United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE NAVY, NAVY
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REGION NORTHWEST FIRE & EMERGENCY )
SERVICES, Port Haddock, WA, Employer
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__________________________________________ )
G.Z., Appellant

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

Docket No. 16-0892
Issued: May 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2016 appellant filed a timely appeal from a September 17, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant forfeited his right
to compensation pursuant to section 8106(b)(2) of FECA, for the period January 3, 2010 to
July 30, 2013; (2) whether OWCP properly found an overpayment of compensation in the
amount of $73,241.01; and (3) whether OWCP properly found that appellant was at fault in the
creation of the overpayment and, therefore, the overpayment was not subject to waiver of
recovery.

1

5 U.S.C. § 8101 et seq.

On appeal appellant disagrees with the overpayment finding, maintaining that OWCP
declared forfeit periods not covered by OWCP EN1032 forms. He also contends that OWCP’s
hearing representative did not fairly and equitably determine a repayment schedule.
FACTUAL HISTORY
On November 18, 2009 appellant, then a 32-year-old firefighter, filed a traumatic injury
claim (Form CA-1) alleging that he strained his right knee and ankle that day while performing
job duties. On December 17, 2009 OWCP accepted sprain of the anterior cruciate ligament
(ACL) and tear of the medial meniscus of the right knee. On January 6, 2010 appellant
underwent arthroscopic right partial lateral meniscectomy and debridement of the patellofemoral
joint. He received continuation of pay for the period November 20, 2009 to January 3, 2010, and
then filed claims for compensation (Forms CA-7). The Form CA-7 instructed, “you must report
all earnings” and indicated that fraudulent concealment of employment or failure to report
income may result in forfeiture of compensation benefits. In each claim filed, appellant checked
a box marked “no,” indicating that he had no outside earnings. FECA compensation coverage
began on January 3, 2010. Appellant was placed on the periodic rolls.
Appellant was suspended by the employing establishment effective August 12, 2010
because his security clearance was revoked.
OWCP referred appellant to Dr. James R. Schwartz, a Board-certified orthopedic
surgeon. In a December 22, 2010 report, Dr. Schwartz described physical examination findings
and diagnosed sprain/strain of the right knee, tear in the medial meniscus of the right knee, and
post-traumatic arthrosis of the right knee. He advised that appellant could work eight hours of
modified duty daily. The employing establishment, however, indicated that it had no work
available.
On September 30, 2011 appellant submitted an OWCP Form EN1032, signed on
September 24, 2011, in which he attested that he had not been employed or self-employed in the
past 15 months.2 He did report having received Department of Veterans Affairs (VA) benefits
for head scars, kidney stones, and sciatic nerve.
On February 15, 2012 appellant had an authorized right knee surgery.
On July 26, 2012 appellant submitted an OWCP Form EN1032 in which he attested that
he had not been employed or self-employed in the past 15 months.3 He repeated that he was
receiving VA benefits and included an additional diagnosis of osteoarthritis. On a third Form
EN1032, signed on July 30, 2013, appellant also indicated that he had not been employed or selfemployed in the past 15 months. He indicated that his VA benefit was 50 percent.

2

This and subsequent EN1032 forms signed by appellant advised that a false or evasive answer may be grounds
for forfeiting compensation benefits.
3

The date of signature recorded is July 19, 1977. This, however, is appellant’s date of birth. As noted, the
EN1032 form was received by OWCP on July 26, 2012.

2

On January 31, 2014 appellant began part-time work as a teller with Bank of America,
earning $12.05 an hour. He reported this employment on a Form EN1032, signed by him on
July 7, 2014, and attached a statement indicating that his gross earnings from Bank of America
were $6,504.26, and from Gary Zambor Diving, $600.00, for the 2013 tax year. He indicated
that his VA benefit had been increased to 60 percent.
On October 17, 2014 the employing establishment forwarded to OWCP an October 16,
2014 summary of investigation by its investigative service (NCIS), conducted by the Department
of Labor’s, Office of Inspector General (OIG), and the Internal Revenue Service. This report,
including attachments, documented that beginning no later than 2007 and continuing to present,
appellant had operated a business G.Z. Diving which provided boat cleaning and repair services,
and that each year from 2007 to present, he had earned income from the operation of that
business. The summary indicated that appellant had admitted to providing a false statement to an
NCIS investigator regarding FECA compensation, and reported that on October 3, 2014
appellant had pled guilty. The report indicated that sentencing was scheduled for January 6,
2015 and appellant had agreed to a recommended sentence of 15 days imprisonment to be
followed by one-year supervision, home detention for a period of 60 days, and a court-imposed
fine of $1,000.00.
An indictment dated September 18, 2014, in the United States District Court for the
Western District of Washington charged appellant with one count of violating 18 U.S.C. § 1920,
making a false statement to obtain FECA benefits. A District Court plea agreement dated
October 3, 2014 indicated that appellant pled guilty to the charge. The agreement noted that
beginning in or about November 2009, continuing to the present, appellant was in receipt of
FECA compensation, and on or about July 2011, and in the years 2012 and 2013, appellant
completed, signed, and filed EN1032 forms with OWCP in which he stated he was not selfemployed or involved in any business enterprise when, in fact, he owned and operated a boat
repair and boat cleaning business and received income from that business.
On January 6, 2015 the United States District Court for the Western District of
Washington found appellant guilty of one count of making a false statement to obtain FECA
compensation under 18 U.S.C. § 1920. It sentenced him to probation for one year and ordered
80 hours of community service as directed by the probation office. He was to pay an assessment
of $25.00 and a fine of $1,000.00.
A January 12, 2015 investigative memorandum, prepared by the Department of Labor’s
Office of the Inspector General for the OWCP District Director, described the investigative and
court proceedings.
By decision dated February 25, 2015, OWCP found that appellant had forfeited his right
to compensation benefits for the period January 3, 2010 to July 30, 2013. It explained that, on
OWCP EN1032 forms, signed on September 24, 2011, July 26, 2012, and July 30, 2013, he
answered “no” when asked if he had worked for any employer or was self-employed the prior 15
months. However, the investigation revealed that he had performed boat cleaning and repair
services as Zambor Diving during this period. It described the District Court Judgment, and
found that, pursuant to 20 C.F.R. § 10.529 and relevant statutes, because appellant knowingly

3

omitted earnings for the services provided by Zambor Diving on OWCP EN1032 forms, his
compensation during this period was forfeited.
On February 25, 2015 OWCP also made a preliminary determination that appellant
received an overpayment of compensation in the amount of $73,513.31 because he was selfemployed, involved in a business enterprise during the period January 3, 2010 to July 30, 2013;
and failed to report this activity on his OWCP EN1032 forms. Appellant was found at fault in
creating the overpayment because he knowingly accepted compensation to which he knew or
should have known he was not entitled. An overpayment work sheet and computer printouts
contained in the record indicates that appellant received compensation of $73,513.31 for the
period January 3, 2010 to July 30, 2013.
Appellant timely requested a hearing regarding the forfeiture decision and a precoupment
hearing over the overpayment findings. Counsel at that time asserted that appellant’s unreported
earnings were de minimis and that the EN1032 form was difficult to follow. Appellant’s
finances were discussed, and the hearing representative informed appellant of the financial
information needed, including an overpayment questionnaire (OWCP Form 20).
On August 28, 2015 appellant submitted an overpayment questionnaire and financial
information.
In a September 17, 2015 decision, an OWCP hearing representative found that appellant
forfeited compensation for the period January 3, 2010 through July 30, 2013, noting that he pled
guilty in federal court to knowingly defrauding the government beginning in 2009. He noted that
appellant had not reported earnings on claims for compensation (Forms CA-7) filed during this
period and had not reported it on the EN1032 forms. The hearing representative found that the
last three days of compensation had been computed incorrectly. He modified the amount of the
overpayment to $73,241.01, to reflect appellant’s net compensation for the period January 3,
2010 through July 30, 2013.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA provides that the Secretary of Labor may require a partially
disabled employee to report his earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies. It states that an employee who:
“(1) fails to make an affidavit or report when required; or
“(2) knowingly omits or understates any part of his or her earnings forfeits his or
her right to compensation with respect to any period for which the affidavit or
report was required.”4

4

5 U.S.C. § 8106(b); see F.C., 59 ECAB 666 (2007).

4

Section 10.5(g) of OWCP’s regulations defines earnings from employment or selfemployment as follows:
“(1) Gross earnings or wages before any deduction and includes the value of
subsistence, quarters, reimbursed expenses and any other goods or services
received in kind as remuneration; or
“(2) A reasonable estimate of the cost to have someone else perform the duties of
an individual who accepts no remuneration. Neither lack of profits, nor the
characterization of the duties as a hobby, removes an unremunerated individual’s
responsibility to report the estimated cost to have someone else perform his or her
duties.”5
In order to establish that a compensationer should forfeit the compensation received for
the periods covered by completed OWCP EN1032 forms or CA-7 forms, the evidence must
establish that he or she knowingly omitted or understated his or her employment and earnings.6
As forfeiture is a penalty, it is not enough merely to establish that there were underreported
earnings from employment.
OWCP can, in several ways, meet its burden of proof in establishing that a claimant
“knowingly” failed to report employment or earnings. This includes the claimant’s own
admission to OWCP that he failed to report employment or earnings which he knew should be
reported, or establishing that the claimant has pled guilty to violating applicable federal statutes
by falsely completing the affidavits in the Form EN1032.7 The inquiry is whether appellant
knowingly omitted or understated his earnings from employment for the periods covered by the
EN1032 forms. The term “knowingly” as defined in OWCP’s implementing regulations and
Board precedent means “with knowledge; consciously; intelligently; willfully; intentionally.”8
The language on OWCP EN1032 forms is clear and unambiguous in requiring a claimant to
report earnings for the previous 15 months from any employer, self-employment or a business
enterprise in which he worked. The forms further emphasize that severe penalties may be
applied for failure to report all work activities thoroughly and completely.9 Likewise, the
language on the CA-7 forms is also clear and unambiguous regarding self-employment, and
specifically includes providing services in exchange for money, regardless of whether the
income was paid to others.10

5

20 C.F.R. § 10.5(g).

6

Robert R. Holmes, 49 ECAB 161 (1997); 20 C.F.R. § 10.5(n).

7

Robert Ringo, 53 ECAB 258 (2001).

8

Joan Ross, 57 ECAB 694 (2006).

9

Id.

10

See E.V., Docket No. 15-0803 (issued October 15, 2015).

5

ANALYSIS -- ISSUE 1
The forfeiture determination in this case, beginning on January 6, 2010 and continuing to
July 30, 2013, was based on the submission of specific EN1032 forms, completed by appellant in
2011, 2012, and 2013, and CA-7 forms, which he completed beginning in January 2010. On
each of the EN1032 and CA-7 forms, appellant alleged that he was not employed and as such
had no earnings. On October 3, 2014 appellant pled guilty to one count of making a false
statement or fraud to obtain FECA compensation under 18 U.S.C. § 1920. Beginning in or about
November 2009 and continuing, appellant was in receipt of FECA compensation. On January 6,
2015 appellant was found guilty of one count of making a false statement to obtain FECA
compensation under 18 U.S.C. § 1920. He was sentenced to one year of probation, was to
complete 80 hours of community service as directed by the probation office, and was to pay an
assessment of $25.00 and a fine of $1,000.00. The Board affirms the finding that appellant
knowingly failed to report earnings while in receipt of compensation benefits for the period
January 3, 2010 to July 30, 2013.
For the period January 3 to April 24, 2010, appellant completed a series of Form CA-7
claims for compensation. The CA-7 forms instructed appellant to report all earnings from
employment during the periods claimed. Appellant did not report earnings on any of these
forms.
On each of the EN1032 forms submitted by appellant on September 30, 2011, July 26,
2012, and August 5, 2013, he denied any self-employment or involvement in a business
enterprise, and reported no earnings for the previous 15 months. Thus, the evidence of record
supports a finding that he failed to report earnings on these forms which cover the period
April 24, 2010 to July 30, 2013.
Because the evidence establishes that appellant failed to report earnings during the period
of forfeiture, the remaining question is whether his omission was knowingly. As noted above,
OWCP’s regulations define knowingly as: with knowledge, consciously, willfully, or
intentionally.11 The language in the EN1032 and CA-7 forms is clear and unambiguous
regarding self-employment, and specifically includes providing services in exchange for money.
Moreover, appellant filed a guilty plea in federal court to one count of making a false statement
to obtain FECA compensation, and on January 6, 2015 was found guilty by the court. The plea
agreement supports that appellant operated a business and received income.
On appeal appellant argues that OWCP declared forfeit periods not covered by the
EN1032 forms. However, while those forms only cover a period beginning 15 months prior to
the September 24, 2011 EN1032, or April 24, 2010, as discussed above, appellant submitted
CA-7 forms in which he also failed to report earnings beginning in January 2010 when his
continuation of pay ended, and he received compensation beginning January 3, 2010.
The language of both the EN1032 and CA-7 forms, advised that appellant had an
affirmative obligation to report any work or ownership interest in any business enterprise. He
did not do so. Based on the probative evidence of record, including the plea agreement and
11

Supra note 9.

6

sentencing document, the Board finds that appellant knowingly omitted earnings on EN1032 and
CA-7 forms from January 3, 2010 through July 30, 2013.
Pursuant to 5 U.S.C. § 8106(b), OWCP properly determined that he forfeited his FECA
compensation for that period.12
LEGAL PRECEDENT -- ISSUE 2
Section 10.529 of OWCP’s implementing regulations provide as follows:
“(a) If an employee knowingly omits or understates any earnings or work activity
in making a report, he or she shall forfeit the right to compensation with respect to
any period for which the report was required. A false or evasive statement,
omission, concealment or misrepresentation with respect to employment activity
or earnings in a report may also subject an employee to criminal prosecution.
“(b) Where the right to compensation is forfeited, OWCP shall recover any
compensation already paid for the period of forfeiture pursuant to 5 U.S.C. § 8129
and other relevant statues.”13
ANALYSIS -- ISSUE 2
As noted above, OWCP regulations provide that OWCP may declare an overpayment of
compensation for any compensation already paid for the period of a given forfeiture of
compensation. If a claimant has any employment, including self-employment or involvement in
a business enterprise, during a period covered by a EN1032 or CA-7 form which he or she fails
to report, the claimant is not entitled to any compensation for any portion of the period covered
by the report, even though he may not have had earnings during a portion of that period.14
Computer printouts contained in the record indicate that appellant received net compensation of
$73,241.01 for the period January 3, 2010 to July 30, 2013. Thus, the record supports that
OWCP paid net compensation of $73,241.01 for the relevant period. As OWCP properly found
that appellant forfeited his entitlement to compensation during this period, there exists an
overpayment of compensation in the amount of $73,241.01.15
LEGAL PRECEDENT -- ISSUE 3
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
12

S.H., Docket No. 14-421 (issued August 27, 2014).

13

20 C.F.R. § 10.529.

14

Louis P. McKenna, Jr., 46 ECAB 428 (1994). See also N.D., Docket No. 13-108 (issued September 17, 2014)
(the plain language of Form CA-7 was sufficient to put appellant on notice that she was required to report all
earnings outside her federal job even if considered de minimis).
15

See J.N., Docket No. 13-1761 (issued July 1, 2014).

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when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”16
Section 10.433(a) of OWCP’s regulations provide that OWCP:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from OWCP are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or she knew
or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect. (This provision applies only to the overpaid individual).”17
To determine if an individual was at fault with respect to the creation of an overpayment,
OWCP examines the circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the individual’s capacity to realize that
he or she is being overpaid.18
ANALYSIS -- ISSUE 3
OWCP properly determined that appellant was at fault in the creation of the overpayment
because he failed to provide information which he knew or should have known to be material on
OWCP EN1032 forms and CA-7 claims for compensation covering the period January 3, 2010 to
July 30, 2013. The record establishes that appellant had unreported employment activity during
this period and knowingly failed to furnish this material information to OWCP. Appellant
signed a certification clause on the EN1032 forms which advised him in explicit language that he
might be subject to civil, administrative, or criminal penalties if he knowingly made a false
statement or misrepresentation or concealed a fact to obtain compensation. Likewise, the CA-7
claim form advises that fraudulent concealment of employment or failure to report income may
result in forfeiture of compensation benefits and/or criminal prosecution. By signing these
forms, appellant is deemed to have acknowledged his duty to report any employment, selfemployment, or involvement in a business enterprise. As appellant indicated that he had no
employment or earnings from employment during the covered periods, he failed to furnish
16

5 U.S.C. § 8129; see Linda E. Padilla, 45 ECAB 768 (1994).

17

20 C.F.R. § 10.433; see Sinclair L. Taylor, 52 ECAB 227 (2001); see also 20 C.F.R. § 10.430.

18

Id. at § 10.433(b); Duane C. Rawlings, 55 ECAB 366 (2004).

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information which he knew or should have known to be material to OWCP. As he is not without
fault in creating the overpayment, it is not subject to waiver of recovery.19 Moreover, appellant
admitted that he knowingly and willfully made false statements when he pled guilty to violating
18 U.S.C. § 1920. Thus, he is at fault in the creation of the $73,241.01 overpayment of
compensation.20
The Board notes that its jurisdiction is limited to reviewing those cases where OWCP
seeks recovery from continuing compensation benefits under FECA. Where, as here, a claimant
is no longer receiving wage-loss compensation benefits, the Board does not have jurisdiction
over the amount or method of recovery of the overpayment under the Debt Collection Act.21
CONCLUSION
The Board finds that OWCP properly determined that appellant forfeited his right to
compensation pursuant to section 8106(b)(2) of FECA, for the period January 3, 2010 to
July 30, 2013. The Board further finds that OWCP properly found that an overpayment of
compensation in the amount of $73,241.01 had been created and that, as appellant was at fault in
the creation of the overpayment, the overpayment was not subject to waiver of recovery.22

19

Harold F. Franklin, 57 ECAB 387 (2006).

20

J.C., Docket No. 13-726 (issued September 23, 2013).

21

Albert Pineiro, 51 ECAB 310 (2000).

22

The Board notes that by decision dated October 20, 2014, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective October 18, 2014 because he pled guilty to one count of fraud. It noted
that, based on his guilty plea that he made false statements with regard to not reporting self-employment activities
while in the receipt of FECA compensation. OWCP indicated that a separate decision concerning forfeiture for
failure to report these earnings would be issued under separate cover after he was sentenced. On November 20,
2014 appellant requested a hearing from the October 20, 2014 decision. The record does not contain a decision from
a hearing representative of the October 20, 2014 decision. Pursuant to the Board’s Rules of Procedure, its
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.3(c); see J.T., 59 ECAB 293 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the September 17, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-786
Issued: November 5, 2010

Case Submitted on the Record

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

JURISDICTION
On January 29, 2010 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated November 18, 2009. 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 established that she sustained greater than a five percent
impairment of her right lower extremity.

FACTUAL HISTORY
Appellant, an 81-year-old postal employee, was injured on September 7, 1999. The
Office accepted her claim for right knee and facial contusion.1
On March 12, 2002 Dr. David Weiss, an orthopedist, reviewed appellant’s medical
history, presented findings on examination and diagnosed post-traumatic internal derangement to
the right knee and right knee degenerative joint disease. He noted that she had reached
maximum medical improvement. Dr. Weiss noted that physical examination of appellant’s right
knee revealed crepitance within the lateral joint compartment and, to a lesser extent, over the
medial joint compartment. Patellofemoral compression produced marked crepitance and pain.
Valgus stress testing produced pain into the medial joint line and range of motion was restricted.
Dr. Weiss opined that appellant attained maximum medical improvement on March 12, 2002
and, citing the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides), recommended an eight percent impairment of her right lower
extremity, computed as the sum of a five percent impairment for right patellofemoral pain and
crepitance pursuant to Table 17-31,2 as well as a three percent right knee impairment for pain,
pursuant to Figure 18-1.3 He opined that the work-related injuries she sustained on July 17, 1984
and September 7, 1999, as well as her employment duties, were competent producing factors for
appellant’s subjective and objective findings.
On June 27, 2008 the Office referred appellant’s file and a statement of accepted facts for
review by the district medical adviser. In a July 7, 2008 report, the district medical adviser,
citing the A.M.A., Guides,4 explained that appellant’s condition did not meet the criteria for an
additional Chapter 18 pain award. The district medical adviser recommended a five percent
impairment rating for appellant’s right lower extremity, pursuant to Table 17-31 of the A.M.A.,
Guides.
By decision dated April 7, 2009, the Office granted appellant a schedule award for five
percent impairment of her right lower extremity.
On April 15, 2009 appellant, through her attorney, requested an oral hearing, which the
Office conducted on August 28, 2009. Her attorney was present and disputed the district
medical adviser’s report, particularly its rejection of Dr. Weiss’ pain-related impairment rating.
1

Appellant has additional workers’ compensation claims. Claim number xxxxxx593 concerned a left knee injury
which the Office accepted and for which appellant received a schedule award for a 20 percent impairment of her left
lower extremity. Claim number xxxxxx719 concerned left knee strain sustained on July 17, 1984 and was accepted
for left knee contusion. The Office did not accept appellant’s claim for a low back condition. Claim number
xxxxxx269 was accepted for right carpal tunnel syndrome. By decision dated September 21, 2005, the Office
denied appellant’s schedule award request for right upper extremity impairment. This denial was affirmed by
subsequent decisions on appeal.
2

A.M.A., Guides (5th ed. 2001). Dr. Weiss cited Table 17-31 on page 544.

3

Id. at Figure 18-1 on page 574.

4

The district medical adviser cited Table 17-31 on page 544, Table 17-33 on page 545 and section 18.3a on
page 570.

2

Appellant’s attorney argued that appellant should be sent for an independent medical
examination and that this physician should be instructed to calculate an impairment rating based
on the 5th edition of the A.M.A., Guides.
By decision dated November 18, 2009, the Office hearing representative affirmed the
Office’s April 7, 2009 decision. The hearing representative found that the weight of the medical
evidence lay with the district medical adviser’s opinion.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.6
The Act does not authorize the payment of schedule awards for the permanent
impairment of the whole person.7 Payment is authorized only for the permanent impairment of
specified members, organs or functions of the body.
ANALYSIS
On appeal, appellant alleges that she is entitled to a greater impairment rating. The
Office accepted her claim for right knee and facial contusions. It awarded her a schedule award
for five percent permanent impairment of the right lower extremity on April 7, 2009. The issue
is whether appellant is entitled to an additional three percent impairment rating for right knee
pain, pursuant to Chapter 18.
Dr. Weiss and the Office medical adviser agreed that appellant was entitled to a schedule
award for five percent impairment of the right knee for patellofemoral crepitation and pain,
pursuant to Table 17-31. Dr. Weiss did not find that she had arthritis impairment based on x-ray
loss of cartilage intervals, therefore, pursuant to the footnote to Table 17-31, given her history of
direct trauma, complaints of patellofemoral pain and crepitation on physical examination, but
without joint space narrowing on x-ray, a maximum five percent lower extremity impairment
award is given.
The Board further notes that Dr. Weiss provided a three percent impairment for right
knee pain under Chapter 18 of the A.M.A., Guides8 but the Board has held that physicians should
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Impairment ratings calculated after February 2001 are done in accordance with the fifth
edition of the A.M.A., Guides. For impairment ratings calculated on and after May 1, 2009, the Office should
advise any physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual,
Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a (January 2010).
7

Ernest P. Govednick, 27 ECAB 77 (1975).

8

A.M.A., Guides, page 574, Figure 18-1.

3

not use Chapter 18 to rate pain-related impairments for any condition that can be adequately
rated on the basis of the body and organ impairment systems given in other chapters of the
A.M.A., Guides.9 The A.M.A., Guides explain that the impairment ratings in the body organ
system chapters make allowance for expected accompanying pain.10 Dr. Weiss did not explain
why the pain rating under Chapter 18 would be appropriate in light of the cautionary language of
the A.M.A., Guides and the fact that appellant was already granted the five percent impairment
award for knee pain and crepitation.
Consequently, the Office medical adviser in conformance with the A.M.A., Guides found
that appellant has five percent right lower extremity impairment and was not entitled to an
additional award under Chapter 18. The medical adviser explained that appellant did not have an
additional pain syndrome which necessitate an additional award under Chapter 18.
On appeal, appellant’s attorney argued that an unresolved conflict of medical opinion
exists requiring an independent medical examination. However, a mere disagreement between
two physicians does not constitute a conflict. Rather, the disagreement must arise from equally
weighted medical opinions.11 Dr. Weiss, in his March 12, 2002 report, failed to adequately
explain, pursuant to the A.M.A., Guides, how or why appellant would be entitled to an additional
impairment for pain. The Office medical adviser explained, as noted above, Chapter 18 is not to
be used to rate pain-related impairments for any condition that can be adequately rated in other
chapters of the A.M.A., Guides. Consequently, because he did not properly apply the A.M.A.,
Guides in rendering his opinion, the Board finds Dr. Weiss’ opinion is not of equal weight as that
provided by the district medical adviser and thus does not create a conflict of medical opinion.
CONCLUSION
The Board finds that appellant has no more than a five percent permanent impairment of
the right lower extremity, for which she has received a schedule award.

9

Id. at 571. See Linda Beale, 57 ECAB 429 (2006); Frantz Ghassan, 57 ECAB 349 (2006).

10

Id. at 20. See B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

11

See 20 C.F.R. § 10.321(b). See also James P. Roberts, 31 ECAB 1010 (1980).

4

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 11-2006
Issued: April 6, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 7, 2011 appellant filed a timely appeal from the July 14, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied her schedule
award claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. The Board also
has jurisdiction to review OWCP’s August 10, 2011 nonmerit decision denying reconsideration.
ISSUES
The issues are: (1) whether appellant’s October 8, 2009 employment injury caused
permanent impairment to a scheduled member; and (2) whether OWCP properly denied
appellant’s request for reconsideration.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 8, 2009 appellant, a 59-year-old health technician, sustained an injury in the
performance of duty when she slipped and fell down a stairway. OWCP accepted her claim for
lumbar back sprain and right lateral collateral ligament knee sprain.
Appellant claimed a schedule award. Dr. Christopher K. Nagy, the attending Boardcertified orthopedic surgeon, advised that he was not formally trained in the proper evaluation of
impairment and requested that OWCP refer appellant to an occupational health physician or
other individual well versed to perform such an evaluation.
An OWCP medical adviser reviewed the medical record and noted that the accepted
conditions had resolved. There was no radiculopathy and no clinical finding of permanent knee
limitation.
In a July 28, 2010 decision, OWCP denied appellant’s schedule award claim.
On August 11, 2010 Dr. Nagy found that appellant had reached maximum medical
improvement from the accepted sprains. Due to her improvement and lack of findings of any
specific physiologic abnormality, he explained that “there will be no impairment rating for
[appellant] in regard to the sprain of her back and the lateral ligament of her knee.” Dr. Nagy
added that the impairment rating for her lumbar spine and knee sprain was zero “as both have
resolved over the passage of time.”
In a December 2, 2010 decision, an OWCP hearing representative affirmed the denial of
appellant’s schedule award claim.
On March 2, 2011 Dr. Nagy advised that when he saw appellant following her fall she
was complaining of pain in her shoulder. Although the October 8, 2009 incident was not fully
responsible for her shoulder problems, he found that appellant did sustain an injury to her
shoulder at that time, which further aggravated her condition and continued to cause disability
and pain with use of the arm in general.
In a July 14, 2011 decision, OWCP reviewed the merits of appellant’s case and denied
modification of its prior decisions. It noted that Dr. Nagy offered no diagnosis of appellant’s
shoulder condition and made no distinction between her current condition and an employmentrelated right shoulder injury she sustained on April 12, 2005.2 As there was no basis to expand
the acceptance of appellant’s claim to include a shoulder condition, OWCP found it unnecessary
to develop the issue of impairment for that extremity. It noted that the medical evidence
supported the resolution of the accepted conditions without permanent impairment.
Appellant submitted an appeal request form with an “X” indicating that she was
requesting reconsideration.

2

OWCP File No. xxxxxx706.

2

In an August 10, 2011 decision, OWCP denied appellant’s request on the grounds that it
neither raised substantive legal questions nor included new and relevant evidence and was
therefore insufficient to warrant a review of the prior decision.
On appeal, appellant argues that her case should be considered because “you did not
receive the percentage rating from my physician.” She explained that she fell down stairs in
October 2009 and injured her shoulder for the third time. Dr. Nagy was unable to do surgery
because she had surgery twice before. Appellant stated that her shoulder has a permanent tear
and that paperwork has been submitted several times for the same thing.
LEGAL PRECEDENT -- ISSUE 1
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs or functions of the body.3 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment.4
ANALYSIS -- ISSUE 1
Dr. Nagy, the attending orthopedic surgeon, offered no evaluation of impairment under
the sixth edition of the A.M.A., Guides. He found, however, that appellant had no impairment
from the accepted back and knee sprains because both had resolved with the passage of time.
There were no findings of any specific physiologic abnormality. This was consistent with the
record review performed by OWCP’s medical adviser.
As for a possible shoulder injury on October 8, 2009, OWCP did not accept that such an
injury occurred. Dr. Nagy explained that, when he saw appellant following her fall down the
stairs, she was complaining of pain in her shoulder. He did not offer any specific diagnosis of a
shoulder injury, or explain how the October 8, 2009 employment injury caused her symptoms.
The record indicates that appellant had a preexisting shoulder injury. Dr. Nagy did not provide a
full history of appellant’s shoulder treatment or explain how the October 15, 2009 incident
materially changed her shoulder condition. There is no evidence that any such injury caused
permanent impairment to the upper extremity. As noted earlier, Dr. Nagy offered no evaluation
of impairment.
As the medical evidence does not support that the October 8, 2009 employment injury
caused permanent impairment to any scheduled member of the body, the Board finds that
appellant is not entitled to a schedule award. The Board will affirm OWCP’s July 14, 2011
decision.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).

3

Appellant argues that OWCP has not received all her paperwork and that her shoulder has
a permanent tear. OWCP and the Board must adjudicate her schedule award claim based on the
evidence of record.5 If appellant feels that the employing establishment is not forwarding
evidence to OWCP, she may submit the evidence to OWCP directly.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.6 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must be in
writing and must set forth arguments and contain evidence that either: (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.7
A request for reconsideration must be sent within one year of the date of OWCP decision
for which review is sought.8 A timely request for reconsideration may be granted if OWCP
determines that the employee has presented evidence or argument that meets at least one of these
standards. If reconsideration is granted, the case is reopened and the case is reviewed on its
merits. Where the request is timely but fails to meet at least one of these standards, OWCP will
deny the request for reconsideration without reopening the case for a review on the merits.9
ANALYSIS -- ISSUE 2
Appellant submitted a timely but bare request for reconsideration. She did not show that
OWCP erroneously applied or interpreted a specific point of law. Appellant did not advance a
new and relevant legal argument. She did not submit relevant and pertinent new evidence not
previously considered by OWCP.
Appellant simply placed an “X” on her appeal request form to indicate that she was
requesting reconsideration. Such unsupported requests are prima facie insufficient to warrant the
reopening of a case. As appellant’s request for reconsideration did not meet any of the standards
5

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. 20 C.F.R. § 501.2(c)(1).
6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606.

8

Id. at § 10.607(a).

9

Id. at § 10.608.

4

for obtaining a merit review, the Board finds that OWCP properly denied her request. The Board
will affirm OWCP’s August 10, 2011 decision.
CONCLUSION
The Board finds no evidence that appellant’s October 8, 2009 employment injury caused
permanent impairment to a scheduled member. The Board also finds that OWCP properly
denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the August 10 and July 14, 2011 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: April 6, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Jamaica, NY, Employer
__________________________________________

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

Docket No. 09-569
Issued: December 29, 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 December 19, 2008 appellant, through counsel, filed a timely appeal from a merit
decision of the Office of Workers’ Compensation Programs dated September 29, 2008, denying
her request for modification of the denial of her recurrence claims. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant sustained recurrences of disability beginning April 6, 2007
causally related to her May 15, 2006 employment injury.
FACTUAL HISTORY
On May 15, 2006 appellant, then a 59-year-old transportation security screener, filed a
traumatic injury claim alleging that she sustained an injury on that day when she slipped and fell.

The Office accepted lumbosacral strain and contusion and her claim for a recurrence of disability
beginning October 25, 2006.1
Appellant stopped work on October 25, 2006 and returned to work in a limited-duty job
on April 4, 2007. On April 4, 2007 she accepted a light-duty job. The job was classified as
sedentary and included a 1/2-hour lunch break and a 5-minute break every 30 minutes.
Restrictions included intermittent sitting and walking and no lifting, carrying, grasping or
manipulation of more than five pounds. Appellant stopped work shortly thereafter.
On April 9, 2007 appellant again returned to work in the light-duty job but stopped work
that same day. She filed a claim for a recurrence of disability for the period April 6 and 7, 2007
and another claim for recurrence of disability beginning April 9, 2007. The Office received
medical reports in support of appellant’s claim of disability.
In an April 11, 2007 report, Dr. Robert Lanter, a treating Board-certified physiatrist,
diagnosed low back pain, lumbosacral radiculopathy, local reactive myofascial pain,
paravertebral tenderness and spasm, which he attributed to a May 14, 2005 employment injury.
A physical examination revealed appellant was unable to perform toe or heel walk due to back
pain and decreased active range of motion in the thoracolumbar spine. Range of motion included
60 degrees extension and 20 degrees flexion. Dr. Lanter opined that appellant was disabled
“from activities consistent with gainful employment” due to this injury.
On May 2, 2007 the Office received an April 10, 2007 disability note from Dr. Lanter
stating that he had seen appellant that day and she was “advised not to return to work until
further testing is done.”
On May 15, 2007 the Office received a May 1, 2007 report from Dr. Lawrence J. Marino,
a treating physician, and an April 23, 2007 progress note from Dr. Michael Shapiro, a treating
Board-certified orthopedic surgeon. Dr. Marino stated that he had treated appellant since 1996
and that prior to her May 14, 2005 employment injury she had no orthopedic problems.
Dr. Shapiro diagnosed lumbago, a herniated nucleus pulposus and radiculitis and stated that she
was disabled from work until further notice. He opined that appellant’s disability was a result of
her injury and that she would be reevaluated on May 21, 2007.
By letter dated May 23, 2007, the Office requested additional factual and medical
information from appellant and enclosed a recurrence development checklist for her completion.

1

There was an appeal before the Board for appellant’s claim of recurrence for a different period of time. In a
June 24, 2008 decision, the Board affirmed the Office’s December 14, 2007 decision, finding that appellant did not
sustain a recurrence of disability commencing September 25, 2007 causally related to her May 15, 2006
employment injury. The Board found that she failed to establish that there had been a change in her light-duty
assignment or that her condition had changed. The facts and the circumstances of the case as set forth in the Board’s
prior decision are incorporated herein by reference only as relevant to the facts of this appeal. Docket No. 08-703
(issued June 24, 2008). In the Board’s previous decision, it noted: “The record contains a July 10, 2007 decision of
the Office which denied her claim for a recurrence of disability on April 6 and 9, 2007. In her application to the
Board, appellant did not seek review of this decision and it is not an issue in the present appeal.” The appeal in this
case refers only to appellant’s claims for recurrence of disability on April 7 and 9, 2007.

2

Subsequent to the Office’s request, it received additional factual and medical evidence.
In an April 6, 2007 report, Dr. Carlisle Saint Martin, a treating physician, reported seeing
appellant on that day. He diagnosed a lumbar herniated nucleus pulposus and reported that she
had been working light duty.
In a May 4, 2007 form, Dr. Howard R. Adelglass, a treating Board-certified physiatrist
checked that appellant was “not fit for duty.”
A magnetic resonance imaging scan was obtained on May 9, 2007, which revealed
multilevel degenerative disc disease of the lumbar spine with convexity of the lower thoracic and
upper lumbar spine and asymmetric disc bulging at L3-4 and L4-5, with neural foraminal
narrowing most severe at L4-5.
Appellant was referred by the Office for examination by Dr. Frank M. Hudak, an
orthopedic surgeon. In a May 15, 2007 report, Dr. Hudak reviewed a history of her May 2005
lifting injury and the May 2006 slip and fall injury and subsequent medical treatment. Appellant
described symptoms of constant low back pain, worse on bending, with numbness radiating
down both lower extremities. Examination of the low back revealed tenderness in the midline of
the lumbosacral spine, extending into the L3 to S1 region. Dr. Hudak noted her range of back
motion, indicating that no spasm was palpated in either the right or left paraspinal muscle
groups. A positive left straight leg raising test was obtained in the upright position. Dr. Hudak
diagnosed a sprain of the lumbosacral spine causally related to the May 15, 2006 injury,
superimposed on a previous sprain and left lumbosacral radiculopathy that was a result of the
2005 work accident. He advised that she had objective findings upon examination and that she
was disabled from her work as a baggage screener. Dr. Hudak advised, however, that appellant
could return to light-duty work with no repetitive bending at the waist and no lifting in excess of
10 pounds. He recommended that she be referred for pain management or epidural steroid
injections to treat her left radiculopathy. Dr. Hudak submitted work restrictions, releasing
appellant to full-time work with limitations on sitting, lifting, twisting and bending.
On June 13, 2007 the employing establishment advised that it had limited duty available
that complied with the restrictions set by Dr. Hudak. Appellant accepted the limited duty and
returned to work on July 16, 2007 as an exit lane monitor and at the welcome tables.
Dr. Adelglass in a May 18, 2007 form, checked that appellant was “not fit for duty” and
noted surgery was scheduled for May 21, 2007.
On May 25, 2007 Dr. Shapiro reported that appellant was seen for back and left lower
extremity pain.
In her June 7, 2007 statement, appellant related that she had severe shooting muscle
spasms while attempting to perform the limited-duty job she had accepted and that she was
unable to sit due to lower body and leg stiffness.
In forms dated June 8 and 22, 2007, Dr. Adelglass checked that appellant was “not fit for
duty.”

3

By decision dated July 10, 2007, the Office denied the claim for a recurrence of disability
beginning April 6, 2007. It found that the factual and medical evidence did not establish the
claimed recurrences resulted from the accepted work injury.
On July 12, 2007 the Office received a June 29, 2007 report from Dr. Shapiro who noted
that he had seen appellant for back and left lower extremity pain. Dr. Shapiro reported that her
motor sensory and range of motion remained unchanged.
On July 16, 2007 appellant accepted a limited-duty job with restrictions consistent with
those approved by Dr. Hudak.
On July 23, 2007 the Office received forms dated June 22 and July 6, 2007 from
Dr. Adelglass who checked that appellant was “not fit for duty” and a June 29, 2007 disability
report from Dr. Shapiro, who diagnosed lumbago, a herniated nucleus pulposus and radiculitis
and stated that she was disabled from working until further notice due to her injury.
In an August 31, 2007 form, Dr. Adelglass released appellant to limited-duty work that
day.
The record reflects again that appellant stopped work following her tour of duty on
September 26, 2007. On October 12, 2007 she submitted a claim for a recurrence of disability,
noting that she stopped work as of September 26, 2007.2 Appellant indicated that a chair was
changed that did not provide adequate back support. In support of her claim, she submitted
several prescription notes from Dr. Irfan A. Alladin with his recommendation that she undergo
physical therapy and for medication.
On October 5, 2007 appellant was examined by Dr. Renato Battisti, a chiropractor, who
found limitations of movement and diagnosed lumbar myofasciitis with lumbosacral strain,
noting that appellant had begun chiropractic treatment.
On October 9, 2007 Dr. John Goutos, an internist, noted that appellant had been out of
work for approximately a week due to an exacerbation of back pain. He advised that she had
received seven epidurals and was scheduled for additional injections. Dr. Goutos listed findings
on examination, noting tenderness on palpation and spasm at the L4 to S1 region and positive
straight leg raising. He diagnosed a herniated lumbar disc and back pain and advised that she
should be placed on light duty as of October 11, 2007.
In an October 12, 2007 report, Dr. Shapiro, an orthopedic surgeon, treated appellant for
back and left lower extremity pain. He noted tenderness to palpation and percussion about the
lumbar spine with a reduction of straight leg raising, bilaterally. Dr. Shapiro advised that
appellant would be continuing with conservative care, undergoing epidural injections and facet
block treatments. He stated that she remained disabled for work.
On December 14, 2007 the Office denied appellant’s claim for recurrence on
September 25, 2007. It found that she did not establish that her injury-related condition had
2

This recurrence claim has already been addressed by the Board. Supra note 1.

4

changed or that her light-duty work assignment had changed. The medical evidence submitted in
support of her claim was found deficient as her physicians did not explain how her condition had
changed such that she was no longer able to perform her light-duty assignment as of
September 25, 2007.
This decision was appealed to the Board and a decision was issued by the Board on
June 24, 2008.3
On July 1 2008 appellant’s counsel requested reconsideration of the July 10, 2007
decision, denying appellant’s April 2007 claims for recurrence and submitted a June 7, 2007
report from Dr. Shapiro in support of her request. Appellant contended that as her disability at
that time occurred within 90 days after she returned to duty, the medical evidence of file clearly
satisfied the reduced burden of proof articulated in the Office’s procedure manual where a
recurrence for disability is claimed within 90 days from the first return to duty after disability.
Appellant’s counsel noted particularly the procedure manual’s language relating to employees
who return to duty within 90 days of a prior disability: “The CE [claims examiner] may accept
the attending physician’s statement supporting causal relationship between the claimant’s current
condition and the accepted condition, even if the statement contains no rationale.”
Dr. Shapiro, in his report of June 7, 2007, noted that he had seen appellant on April 23,
2007 for her May 15, 2006 employment injury. He noted that she returned to limited-duty work
on April 2, 2007 and that she worked two days before stopping. Dr. Shapiro stated that appellant
“was unable to complete her light[-]duty assignment due to radiating and shooting pain with
stiffness while working.” He opined that she was currently disabled from working due to
“severe radiating pain her left leg and lower back.” In concluding, Dr. Shapiro opined that
appellant’s “recent reexacerbation is [causally related] to a prior injury of May 15, 2005.”
By decision dated September 29, 2008, the Office acknowledged that it had discretion in
recurrence claims filed within 90 days after returning to duty after disability, but nonetheless
found the evidence insufficient to modify the denial of appellant’s claim for a recurrence of
disability for the period April 6 to 7, 2007 or further disability beginning April 9, 2007. It found
that her recurrence claims had not been denied on the basis of causal relationship, but on the
basis that the medical evidence did not establish how her work-related condition had worsened or
change or explained why she was unable to perform her light-duty work. In conclusion, the
Office stated: “Modification of the prior decision is unwarranted as there has been no
demonstration of ‘clear evidence of error,’ on the part of the Office, no new point of law has
been advanced and the evidence submitted has insufficient probative value to warrant
modification of the prior decision.”
LEGAL PRECEDENT
When an employee, who is disabled from the job she held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that she can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
3

Supra note 1.

5

and show that she cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.4
A “recurrence of disability” means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.5
Office procedures state that a recurrence of disability includes a work stoppage caused by
a spontaneous material change, demonstrated by objective findings, in the medical condition that
resulted from a previous injury or occupational illness without an intervening injury or new
exposure to factors causing the original illness. It does not include a condition that results from a
new injury, even if it involves the same part of the body previously injured.6
Office procedures, regarding recurrent disability within 90 days of a return to
employment, provides as follows:
“a. Burden of Proof. The claimant is not required to provide the same evidence as
for a recurrence claimed long after apparent recovery and return to work.
Therefore, in cases where recurring disability for work is claimed within 90 days
or less from the first return to duty, the focus is on disability rather than causal
relationship.
“b. Disability for Work. Assuming the requirements described in paragraph 5
above concerning causal relationship are met, the CE [claims examiner] should
ask the employee to submit a Form OWCP-5 and/or narrative statement from the
attending physician which describes the duties which the employee cannot
perform and the demonstrated objective medical findings that form the basis for
renewed disability for work….”7
Paragraph five of the Office’s procedures, which is applicable to a recurrence of a
medical condition within 90 days of release from medical care, provides that the claims examiner
“may accept the attending physician’s statement supporting causal relationship between the
claimant’s current condition and the accepted condition, even if the statement contains no
rationale unless” there is evidence of an intervening injury, an intervening decision, the claim
was accepted for a temporary aggravation of a preexisting condition or the “renewed claim
involves a different diagnosis” from the accepted condition.8
4

K.S., 60 ECAB ___ (Docket No. 08-2105, issued February 11, 2009); Terry R. Hedman, 38 ECAB 222 (1986).

5

20 C.F.R. § 10.5(x); see S.F., 59 ECAB ___ (Docket No. 07-2287, issued May 16, 2008).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

7

Id. at Chapter 2.1500.6(a) and (b) (January 1995).

8

Id. at Chapter 2.1500.5(a) (May 2003).

6

ANALYSIS
Appellant filed a Form CA-2a on April 9, 2007 indicating disability for April 6
and 7, 2007. She filed a second CA-2a form on April 20, 2007 indicating disability beginning
April 9, 2007. The record indicates that appellant accepted limited-duty work from the
employing establishment on April 4 and 9, 2007. The September 28, 2008 decision on appeal
addressed the disability claim for April 6 and 7, 2007 and also addressed the claim for a
recurrence of disability beginning April 9, 2007.
The Board finds that appellant failed to submit sufficient medical evidence to establish
that she was disabled from her limited-duty position on or after April 6, 2007 due to her accepted
employment injury. Dr. Lanter, in a report dated April 11, 2007, diagnosed low back pain
lumbosacral radiculopathy, local reactive myofascial pain, paravertebral tenderness and spasm
which he attributed to a May 14, 2005 employment injury. He provided physical findings and
concluded that she was disabled from working due to this injury. Dr. Lanter’s report is
insufficient to support disability for this period as he does not attribute appellant’s disability to
her accepted May 15, 2006 employment injury.
The record also contains disability notes/forms from Drs. Lanter and Adelglass. In an
April 10, 2007 disability note, Dr. Lanter indicated that appellant was totally disabled.
Dr. Adelglass, in form reports dated May 4, 18 and June 8 and 22, 2007, also indicated that she
was totally disabled. However, neither Dr. Lanter nor Dr. Adelglass addressed the cause of
appellant’s diagnosed conditions and therefore these disability notes/forms are insufficient to
establish that she sustained a recurrence of disability beginning April 6, 2007. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.9 Further, neither Dr. Lanter nor
Dr. Adelglass provided findings on examination in the disability notes/forms. Generally,
findings on examination are needed to justify a physician’s opinion that an employee is disabled
from work.10
In an April 6, 2007 report, Dr. Saint Martin diagnosed a herniated nucleus pulposus and
noted that appellant was working light duty. He does not discuss her light-duty job or provide a
history of the May 14, 2006 employment injury. This report is insufficient to support her claim
for a recurrence of disability as Dr. Saint Martin does not address the relevant issue of whether
appellant sustained a recurrence of disability beginning April 6, 2007.11
Appellant also submitted reports dated May 25 and June 29, 2007 from Dr. Shapiro in
which he noted that he had seen her for left lower extremity and back pain. In the June 29, 2007
report Dr. Shapiro noted that her motor sensory and range of motion remained unchanged. As he
did not provide a diagnosis or opinion regarding causation or address the relevant issue of

9

Willie M. Miller, 53 ECAB 697 (2002).

10

Laurie S. Swanson, 53 ECAB 517 (2002).

11

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

whether appellant sustained a recurrence of disability beginning April 6, 2007, his reports are
insufficient to meet her burden of proof.12
In a June 7, 2007 report, Dr. Shapiro noted that appellant returned to limited-duty work
on April 2, 2007 for an injury she sustained while working on May 16, 2006 to the lower back
and that she worked two days before stopping. He stated that she “was unable to complete her
light-duty assignment due to radiating and shooting pain with stiffness while working.”
Dr. Shapiro opined that appellant was currently disabled from working due to “severe radiating
pain her left leg and lower back.” In concluding, he attributed her current disability to an
exacerbation of a May 15, 2005 injury.13 While Dr. Shapiro opined that appellant’s recurrence
of disability was due to her employment, he did not provide any rationale or explanation
supporting his conclusion and thus his opinion is of little probative value.14 The opinion of a
physician supporting causal relationship must be one of reasonable medical certainty that the
condition for which compensation is claimed is causally related to federal employment and such
relationship must be supported with affirmative evidence, explained by medical rationale and be
based upon a complete and accurate medical and factual background.15 This report is
insufficient to support appellant’s burden of proof.
Appellant submitted several prescription notes and form reports from Dr. Alladin, who
noted her complaints of low back pain, but did not provide any narrative report explaining how
her disability for continuing in her light-duty work was caused or contributed to by her May 15,
2006 injury. There are numerous form records from various attending physicians; however,
many are not clearly legible and do not provide a rationalized opinion on the relevant issue of
causal relation. The Board has held that prescription notes or form reports that provide a check
mark in support of causal relation are of diminished probative value.16
Dr. Goutos advised on October 9, 2007 that appellant had been out of work for a week
due to an exacerbation of back pain. He noted medical treatment which had been administered
and listed findings on examination. Dr. Goutos diagnosed a herniated disc and advised that
appellant should be placed on light duty as of October 11, 2007. The Board notes that the brief
report of the physician fails to provide any explanation of how her medical condition had
changed such that she became disabled for light-duty work in April 2007, six months earlier.
Dr. Goutos did not provide a full history of the injury accepted by the Office or address the
nature of appellant’s preexisting degenerative back disease and herniated disc conditions. He did
not address how the accepted lumbosacral strain and contusion would cause or contribute to her
inability to continue light-duty work. Dr. Goutos advised that appellant should return to

12

Donald R. Pippin, 54 ECAB 631 (2003).

13

Although Dr. Shapiro refers to a 2005 injury, the Board will assume that this date is a typographical error as it
is correctly noted in the first paragraph of the report.
14

Albert C. Brown, 52 ECAB 152 (2000).

15

Conard Hightower, 54 ECAB 796 (2003).

16

See Cecelia M. Corley, 56 ECAB 662 (2005); Donald W. Long, 41 ECAB 142 (1989).

8

light-duty work as of October 11, 2007. This report is not sufficient to establish her current
recurrence claims for April 2007.
On October 12, 2007 Dr. Shapiro treated appellant for low back and left lower extremity
pain. He advised that she was undergoing conservative treatment and that she remained disabled
for work. Dr. Shapiro did not, however, address the lumbosacral strain and contusion conditions
accepted by the Office or how these conditions would cause disability for work in April 2007.
He did not provide any opinion relating to appellant’s disability for work to the May 15, 2006
injury. Therefore, Dr. Shapiro’s opinion is of reduced probative value.
Dr. Battisti, a chiropractor, examined appellant on October 5, 2007 and diagnosed lumbar
myofasciitis and lumbosacral strain. Section 8101(2) of the Federal Employees’ Compensation
Act defines the term physician to include chiropractors only to the extent that their reimbursable
services are limited to treatment consisting of manual manipulation of the spine to correct a
spinal subluxation as demonstrated by x-ray to exist.17 Dr. Battisti did not provide a diagnosis of
subluxation as based on x-ray. For this reason, his medical report does not constitute competent
medical evidence in support of appellant’s claim.
On appeal, appellant’s attorney contends that as appellant’s disability occurred within
90 days after she returned to duty, the burden of proof for appellant is less than it would have
been had appellant been back to work for more than 90 days. The Office’s procedure manual
provides that an appellant’s burden of proof to establish a recurrence of disability within 90 days
of a return to work is not the same as that “for a recurrence claimed long after apparent recovery
and return to work” and that the “focus is on disability rather than causal relationship.”18
Further, the manual reads: “the claims examiner may accept the attending physician’s statement
supporting causal relationship between the claimant’s current condition and the accepted
condition, even if the statement contains no rationale….” (Emphasis added.) This cited section
relates to the Office’s discretion on what evidence to require, it does not change appellant’s
burden to establish his claim for recurrence.19 The Office exercised its discretion in this case and
found the medical evidence lacking. In accordance with Board case law, in order to establish a
recurrence of disability due to a worsening of her condition, appellant must establish a change in
the light-duty position (which has not been alleged) or a change in the nature and extent of her
accepted injury-related condition such that she can no longer perform her light-duty
employment.20 Appellant failed to provide evidence establishing a change in her accepted
conditions of lumbosacral strain and contusion such that she was disabled from her employment
and, consequently, did not meet her burden of proof.

17

5 U.S.C. § 8101(2). See Paul Foster, 56 ECAB 208 (2004); Linda Thompson, 51 ECAB 694 (2000).

18

See supra note 6.

19

See e.g., Maria Addis, Docket No. 97-2748 (issued September 22, 1997).

20

See supra note 13; Sherry A. Hunt, 49 ECAB 467 (1998); Glenn Robertson, 48 ECAB 344 (1997).

9

CONCLUSION
Appellant did not establish her claims for recurrences of disability on or after April 6,
2007, causally related to her May 15, 2006 employment injury.21
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2008 is affirmed.22
Issued: December 29, 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

21

Appellant would be entitled to wage-loss compensation for medical appointments if appellant could establish
the medical appointments or treatments were for her accepted May 15, 2006 employment injury.
22

The Board notes that the Office referenced three different standards of review in its September 29, 2008
decision. The Office did, nonetheless, utilize the proper standard of review under 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2) when it analyzed the evidence. It considered the evidence new and relevant and conducted a merit
review. In that regard, the Office’s decision is affirmed.

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Reading, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0807
Issued: December 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On March 2, 2020 appellant filed a timely appeal from a December 5, 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.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a right upper
extremity injury causally related to the accepted March 13, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the December 5, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 13, 2019 appellant, then a 67-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date she was struck by a mail container full of mail and
injured her right forearm while in the performance of duty. On the reverse side of the claim form
the employing establishment noted that her injury had occurred in the performance of duty.
Appellant did not immediately stop work.
On October 1, 2019 Dr. Peter C. Yeh, a Board-certified orthopedist, treated appellant for
persistent right shoulder pain. Appellant reported that her condition was something that was
gradually occurring and denied that it was related to work at that time.
In an attending physician’s report (Form CA-20) dated October 15, 2019, Dr. Yeh,
indicated that appellant was injured at work on March 13, 2019, when a full postal container was
pushed into her right forearm by another employee. He diagnosed rotator cuff tear of the right
shoulder and checked a box marked “Yes” indicating that appellant’s condition had been caused
or aggravated by an employment activity. Dr. Yeh noted that appellant should not lift, push, pull,
or carry with her right arm. In a duty status report (Form CA-17) of even date, he noted clinical
findings of right rotator cuff tear and indicated that appellant was advised not to resume work.
In a development letter dated October 28, 2019, OWCP informed appellant that additional
evidence was needed to establish her claim. It advised her of the type of factual and medical
evidence needed and provided a questionnaire for her completion. OWCP afforded appellant 30
days to submit the necessary evidence.
In reports dated June 27 and August 8, 2019, Dr. Yeh noted that he had treated appellant
for persistent right shoulder pain. Appellant reported that five to six months prior she felt a pop in
her shoulder with pain over the lateral shoulder radiating into her neck. She also noted lifting 30
to 40 pounds of mail daily at work causing her pain to worsen over time. Appellant’s history was
significant for a rotator cuff repair in 2002. Dr. Yeh noted positive Hawkins and Neers
impingement sign over the right shoulder. X-ray of the right shoulder revealed type II acromion,
center humeral head, and slight inferior humeral head spurring. Dr. Yeh diagnosed impingement
syndrome of the right shoulder and unspecified injury of muscles and tendons of the right rotator
cuff. He performed an ultrasound-guided cortisone injection. On September 4, 2019 Dr. Yeh
reviewed the August 30, 2019 magnetic resonance imaging (MRI) scan of the right shoulder,
which demonstrated a small full-thickness supraspinatus tear over the anterior aspect posterior to
the biceps and superior labral tearing. He diagnosed right rotator cuff tear, impingement syndrome
of the right shoulder, and unspecified injury to the muscles and tendons of the right rotator cuff.
On October 1, 2019 Dr. Yeh treated appellant in follow up for persistent right shoulder pain.
Appellant reported that her condition gradually developed over time.
In a November 23, 2019 statement, in response to OWCP’s development letter, appellant
indicated that on March 13, 2019 she was hit on the right arm and forearm by a postal container
full of mail weighing 700 to 800 pounds and she reported the incident to the employing
establishment on the day of occurrence. The immediate effects of the injury included bruising (the
forearm turned black and blue), swelling, and mild pain in her shoulder. Appellant noted that her
coworker, B.V., had hit her with the container and that another coworker, M.N., had witnessed the
incident. She reported mild pain and discomfort, but did not think she was injured and did not
2

seek medical attention. When the pain in her right shoulder increased appellant sought medical
treatment on June 27, 2019.3 She indicated that she did not sustain any other injury between the
date of injury and her visit to her physician. Appellant was then working limited duty and was
advised by Dr. Yeh that she needed surgery. She noted not having similar disability or symptoms
to her shoulder or arm prior to the injury. Appellant submitted a black and white photo of a mail
container and a photograph showing bruising of her right forearm date-stamped from a text
message at 12:44 p.m. on March 14, 2019.
By decision dated December 5, 2019, OWCP denied appellant’s traumatic injury claim
finding that the medical evidence submitted was insufficient to establish causal relationship
between a diagnosed condition and the accepted March 13, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 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,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 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.7
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. There
are two components involved in establishing fact of injury. 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. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8

3

Appellant reported filing a Form CA-1 on March 13, 2019 with S.B., tour three manager, along with a witness
statement. She learned that S.B. did not file the Form CA-1 or witness statement until October 2019 which caused a
delay in obtaining a claim number.
4

Id.

5
F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
6

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).
7

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).
8
T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).

3

The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 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 factors
identified by the employee.10
In a case where a preexisting condition involving the same part of the body is present and
the issues 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
Pursuant to OWCP’s procedures, no development of a claim is necessary when the
condition reported is a minor one which can be identified on visual inspection by a lay person (e.g.,
burn, laceration, insect sting, or animal bite).12 No medical report is required to establish a minor
condition such as a laceration or bruise.13
ANALYSIS
The Board finds that appellant has met her burden of proof to establish a right forearm
bruise causally related to the accepted March 13, 2019 employment incident.
OWCP found that the March 13, 2019 employment incident, in which appellant’s right
forearm was hit by a heavy postal container, had occurred as alleged. In response to OWCP’s
development letter appellant submitted a statement and a copy of a photo demonstrating a visible
bruise of her right forearm which was memorialized contemporaneously to the date of injury. The
statement also indicated that she had not initially sought treatment following the employment
incident as she had not considered the injury to be severe. As the evidence of record establishes
that appellant’s employment incident resulted in a visible injury, the Board finds that she has met
her burden of proof to establish a right forearm bruise causally related to the accepted March 13,
2019 employment incident.14 Appellant also alleged that she sustained a right shoulder condition
causally related to the accepted March 13, 2019 injury. She submitted a series of medical treatment
notes from her attending physician. In reports from Dr. Yeh dated June 27 and August 8, 2019,
9

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).
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);
A.S., Docket No. 19-1955 (issued April 9, 2020); M.O., Docket No. 18-0229 (issued September 23, 2019); J.F.,
Docket No. 19-0456 (issued July 12, 2019).
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011). See also A.J., Docket No. 20-0484 (issued September 2, 2020); S.K., Docket No. 18-1411 (issued
July 22, 2020).
13

Id.

14

Id.

4

he noted treatment of appellant for right shoulder pain, which began five to six months prior when
she felt a pop in her shoulder with pain over the lateral shoulder radiating into her neck. Appellant
also noted lifting 30 to 40 pounds of mail at work causing her pain to worsen over time. Dr. Yeh
diagnosed impingement syndrome of the right shoulder and unspecified injury of muscles and
tendons of the right rotator cuff. In a report dated September 4, 2019, he noted an August 30, 2019
MRI scan of the right shoulder demonstrated a small full-thickness supraspinatus tear over the
anterior aspect posterior to the biceps and superior labral tearing. Dr. Yeh diagnosed right rotator
cuff tear, impingement syndrome of the right shoulder and unspecified injury to the muscles and
tendons of the right rotator cuff. Similarly, in a Form CA-17 report dated October 15, 2019, he
noted clinical findings of right rotator cuff tear. The Board notes that these reports did not provide
an opinion on the issue of causal relationship. The Board has held that medical evidence that does
not offer an opinion regarding the cause of an employee’s condition is of no probative value on
the issue of causal relationship.15 These reports, therefore, are insufficient to establish appellant’s
claim.
In an October 15, 2019 Form CA-20 report, Dr. Yeh checked a box marked “Yes”
indicating that appellant’s rotator cuff tear of the right shoulder was caused or aggravated by the
accepted March 13, 2019 employment incident. However, the Board has held that an opinion on
causal relationship that consists of an affirmative check mark, without more by way of medical
rationale, is insufficient to establish the claim.16 As such, this report is insufficient to establish
appellant’s claim.
As the medical evidence of record does not contain rationalized medical evidence
establishing causal relationship between appellant’s claimed right shoulder condition and the
accepted March 13, 2019 employment incident, the Board finds that appellant has not met her
burden of proof as to this additional condition.
As appellant has established a right forearm bruise as an accepted employment-related
condition, the Board will reverse, in part, the December 5, 2019 decision and remand the case for
payment of medical costs and wage-loss compensation for disability, if any.
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, for additional claimed right upper extremity and shoulder conditions.17
CONCLUSION
The Board finds that appellant has met her burden of proof to establish a right forearm
bruise causally related to a March 13, 2019 employment incident. The Board further finds,

15

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

16

See C.S., Docket No. 18-1633 (issued December 30, 2019); D.S., Docket No. 17-1566 (issued
December 31, 2018).
17
Upon return of the case record OWCP shall administratively combine the present claim file with File No.
xxxxxx873 which was an accepted claim for a June 10, 2002 right shoulder condition.

5

however, that appellant has not met her burden of proof to establish an additional right upper
extremity or shoulder condition causally related to her March 13, 2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and remanded in part and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: December 3, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6