United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
INTELLIGENCE & SECURITY COMMAND,
CIVILIAN PERSONNEL ADVISORY CENTER,
Fort Huachuca, AZ, Employer
__________________________________________

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

Docket No. 07-1247
Issued: November 9, 2007

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 April 5, 2007 appellant timely appealed an October 16, 2006 merit decision of the
Office of Workers’ Compensation Programs denying her traumatic injury claim and a
February 14, 2007 decision finding that she abandoned her request for an oral hearing. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit
issues.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty
causally related to factors of her federal employment; and (2) whether the Office properly
determined that she abandoned her hearing request.
FACTUAL HISTORY
On August 28, 2006 appellant, a 48-year-old security assistant, filed a traumatic injury
claim alleging that on August 17, 2006 she experienced a headache and became faint, weak and

nauseous after being overheated in a classroom where the air conditioner had malfunctioned.
She went to the nurse and was advised that her blood pressure was high.
On September 7, 2006 the Office requested that appellant submit additional evidence.
The Office requested a comprehensive medical report from her physician that included a
diagnosis and an opinion supported by a medical explanation as to how the reported work
incident caused or aggravated the claimed injury.
In an August 17, 2006 note, a nurse from the employing establishment’s occupational
health unit indicated that appellant underwent a screening examination for hypertension and had
her blood pressure checked after she had worked in a room without air conditioning. Appellant
admitted to being noncompliant with her medications. In an August 21, 2006 report,
Dr. Joseph N. Piper, a Board-certified emergency physician, reported that appellant presented
with a history of shortness of breath, dizziness and diarrhea. A clinical impression of heat injury
and diarrhea was provided. In an August 21, 2006 clinic note, Dr. Piper indicated that appellant
should be off work three days due to the heat injury. The Office also received an August 28,
2006 clinic note from a physician’s assistant which indicated that appellant could return to work
on August 28, 2006.
By decision dated October 16, 2006, the Office denied appellant’s claim, finding that she
failed to establish an injury in the performance of duty. Although she established the August 17,
2006 incident, the medical evidence provided did not establish that her claimed condition
resulted from the accepted heat exposure.
On October 20, 2006 appellant requested an oral hearing by way of a teleconference. She
also submitted an October 4, 2006 report from her treating physician, Dr. Piper.
In a January 10, 2007 notice, the Office informed appellant that a telephonic hearing on
her claim would be held on February 9, 2007. Appellant was advised to call the toll free number
at the scheduled hearing time and to enter the pass code provided when prompted. She did not
appear for the telephonic hearing.
By decision dated February 14, 2007, the Office determined that appellant had abandoned
her request for a hearing. It noted that she failed to appear for the scheduled telephonic hearing
on February 9, 2007 and had not contacted the Office either before or after the scheduled hearing
to explain her failure to appear.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of the 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 or specific condition for which

1

5 U.S.C. §§ 8101-8193.

2

compensation is claimed is causally related to the employment injury.2 When an employee
claims that she sustained a traumatic injury in the performance of duty, she must establish the
fact of injury, namely, she must submit sufficient evidence to establish that she experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged and
that such event, incident or exposure caused an injury.3
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.4 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion 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
established incident or factor of employment.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.6
ANALYSIS -- ISSUE 1
Appellant is a federal employee and she timely filed her claim for compensation benefits.
The Office also accepted that the workplace exposure to overheating occurred as alleged on
August 17, 2006. The issue, therefore, is whether appellant has submitted sufficient medical
evidence to establish that the employment incident caused an injury.
The medical evidence of record consists of an August 21, 2006 report and clinic note
from Dr. Piper. However, the physician did not provide a reasoned medical opinion establishing
that the employment incident caused or aggravated a diagnosed condition. The Office also
received an August 17, 2006 note from a nurse at the employing establishment’s occupational
health unit and an August 28, 2006 clinic note from a physician’s assistant at the ELMS Creek

2

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

3

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term injury as
defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
4

Katherine J. Friday, 47 ECAB 591, 594 (1996).

5

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

6

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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Family /Urgent Care Clinic. However, a nurse is not a “physician” as defined under the Act.
The nurse’s note does not constitute medical evidence and has no weight or probative value.7
The Board finds that appellant has not submitted rationalized medical evidence
establishing that her claimed condition is causally related to the accepted employment incident.
Accordingly, appellant has failed to establish that she sustained an injury in the performance of
duty.
LEGAL PRECEDENT -- ISSUE 2
The Office’s regulations at 20 C.F.R. § 10.622 provide guidance regarding a claimant’s
request to postpone a hearing:
“(b) [The Office] will entertain any reasonable request for scheduling the oral
hearing, but such requests should be made at the time of the original application
for hearing. Scheduling is at the sole discretion of the hearing representative, and
is not reviewable. Once the oral hearing is scheduled and [the Office] has mailed
appropriate written notice to the claimant, the oral hearing cannot be postponed at
the claimant’s request for any reason except those stated in paragraph (c) of this
section, unless the hearing representative can reschedule the hearing on the same
docket (that is, during the same hearing trip). When the request to postpone a
scheduled hearing does not meet the test of paragraph (c) of this section and
cannot be accommodated on the docket, no further opportunity for an oral hearing
will be provided. Instead, the hearing will take the form of a review of the written
record and a decision issued accordingly. In the alternative, a teleconference may
be substituted for the oral hearing at the discretion of the hearing representative.
“(c) Where the claimant is hospitalized for a reason which is not elective, or
where the death of the claimant’s parent, spouse, or child prevents attendance at
the hearing, a postponement may be granted upon proper documentation.”8
The Office procedure manual recognizes that claimants will continue to request
postponement for an unspecified reason or for any other reason other than the extraordinary
reasons described in 20 C.F.R. § 10.622(c). Where the request for postponement is received in
sufficient time to contact the claimant prior to the scheduled hearing (i.e., 10 days for mailing or
through a documented telephone contact), the Office hearing representative should advise the
claimant that the postponement will not be allowed pursuant to the regulations at 20 C.F.R.
§ 10.622(b). The claimant would then have the options to withdraw the hearing request, attend
the scheduled hearing, reschedule the hearing at an available time within the same docket, opt for

7

See Jan A. White, 34 ECAB 515, 518 (1983). See 5 U.S.C. § 8101(2). This subsection defines the term
physician. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in
general, can only be given by a qualified physician).
8

20 C.F.R. § 10.622(b), (c).

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a review of the written record by the Office hearing representative, or have a telephonic hearing,
if the Office hearing representative wished to grant such a hearing within his or her discretion.9
With respect to abandonment of hearing requests, Chapter 2.1601.6(e) the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement; the claimant has failed to appear at a
scheduled hearing; and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled hearing request.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office].
“(2) However, in any case where a request for a postponement has been received,
regardless of any failure to appear for the hearing, [the Branch of Hearings and
Review] should advise the claimant that such a request has the effect of
converting the format from an oral hearing to a review of the written record.
“This course of action is correct even if [the Branch of Hearings and Review] can
advise the claimant far enough in advance of the hearing that the request is not
approved and that the claimant is, therefore, expected to attend the hearing and
the claimant does not attend.”10
ANALYSIS -- ISSUE 2
In finding that appellant had abandoned her October 20, 2006 request for a hearing the
Office noted that a telephone hearing had been scheduled for February 9, 2007. The record
shows that the Office mailed appropriate notice to appellant of the hearing at her last known
address. Office regulations, at 20 C.F.R. § 10.617(b), provides that a hearing representative will
mail a notice of the time and place of the hearing to the claimant and any representative at least
30 days before the scheduled date. In this case, the scheduled hearing of February 9, 2007 fell
on the 30th day of the Office’s January 10, 2007 notice. As the Office’s notice of the hearing was
“at least” 30 days before the scheduled hearing date, appellant received timely written
notification of the hearing 30 days in advance. However, she failed to telephone the hearing
representative as instructed.
Appellant asserts on appeal that she was making funeral arrangements during the week of
the scheduled hearing and had telephoned the Office a week prior to her scheduled hearing.
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6.d (January 1999).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearing and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also Claudia J. Whitten, 52 ECAB 483 (2001); 20 C.F.R. § 10.622.

5

However, the Board finds that the record contains no evidence that she requested postponement
of the hearing pursuant to the regulations at 20 C.F.R. § 10.622 or had contacted the Office to
reschedule the hearing or explain her failure to participate in the scheduled telephonic hearing.
Appellant failed to participate in the scheduled hearing and did not provide any notification of
such failure within 10 days of the scheduled hearing. As the circumstances of this case meet the
criteria for abandonment as provided in Chapter 2.1601.6(e) of the Office’s procedures, the
Board finds that appellant abandoned her request for an oral hearing.
CONCLUSION
The Board finds that appellant failed to establish that her claimed condition was sustained
in the performance of duty. The Board further finds that the Office properly determined that she
abandoned her request for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 14, 2007 and October 16, 2006 are affirmed.
Issued: November 9, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Durham, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-291
Issued: June 12, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2012 appellant, through counsel, filed a timely appeal from an
October 22, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $18,940.70 was
created; (2) whether OWCP properly denied waiver of the overpayment; and (3) whether OWCP
properly found that the overpayment could be recovered by deducting $1,000.00 from continuing
compensation.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated February 24, 2012,
the Board affirmed a January 19, 2011 OWCP decision, finding that appellant had a one percent
1

5 U.S.C. § 8101 et seq.

left leg permanent impairment.2 The Board also found that the date of maximum medical
improvement was August 3, 2004, as opposed to the June 11, 2008 date determined by OWCP.
The record reflects that appellant had two claims for back injuries: a claim for injury on
November 9, 2000, initially accepted for a lumbar strain,3 and an occupational claim filed on
September 6, 2004, accepted for aggravation of degenerative disc disease at L4 and L5-S1. On
August 26, 2010 OWCP also accepted aggravation of cervical disc disease C3-7. It issued an
August 12, 2009 schedule award decision for a one percent permanent impairment to the left leg.
The period of the award was 2.88 weeks from June 11, 2008. By decision dated November 5,
2009, OWCP granted a schedule award for an additional 10 percent permanent impairment to the
left leg. The period of the award was 28.80 weeks from July 2, 2008.
The record also indicates that appellant received wage-loss compensation for 720 hours
of leave without pay (LWOP) from July 12 to December 15, 2004, pursuant to the 2004
occupational claim. In a memorandum of telephone call (Form CA-110) dated March 12, 2012,
the employing establishment advised that during the period August 2 to 23, 2004 appellant
worked 69.46 hours and the remaining hours were LWOP.
By letter dated April 12, 2012, OWCP notified appellant of a preliminary determination
that an overpayment of $18,940.70 was created. It found that he had received $20,018.20 in
compensation based on an 11 percent left leg impairment, but should have received only
$1,077.50 covering the period August 3 to 23, 2004. OWCP calculated $1,077.50 by deducting
compensation previously paid during this period for LWOP hours. With respect to fault, it found
that appellant was not at fault in creating the overpayment. He was advised to complete an
overpayment recovery questionnaire (OWCP-20) and submit supporting financial documents.
Appellant requested a prerecoupment hearing before an OWCP hearing representative.
He submitted an OWCP-20 form stating that he had no monthly income and $1,835.20 in
monthly expenses.
By decision dated October 12, 2012, the hearing representative finalized the
determination that an $18,940.70 overpayment was created. The hearing representative denied
waiver and found the overpayment could be recovered by deducting $1,000.00 from continuing
compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for

2

Docket No. 11-832 (issued February 24, 2012).

3

A January 30, 2004 statement of accepted facts (SOAF) noted that the claim was accepted for lumbar and
cervical radiculitis. A June 30, 2010 SOAF stated that the claim was also accepted for brachial neuritis or
radiculitis. An October 27, 2010 SOAF stated that the claim was accepted for lumbar stain and aggravation of
lumbar and cervical degenerative disc disease, with no mention of radiculitis or neuritis.

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the permanent impairment of the scheduled member or function.4 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
as the uniform standard applicable to all claimants.5 OWCP procedures provide that, effective
May 1, 2009, all schedule awards are to be calculated under the sixth edition of the A.M.A.,
Guides.6
If a claimant receives a schedule award and the medical evidence does not support the
degree of permanent impairment awarded, an overpayment of compensation may be created.7
ANALYSIS -- ISSUE 1
The record establishes that appellant received a schedule award for 1 percent left leg
impairment on August 12, 2009, and an additional 10 percent on November 5, 2009. Appellant
was paid 31.68 weeks of compensation commencing June 11, 2008. In its prior decision, the
Board reviewed the evidence and found the left leg impairment under the sixth edition of the
A.M.A. Guides was one percent. In addition, the Board found the date of maximum medical
improvement was August 3, 2004.
Therefore appellant was entitled to 2.88 weeks of compensation (one percent of the
maximum 288 weeks of compensation for leg impairment) from August 3, 2004. Since he
received 31.68 weeks of compensation, an overpayment was created.
With respect to the amount of the overpayment, OWCP found that appellant received
$20,018.20 in net compensation pursuant to the schedule awards. For the 2.88 weeks from
August 3, 2004, appellant received some wage-loss compensation for LWOP hours. It is well
established that a claimant may not concurrently receive compensation under a schedule award
and wage loss for disability.8 The employing establishment advised OWCP that for the period
August 3 to 23, 2004, appellant worked 69.46 hours. OWCP calculated that he should have been
paid $1,077.50 in schedule award compensation for the one percent left leg permanent
impairment from August 3 to 23, 2004. Its calculations are documented in the record and there
is no contrary evidence. The overpayment is therefore $20,018.20 minus $1,077.50 or
$18,940.70.

4

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
5

A. George Lampo, 45 ECAB 441 (1994).

6

FECA Bulletin No. 09-03 (March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700 (January 2010).
7

See Richard Saldibar, 51 ECAB 585 (2000) (the Board found that the overpayment issue was not in posture
because OWCP had not properly resolved the schedule award issue).
8

James A. Earle, 51 ECAB 567 (2000).

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On appeal, appellant disagreed contending that his physicians had found 15 percent
impairment and this should be accepted by OWCP. The issue of the percentage of permanent
impairment was addressed by the Board on the prior appeal. The Board found that his leg
impairment under the sixth edition was one percent and explained its determination based on the
relevant medical evidence of record.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of FECA9 provides: “Adjustment or recovery 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 FECA or would be against equity and
good conscience.”10 Since OWCP found appellant to be without fault in the creation of the
overpayment, OWCP may only recover the overpayment if recovery would neither defeat the
purpose of FECA nor be against equity and good conscience. The guidelines for determining
whether recovery of an overpayment would defeat the purpose of FECA or would be against
equity and good conscience are set forth in sections 10.434 to 10.437 of Title 20 of the Code of
Federal Regulations.
According to 20 C.F.R. § 10.436, recovery of an overpayment would defeat the purpose
of FECA if recovery would cause hardship because the beneficiary “needs substantially all of his
or her current income (including compensation benefits) to meet current ordinary and necessary
living expenses,” and, also, if the beneficiary’s assets do not exceed a specified amount as
determined by OWCP from data provided by the Bureau of Labor Statistics.11 For waiver under
the “defeat the purpose” of FECA standard, appellant must show that he needs substantially all
of his current income to meet current ordinary and necessary living expenses and that his assets
do not exceed the resource base.12
Section 10.437 of Title 20 of the Code of Federal Regulations provide that recovery of an
overpayment would be against equity and good conscience if: (a) the overpaid individual would
experience severe financial hardship in attempting to repay the debt; (b) the 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.
ANALYSIS -- ISSUE 2
In determining whether recovery of the overpayment would defeat the purpose of FECA;
if a claimant does not need substantially all his current income (including compensation benefits)
to meet current ordinary and necessary living expenses, then recovery would not defeat the
purpose of FECA. An individual is deemed to need substantially all of his current income to
9

5 U.S.C. § 8101 et seq.

10

Id. at § 8129(b).

11

OWCP 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

See Robert E. Wenholz, 38 ECAB 311 (1986).

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meet ordinary and necessary living expenses if monthly income does not exceed expenses by
more than $50.00.13
Appellant submitted an OWCP-20 form regarding his financial situation. Although he
reported no income, the record reveals that he is receiving $2,788.16 in compensation every 28
days. The monthly expenses reported on the OWCP-20, without any supporting documentation,
were $1,835.20. Appellant had more than $50.00 in income over expenses and therefore the
record does not establish that recovery would defeat the purpose of FECA.
As to the “against equity and good conscience” standard, the evidence establishes that
appellant would not experience severe financial hardship in attempting to repay the debt. In
addition, there is no evidence that he gave up a valuable right or changed his position for the
worse in reliance on the overpayment. Based on the evidence of record, the Board finds that
OWCP properly denied waiver of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
OWCP regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize hardship.”14
ANALYSIS -- ISSUE 3
Appellant receives continuing compensation benefits every 28 days pursuant to the 2004
occupational claim. OWCP determined the overpayment could be recovered by deducting
$1,000.00 from his continuing compensation payments. The Board notes that a claimant is
responsible for submitting necessary information with respect to income, expenses and assets as
required by OWCP.15 In this case, appellant submitted limited information regarding his
financial circumstances and no supporting documentation.
The hearing representative noted that appellant was receiving approximately $2,788.00
every 28 days in wage-loss compensation. The undocumented monthly expenses of $1,835.20
were equivalent to $1,694.03 every 28 days, leaving approximately $1,094.00 in excess income.
The evidence indicates that the hearing representative did consider the financial circumstances of
the claimant and other factors to minimize the hardship in accord with 20 C.F.R. § 10.441. As
noted, appellant provided limited information but the hearing representative did consider the
13

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (June 2009). See also Jorge O. Diaz, 51 ECAB 124, 128 (1999).
14

20 C.F.R. § 10.441.

15

Id. at § 10.438.

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evidence of record and support his findings.16 The Board finds that OWCP properly determined
the overpayment should be recovered by deducting $1,000.00 from continuing compensation.
CONCLUSION
The Board finds that OWCP properly found that an overpayment of $18,940.70 was
created. The Board further finds that OWCP properly denied waiver and found that the
overpayment should be recovered by deducting $1,000.00 from continuing compensation.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 22, 2012 is affirmed.
Issued: June 12, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

16

See S.C., Docket No. 12-1871 (issued February 26, 2013).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.A., Appellant
and
U.S. POSTAL SERVICE, SAN FRANCISCO
PERFORMANCE CLUSTER,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 08-1524
Issued: May 20, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 30, 2008 appellant timely appealed a merit decision of the Office of Workers’
Compensation Programs dated May 1, 2007 in which an Office hearing representative affirmed
an earlier decision concerning his wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
February 19, 2006 based on its determination that the constructed position of a final assembler
represented his wage-earning capacity.

FACTUAL HISTORY
This case has previously been before the Board on appeal.1 The facts and history of the
case are incorporated by reference. The relevant facts are briefly set forth below.
The Office accepted that on November 20, 1978 appellant, then 30-years-old, sustained a
left knee strain when he slipped and fell on stairs while working as a letter carrier. He had a left
hip arthroscopy on January 11, 1979 and left knee ligamentous reconstruction on
September 17, 1979. Appellant underwent surgery in June 1981 for a nonwork-related ruptured
quadriceps repair after he struck his knee on an object while attempting to catch a Frisbee. He
has not worked since November 20, 1978. Appropriate wage-loss compensation and medical
benefits were paid.
In a September 8, 2004 progress report, Dr. Michael Joyce, a Board-certified orthopedic
surgeon, reported that appellant had increased stiffness and crepitus along with episodes of
clunking in the knee. She provided an impression of post-traumatic degenerative arthritis of the
left knee and chronic anterior cruciate ligament (ACL) insufficiency. Ice and a light exercise
program were recommended.
In a September 13, 2004 report, Dr. C. David Bomar, a Board-certified orthopedic
surgeon and Office referral physician, reviewed appellant’s medical record, the statement of
accepted facts and presented his examination findings. Range of motion of the left knee was 5 to
120 degrees with extensive crepitation with motion. Dr. Bomar noted that there was no
instability in the medial or lateral planes and that the Lachman sign was negative with no joint
effusion. He stated that there was no atrophy in the calf or thigh but recent x-rays showed a
complete loss of the medial joint space with fairly severe osteoarthritis. Dr. Bomar diagnosed
osteoarthritis of the left knee and stated that appellant would eventually require total knee
replacement. He remarked that the November 1978 work injury aggravated the preexisting
arthritis in the knee and increased appellant’s symptoms. Dr. Bomar stated that appellant had not
reached maximum medical improvement and major surgery would eventually have to be done.
He opined that appellant was partially disabled from the employment injury. Dr. Bomar advised
that appellant could work full time with restrictions of no prolonged walking, climbing stairs or
ladders frequently or squatting and kneeling, but he could sit, stand, walk short distances, use his
hands, bend and lift up to 30 pounds.
On October 3, 2004 the Office referred appellant to vocational rehabilitation. The
rehabilitation counselor reported that, based on appellant’s experience, education, medical
restrictions and a labor market study, he was employable as a final assembler. In a January 27,
2005 letter, appellant objected to the rehabilitation and placement plan. He advised that he could
only work four hours a day. Appellant noted that his preference to return to the employing
establishment and referred to postal regulations stating that the employer would make an effort to
reemploy an injured worker. He further stated that he found it inappropriate that he was coached
not to disclose the vocational rehabilitation counseling to prospective employers.
1

Docket No. 02-839 (issued August 26, 2002). The Board affirmed a February 1, 2001 Office decision denying
merit review.

2

The job placement phase began on February 9, 2005. On February 10, 2005 the
rehabilitation counselor advised that the employing establishment would not accommodate
appellant’s restrictions. On August 2, 2005 the counselor identified the position of Final
Assembler, Department of Labor’s Dictionary of Occupational Titles, (DOT) #713.687-018 to be
suitable, both medically and occupationally, reasonably available in appellant’s geographic area.
The position description noted that the final assembler attached nose pads and temple pieces to
optical frames, using hand tools by positioning parts in fixture to align screw holes. The position
was listed as sedentary with physical demands of reaching, handling, fingering, near acuity and
accommodation and unskilled, with a specific vocational preparation of less than one month.
The rehabilitation counselor noted that the job market for final assemblers was in decline, but
confirmed it was being performed in sufficient numbers on a full-time basis in appellant’s
community as to be reasonably available. The position had an hourly wage of $7.62 or $304.80
per week.
On November 10, 2005 the Office received two medical reports from appellant’s
attending physician, Dr. Richard P. Dibala, a Board-certified family practitioner. In a
February 10, 2005 report, Dr. Dibala noted that appellant’s previous physician, Dr. Joyce, found
him disabled. He reported that appellant had a back injury in the mid-1970s that required
hospitalization for eight days including traction. Dr. Dibala stated that appellant had frequent
disabling recurrences of back pain involving the sciatica, exacerbated by progressive obesity. He
indicated that other conditions included a significant knee injury with torn ligaments and
cartilage, subsequent surgeries and a subsequent secondary injury involving the quadriceps
tendon requiring surgical repair. Dr. Dibala indicated that appellant had been seen on three
occasions for increasing difficulty with his back pain and sciatica. He noted lumbosacral spine
films from December 2004 showed significant degenerative joint disease with disc space
narrowing at multiple levels and osteophyte formation. Dr. Dibala stated, “it is probable that his
initial injury in the 1970s has initiated this significant degenerative process which has markedly
limited the patient’s activity and physical capacities.” He indicated that appellant could not
perform a sedentary job which involved eight hours of sitting given his degree of back pain.
Dr. Dibala advised that appellant might be able to perform work that allowed occasional to
frequent changes in position without requiring prolonged standing. He recommended a
four-hour trial work period. In an October 31, 2005 report, Dr. Dibala opined that appellant was
“best suited to part-time work or certainly no more than a trail at an eight hour a day job which
would need to include significant sitting but with interspersed break times during which time he
could change position.” A copy of the December 2, 2004 report of x-rays of the lumbar spine
revealed degenerative disc disease at T11-12, T12-L1, L4-5 and L5-S1 with osteophytes and no
evidence of spondylolysis or spondylolisthesis.
In a November 21, 2005 letter, appellant argued that neither the statement of accepted
facts nor Dr. Bomar’s second opinion evaluation referenced his preexisting back condition,
which the Office had accepted under the Office file numbers xxxxxx024 and xxxxxx359. He
maintained that his physician in San Francisco had provided a four-hour work assessment and
stated that there was a medical conflict. Appellant noted that his back condition had worsened
after becoming sedentary. He also disagreed with the suitability of the position stating that he
could not sit for extended periods due to back pain and increased instability of his left knee.
Appellant further stated that he did not receive 90 days of placement assistance.

3

In a December 30, 2005 notice of proposed reduction of compensation, the Office found
the selected position of final assembler represented appellant’s wage-earning capacity.2 It found
that appellant’s on-going back condition was unrelated to the accepted lumbar strains under case
file numbers xxxxxx359 (December 28, 1977) and xxxxxx024 (March 11, 1975). The Office
found Dr. Dibala’s reports lacked probative value to relate appellant’s current back complaints to
the prior back claims for lumbar strain. It noted that appellant was provided 90 days placement
assistance. The Office found that the factual and medical evidence established that appellant had
the capacity to earn wages as a final assembler and allowed him 30 days to submit additional
evidence or argument if he disagreed with the proposed action.
In a January 27, 2006 letter, appellant reiterated his previous arguments and resubmitted
his November 21, 2005 statement. He also submitted a copy of an October 11, 994 x-ray
examination of his lumbosacral spine, which contained an impression of degenerative disc
disease most accentuated at the L5-S1 level.
By decision dated February 7, 2006, the Office reduced appellant’s wage-loss
compensation, effective February 19, 2006, finding that the position of final assembler
represented his wage-earning capacity. It noted that appellant’s current weekly pay rate for the
job and step when injured was $376.81. The Office found that appellant was capable of earning
$304.80 per week, that the adjusted wage-earning capacity per week was $135.65, that the
percentage of new wage-earning capacity was 36 percent, that the loss in wage-earning capacity
amount per week was $241.16, leaving appellant with a compensation rate of $180.87 or $374.25
per week when increased by applicable cost-of-living adjustments. This resulted in a new
compensation rate every four weeks of $1,497.00 beginning February 19, 2006.
Appellant disagreed with the Office’s decision and requested an oral hearing, which was
held February 28, 2007. The record reflects the Office informed appellant of his hearing date in
a letter dated January 26, 2007.
In an August 16, 2006 report, Dr. Joyce noted that appellant had long-term disability
since 1981 and that he continued to experience painful episodes of knee instability. He reported
transitions from sedentary activities such as sitting to ambulation was particularly difficult.
Dr. Joyce also reported that appellant’s attempt to accommodate to his knee symptoms have
consequently led to an ongoing aggravation of long-standing low back pain. He diagnosed left
knee end stage osteoarthritis with chronic ACL insufficiency and indicated that appellant
required a left knee replacement. Dr. Joyce indicated that appellant had been released to a
sedentary work level and specific permanent restrictions included a maximum four-hour
workday due to the combination of arthritis and instability. He provided an impairment rating of
50 percent left lower extremity.3
By decision dated May 1, 2007, an Office hearing representative affirmed the February 7,
2006 Office decision.

2

The December 30, 2005 letter and notice superseded an earlier notice of October 25, 2005.

3

There is no schedule award issue before the Board in the present appeal.

4

LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.4 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.5
Section 8115 of the Federal Employees’ Compensation Act6 and Office regulations
provide that wage-earning capacity is determined by the actual wages received by an employee if
the earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings do
not fairly and reasonably represent wage-earning capacity or the employee has no actual
earnings, his or her wage-earning capacity is determined with due regard to the nature of the
injury, the degree of physical impairment, usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect the wage-earning capacity in his or her disabled condition.7 The Office must initially
determine a claimant’s medical condition and work restrictions before selecting an appropriate
position that reflects his or her wage-earning capacity. The medical evidence upon which the
Office relies must provide a detailed description of the condition.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor’s DOT or otherwise
available in the open market, that fits that employee’s capabilities with regard to his or her
physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service or other applicable service.9 Finally, application of
the principles set forth in Albert C. Shadrick10 will result in the percentage of the employee’s loss
of wage-earning capacity.11 Office regulations provide that the employee’s wage-earning
capacity in terms of percentage is obtained by diving the employee’s actual earnings or the pay
rate of the position selected by the Office, by the current pay rate for the job held at the time of
the injury.12
4

James M. Frasher, 53 ECAB 794 (2002).

5

20 C.F.R. §§ 10.402 and 10.403; John D. Jackson, 55 ECAB 465 (2004).

6

5 U.S.C. §§ 8101-8193.

7

Id. at § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 5.

8

William H. Woods, 51 ECAB 619 (2000).

9

James M. Frasher, supra note 4.

10

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

11

James M. Frasher, supra note 4

12

20 C.F.R. § 10.403(d).

5

In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairment results from both injury related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.13
ANALYSIS
Appellant’s claim was accepted by the Office for sprain/strain of left knee/leg. The
record reveals he had accepted lumbosacral strains of December 28, 1977 (case file number
xxxxxx359) and March 11, 1975 (case file number xxxxxx024). By decision dated February 7,
2006, the Office reduced his compensation effective February 19, 2006. The Board finds that the
Office properly reduced appellant’s compensation based on his capacity to perform the duties of
a final assembler.
In finding that appellant was physically capable of performing the duties of a final
assembler, the Office relied on the September 13, 2004 opinion of Dr. Bomar, an Office referral
physician, who evaluated appellant for his accepted left knee sprain/strain. Dr. Bomar found that
appellant was partially disabled as a result of the employment injury but was able to work full
time. He indicated that appellant had permanent restrictions of no prolonged walking, climbing
stairs or ladders frequently or squatting and kneeling, but he was able to sit, stand, walk short
distances, use his hands, bend and lift up to 30 pounds. The Board finds that Dr. Bomar’s
opinion is sufficiently well rationalized to establish that appellant is medically capable of
working full time in the constructed position, which is a sedentary position that has the physical
demands of reaching, handling, fingering, near acuity and accommodation.
Although appellant submitted medical reports from Drs. Dibala and Joyce, their reports
do not support that he was unable to perform the duties of the selected position due to his
employment injuries or any preexisting conditions as they failed to provide an opinion regarding
his ability to perform the duties of the selected position. In his February 10, 2005 report,
Dr. Dibala noted that appellant had disabling recurrences of back pain involving the sciatica,
exacerbated by progressive obesity. He reported that appellant had been seen in his office three
times for increasing difficulty with his back pain and sciatica. Dr. Dibala further noted
lumbosacral spine films from December 2004 showed significant degenerative joint disease with
disc space narrowing at multiple levels and osteophyte formation. While he stated, “it is
probable that his initial injury in the 1970s has initiated this degenerative process which has
markedly limited the patient’s activities and physical capacities,” he failed to refer to any
medical history or findings to support his conclusion, which is speculative in nature.14 Thus,
Dr. Dibala’s opinion is of diminished probative value to support that appellant continues to
suffer disabling residuals of his accepted lumbosacral strains. Moreover, in his October 31, 2005
13

John D. Jackson, supra note 5.

14

See Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).

6

report, he opined that appellant could work in an eight-hour day sedentary position, provided he
could take breaks to change his position. This is consistent with Dr. Bomar’s restrictions.
In his August 16, 2006 report, Dr. Joyce indicated that appellant had specific permanent
restrictions, which included a maximum four-hour workday due to the combination of arthritis
and instability. He reported that it was difficult for appellant to transition from sedentary
activities such as sitting to ambulation and that attempts to accommodate his knee symptoms has
led to an ongoing aggravation of low back pain. However, Dr. Joyce did not provide objective
findings or medical rationale explaining how or why appellant could not perform standing and
sitting activities intermittently over an eight-hour period. The Board has held that a medical
opinion that is not fortified by medical rationale is of diminished probative value.15 Without
more explanation of how Dr. Joyce came to his opinion, it is of diminished probative value and
insufficient to cause a medical conflict with Dr. Bomar over the number of hours appellant could
work. The medical evidence thus establishes that appellant has the physical capacity to work
eight hours a day as a final assembler within the restrictions noted by Dr. Bomar.16
On August 2, 2005 the rehabilitation counselor provided updated labor market survey
information. The rehabilitation counselor provided a job description for the final assembler
position, noted that it was a sedentary position and found that appellant fit the educational
requirements, that the position was within his medical restrictions and was available in sufficient
numbers so as to make it reasonably available within his commuting area, at a weekly wage of
$7.62 or $304.80 per week.
The Board finds that the Office considered the proper factors, such as availability of
suitable employment and appellant’s physical limitations, usual employment and age and
employment qualifications, in determining that the position final assembler represented his
wage-earning capacity.17 The weight of the evidence of record establishes that appellant had the
requisite physical ability, skill and experience to perform this position and that it was reasonably
available within the general labor market of his commuting area. Also, the Office followed the
established procedures under the Shadrick decision in calculating appellant’s employmentrelated loss of wage-earning capacity. Appellant did not contend that the Office erred in its
mathematical calculations of his wage-earning capacity. The Board has reviewed these
calculations and finds them to be correct.
On appeal, appellant contended that he could not medically perform the selected final
assembler position. He, however, did not submit sufficient medical evidence to establish that he
was not capable of working eight hours a day in a sedentary position. Appellant further argued
that: there was a conflict in medical opinion regarding the number of hours he was able to
perform in a sedentary position; his preexisting back condition was not considered; and the
constructed position was not reasonably available. As noted, Dr. Joyce’s opinion was
insufficiently reasoned to create a conflict regarding whether appellant could perform the duties
15

Brenda L. DuBuque, 55 ECAB 212 (2004).

16

See Gayle Harris, 52 ECAB 319 (2001).

17

James M. Frasher, supra note 4.

7

of the selected position and the record indicates that appellant’s preexisting conditions were
considered in determining whether he could return to work.
Appellant contends that the selected position was not reasonably available as the
rehabilitation counselor only identified one opening for a final assembler without experience.
The Board has previously noted that where there is probative evidence of record regarding
reasonable availability, such as from a state employment agency, this evidence will not be
contradicted by evidence as to a lack of current referrals for the selected position.18 In this case,
the rehabilitation counselor properly noted that, while the job market for final assemblers was in
decline, he confirmed that the position was being performed in sufficient numbers on a full-time
basis in appellant’s community as to make it reasonably available to appellant. Moreover, the
Board has held that the mere fact that appellant is not able to secure a job in the selected position
does not establish that the work is not available or suitable.19
Appellant further contends that he was not accorded 30 days notice prior to the
scheduling of the hearing of February 28, 2007. The Office’s letter of January 26, 2007,
however, provide appellant with 31 days notice of the scheduled hearing date of
February 28, 2007.
Thus, the Office’s February 7, 2006 decision reducing appellant’s compensation based on
his ability to earn wages in the constructed position of a full-time final assembler is proper under
the law and facts of this case.
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
February 19, 2006 based on its determination that the constructed position of final assembler
represented his wage-earning capacity.

18

Carla Letcher, 46 ECAB 452 (1995).

19

See Karen L. Lonon-Jones, 50 ECAB 293 (1999).

8

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 1, 2007 is affirmed.
Issued: May 20, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
DEPARTMENT OF THE AIR FORCE,
DEFENSE AGENCIES, EDWARDS AIR
FORCE BASE, CA, Employer
__________________________________________

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

Docket No. 17-1677
Issued: December 27, 2017

Case Submitted on the Record

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

JURISDICTION
On August 1, 2017 appellant filed a timely appeal from a May 10, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish a right elbow and arm
injury causally related to the accepted December 15, 2016 employment incident.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal after OWCP rendered its May 10, 2017 decision. The
Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On March 30, 2017 appellant, then a 49-year-old store checker, filed a traumatic injury
claim (Form CA-1) alleging that, while unloading and restocking cans onto shelves for four
hours on December 15, 2016, she developed right lateral epicondylitis and myofascial tender
points in her right arm. She did not stop work.
In an April 5, 2017 letter, OWCP advised appellant to submit additional information
including a comprehensive medical report from her treating physician providing a reasoned
explanation as to how the specific work factors or incidents identified by appellant had
contributed to her claimed injury. It allotted appellant 30 days to submit the requested
evidence. No additional evidence was received.
In a May 10, 2017 decision, OWCP accepted that the December 15, 2016 employment
incident occurred as alleged. However, it denied the claim finding that appellant failed to
submit medical evidence sufficient to establish a diagnosed medical condition causally related
to the accepted work 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 of FECA, that an injury was sustained in the performance of duty as alleged and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.4
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 she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
3

Supra note 1.

4

Gary J. Watling, 52 ECAB 357 (2001).

5

T.H., 59 ECAB 388 (2008).

6

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

2

ANALYSIS
It is undisputed that on December 15, 2016 appellant was performing her store checker
duties, which included unloading and restocking cans onto shelves for four hours. However, the
Board finds that she has failed to submit medical evidence establishing that this work incident
caused or aggravated a right elbow and arm injury.
In a letter dated April 5, 2017, OWCP requested that appellant submit a comprehensive
report from her treating physician which included a reasoned explanation as to how the accepted
work incident had caused her claimed injury. However, no medical evidence was submitted
prior to OWCP’s decision of May 10, 2017. Consequently, the Board finds that appellant did
not meet her burden of proof by submitting medical evidence to OWCP establishing that her
work duties caused or contributed to her diagnosed medical condition.
As noted, part of appellant’s burden of proof includes the submission of rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
causal relationship between the employment incident and the diagnosed condition.7 The record
contains no medical evidence. Because appellant has not submitted reasoned medical evidence
explaining how and why her right elbow and right arm condition was employment related, she
has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a right elbow
and right arm injury causally related to the accepted December 15, 2016 employment incident.

7

See id.

3

ORDER
IT IS HEREBY ORDERED THAT the May 10, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 27, 2017
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
DEPARTMENT OF DEFENSE,
Fort Meade, MD, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-2295
Issued: September 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 15, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established a consequential emotional condition
causally related to his May 23, 1990 back injury; and (2) whether appellant met his burden of
proof to modify the October 18, 1995 wage-earning capacity determination.
FACTUAL HISTORY
The case was before the Board on prior appeals with respect to the wage-earning capacity
determination. In a decision dated May 6, 1998, the Board affirmed the October 18, 1995 wageearning capacity decision based on the selected position of estimator.1 By decision dated
1

Docket No. 96-469 (issued May 6, 1998).

January 5, 2001, the Board affirmed a July 16, 1999 Office decision denying modification of the
wage-earning capacity determination.2 Appellant continued to receive compensation for wageloss based on his loss of wage-earning capacity. The history of the case is contained in the
Board’s prior decisions and is incorporated herein by reference.
By letter dated August 11, 2006, appellant’s representative requested that the wageearning capacity be modified as appellant had an employment-related emotional condition that
had worsened. Appellant submitted an August 10, 2006 report from Dr. Harry Doyle, a
psychiatrist, who provided a history, results on examination and reviewed medical records.
Dr. Doyle diagnosed major depressive disorder, single episode and chronic pain disorder
associated with both psychological factors and a general medical condition. He opined that the
medical record documented that appellant experienced pain and developed secondary symptoms
of anxiety and depression from the work injury. Dr. Doyle indicated that appellant had
preexisting post-traumatic stress disorder (PTSD) and his preexisting cognitive and personality
conditions that had been aggravated by residuals of his accepted conditions. He opined that the
diagnosed conditions of major depressive disorder and chronic pain disorder were caused by the
May 23, 1990 work injury.
The Office referred the case to an Office medical adviser for an opinion as to the causal
relationship between an emotional condition and the employment injury. In a report dated
January 17, 2007, the medical adviser reviewed the medical records and noted that appellant
sustained a soft tissue injury to the low back. He opined that appellant’s “psychiatric condition
is clearly unrelated to the injury of May 23, 1990…. There is nothing to support this patient’s
major depressive disorder or chronic pain condition as being related to the soft tissue sprains
occurring on May 23, 1990.”
By decision dated March 13, 2007, the Office denied modification of the wage-earning
capacity determination. The Office found that the medical evidence did not establish an
employment-related emotional condition and there was no evidence of worsening of the accepted
low back strain and herniated L4-5 disc.
Appellant requested a review of the written record by an Office hearing representative.
By decision dated August 15, 2007, the hearing representative affirmed the March 13, 2007
decision.
LEGAL PRECEDENT -- ISSUE 1
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.3
If a subsequent injury is the direct and natural result of a compensable primary injury, it is
2

Docket No. 99-2413 (issued January 5, 2001).

3

Carlos A. Marrero, 50 ECAB 117, 120 (1998); 1 A. Larson, The Law of Workers’ Compensation
§ 10.01 (2002).

2

compensable.4 Where an injury is sustained as a consequence of an impairment residual to an
employment injury, the new or second injury is deemed, because of the chain of causation, to
arise out of and in the course of employment.5
The Federal Employees’ Compensation Act provides that, if there is a disagreement
between the physician making the examination for the United States and the physician of the
employee, the Secretary shall appoint a third physician who shall make the examination.6 The
implementing regulation states that if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is
called a referee examination and the Office will select a physician who is qualified in the
appropriate specialty and who has no prior connection with the case.7
ANALYSIS -- ISSUE 1
Appellant attributed a consequential emotional condition as a result of the May 23, 1990
employment injury to his back. The medical evidence is in conflict on the issue. An attending
psychiatrist, Dr. Doyle, opined that appellant had major depressive disorder, single episode and
chronic pain disorder causally related to the May 23, 1990 injury. He also reported aggravation
of preexisting PTSD by the employment injury. An Office medical adviser opined that the
psychiatric conditions were not causally related to the employment injury.
The case will be remanded to resolve the conflict under 5 U.S.C. § 8123(a). Since
appellant’s request to modify the wage-earning capacity determination was based on establishing
an emotional condition as employment related, the Board will not address the modification of
wage-earning capacity determination at this time. The referee physician should provide an
opinion as to whether there is a psychiatric condition causally related to the employment injury
and, if so, whether there was a material worsening of the condition after October 18, 1995. After
such further development as the Office deems necessary, it should issue an appropriate decision
as to causal relationship of an emotional condition with employment and modification of the loss
of wage-earning capacity determination.
CONCLUSION
The medical evidence is in conflict on the issue of a consequential emotional condition
and the case is remanded for resolution of the conflict.

4

Debra L. Dillworth, 57 ECAB 516, 519 (2006).

5

Kathy A. Kelley, 55 ECAB 206 (2004).

6

5 U.S.C. § 8123.

7

20 C.F.R. § 10.321 (1999).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 15 and March 13, 2007 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: September 8, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Columbus, IN, Employer
__________________________________________

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Appearances:
Joseph E. Allman , Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1467
Issued: April 5, 2013

Case Submitted on the Record

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

JURISDICTION
On June 22, 2012 appellant, through her attorney, filed a timely appeal of the
December 29, 2011 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 terminated appellant’s wage-loss
compensation and medical benefits effective June 24, 2011; and (2) whether appellant has met
her burden of proof to establish that her claim be expanded to include a bilateral shoulder
condition.
On appeal appellant, through counsel, contends that she continues to have residuals from
her accepted conditions and that the medical evidence supports that appellant suffered a bilateral
shoulder condition causally related to her accepted employment injury.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 8, 2008 a traumatic injury claim was filed on behalf of appellant, then a
50-year-old sales/distribution clerk. The claim form indicates that on September 6, 2008, she
was struck by a cart. On November 21, 2008 OWCP accepted appellant’s claim for cervical
strain, closed head injury/postconcussion syndrome. Appellant stopped work on the date of the
injury. OWCP paid compensation and medical benefits.
On September 12, 2008 Dr. Laura Nutter, appellant’s treating Board-certified family
practitioner, diagnosed appellant with closed head injury with cervical compression.
On February 27, 2009 Dr. Gregory B. Nazar, a Board-certified neurosurgeon, reviewed
treating appellant’s magnetic resonance imaging (MRI) scan of October 27, 2008 and determined
that it was a normal cervical study. He noted that his clinical impression was that she had a
subjective strain/sprain precipitated by the employment injury on September 6, 2008. Dr. Nazar
noted that appellant was now five months postinjury and that her symptoms of numbness were
unusual, so a repeat MRI scan study was recommended. He diagnosed a cervical strain which
subjectively has not resolved following the accident.
On March 12, 2009 OWCP referred appellant to Dr. David G. Changaris, a Boardcertified orthopedic surgeon, for a second opinion. In an April 7, 2009 report, Dr. Changaris
listed his impression as restrictive neck disease; restrictive shoulder disease, bilaterally;
headaches, prior history of migraines per client report, worsened by the employment-related
injury; and brain injury with traumatic pituitary insufficiency. He noted that based upon client
history, medical records and physical examination, the injuries are solely due to the
employment-related injury of record. Dr. Changaris opined that appellant’s employment-related
injury was still active, that she still had residuals and that she had not returned to her baseline
condition prior to the employment injury. He placed restrictions on her return to work.
A repeat MRI scan of the cervical spine conducted on March 23, 2009 was interpreted as
showing no osseous abnormality.
On May 6, 2009 OWCP forwarded a copy of Dr. Changaris’ report to Dr. Nazar and
asked for comments. In a hand-written response, Dr. Nazar indicated that appellant does not
have restrictive neck disease, traumatic brain injury or pituitary insufficiency. He noted that
there was no evidence to support a worsening of migraines.
On August 6, 2009 OWCP referred appellant to Dr. Arthur Hughes, a Board-certified
neurologist, for an impartial medical examination. It listed the reason for review as conflict of
opinion between Dr. Nazar and Dr. Changaris with regards to the extent of the
employment-related injury, the degree of disability associated with the work-related condition
and the physical limitations/restrictions imposed by residuals from appellant’s employment
injury.
In a September 1, 2009 report, Dr. Hughes noted that appellant described her accident in
overly dramatic terms. He indicated that there was no evidence that she suffered any type of
brain injury and thus she should have no cognitive impairment at this point attributable to the

2

accident. Dr. Hughes noted that there was no abnormality on the cervical MRI scan or on the
cervical spine x-rays or on the electromyogram. He diagnosed cervical strain and closed head
injury/postconcussion injury as well as compression of left median nerve at wrist, bilateral
shoulder pain and limitation of motion, migraine by history. Dr. Hughes indicated that the only
employment-related conditions were cervical strain and closed head injury/postconcussion
injury. He opined that there were no current objective findings supporting the accepted
conditions of cervical strain and closed head injury/postconcussion syndrome and he concluded
that these conditions are no longer present and active and have resolved. Dr. Hughes indicated
that appellant’s current complaints were not attributable to the work injuries, but were due to
nonwork-related factors, presumably nonorganic. He noted that she had no need for continuing
treatment for the accepted conditions. In an October 1, 2009 addendum, Dr. Hughes indicated
that, although he suggested a period of work hardening in his previous report, this was a
suggestion and not a requirement. He noted that if appellant refused to pursue work hardening,
then she was capable of returning to her date-of-injury job. Dr. Hughes noted that a brief period
of work hardening would be helpful but was not medically necessary.
In a September 2, 2009 report, Dr. Nutter stated that appellant had a devastating neck
injury at work on September 6, 2008 and that since that time she has suffered from neck pain,
back pain, visual disturbance, frequent headaches, left arm pain radiating from the neck, memory
loss, decreased concentration and altered speech. She noted that the most persistent of these
symptoms has been her left upper extremity pain that is aggravated by minimal use and
movement. Dr. Nutter noted that appellant’s postinjury, painful shoulder movement is
documented within the first month of her office records. She indicated that, although the blow
appellant received did not make direct contact with her upper extremities, she had no doubt that
the ongoing left shoulder and arm pains are a direct consequence of the cervical sprain of the
same day. Dr. Nutter continued to extend appellant’s medical leave from work.
Counsel, by letter dated February 15, 2011, requested OWCP to expand the accepted
conditions to include bilateral adhesive capsulities.
On February 22, 2010 OWCP proposed to terminate appellant’s benefits as she had no
further residuals from her employment injury based on the opinion of Dr. Hughes.
Dr. Nutter noted in an undated report received by OWCP on March 23, 2010 that she had
been seeing appellant regularly since two days after her employment injury. She discussed her
treatment of appellant. Dr. Nutter opined that appellant was not a malingerer. She indicated that
appellant could try to return to her employment if she could perform about one-fourth of the
work she previously performed. Dr. Nutter believed appellant’s claims were justified.
In a November 4, 2010 report, Dr. Daniel S. Brown, a physician Board-certified in
occupational and environment medicine, noted diagnoses of acute employment-related injury on
September 6, 2008, chronic upper arm and shoulder pain, dysfunction and bilateral adhesive
capsulitis (frozen shoulder). He indicated that differential diagnoses include adhesive capsulitis,
severe myofascial syndrome, thoracic myelopathy and conversion reaction. Dr. Brown did note
some degree of psychological overlay in appellant’s symptoms. He opined that within a
reasonable degree of medical certainty, her current condition arose from the injury she sustained
on September 6, 2008. Dr. Brown noted that there were no records to suggest a preexisting

3

similar condition and that there had been a marked alteration in appellant’s functional status. He
evaluated her impairment and determined that she had an 18 percent impairment of her right
upper extremity and a 24 percent impairment of her left upper extremity pursuant to the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009). Dr. Brown recommended future medical evaluations and treatment and noted that
appellant was not at maximum medical improvement.
OWCP referred appellant to Dr. Edward Gregory Fisher, a Board-certified orthopedic
surgeon, for a second opinion. In an April 15, 2011 opinion, Dr. Fisher reviewed appellant’s
employment and medical history. He noted that a sprain/strain of the cervical area is a soft tissue
injury and would have healed and resolved in a matter of a few weeks up to two months after the
injury and was not present on clinical examination. Dr. Fisher noted that appellant’s current
objective clinical finding about the neck is restriction of range of motion secondary to pain
complaints and muscle tightness over the neck area. He did not believe that she had bilateral
adhesive capsulitis as noted by Dr. Brown. Dr. Fisher noted that appellant did not injure either
shoulder at the time of the injury of September 6, 2008 and began complaining of decreased
range of shoulder motion when she noted chronic pain over the neck with subsequent decrease in
range of both the neck and bilateral shoulders secondary to this pain. He noted that her
decreased range of motion of shoulders is strictly due to persistent generalized pain and not due
to bilateral adhesive capsulitis which implies fibrosis or scar tissue causing tightening of the
capsule and ligaments about the shoulder which was not the case with appellant. Dr. Fisher
concluded that appellant was not medically capable of returning to her date-of-injury job but was
capable of working with restrictions and because of the chronicity of the condition the
restrictions were permanent in duration. He opined that no further definitive treatment was
necessary and/or appropriate for the employment-related conditions and that treatment was
strictly supportive maintenance care.
By decision dated June 3, 2011, OWCP denied appellant’s claim for compensation for
bilateral adhesive capsulitis.
Dr. Fisher issued an addendum to his report dated June 9, 2011 wherein he responded to
OWCP’s questions. He opined that appellant did not suffer from active residuals of the accepted
work injury of a cervical strain. Dr. Fisher opined that if she had chronic pain symptoms over
the neck and upper back, it was not related medically to the employment injury or to the accepted
employment-related conditions of cervical sprain and closed head injury/postconcussion
syndrome since all of the objective tests were normal for cervical involvement. He noted that the
only objective finding was a mild carpal tunnel syndrome on the left side which was in no way
related to her employment injury.
On June 24, 2011 OWCP terminated appellant’s wage loss and medical benefits effective
June 24, 2011.
Appellant, through counsel, requested an oral hearing before an OWCP hearing
representative.
In a September 1, 2011 report, Dr. Brown indicated that he reviewed Dr. Fisher’s
examination and the decision terminating benefits. He indicated that soft tissue injuries often

4

lead to chronic conditions and these often resulted in long-term loss of motion even with
successful surgical reports. Dr. Brown noted that Dr. Fisher had referred to appellant’s active
resediuals cervical strain and chronic pain which caused restricted range of motion and muscle
tightness secondary to pain complaints over her neck and shoulders. He opined that Dr. Fisher’s
conclusions were consistent with a causal relationship between the accepted injury of
September 6, 2008 and appellant’s loss of motion. Dr. Brown stated that while he would have
though it desirable to obtained MRI scans of the shoulders, he recognized that a careful
examination by a Board-certified orthopedic surgeon is the typical way in which adhesive
capsulitis is diagnosed. However, he did not recall a single case of adhesive capsulitis being
ruled out that did not include an MRI scan. Dr. Brown noted that after reading Dr. Fisher’s
report, it was possible to agree with his diagnoses and conclusions regarding the reasons for the
marked loss of motion in appellant’s shoulders.
At the hearing held on October 14, 2011, OWCP’s hearing representative listed the issues
as whether there was a causal relation between appellant’s employment injury and her bilateral
shoulder condition and termination of benefits. Appellant testified and discussed her
employment, her injury and the medical treatment for that injury. She further discussed how her
daily routine was altered due to her injury and indicated that she had not been physically able to
do any job since September 2008.
By decision dated December 29, 2011, OWCP’s hearing representative affirmed
OWCP’s decisions of June 3 and 24, 2011.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.2
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.3 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition which requires further medical treatment.4
Section 8123(a) of FECA provides that when there is a disagreement between the
physician making the examination for the United States and the physician of the employee, a
third physician shall be appointed to make an examination to resolve the conflict.5 When there
are opposing medical reports of virtually equal weight and rationale, the case must be referred to
an impartial medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.6 In situations where there are opposing medical reports of virtually equal weight and
2

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

3

Gewin C. Hawkins, 52 ECAB 242 (2001).

4

M.D., Docket No. 11-1737 (issued April 3, 2012); Calvin S. Mays, 39 ECAB 993 (1988).

5

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

6

Delphia Y. Jackson, 55 ECAB 373 (2004).

5

rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationale and based on a proper
factual background, must be given special weight.7
ANALYSIS -- ISSUE 1
OWCP found that appellant’s accepted conditions of cervical strain, closed head
injury/postconcussion syndrome resolved by June 24, 2011 and terminated her medical and
compensation benefits on that date. In making this determination, it gave special weight to the
opinion of Dr. Hughes. The Board finds that OWCP improperly terminated appellant’s
compensation benefits.
OWCP referred appellant to Dr. Hughes for an impartial medical examination. At the
time of the referral, there was no conflict as to whether appellant had continuing residuals from
her injury. Dr. Nutter continued to opine that she was disabled due to her accepted conditions.
Dr. Nazar noted in his February 27, 2009 report that appellant’s cervical strain had subjectively
not resolved following the accident. Dr. Changaris, the second opinion physician, agreed noting
that appellant had multiple injuries related to her employment injuries and that they were still
active. Accordingly, referral to Dr. Hughes to resolve a nonexistent conflict with regards to
whether there were any continuing residuals was not proper. He did opine that appellant’s
accepted conditions of cervical strain and closed head injury/postconcussion injury had resolved.
Dr. Hughes’ was the first physician to reach this conclusion. He opined that appellant had no
continuing need for treatment for the accepted conditions. Accordingly, Dr. Hughes’ opinion is
the basis for the establishment of a conflict. Subsequent to Dr. Hughes’ opinion, Dr. Nutter
continued to opine that appellant remained disabled as a result of the employment injury.
Dr. Brown determined that appellant had residuals from the employment injury. Dr. Fisher, who
examined her for a second opinion, opined that a sprain or strain was a soft tissue injury and
would have resolved in a matter of a few weeks up to two months after the injury. He also noted
that no further treatment was necessary.
Accordingly, there is an unresolved conflict in the medical evidence. Drs. Nutter, Nazar,
Changaris and Brown opined that appellant had residuals from her employment injury, whereas
Drs. Hughes and Fisher believed that she had no residuals. Because OWCP bears the burden of
proof to terminate benefits, the Board will reverse OWCP’s hearing representative’s decision
affirming the termination of benefits.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, she bears the burden of proof to establish that the condition is causally
related to the employment injury.8 To establish a causal relationship between the condition
claimed, as well as any attendant disability and the employment event or incident, an employee
must submit rationalized medical evidence based on a complete medical and factual background
7

Anna M. Delaney, 53 ECAB 384 (2002).

8

Jaja K. Asaramo, 55 ECAB 2000 (2004).

6

supporting such a causal relationship.9 Causal relationship is a medical issue and the medical
evidence required to establish a causal relationship is rationalized medical evidence.10
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
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 rationalized medical evidence explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.11 Neither the fact that a disease or condition manifests itself during a
period of employment, nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents, is sufficient to establish causal relationship.12
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant had not established that
she suffered from a bilateral shoulder condition causally related to her accepted injury. The
Board notes that neither MRI scan showed any evidence of cervical radiculopathy. The second
opinion physician, Dr. Changaris, diagnosed appellant with restrictive shoulder disease, as well
as restrictive neck disease, headaches and brain injury. His report was sent to Dr. Nazar, who
indicated that appellant did not have restrictive shoulder disease. To resolve the conflict between
Drs. Nazar and Changaris with regards to appellant’s diagnosis, OWCP referred her to
Dr. Hughes to serve as an impartial medical examiner, pursuant to 5 U.S.C. § 8123(a). In a
well-rationalized report, Dr. Hughes noted that on examination, appellant experienced bilateral
shoulder pain and a rather marked restriction in range of motion of both shoulders, left worse
than right, for active movement. However, he concluded that she did not sustain a shoulder
injury as a result of the accepted employment injury and that, although the cause of her ongoing
shoulder problems was not clear they were not attributable to the employment injury. The
special weight of the medical evidence is represented by the well-rationalized opinion of
Dr. Hughes, the impartial medical examiner, who concluded that appellant’s bilateral shoulder
condition is not causally related to the September 6, 2008 employment injury.
The record contains medical reports written subsequent to the opinion of Dr. Hughes.
None of these medical opinions are sufficient to overcome the well-rationalized opinion of
Dr. Hughes. Dr. Nutter indicated that appellant evinced painful shoulder movement within the
first month after her injury based on her office records. She indicated that, although appellant
did not receive a direct blow to her shoulders, she had no doubt that the ongoing left shoulder
and arm pains were a direct consequence of the cervical sprain of the same day. Dr. Nutter’s

9

Jennifer Atkerson, 55 ECAB 317 (2004).

10

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

Leslie C. Moore, 52 ECAB 132 (2000).

12

Ernest St. Pierre, 51 ECAB 623 (2000).

7

opinion is not sufficient to overcome the opinion of Dr. Hughes as Dr. Nutter’s opinion amounts
to a description of pain and not a clear diagnosis of a medical condition.13
In a November 4, 2010 report, Dr. Brown diagnosed appellant with chronic upper arm
and shoulder pain and dysfunction and bilateral adhesive capsulitis. He indicated that these
conditions arose from her injury of September 6, 2008. Dr. Brown noted that there were no
records that suggested a preexisting similar condition and that there has been a marked alteration
in appellant’s functional status.
OWCP referred Dr. Brown’s report to Dr. Fisher for a second opinion. Dr. Fisher also
noted restriction of range of motion in each shoulder secondary to pain complaints and muscle
tightness. However, he opined that appellant did not have bilateral adhesive capsulitis.
Dr. Fisher reasoned that her persistent generalized pain was not due to bilateral adhesive
capsulitis which implies fibrosis or scar tissue causing tightening of the capsule and ligaments
about the shoulder which was not the case with appellant. He noted that appellant’s shoulder
motion was due strictly to pain over the bilateral muscles of the shoulder girdles and over the
superior aspect of each shoulder. Dr. Fisher’s opinion does not support that she had a diagnosed
shoulder condition as a consequence of his accepted injury. Although he does note complaints of
pain and muscle tightness, he opined that appellant did not have bilateral adhesive capsulitis.
Dr. Brown did initially diagnose bilateral adhesive capsulitis. However, his opinions are
equivocal, he indicated that it was possible to agree with Dr. Fisher’s report regarding the loss of
motion in appellant’s shoulders. Although Dr. Brown indicated that he would have liked an MRI
scan of appellant’s shoulders, he also noted that a careful examination by a Board-certified
orthopedic surgeon is the typical way in which adhesive capsulitis is diagnosed. Generally, the
opinions of Drs. Fisher and Brown indicate that appellant had shoulder pain and the fact that she
had shoulder pain would not be sufficient to overcome the opinion of Dr. Hughes.14
Therefore, the Board finds that appellant has not met her burden of proof to establish that
the claim should be expanded to include a bilateral shoulder condition.
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 OWCP improperly terminated appellant’s wage-loss compensation
and medical benefits effective June 24, 2011. However, the Board further finds that it properly
denied expanding appellant’s claim to include a bilateral shoulder condition.

13

See Lee R. Haywood, 48 ECAB 145 (1996); see also P.S., Docket No. 12-1601 (issued January 2, 2013). Pain
is a general description of a symptoms rather than a firm diagnosis of a medical condition. K.W., Docket No. 121590 (issued December 18, 2012).
14

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 29, 2011 is reversed in part and affirmed in part.
Issued: April 5, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Visalia, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0272
Issued: March 21, 2016

Case Submitted on the Record

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

JURISDICTION
On November 30, 2015 appellant filed a timely appeal from a June 19, 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 this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral carpal
tunnel syndrome causally related to factors of his federal employment.
FACTUAL HISTORY
On April 14, 2015 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging bilateral carpal tunnel syndrome on or before January 6,
2014 due to repetitive motion casing and carrying mail since November 5, 1988. He explained
1

5 U.S.C. § 8101 et seq.

that he first became aware of the condition on January 6, 2014 and first related it to his federal
employment on August 7, 2014. Appellant described repetitive pinching and grasping with both
hands throughout his workday, including holding six to eight inches of flats in his left arm while
casing with his right hand, which he asserted put pressure on the tendons that moved his right
thumb. He also noted pushing mail into the case with his left thumb and having to hold his
fingers at unnatural angles while handling bundled mail. Appellant did not stop work.
Dr. Jonathan C. Liu, an attending Board-certified orthopedic surgeon, submitted August 7
and September 10, 2014 reports noting appellant’s federal employment as a letter carrier. On
examination, he observed an acquired trigger finger, swelling in both wrists, and he related
appellant’s complaints of bilateral hand pain and paresthesias. Dr. Liu diagnosed bilateral carpal
tunnel syndrome and a right small trigger finger. He administered a tendon sheath injection to
the trigger finger. Dr. Liu ordered electromyography (EMG) and nerve conduction velocity
(NCV) studies performed on September 26, 2014, which demonstrated moderately severe-tosevere bilateral carpal tunnel syndrome. On December 11, 2014 he administered tendon sheath
injections to both wrists and prescribed bilateral thumb spica splints.
In an April 23, 2015 letter, OWCP advised appellant of the additional evidence needed to
establish his claim, including a report from his attending physician explaining how and why the
identified work factors would cause carpal tunnel syndrome. Appellant was afforded 30 days to
submit such evidence. OWCP later granted him an extension, allowing him to submit additional
evidence until June 19, 2015.
In response, appellant submitted a report from Dr. Adolph J. Nava, an attending Boardcertified internist. Dr. Nava opined on June 17, 2015 that according to appellant’s “job
description there is clear evidence that his newly revealed diagnosis of carpal tunnel syndrome
appears work related.”
By decision dated June 19, 2015, OWCP denied the claim, finding that the medical
evidence failed to establish causal relationship between the repetitive upper extremity motions
and the diagnosis of bilateral carpal tunnel syndrome.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3

2

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

3

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

2

An occupational disease is defined as a condition produced by the work environment
over a period longer than a single workday or shift.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) 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 causal relationship is generally 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
ANALYSIS
Appellant claimed that he sustained bilateral carpal tunnel syndrome in the performance
of duty on or before January 16, 2015. He attributed the condition to repetitive pinching and
grasping motions while casing and carrying mail. OWCP accepted that these work factors
occurred as described.
In support of his claim, appellant submitted reports from Dr. Liu, a Board-certified
orthopedic surgeon, who diagnosed bilateral carpal tunnel syndrome, confirmed by
September 26, 2014 electrodiagnostic studies. Although Dr. Liu noted that appellant worked as
a letter carrier, he did not address any causal relationship between appellant’s federal
employment and the development of bilateral carpal tunnel syndrome. Dr. Nava, an attending
Board-certified internist, provided a June 17, 2015 report opining that appellant’s carpal tunnel
syndrome appeared work related. However, he did not set forth his medical reasoning for
supporting a causal relationship between appellant’s duties as a letter carrier and the diagnosed
carpal tunnel syndrome. The Board has found that a medical report which fails to offer an
opinion on causal relationship is of little probative value.6
OWCP advised appellant by April 23, 2015 letter of the information needed to establish
his claim. Appellant has failed to meet his burden of proof.

4

20 C.F.R. § 10.5(q).

5

Solomon Polen, 51 ECAB 341 (2000).

6

Donald T. Pippin, 54 ECAB 631, 634 (2003).

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish bilateral carpal
tunnel syndrome causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 19, 2015 is affirmed.
Issued: March 21, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4