
of $14,719.44 for the period September 1, 2015 through October 12, 2019, because it failed to offset
his compensation payments by the portion of his SSA age-related retirement benefits that were
attributable to his federal service. It determined that he was without fault in the creation of the
overpayment, but denied waiver of recovery of the overpayment of compensation because he failed
to provide any of the financial information requested. OWCP concluded that there was no evidence
to substantiate that recovery of the overpayment would either defeat the purpose of FECA or be
against equity and good conscience. It indicated that the overpayment would be recovered by
withholding $1,927.72 from his continuing compensation benefit payments every 28 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) 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 his
or her federal employment.2 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.3
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of any SSA age-related retirement benefits that are attributable to
federal service of the employee.4 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

2

5 U.S.C. § 8102(a).

3

Id. at § 8116.

4

20 C.F.R. § 10.421(d).

3

federal employee is part of the FERS retirement package, and the receipt of FECA benefits and
federal retirement concurrently is a prohibited dual benefit.5
ANALYSIS
The Board finds that OWCP properly determined that appellant received an overpayment of
compensation in the amount of $14,719.44 because he concurrently received SSA age-related
retirement benefits and FECA wage-loss compensation benefits for the period September 1, 2015
through October 12, 2019 without appropriate offset.
In its December 17, 2019 decision, OWCP found that an overpayment of compensation was
created for the period September 1, 2015 through October 12, 2019. The overpayment was based
on the evidence received from SSA with respect to retirement benefits paid to appellant. The record
indicates that, while appellant was receiving compensation for total disability under FECA, he was
also receiving SSA age-based retirement benefits. A claimant cannot receive both compensation
for wage-loss and SSA age-related retirement benefits attributable to federal service for the same
period.6 Consequently, the fact of overpayment has been established.7
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. OWCP received documentation
from SSA with respect to rates of SSA age-related retirement benefits that were attributable to
federal service. The SSA provided the SSA rate with FERS, and without FERS for periods
commencing September 1, 2015 through October 12, 2019. OWCP provided its overpayment
calculations for each relevant period based on the SSA worksheet.
The Board has reviewed OWCP’s calculation of benefits received by appellant for the period
September 1, 2015 through October 12, 2019 and finds that an overpayment of compensation in the
amount of $14,719.44 was created.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.8
Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom OWCP
seeks recovery needs substantially all of his or her current income, including compensation benefits,
to meet current ordinary and necessary living expenses, and the beneficiary’s assets do

5

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

6

See E.K., Docket No. 18-0587 (issued October 1, 2018).

7

L.M., Docket No. 19-1197 (issued January 8, 2020).

8
5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437; see A.S., Docket No. 17-0606 (issued
December 21, 2017).

4

not exceed a specified amount as determined by OWCP.9 Additionally recovery of an overpayment
is considered to be against equity and good conscience when an individual who received an
overpayment would experience severe financial hardship in attempting to repay the debt or when an
individual, in reliance on such payment or on notice that such payments would be made, gives up a
valuable right or changes his or her position for the worse.10
OWCP’s regulations provide 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. The information is also used to
determine the repayment schedule, if necessary.11 Failure to submit the requested information
within 30 days of the request shall result in a denial of waiver of recovery, and no further request
for waiver shall be considered until the requested information is furnished.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $14,719.44
overpayment of compensation.13
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.14 Appellant, however, had
the responsibility to provide the appropriate financial information to OWCP.15
In its preliminary determination dated November 6, 2019, OWCP explained the importance
of providing the completed overpayment questionnaire and supporting financial documentation,
including copies of income tax returns, bank account statements, bills, pay slips, and any other
records to support income and expenses. It advised appellant that it would deny waiver if he failed
to furnish the requested information within 30 days. Appellant, however, did not respond. As such,
OWCP did not have the necessary financial information to determine if recovery of the overpayment
would defeat the purpose of FECA or if recovery would be against equity and good conscience.16
9

20 C.F.R. § 10.436(a)(b). For an individual with no eligible dependents the asset base is $6,200.00. The base
increases to $10,300.00 for an individual with a spouse or one dependent, plus $1,200.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter
6.400.4(a)(2) (September 2018).
10

Id. at § 10.437(a)(b).

11

Id. at § 10.438(a).

12

Id. at § 10.438(b).

13

A.C., Docket No. 18-1550 (issued February 21, 2019).

14

20 C.F.R. § 10.436.

15

Id. at § 10.438; see N.J., Docket No. 19-1170 (issued January 10, 2020).

16

R.M., Docket No. 19-1570 (issued June 1, 2020); G.G., Docket No. 19-0684 (issued December 23, 2019).

5

As appellant did not submit the information required under 20 C.F.R. § 10.438, which was
necessary to determine his eligibility for waiver, the Board finds that OWCP properly denied waiver
of recovery of the overpayment.17
On appeal, appellant contends that the overpayment occurred due to OWCP’s error. As
noted above, OWCP found him not at fault in the creation of the overpayment; however, the Board
finds that OWCP properly denied waiver of recovery of the overpayment as he failed to submit the
required financial information.
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides that 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 the error is discovered or his 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.18
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$1,927.72 every 28 days from appellant’s continuing compensation payments.19
OWCP provided appellant a Form OWCP-20 with the November 6, 2019 preliminary
overpayment determination. Appellant did not complete the form or provide the necessary financial
information to support his income and expenses prior to the final December 17, 2019 overpayment
decision. The overpaid individual is responsible for providing information about income, expenses,
and assets as specified by OWCP.20 When an individual fails to provide requested financial
information, OWCP should follow minimum collection guidelines designed to collect the debt
promptly and in full.21 The Federal (FECA) Procedure Manual provides that in these instances,
OWCP should set the rate of repayment at 25 percent of the 28-day net compensation amount until
the balance of the overpayment is paid in full.22 While appellant did not submit the financial
information requested, the record reflects that his continuing 28-day compensation as of March 31,
2019 was $7,994.56. Therefore, deducting $1,927.72 every 28 days from his continuing
compensation is not in excess of the 25 percent repayment rate.23

17

S.P., Docket No. 19-1318 (issued July 31, 2020).

18

20 C.F.R. § 10.441(a).

19

L.D., Docket No. 19-1423 (issued March 2, 2020).

20

20 C.F.R. § 10.438. See also A.F., Docket No. 19-0054 (issued June 12, 2019).

21

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002).

22

FECA Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.8(c)(1) (September 2018).

23

E.M., Docket No. 19-0857 (issued December 31, 2019).

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As appellant did not submit the financial documentation to OWCP as requested, the Board
finds that there is no evidence of record to establish that OWCP erred in directing recovery of the
$14,719.44 overpayment at the rate of $1,927.72 every 28 days from appellant’s continuing
compensation payments.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$14,719.44 for the period September 1, 2015 through October 12, 2019 for which he was not at
fault, as he concurrently received Social Security Administration (SSA) age-related retirement
benefits while receiving FECA wage-loss benefits 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 $1,927.72 from his continuing compensation payments
every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the December 17, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 21, 2020
Washington, DC

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

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

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

7