United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U S. POSTAL SERVICE, WYKAGYL POST
OFFICE, New Rochelle, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0584
Issued: June 15, 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 January 17, 2020 appellant, through counsel, filed a timely appeal from a December 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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar condition
causally related to the accepted July 24, 2018 employment incident.
FACTUAL HISTORY
On February 1, 2019 appellant, then a 63-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 24, 2018 he stepped in a small hole in a lawn and twisted
his right leg while in the performance of duty. He notified his supervisor on February 1, 2019. On
the reverse side of the claim form, appellant’s supervisor controverted the claim, asserting that
appellant had not reported the incident until six months later and had also admitted to moving a
heavy object in his garage.
In an accompanying narrative statement, appellant reported that on July 24, 2018 he
stepped in a small hole in a lawn, causing him terrible pain in his right leg and lower body, and
some pain in his left leg. The fall caused him to limp, but he continued to finish his mail route as
he thought he had just twisted his leg. Appellant reported that his limp continued for several
weeks. On August 6, 2019 he went to arrange his garage after work and just barely pushed the
lawn mower to the side when his pain flared up more than before. Appellant sought medical
treatment the following day and despite treatment, however, his condition did not improve.
In support of his claim, appellant submitted a February 1, 2019 note from Dr. Nilo Herrera,
Board-certified in internal medicine. Dr. Herrera reported that appellant was unable to work
pending surgery and could return to work on March 4, 2019.
In a statement dated February 1, 2019, M.J., a customer service supervisor, reported that
appellant had not reported an accident to her while on duty in order for her to conduct a thorough
investigation.
In a letter dated February 4, 2019, the employing establishment controverted the claim. It
noted the July 24, 2018 incident. However, the employing establishment also noted that appellant
did not seek medical treatment until August 6, 2018, after he was arranging his garage and pushed
his lawn mower to the side, causing a flare up of pain. It indicated that he had informed his
supervisor that he was moving heavy objects in his garage and only sought medical treatment after
that activity. The employing establishment argued that the medical evidence submitted failed to
provide support for a work-related injury on July 24, 2018.
In a development letter dated February 15, 2019, OWCP informed appellant that the
evidence of record was insufficient to establish his claim. It advised appellant of the factual and
medical evidence necessary, and provided a questionnaire for his completion. OWCP afforded
him 30 days to submit the necessary evidence.
Dr. Herrera, in a January 3, 2019 report, indicated that appellant was a postal worker with
a long-standing history of lower back pain. He noted that appellant was evaluated in August 2018
and an x-ray of the lumbar spine revealed significant disc space narrowing at L5-S1. Dr. Herrera
reported that, since that time, his pain had been variable in intensity and duration until it became

2

so severe that appellant sought physical therapy treatment. Appellant reported that his condition
would flare up while on his mail route, causing pain in both legs, right worse than left. Dr. Herrera
diagnosed chronic right knee pain, chronic bilateral low back pain with bilateral sciatica, and rightsided lumbago with sciatica.
A January 4, 2019 magnetic resonance imaging (MRI) scan of the lumbar spine performed
by Dr. Sandra Santiago, a Board-certified radiologist, revealed diagnostic findings of multilevel
degenerative changes, most signiﬁcant at L4-5 disc bulge with a large central/left paracentral/left
lateral recess broad-based herniation with facet disease causing mild-to-moderate central canal
stenosis and a right foraminal herniation abutting the right L4 nerve root causing moderate-tomarked right neural foraminal narrowing, left paracentral/lateral recess/foraminal disc protrusion
at T12-L1, and incompletely evaluated small central disc herniation at T11-12.
In a January 28, 2019 report, Dr. Jacob Handszer, Board-certified in pain management,
reported that appellant complained of low back and bilateral leg pain, left greater than right, which
had been present for about two years after he fell into a hole and twisted his ankle. He reviewed
the lumbar spine MRI and diagnosed radiculopathy of the lumbar region. Dr. Handszer opined
that appellant suffered from lumbar disc herniation causing lumbar radiculopathy. He
recommended a lumbar epidural steroid injection at L4-5, noting that appellant had not improved
with oral steroids and physical therapy treatment.
In a February 1, 2019 medical report, Dr. Herrera noted that, while delivering mail,
appellant twisted his back on a lawn causing radicular symptoms into the right lower extremity.
Appellant informed him that, when he returned to work, a supervisor saw him limping and
expressed concern, but he continued to work despite his radicular symptoms. Dr. Herrera noted
that, while moving a lawnmower, appellant exacerbated his back pain causing him to seek
treatment in their office with a nurse practitioner who referred him for physical therapy. Appellant
began physical therapy on August 7, 2018 and returned to work in September despite continued
pain and subsequently sought treatment on January 3, 2019 due to worsening pain. He was referred
for a lumbar spine MRI scan, which revealed a large herniated disc with impingement of the L4
nerve root. Dr. Herrera diagnosed lumbar radiculopathy and recommended another epidural block
injection.
Appellant responded to OWCP’s questionnaire in a narrative statement dated
March 8, 2019. He discussed his delay in reporting the July 24, 2018 incident, stating that he did
not initially realize his injury was serious and thought that it was an episodic flare-up of his
nonwork-related arthritic condition. Appellant explained that he often experienced arthritis flareups when delivering mail outside, which typically subsided after a few days. In this instance, he
mistook what was later diagnosed as lumbar radiculopathy for his arthritic condition, causing his
delay in filing a claim. Appellant reported that, following the employment incident, his pain
continued to worsen and that, from July 24 through August 6, 2018, he had to use his hands to
force his legs into his mail delivery truck. While at home on August 6, 2018, he tried to clean his
garage and bent down to push the front wheel of his parked lawnmower to its inner side when he
experienced pain similar to what he felt when he fell on his route. Appellant further described the
July 24, 2018 incident and reported that he never discussed the incident with his supervisors or
provided an explanation as to why he was out sick as his supervisors changed daily.

3

By decision dated May 1, 2019, OWCP denied appellant’s claim, finding that the evidence
of record was insufficient to establish that the July 24, 2018 employment incident occurred as
alleged. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.
On October 25, 2019 appellant, through counsel, requested reconsideration and submitted
an August 13, 2019 narrative report, wherein Dr. Herrera reported that appellant was delivering
mail on July 24, 2018, when he stepped into a hole twisted his back in order to avoid falling, and
developed a radiculopathy. He noted that appellant was limping, but continued to work, further
noting that he also sprained his ankle. Dr. Herrera indicated that, subsequently, appellant closed
the door of his garage, which caused a worsening of his radicular symptoms that had developed as
a consequence of putting his foot in the hole and twisting his back and ankle. He reported that
appellant was not working with his lawnmower because he did not cut his own grass. Dr. Herrera
opined that the competent cause of appellant’s right L4 nerve root impingement was the fall caused
by the hole. He noted that appellant’s discogenic disease and facet hypertrophy were part of the
normal aging process, but that appellant did not have right L4 radiculopathy until he stepped into
the hole. Dr. Herrera opined that the problem that caused his inability to work was his L4
radiculopathy, and that the competent cause was the injury sustained on July 24, 2018. He
explained that, prior to that event, appellant was able to perform all of his duties and did not have
complaints of radiculopathy.
By decision dated December 11, 2019, OWCP modified the May 1, 2019 decision, finding
that the employment incident occurred as alleged. However, it denied the traumatic injury claim,
finding that the medical evidence of record was insufficient to establish a diagnosed medical
condition causally related to the accepted July 24, 2018 employment incident.
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 period of FECA, that an injury was sustained while in the performance of duty as
alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.5
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first
3

Supra note 2.

4

J.R., Docket No. 20-0496 (issued August 13, 2020); D.K., Docket No. 17-1186 (issued June 11, 2018); Gary J.
Watling, 52 ECAB 278 (2001).
5
B.M., Docket No. 19-1341 (issued August 12, 2020); T.C., Docket No. 18-1498 (issued February 13, 2019);
Michael E. Smith, 50 ECAB 313 (1999).

4

component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.8 The opinion of the physician must be based
on a complete factual and medical background, must be one of reasonable medical certainty, and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment incident identified by the employee.9 The
weight of the 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.10
In a case in which a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted July 24, 2018 employment incident.
In a January 3, 2019 report, Dr. Herrera reported that appellant was a postal worker with a
long-standing history of lower back pain. He noted that appellant was evaluated in August 2018
and an x-ray of the lumbar spine revealed significant disc space narrowing at L5-S1. Dr. Herrera
diagnosed chronic right knee pain, chronic bilateral low back pain with bilateral sciatica, and rightsided lumbago with sciatica, but did not provide an opinion on a cause of appellant’s diagnosed
conditions. The Board has held that medical evidence that does not offer an opinion regarding the

6

T.J., Docket No. 19-0461 (issued August 11, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); J.M.,
Docket No. 17-0284 (issued February 7, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).
7
T.H., Docket No. 19-0599 (issued January 28, 2020); M.H., Docket No. 18-1737 (issued March 13, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

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).
9

R.F., Docket No. 20-1181 (issued February 11, 2021); S.S., Docket No. 18-1488 (issued March 11, 2019).

10
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).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued July 22, 2020); R.D.,
Docket No. 18-1551 (issued March 1, 2019).

5

cause of an employee’s condition is of no probative value on the issue of causal relationship.12 As
Dr. Herrera has not offered an opinion as to whether appellant’s conditions are causally related to
the accepted July 24, 2018 employment incident, his report is of no probative value and insufficient
to meet appellant’s burden of proof.
In a February 1, 2019 medical report, Dr. Herrera noted that, while delivering mail,
appellant twisted his back on a lawn, causing radicular symptoms into the right lower extremity.
He noted that appellant returned to work despite continued radicular symptoms and subsequently
exacerbated his back pain while moving a lawnmower. He diagnosed lumbar radiculopathy and
recommended another epidural block injection. In this report, Dr. Herrera did not offer an opinion
as to whether the diagnosed condition was causally related to the accepted July 24, 2018
employment incident.13 Thus, this report is of no probative value and insufficient to establish that
appellant sustained an employment-related injury on July 24, 2018.
In a separate February 1, 2019 note, Dr. Herrera reported that appellant was unable to work
pending surgery and could return to work on March 4, 2019. However, he failed to diagnose a
medical condition, nor did he offer an opinion as to whether a diagnosed condition was causally
related to the accepted employment incident, this note is of no probative value and is also
insufficient to establish appellant’s claim.14
In an August 13, 2019 narrative report, Dr. Herrera reported that appellant was delivering
mail on July 24, 2018, when he stepped into a hole and twisted his back in order to avoid falling,
and developed a radiculopathy. He opined that the competent cause of appellant’s right L4 nerve
root impingement and radiculopathy was the fall caused by the hole. Dr. Herrera did not, however,
explain with sufficient rationale how the incident would cause or result in the diagnosed
conditions. Furthermore, he failed to provide medical rationale for his opinion, only generally
noting that, prior to that event, appellant was able to perform all of his duties and did not have
complaints of radiculopathy.15 The Board has held that an opinion that a condition is causally
related because the employee was asymptomatic before the injury is insufficient, without adequate
rationale, to establish causal relationship.16 Thus, Dr. Herrera did not provide sufficient rationale
for his opinion and, therefore, the report is insufficient to meet appellant’s burden of proof.
Appellant also submitted a January 28, 2019 medical report from Dr. Handszer, who noted
complaints of low back and bilateral leg pain, which had been present for about two years after he
fell into a hole and twisted his ankle. However, while Dr. Handszer provided a diagnosis of lumbar
disc herniation causing lumbar radiculopathy, he failed to provide an opinion on the cause of
12

L.G., Docket No. 20-0433 (issued August 6, 2020); S.D., Docket No. 20-0413 (issued July 28, 2020); S.K.,
Docket No. 20-0102 (issued June 12, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No.
17-1549 (issued July 6, 2018).
13

Id.

14

Id.

15

See J.I., Docket No. 20-1374 (issued March 3, 2021); H.A., Docket No. 18-1466 (issued August 23, 2019).

16
D.M., Docket No. 20-0266 (issued January 8, 2021); R.V., Docket No. 18-1037 (issued March 26, 2019); J.S.,
Docket No. 16-1769 (issued May 24, 2017).

6

appellant’s condition.17 As such, his report is of no probative value and therefore insufficient to
establish the claim.18
While OWCP also received a January 4, 2019 lumbar MRI scan, the Board has held that
diagnostic studies, standing alone, lack probative value on the issue of causal relationship as they
do not address whether the employment incident caused any of the diagnosed conditions.19 Such
reports are therefore insufficient to establish appellant’s claim.
As the medical evidence of record does not contain rationalized medical evidence
establishing causal relationship between appellant’s diagnosed condition and the accepted July 24,
2018 employment incident, the Board finds that appellant has not met his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a lumbar
condition causally related to the accepted July 24, 2018 employment incident.

17

M.G., Docket No. 18-1616 (issued April 9, 2020).

18

Id.

19
See T.J., Docket No. 19-1339 (issued March 4, 2020); F.D., Docket No. 19-0932 (issued October 3, 2019); D.N.,
Docket No. 19-0070 (issued May 10, 2019); R.B., Docket No. 18-1327 (issued December 31, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the December 11, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Executrix for the Estate of J.C., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT,
Drakesboro, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2149
Issued: July 15, 2009

Case Submitted on the Record

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

JURISDICTION
On July 31, 2008 appellant, through counsel, filed a timely appeal of a May 13, 2008
merit decision of an Office of Workers’ Compensation Programs’ hearing representative who
found that the employee did not sustain an injury in the performance of duty. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that the employee sustained a pulmonary
condition in the performance of duty.
FACTUAL HISTORY
On September 13, 2005 the employee, then a 73-year-old shift operator, filed an
occupational disease claim.1 On June 23, 2005 he first became aware of his pneumoconiosis and
1

The employee retired from the employing establishment in September 1986. It appears that he died prior to the
filing of the current Board appeal. On April 13, 2009 appellant was appointed executrix of the employee’s estate.

asbestosis conditions upon reviewing a chest x-ray report obtained for Dr. Glen A. Baker, Jr., an
attending Board-certified internist specializing in pulmonary diseases and a B-reader.
By letter dated October 5, 2006, the Office advised the employee that the evidence
submitted was insufficient to establish his claim. It addressed the additional factual and medical
evidence he needed to submit. The Office requested a rationalized medical report from an
attending physician which described his symptoms, results of examination and tests, diagnosis,
treatment provided, the effect of treatment and opinion with medical reasons on whether
exposure or incidents in the employee’s federal employment contributed to his condition. It also
requested that the employing establishment respond to the employee’s claim and provide
exposure data, including air sample surveys or statements of the type of asbestos exposure,
frequency, degree and duration for each job held. The Office also requested pertinent dispensary
records, including relevant laboratory test results and any chest x-ray reports.
On August 18, 2005 Dr. Baker stated that pulmonary function studies revealed
Ghon Complex in the left lung. In an August 22, 2005 report, he reviewed a history of the
employee’s employment exposure to chemicals, including asbestos, cigarette smoking and
family background. On physical examination, Dr. Baker reported essentially normal findings.
On x-ray examination of the chest, he reported possible pleural plaque overlying the left seventh
rib. Dr. Baker stated that prebronchodilator testing demonstrated a forced vital capacity (FVC)
of 68 percent of the predicted amount and forced expiratory volume (FEV1) of 68 percent of the
predicted amount. Post-bronchodilator testing revealed a FVC of 72 percent of the predicted
amount and a FEV1 of 73 percent of the predicted amount. Dr. Baker stated that the FVC and
FEV1 improved by five percent and seven percent respectively. He related that this was an
insignificant degree of improvement in the employee’s pulmonary function studies. Dr. Baker
found that the baseline and post-bronchodilator studies demonstrated a mild restrictive defect.
He stated that there was no significant improvement following administration of the
bronchodilators.
Dr. Baker diagnosed pleural plaque on the left lung that was probably secondary to
asbestos with a long history of asbestos exposure. He also diagnosed mild restrictive defect with
no significant improvement following bronchodilators and mild bronchitis.
Dr. Baker
determined that the employee sustained a Class II impairment, noting that the FEV1 and/or FVC
was between 60 percent and 79 percent of the predicted amount based on Table 5-12 on page
107 of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) (5th ed. 2001). He stated that, if indeed the employee sustained pleural plaque
and pleural asbestosis, then he should have no further exposure to any type of substance that may
contain asbestos since his condition could worsen. Dr. Baker recommended that appellant stop
smoking as it could increase his risk for lung cancer. He recommended a computerized
tomography (CT) scan to rule out the presence of pleural plaque in the left lung or other plaques
not seen on a regular chest x-ray. Dr. Baker stated that a chest x-ray demonstrated calcified hilar
nodes with calcified areas peripheral to the nodes, which suggested an old Ghon Complex, which
suggested the possibility of old tuberculosis.
The employing establishment submitted dispensary records dated August 30, 1954 to
June 11, 1987. In a July 5, 2006 report, Dr. Gary W. Daniel, a Board-certified family
practitioner, noted that the employee had a history of hearing loss, obesity, cigarette and cigar

2

smoking, pneumonia, bronchitis, chronic colds and sore throat, pneumothorax, allergies, bilateral
knee replacements and prostate cancer.
By letter dated April 3, 2007, the Office referred the employee, together with a statement
of accepted facts, the case record and a list of questions to be addressed, to Dr. Kenneth C.
Anderson, Board-certified in pulmonary disease, for a second opinion medical examination.
In an April 24, 2007 report, Dr. Anderson noted the employee’s symptoms which
included daily cough with no mucus and wheezing, dyspnea with exertion when he walked and
occasional chest tightness. He reviewed a history of smoking 1 to 1½ packs of cigarettes per day
for 15 to 20 years. On physical examination, Dr. Anderson reported moist mucus membranes, a
large tongue, midline trachea and narrowing of the lateral pharyngeal sidewalls. Regarding the
lungs, he stated that the employee’s respirations were not labored with crackles in the bases.
Dr. Anderson stated that pulmonary function studies revealed a FVC of 2.98 or 64 percent of the
predicted amount, FEV1 of 2.32 or 68 percent of the predicted amount and FEV1/FVC of 78. He
related that the employee’s cough and dyspnea on exertion with pulmonary function testing
suggested a restricted ventilatory defect that dated back to 1985 and 1987 when pulmonary
function tests were performed at the employing establishment and to Dr. Baker’s August 18,
2005 pulmonary function test. Although pulmonary restriction was suggested, the employee’s
uncorrected diffusion capacity of carbon monoxide was within normal limits. Dr. Anderson
noted that no arterial blood gases were performed. Also, no lung volumes were performed due to
the employee’s inability to bend his right knee to adequately close the door on the pulmonary
function test machines to perform a plasmography. Dr. Anderson noted the employee’s history
of tobacco abuse. He stated that all the pulmonary function tests reviewed did not appear to
show significant obstructive lung disease. Dr. Anderson reported an abnormal chest x-ray which
demonstrated findings that suggested Category 1 pneumoconiosis in the middle and lower lung
fields and pleural plaques bilaterally.
Dr. Anderson found that the employee sustained dyspnea. He opined that the chest x-ray
suggested abnormalities that could be consistent with asbestosis, as well as asbestos-related
pleural disease. Dr. Anderson advised that the pulmonary function tests had been abnormal since
1985, which suggested a restriction. However, the diffusion capacity of carbon monoxide was
normal which did not indicate that the employee sustained any significant asbestosis.
Dr. Anderson related that chest x-rays were unreliable in documenting the true extent of
asbestos-related pleural disease and recommended a CT scan of the chest with high resolution.
He concluded that, if the CT scan was not remarkable, then the employee’s restrictive lung
defect was not secondary to asbestosis. Dr. Anderson concluded that the true extent of possible
asbestos-related pleural disease could be definitely outlined.
On May 23, 2007 Dr. John R. Bies, Board-certified in occupational medicine, performed
a chest CT scan. He found a small noncalcified right lower lobe pulmonary nodule measuring
0.7 centimeters (cm) by 0.5 cm. Dr. Bies also found a focal atherosclerotic calcification
proximal to the left ascending distal (LAD) coronary artery and mild splenomegaly. He
suggested a follow-up CT scan in six weeks to three months to assure stability.
In a June 18, 2007 supplemental report, Dr. Anderson reviewed the May 23, 2007 CT
scan. He stated that there were no findings consistent with asbestosis or asbestos-related pleural

3

disease. Therefore, the employee did not have asbestos or asbestos-related pleural disease. As
the pulmonary function tests had been relatively stable since 1985 with normal carbon monoxide
diffusion capacity, Dr. Anderson was not convinced that a significant pulmonary impairment was
present. He noted that the CT scan identified two abnormalities: a five millimeter (mm) by
seven mm noncalcified nodule in the right lower lobe and calcification of the proximal LAD
coronary artery. However, these abnormalities were not related to the employee’s federal
employment. Although the employee had decreased FVC and FEV1 values which appeared to be
restrictive in nature, a total lung capacity evaluation could not be performed due to the inability
to close the door on the plethysmograph. Dr. Anderson opined that, based on the normal CT
scan of the chest and normal diffusion capacity of carbon monoxide, the employee did not have
any significant asbestosis or asbestos-related pleural disease. He found that the employee did not
sustain a pulmonary impairment causally related to his federal employment.
By decision dated July 6, 2007, the Office denied the employee’s claim. It found that
Dr. Anderson’s April 24, 2007 report constituted the weight of the medical opinion evidence and
established that the claimed lung condition was not caused by the employee’s accepted workrelated asbestos exposure.
By letter dated July 24, 2007, the employee, through counsel, requested an oral hearing
before an Office hearing representative. On December 26, 2007 Dr. Matthew A. Vuskovich,
Board-certified in occupational medicine, reviewed the May 23, 2007 CT scan. He found that
upper lung appearances consistent with simple coal workers’ pneumoconiosis. Dr. Vuskovich
stated that in contrast to the ILO (International Classification of Radiographs of Pneumoconiosis)
classification system for posterior-anterior x-ray images, a CT scan standardized classification
system had not been developed. He found that it was not possible to classify the demonstrated
lung appearances.
By decision dated May 13, 2008, an Office hearing representative affirmed the July 6,
2007 decision. The hearing representative found that the employee’s lung condition was not
causally related to his accepted exposure to asbestos based on Dr. Anderson’s April 24, 2007
report.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an “employee of the United States” within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 These are the essential

2

5 U.S.C. §§ 8101-8193.

3

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

elements of each compensation claim regardless of whether the claim is predicated upon a
traumatic injury or an occupational disease.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical opinion
evidence. Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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.5 Neither the fact that appellant’s condition became apparent during a
period of employment nor her belief that the condition was caused by his employment is
sufficient to establish a causal relationship.6
ANALYSIS
The Board finds that appellant has failed to establish a causal relationship between the
employee’s pulmonary condition and his accepted employment-related asbestos exposure.
The employing establishment’s dispensary records covering the period August 30, 1954
to June 11, 1987 and Dr. Daniel’s July 5, 2006 report note that the employee had a history of
hearing loss, obesity, cigarette and cigar smoking, pneumonia, bronchitis, chronic colds and sore
throat, pneumothorax, allergies, bilateral knee replacements and prostate cancer. Neither the
dispensary records nor Dr. Daniel addressed whether the diagnosed conditions were caused by
the employee’s accepted asbestos exposure. The Board finds that this evidence is insufficient to
establish appellant’s burden of proof.
Dr. Baker’s August 22, 2005 report stated that the employee had a Ghon Complex in the
left lung “probably” secondary to a long history of work-related asbestos exposure and mild
restrictive defect. He determined that the employee sustained a Class II impairment and
bronchitis based on pulmonary function studies results (A.M.A., Guides 107, Table 5-12). The
Board finds that Dr. Baker’s opinion regarding the causal relationship between the employee’s
pulmonary condition and his asbestos exposure is speculative and equivocal in nature and of
4

See Delores C. Ellyett, 41 ECAB 992, 994 (1990); Ruthie M. Evans, 41 ECAB 416, 423-25 (1990).

5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

6

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

5

diminish probative value.7 Dr. Baker noted that additional diagnostic testing was required to rule
out the presence of a pleural plaque. He did not provide adequate medical rationale in support of
his opinion on counsel reaction. Dr. Baker did not sufficiently explain how the employee’s
employment-related asbestos exposure caused or contributed to a definite pulmonary condition.
The Board finds that the report of Dr. Baker is insufficient to establish that the employee
sustained a pulmonary condition causally related to the accepted employment factor.
In an April 24, 2007 report, Dr. Anderson, an Office referral physician, reviewed the
history of the employee’s work-related asbestos exposure. He provided his findings on physical
examination which included moist mucus membranes, a large tongue, midline trachea and
narrowing of the lateral pharyngeal sidewalls. Regarding the lungs, Dr. Anderson noted that the
employee’s respirations were not labored with crackles in the bases. He stated that pulmonary
function studies revealed demonstrated a FVC of 2.98 or 64 percent of the predicted amount,
FEV1 of 2.32 or 68 percent of the predicted amount and FEV1/FVC of 78. Dr. Anderson related
that the employee’s cough and dyspnea on exertion on pulmonary function testing suggested a
restricted ventilatory defect that dated back to the employing establishment’s 1985 and 1987
pulmonary function tests and to Dr. Baker’s August 18, 2005 pulmonary function test. However,
the employee’s uncorrected diffusion capacity of carbon monoxide was within normal limits. He
noted that no arterial blood gases and lung volumes were performed due to the employee’s
inability to bend his right knee to adequately close the door on the pulmonary function test
machines to perform a plasmography. Noting the employee’s tobacco abuse, Dr. Anderson
stated that all the reviewed pulmonary function tests did not appear to show significant
obstructive lung disease. He diagnosed Category 1 pneumoconiosis in the middle and lower
lung fields pleural plaques bilaterally based on a chest x-ray. Dr. Anderson did not state that the
diagnosed condition was caused by the employee’s work-related asbestos exposure.
Dr. Anderson opined that the employee sustained dyspnea. He stated that the chest x-ray
suggested abnormalities that could be consistent with asbestosis, as well as, asbestos-related
pleural disease. Dr. Anderson stated that the pulmonary function tests had been abnormal since
1985 which suggested a restriction. He recommended a chest CT scan as chest x-rays were
unreliable in documenting the true extent of asbestos-related pleural disease.
In a June 18, 2007 supplemental report, Dr. Anderson opined that the employee did not
sustain asbestosis or asbestos-related pleural disease based on the May 23, 2007 CT scan and
normal diffusion capacity for carbon monoxide. He was not convinced that any significant
pulmonary impairment was present due to the normal carbon monoxide diffusion capacity.
Dr. Anderson opined that the five mm by seven mm noncalcified nodule in the right lower lobe
and calcification of the proximal LAD coronary artery were abnormalities not causally related to
the employee’s employment. Although the employee had decreased FVC and FEV1 values,
which appeared to be restrictive in nature, a total lung capacity evaluation could not be
performed due to the inability to close the door on the plethysmograph. Dr. Anderson concluded
that the employee did not sustain a pulmonary impairment causally related to his federal
employment.
7

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); D.D., 57 ECAB 734 (2006);
Cecelia M. Corley, 56 ECAB 662 (2005).

6

Similarly, Dr. Vuskovich’s December 26, 2007 report is insufficient to establish
appellant’s claim. He stated that the May 23, 2007 CT scan demonstrated upper lung
appearances consistent with simple coal workers’ pneumoconiosis, although it was not possible
to classify the demonstrated lung appearances in the absence of a CT scan standardized
classification system. Dr. Vuskovich did not address whether the employee’s condition was
caused by the accepted work-related asbestos exposure. The Board finds that his report is
insufficient to meet appellant’s burden of proof.
The Board finds that Dr. Anderson’s opinion is sufficiently well rationalized and based
upon a proper factual background such that it is the weight of the evidence on the issue of
whether the employee sustained a lung condition causally related to his federal employment.
The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value and its convincing quality and the factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.8 Dr. Anderson’s opinion is of such reliability, probative value and convincing quality.
He extensively detailed the employee’s factual and medical history and reported the findings
based on his review of the employee’s medical records and diagnostic testing. Dr. Anderson
provided a proper analysis of the factual and medical history and objective test of record. His
conclusions regarding the employee’s condition are based on a thorough review of the medical
evidence.
The Board finds that appellant has not established that the employee’s lung condition was
causally related to his asbestos exposure. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that the employee sustained a
pulmonary condition in the performance of duty.

8

See Ann C. Leanza, 48 ECAB 115 (1996).

7

ORDER
IT IS HEREBY ORDERED THAT the May 13, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 15, 2009
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.P., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
DISTRIBUTION DEPOT -- RED RIVER,
Texarkana, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-2381
Issued: August 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 29, 2010 appellant filed a timely appeal from a merit decision of the
Office of Workers’ Compensation Programs (OWCP) dated June 4, 2010 concerning a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than 40 percent impairment of the left lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.

1

5 U.S.C. § 8101 et seq.

In an October 20, 2000 decision, the Board affirmed the termination of appellant’s
compensation benefits effective September 15, 1997.2 The Board found the medical evidence of
record established that appellant had no continuing disability or medical condition causally
related to his December 12, 1995 employment injury accepted for a lumbar strain. The Board, in
a June 6, 2006 decision, affirmed the Office’s decisions dated June 8 and December 10, 2004
and February 1, 2005 denying his claim for wage-loss compensation on and after September 15,
2007 as causally related to either his May 20, 1994 or December 12, 1995 employment injuries.3
In a May 12, 2010 order, the Board set aside a February 5, 2009 OWCP decision denying
modification of a November 6, 2007 schedule award for 40 percent left lower extremity
impairment directing OWCP to review all the evidence of record submitted prior to the issuance
of its February 5, 2009 decision.4 The November 6, 2007 schedule award was based on a
September 6, 2007 report of OWCP’s medical adviser who noted 41 percent left lower extremity
impairment.5
The award ran for 115.2 weeks for the period June 28, 2006 to
September 11, 2008. The facts and the circumstances surrounding the prior appeal are hereby
incorporated by reference.
The medical evidence received prior to the February 5, 2009 OWCP decision includes
reports for the period November 9, 2007 through February 8, 2008 from Dr. Huntley G.
Chapman, a treating Board-certified orthopedic surgeon, and reports from Dr. Philip M. Brown,
an examining physician specializing in pain management. Dr. Chapman noted appellant’s
complaints of back pain and left leg sciatica and provided findings on physical examination.
Appellant was treated by Dr. Brown for his low back pain from October 21, 2008 through
March 2, 2010.

2

Docket No. 99-180 (issued October 20, 2000). On May 23, 1994 appellant filed a traumatic injury claim
alleging that on May 20, 1994 he injured his left hip and lower left back while unloading a mail truck. OWCP
accepted the claim for left hip and lower back strain and assigned it claim number xxxxxx656. On June 21, 1995 it
issued a loss of wage-earning capacity decision which found that appellant’s actual earnings as a material handler
fairly and reasonably represented his wage-earning capacity and that he had no lost wages. On December 19, 1995
appellant, then a 46-year-old material handler, filed a claim alleging that on December 12, 1995 he sustained a
lumbar strain while climbing a pole. OWCP accepted the claim for a lumbar strain and assigned it claim number
xxxxxx828. Appellant was placed on the periodic rolls for temporary total disability effective May 11, 1996.
OWCP combined claim numbers xxxxxx656 and xxxxxx828 on January 11, 2001 with claim number xxxxxx656 as
the master file number. It also noted that claim number xxxxxx828 was closed.
3

Docket No. 05-1181 (issued June 6, 2006).

4

Docket No. 09-1771 (issued May 12, 2010).

5

Based on Table 17-8, page 532 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001), OWCP’s medical adviser assigned 5 percent impairment for hip
flexion, 17 percent impairment for hip extension and 25 percent impairment for hip abduction all based on a Grade 4
weakness.

2

By decision dated June 4, 2010, OWCP denied appellant’s request for an additional
schedule award.6 It found that the medical evidence did not establish a greater impairment
rating.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 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. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.10
ANALYSIS
OWCP accepted that appellant sustained left hip and lower back strain as a result of his
May 20, 1994 employment injury and a lumbar strain as a result of a December 2, 1995
employment injury. By decision dated November 6, 2007, OWCP granted appellant a scheduled
award for 40 percent left lower extremity impairment. On October 24, 2008 appellant requested
reconsideration of this decision. OWCP denied his request for an increased schedule award on
June 4, 2010.
In support of his claim for an increased schedule award appellant submitted reports from
Drs. Brown and Chapman. The medical reports from the physicians do not establish any
increased impairment to his left lower extremity as a result of the accepted employment injuries.
It is appellant’s burden of proof to establish entitlement to a schedule award.11 OWCP
procedures provide that to support a schedule award, the record must contain probative medical
evidence that establishes permanent impairment in detail, provides a percentage of impairment
6

The Board notes that, following the June 4, 2010 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005);
Rosemary A. Kayes, 54 ECAB 373 (2003); M.B., Docket No. 09-176 (issued September 23, 2009).
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

Tammy L. Meehan, 53 ECAB 220 (2001).

3

and an opinion that the impairment is permanent and stable.12 The Board finds that neither
Dr. Brown nor Dr. Chapman provided an explanation establishing any increased impairment to
appellant’s left lower extremity. Dr. Brown’s reports concerned treatment for appellant’s low
back pain while Dr. Chapman’s reports concerned treatment for low back pain and left sciatica.
These reports fail to establish an increased permanent impairment due to the accepted
employment injuries.
Appellant has not submitted evidence sufficient to establish that, as a result of his
employment injuries, he sustained greater permanent impairment than that previously awarded.
The medical evidence must include a description of any physical impairment in sufficient detail
so that the claims examiner and others reviewing the file would be able to clearly visualize the
impairment and the resulting restrictions and limitations.13 Appellant did not meet his burden of
proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established his entitlement to an additional
schedule award.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(b) (January 2010).
13

See A.L., Docket No. 08-1730 (issued March 16, 2009).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2010 is affirmed.
Issued: August 22, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Myers, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-702
Issued: October 7, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 14, 2009 appellant filed a timely appeal from merit decisions of the Office of
Workers’ Compensation Programs dated April 14 and December 12, 2008. Under 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 the Office properly denied reimbursement for collection agency fees
in the amount of $292.70.
FACTUAL HISTORY
Appellant, a 43-year old letter carrier, injured her right arm on September 16, 1999 in the
performance of duty. She filed a claim for benefits, which the Office accepted for right lateral
epicondylitis, right lateral epicondylectomy and fasciectomy, right carpal tunnel release and
repair of the common extensor. Appellant was paid compensation for temporary total disability
and returned to full duty on January 2, 2001.

In November 2000, appellant underwent physical therapy with Belvedere Physical
Therapy. The Office initially denied reimbursement for this course of treatment due to the
number of units charged and, subsequently, due to time limitations. The bills from Belvedere
were eventually paid in 2006; however, they had already been turned over to a collection agency.
Appellant paid a total of $813.00 to the collection agency. The collection agency refunded
$381.35 to appellant, but denied appellant’s request to refund the balance of $292.70 for the
collection agency fees, in addition to fee schedule reductions in the amount of $138.95.
By letters to the Office dated January 3 and July 17, 2007, appellant requested
reimbursement for the $292.70 in collection fees and $138.95 in fee schedule reductions.
By decision dated April 14, 2008, the Office determined that appellant should be
reimbursed for the $138.95 in fee schedule reductions pursuant to sections 10.337 and 10.812 of
the Federal Code of Regulations. The Office, however, denied reimbursement for the $292.70 in
collection agency fees, noting there is no provision in the Federal Employees’ Compensation Act
or the federal regulations allowing reimbursement of these costs.
On May 19, 2008 appellant requested an oral hearing, which was held on
October 14, 2008. Appellant stated at the hearing that she should not be penalized for something
that was not her fault. She asserted that she should be reimbursed for the collection agency fees.
By decision dated December 12, 2008, an Office hearing representative affirmed the
April 14, 2008 Office decision.
LEGAL PRECEDENT
Section 8102 of the Act1 provides that the United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of her duty.2
Section 8103 of the Act3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Office considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation.4 In interpreting this section of the Act, the Board has recognized that the Office
has broad discretion in approving services provided under the Act. The Office has the general
objective of ensuring that an employee recovers from her injury to the fullest extent possible in
the shortest amount of time. The Office therefore has broad administrative discretion in
choosing the means to achieve this goal. The only limitation on the Office’s authority is that of
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
1

5 U.S.C. § 8101 et seq.

2

Id. at § 8102.

3

Id. at § 8101 et seq.

4

Id. at § 8103.

2

unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.5
The terms of the Act are specific as to the method and amount of payment of
compensation; neither the Office nor the Board has the authority to enlarge the terms of the Act
nor to make an award of benefits under any terms other than those specified in the statute.6
ANALYSIS
The Office accepted that appellant sustained the conditions of right lateral epicondylitis,
right lateral epicondylectomy and fasciectomy, right carpal tunnel release and repair of the
common extensor. She underwent physical therapy for these conditions for which the Office
initially denied reimbursement. Appellant ultimately paid the bill for these treatments but not
until after they were referred to a collection agency. While the collection agency refunded
$381.35 of this amount to appellant and the Office reimbursed appellant for an additional
$138.95 in fee schedule reductions pursuant to sections 10.337 and 10.812 of the Federal Code
of Regulations, it denied reimbursement for the $292.70 in collection agency fees. The Office
noted that neither the Act nor the federal regulations contain a provision permitting
reimbursement of collection fees.
The Board finds that the Office properly denied reimbursement for the $292.70 in
collection agency fees. As noted above, the terms of the Act are specific as to the method and
amount of payment of compensation, and neither the Office nor the Board has the authority to
enlarge the terms of the Act nor to make an award of benefits under any terms other than those
specified in the statute.7 The Board therefore affirms the April 14 and December 12, 2008 Office
decisions denying appellant’s request for reimbursement of $292.70 in collection fees.
CONCLUSION
The Board finds that the Office properly denied appellant reimbursement for collection
agency fees in the amount of $292.70.

5

Dale E. Jones, 48 ECAB 648 (1997); Daniel J. Perea, 42 ECAB 214 (1990).

6

See Marco A. Padilla, 51 ECAB 502 (1999); see Helen A. Pryor, 32 ECAB 1313 (1981).

7

See id.

3

ORDER
IT IS HEREBY ORDERED THAT the December 12 and April 14, 2008 decisions of
the Office of Workers’ Compensation Programs be affirmed.
Issued: October 7, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S. Appellant
and
DEPARMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, Fort Bragg, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-222
Issued: May 6, 2014

Case Submitted on the Record

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

JURISDICTION
On November 12, 2013 appellant filed a timely appeal from a September 27, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $7,444.40 from
August 4, 2011 to October 20, 2012 due to the failure to deduct health benefit insurance
premiums, for which appellant was not at fault; (2) whether it properly denied waiver of the
overpayment; and (3) whether OWCP determined the overpayment could be recovered by
deducting $300.00 per month from continuing compensation payments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 8, 1985 appellant, then a 31-year-old firefighter, injured her right hip during
physical training at work. OWCP accepted muscle strain right hip. Appellant stopped work on
March 8, 1985 and returned on March 12, 1985. On February 3, 1986 she injured her back while
lifting an airpack and placing it in a bracket. OWCP accepted a low back strain. Appellant
stopped work February 3, 1986 and returned February 7, 1986. On April 10, 1986 she was
injured while running across the yard to assist a person with a gunshot wound. OWCP accepted
the claim for lumbar strain. Appellant returned to light-duty work on May 8, 1986 and worked
light duty until September 25, 1986 when she was released to her regular duties. On July 6, 1987
she filed a claim alleging she strained the back side of her right leg during physical training.
Appellant did not stop work or seek medical treatment. On December 24, 1987 she filed a
recurrence claim effective November 9, 1987 claiming her right leg and back have been painful
since her March 8, 1985 injury. Appellant stopped work on November 9, 1987 and returned to
light duty on November 25, 1987. OWCP accepted the recurrence and expanded her claim to
include an aggravation of degenerative disc disease and depressive reaction. Appellant stopped
work October 22, 1988 and was placed on the periodic rolls effective February 12, 1989. OWCP
paid all appropriate benefits.
By decision dated May 23, 1994, OWCP reduced appellant’s compensation benefits
based on her employment as a vehicle registration clerk.
On August 2, 2011 appellant advised OWCP that she was electing to receive Office of
Personnel Management (OPM) benefits effective August 3, 2011. She requested that it terminate
her workers’ compensation payments. Appellant retired from the employing establishment on
August 3, 2011. She did not, however, transfer over to OPM benefits until July 1, 2013.
In a November 1, 2012 manual adjustment form, OWCP noted that health benefit
insurance deductions had not been collected for the period August 4, 2011 through
October 20, 2012, which amounted to $7,444.40. It noted that appellant was paid compensation
of $16,140.43 but was entitled to only $8,696.03 after health benefit insurance premiums were
deducted. Copies of the Federal Employees’ Compensation System worksheets provided for the
period August 4, 2011 through October 20, 2012 showed appellant was paid without health
insurance premium deductions for the period on August 4, 2011 through October 20, 2012.
In a November 15, 2012 preliminary determination, OWCP determined that appellant had
been overpaid benefits in the amount of $7,440.00 because her health benefits had been
terminated on August 4, 2011 but were not reinstated until October 20, 2012. It found that she
was without fault in creating the overpayment. OWCP informed appellant that she had 30 days
to request a telephone conference, a final decision based on the written evidence or a
prerecoupment hearing on the issue of possible waiver of the overpayment. It requested that she
complete and return the enclosed financial information questionnaire (Form OWCP-20) within
30 days.
On December 10, 2012 appellant elected civil service retirement benefits effective
July 1, 2013.

2

On December 10, 2012 appellant also requested a prerecoupment hearing on the issues of
fault and possible waiver of the overpayment. The hearing was held telephonically before the
Branch of Hearings and Review on July 18, 2013. At the hearing, appellant testified that she did
not dispute the amount of the overpayment. It was also agreed that OWCP’s finding of without
fault was appropriate as the underdeduction of health insurance premium benefits was an
administrative action taken without appellant’s awareness. Appellant’s finances, as noted on the
December 10, 2012 overpayment recovery questionnaire received by OWCP December 13,
2012, were discussed. She testified that clothing was purchased with a credit card. Appellant
also stated that her mortgage payment was $400.00.
On the December 10, 2012 overpayment recovery questionnaire, appellant listed her
income as $1,000.00 from social security benefits, $570.00 from FECA benefits and $11,949.00
from lease of hunting dogs,2 for a total monthly income of $13,519.00. Expenses were listed as
$1,100.00 for mortgage; $464.00 for food; $200.00 for clothing; $388.48 for utilities and
$989.00 for other expenses, for a total monthly expense of $3,141.48. Appellant listed credit
card debt of $8,000.00 to Chase for which she pays $200.00 a month and $5,000.00 to Bank of
America, for which she pays $200.00 per month. She indicated that she had a total of $3,520.80
other available funds which included $20.00 to $30.00 cash on hand; $2,915.14 checking
account balance; and $575.80 savings account balance. Supporting documentation included a
statement from Bragg Mutual Federal Credit Union indicating balance of approximately
$576.00, balances on Cabelo’s Club Visa Signature; 2011 Income Tax Return for an S
Corporation for appellant’s business.
By decision dated September 27, 2103, OWCP’s hearing representative finalized the
finding of overpayment in the amount of $7,444.40 for the period August 4, 2011 to October 20,
2012 because health benefit premiums were not deducted and appellant does not contest the
overpayment. The hearing representative concurred that appellant was without fault as the
computation of health benefits is an administrative action and was untaken without appellant’s
participation. The hearing representative found that appellant was not entitled to waiver of
recovery as she had over $400.00 to pay the overpayment after monthly expenses were
subtracted from monthly income. As appellant testified that the clothing expense was included
in the credit card amount, the monthly expenses were reduced by $200.00. The hearing
representative further found that a recoupment of $300.00 per month would not constitute a
financial hardship.
LEGAL PRECEDENT -- ISSUE 1
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 his or her
duty.3 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.

2

OWCP’s hearing representative noted this business income was $1,200.00 monthly.

3

5 C.F.R. § 8102(a).

3

An employee entitled to disability compensation may continue his or her health benefits
under FEHB program. The regulations of OPM, which administers FEHB program, provide
guidelines for registration, enrollment and continuation of enrollment for federal employees. In
this connection, 5 C.F.R. § 890.502(a)(1) provides that an employee or annuitant is responsible
for payment of the employee or annuitant share of the cost of enrollment for every pay period
during which the enrollment continues. An employee or annuitant incurs indebtedness to the
United States in the amount of the proper employee or annuitant withholding required for each
pay period that health benefit withholdings or direct premium payments are not made but during
which the enrollment continues.4
In addition, 5 C.F.R. § 890.502(c) provides that an agency that withholds less than or
none of the proper health benefits contributions from an individual’s pay, annuity or
compensation must submit an amount equal to the sum of the uncollected deductions and any
applicable agency contributions required under section 8906 of Title 5 United States Code, to
OPM for deposit in the Employees’ Health Benefits Fund.5
The Board has recognized that, when an underwithholding of health insurance premiums
is discovered, the entire amount is deemed an overpayment of compensation because OWCP
must pay the full premium to OPM when the error is discovered.6
ANALYSIS -- ISSUE 1
The record reflects that OWCP failed to deduct health insurance premiums from
appellant’s compensation payments for the period August 4, 2011 to October 20, 2012 in the
amount of $7,444.40. It noted that appellant was paid compensation of $16,140.43 but would
have been entitled to only $8,696.03 after health benefit insurance premiums had been property
deducted. This resulted in an overpayment of compensation of $7,444.40. No health benefit
insurance deductions were made from appellant’s compensation during that time period and
there was no evidence that she cancelled her health benefits enrollment. OWCP explained how
the overpayment occurred and provided this to her with the preliminary notice of overpayment.7
Appellant does not dispute that she received the overpayment in question or the amount of the
overpayment. The Board finds that an overpayment was created in the amount of $7,444.40 due
to the underwithholding of health insurance premiums.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter
that rests within OWCP’s discretion pursuant to statutory guidelines.8 These statutory guidelines
are found in section 8129(b) of FECA which states: Adjustment or recovery of an overpayment
4

Id. at § 890.502(a)(1).

5

Id. at § 890.502(c).

6

See James Lloyd Otte, 48 ECAB 334 (1997); Marie D. Sinnett, 40 ECAB 1009 (1989); John E. Rowland, 39
ECAB 1377 (1988); 5 C.F.R. § 890.502.
7

See Sandra K. Neil, 40 ECAB 924 (1989).

8

See Robert Atchison, 41 ECAB 83, 87 (1989).

4

by the United States may not be made when incorrect payment has been made to an individual
who is without fault and when adjustment or recovery would defeat the purpose of this
subchapter or would be against equity and good conscience.9 When a claimant is found to be
without fault in the matter of the overpayment, then, in accordance with section 8129(b), OWCP
may only recover the overpayment if it determined that recovery of the overpayment would
neither defeat the purpose of FECA nor be against equity and good conscience.
Section 10.436 of the implementing regulations10 provide that recovery of an
overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks
recovery needs substantially all of his or her current income (including compensation benefits) to
meet current or ordinary and necessary living expenses; and (b) the beneficiary’s assets do not
exceed a specified amount as determined by OWCP from data furnished by the Bureau of Labor
Statistics.11 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.12
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.13
Section 10.438 of the 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 on 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.14
ANALYSIS -- ISSUE 2
OWCP found appellant to be without fault in creating the overpayment. The issue is
whether recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. OWCP provided appellant with an OWCP-20 form and requested in the
November 15, 2012 preliminary determination that she submit supporting financial
9

5 U.S.C. § 8129(b).

10

20 C.F.R. § 10.436.

11

OWCP’s procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).
12

Id; See also Sherry A. Hunt, 49 ECAB 467, 473 (1998).

13

20 C.F.R. § 10.437.

14

Id. at § 10.438.

5

documentation with respect to her monthly income and expenses. Appellant was notified of the
provisions of 20 C.F.R. § 10.438.
Appellant provided an overpayment recovery questionnaire with a few supportive
financial documents and further clarified her financial situation at the prerecoupment hearing.
Based on her testimony and information from the overpayment recovery questionnaire, OWCP’s
hearing representative revealed that she had monthly income of $3,093.00. While appellant
listed monthly expenses of $2,841.48, the hearing representative found the clothing expense was
included in the credit card amount, thus reducing the monthly expenses to $2,641.48. The
hearing representative calculated that appellant had over $400.00 ($3,093.00 -- $2,641.48 =
$451.52) remaining to pay the overpayment and denied waiver.
The Board finds that OWCP made a proper determination as to waiver. With the limited
amount of financial information submitted, OWCP did not abuse its discretion in finding that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and
good conscience.15 Appellant has the responsibility to submit the necessary evidence. Pursuant
to 20 C.F.R. § 10.438, OWCP may properly deny waiver of the overpayment.16 For this reason,
it properly denied waiver in conformance with the implementing federal regulations.
LEGAL PRECEDENT -- ISSUE 3
Section 8129(a) of FECA provides, in pertinent part, that when an overpayment has been
made to an individual under this subchapter 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 an individual is entitled.17 OWCP’s implementing regulations
provide that, if an overpayment of compensation has been made to an individual entitled
to further payments and no refund is made, it 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 directed recovery of the overpayment at the rate of
$300.00 per month from each continuing compensation payment.
Regarding the recovery of the overpayment from appellant’s continuing compensation,
the Board notes that she provided limited financial information to assist OWCP in determining
her financial circumstances to minimize any hardship. OWCP properly set the rate of recovery
at $300.00 from each continuing compensation payment until the benefit was paid in full. The

15

See also D.I., Docket No. 13-469 (issued July 1, 2013). See N.R., Docket No. 12-1853 (issued June 10, 2013).

16

Id.

17

5 U.S.C. § 8129.

18

20 C.F.R. § 10.441(a).

6

Board finds that this was reasonable in the absence of any financial documentation proving
otherwise.19
On appeal, appellant alleges that she does not always have extra money at the end of each
month and enclosed copies of some bills. The Board’s jurisdiction however is limited to
evidence that was before OWCP at the time it issued its final decision.20 Because this evidence
was not in the case record at the time OWCP rendered its final September 27, 2013 decision, the
Board is precluded from considering such evidence on appeal.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $7,444.40. OWCP properly denied waiver and required recovery of the overpayment by
deducting $300.00 every 28 days from her continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the September 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

19

Id.

20

Id. at § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

7