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

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Appearances:

Docket No. 07-20
Issued: May 11, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

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

JURISDICTION
On October 4, 2006 appellant filed a timely appeal from a September 20, 2006 Office of
Workers’ Compensation Programs’ merit decision which granted a schedule award for a three
percent permanent impairment of the left lower extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merit issue of the case.
ISSUE
The issue on appeal is whether appellant has more than a three percent permanent
impairment of the left lower extremity for which he received a schedule award.
FACTUAL HISTORY
On April 16, 2004 appellant, then a 43-year-old mail handler filed a traumatic injury
claim alleging that on April 9, 2004 he was sweeping mail when he felt tingling in his left hip
and leg. He stopped work on April 11, 2004 and returned April 12, 2004. On May 29, 2004
appellant stopped work. The Office accepted left lumbar radiculopathy, disc herniation and
authorized an L4-5 microdiscectomy which was performed on July 6, 2004.

Appellant came under the treatment of Dr. Lawrence R. Schacht, a Board-certified
internist, on April 19, 2004. Dr. Schacht noted that appellant sustained a left hip and leg strain
while at work. He indicated that appellant presented with severe pain on the left L5-S1 nerve
root or sciatica. Dr. Schacht opined that appellant was totally disabled. An April 20, 2004
lumbar spine x-ray revealed mild degenerative arthritis of the vertebral bodies. A May 7, 2004
magnetic resonance imaging (MRI) scan of the lumbar spine revealed disc herniation on the left
at L4-5 with significant encroachment upon the thecal sac and neural foramen and possible
scoliosis. A myelogram dated June 26, 2004 revealed a herniated disc at L4-5 on the left.
Appellant was also treated by Dr. Randall J. Rogalsky, a Board-certified orthopedic
surgeon, from June 23 to December 29, 2004. Dr. Rogalsky diagnosed left lumbar radiculopathy
secondary to L4-5 herniated nucleus pulposus. He recommended a microdiscectomy at L4-5.
Appellant submitted treatment notes from Dr. Wynndel Buenger, a Board-certified
anesthesiologist, on November 10, 2004. Dr. Buenger reviewed the history of injury and
subsequent treatment. He noted that the motor examination revealed 5/5 in the bilateral lower
extremities, light touch was intact, straight leg raises were positive on the left, reflexes were
symmetric, the motor groups were within normal limits and there was significant tenderness in
the paraspinal muscles at L4-5 and L5-S1 on the right and left. Dr. Buenger diagnosed left L4
radiculopathy and recommended a left L4 transforaminal injection.
On February 23, 2005 the Office referred appellant for a second opinion to Dr. Donald H.
Brancato, a Board-certified orthopedic surgeon, to determine if appellant had reached maximum
medical improvement and whether he was capable of returning to work. In a report dated
March 21, 2005, Dr. Brancato noted significant atrophy of the left lower extremity, positive left
leg raises, pain which radiated into buttock and left thigh, reflexes which were equal and
symmetrical and pin prick was within normal limits. He opined that appellant had not reached
maximum medical improvement and his findings suggested unrelieved nerve root compression.
Dr. Brancato indicated that appellant was not able to return to work at this time. In a
supplemental report dated April 12, 2005, he diagnosed unrelieved nerve root compression
which was directly related to the work injury of April 16, 2004. Dr. Brancato noted that
objective findings were consistent with appellant’s subjective complaints of pain and burning
into his lower back into the left lower extremity.
On April 4, 2005 appellant filed a claim for a schedule award.
Appellant submitted reports from Dr. Buenger dated November 24 to
December 22, 2004. Dr. Buenger noted that appellant underwent several L4-5 transforaminal
injections which provided some pain relief. Subsequent reports noted that appellant experienced
a recurrent L4-5 disc protrusion after returning to work for a three-week period. Dr. Buenger
advised that appellant was not a good surgical candidate but recommended a spinal cord
stimulator for pain control. In an operative report dated September 12, 2005, he performed a
placement of trial right and left spinal cord stimulation leads and diagnosed lumbar radiculitis.
On September 22, 2005 Dr. Buenger noted that the trial spinal cord stimulator provided good
coverage of appellant’s pain and recommended implanting a permanent stimulator. He noted
that appellant’s pain was a level three on the pain scale. Dr. Buenger noted on January 30, 2006
that appellant could return to work for four hours per day subject to permanent restrictions on
lifting. In a work capacity form dated February 7, 2006, Dr. Buenger advised that appellant

2

could return to work two hours per day and lift up to 20 pounds intermittently. An MRI scan of
the lumbar spine dated May 20, 2005 revealed prior surgery at the L4-5 level with minimal scar
formation, focal disc protrusion on the left with desiccation, posterior bulging of the L4-5 disc
and mild degenerative spurring.
In a letter dated July 6, 2006, the Office advised appellant that to establish entitlement to
a schedule award he must submit medical evidence demonstrating permanent loss or loss of use
of a member or function of body listed in 5 U.S.C. § 8107 or 20 C.F.R. § 10.404. The Office
further indicated that the medical evidence was to establish that the residuals of the injury
reached maximum medical improvement. The Office stated that the evidence did not
demonstrate that appellant had reached maximum medical improvement and, therefore, a
schedule award could not be granted.
On July 26, 2006 appellant filed a claim for a schedule award. He submitted a July 26,
2006 statement from Dr. Buenger who noted that appellant had reached maximum medical
improvement. In a July 27, 2006 report, Dr. Buenger noted that appellant was not getting the
recuperative sleep that he required and recommended that he work the day shift.
On August 4, 2006 the Office referred Dr. Buenger’s reports and the case record to an
Office medical adviser. In a report dated August 11, 2006, the Office medical adviser noted that
maximum medical improvement occurred on July 26, 2006. He reviewed the reports of
Drs. Buenger, Brancato and Rogalsky. Appellant reported moderate pain in the back and left
lower extremity which was made worse with strenuous activity. The Office medical adviser
noted that physical examination demonstrated 5/5 muscle strength in the bilateral lower
extremity, range of motion of all joints was normal, sensation in the lower extremities was
normal and reflexes were symmetrical bilaterally. He opined that appellant had a three percent
permanent impairment of the left leg for sensory deficit or pain in the distribution of the L4
nerve root under Table 16-10 and 16-15, page 482 and 492,1 in accordance with the fifth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,2
(A.M.A., Guides). This sensory loss was calculated by multiplying the 60 percent grade with the
5 percent maximum allowed for the L4 nerve.
In a decision dated September 20, 2006, appellant was granted a schedule award for a
three percent permanent impairment of the left lower extremity.

1

The Office medical adviser cited to Table 16-10 and 16-15 of the A.M.A., Guides; however, this section applies
to the impairment due to sensory loss for the upper extremities. This appears to be a typographical error as the
calculations correspond to Table 15-15 and 15-18, page 424 A.M.A., Guides for determining impairment due to
sensory loss for the lower extremities.
2

A.M.A., Guides (5th ed. 2001).

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LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
ANALYSIS
The Office accepted appellant’s claim for left lumbar radiculopathy and disc herniation
and authorized an L4-5 microdiscectomy.
Appellant submitted a report from dated November 10, 2004. Dr. Buenger noted that
appellant’s motor examination was 5/5 in the bilateral lower extremities, light touch was intact,
straight leg raises were positive on the left, reflexes were symmetric, the motor groups were
within normal limits and there was significant tenderness in the paraspinal muscles at L4-5 and
L5-S1 on the right and left. Dr. Buenger diagnosed left L4 radiculopathy and recommended a
left L4 transforaminal. In reports dated November 24 to August 10, 2005, he noted that
appellant underwent several L4-5 transforaminal injections which provided pain relief; however,
appellant experienced a recurrent L4-5 disc protrusion after returning to work for a three-week
period. Dr. Buenger recommended a spinal cord stimulator for pain control which was inserted
on September 12, 2005. On September 22, 2005 he noted that the trial spinal cord stimulator
provided good coverage of appellant’s pain level and noted that his pain level was at a level three
on the pain scale. Dr. Buenger noted that appellant reached maximum medical improvement on
July 26, 2006. Although, his reports provided findings upon physical examination, Dr. Buenger
did not provide an impairment rating in accordance with the A.M.A. Guides.
The Office medical adviser properly utilized the findings in Dr. Buenger’s reports to
determine under the A.M.A., Guides (5th ed.) an impairment rating for sensory loss to appellant’s
left lower extremity. He calculated that appellant had a three percent impairment of the left leg
for sensory deficit or pain in the distribution of the L4 nerve root under Table 15-18 of the
A.M.A., Guides.6 This table provides a maximum of five percent impairment for pain. The
Office medical adviser noted that appellant had Grade 3 pain of the left lower extremity under
Table 15-157 which provides for 26 to 60 percent sensory deficit of the involved nerve. Under
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

A.M.A., Guides 424, Table 15-18 (5th ed. 2001).

7

Id. at 424, Table 15-15 (5th ed. 2001).

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the procedure set forth in Table 15-15, the Office medical adviser multiplied the 60 percent grade
with the 5 percent maximum allowed for the L4 nerve, to arrive at a total 3 percent impairment
of the left leg. The Board finds that the Office medical adviser properly applied the A.M.A.,
Guides to the information provided in Dr. Buenger’s reports.
On appeal, appellant contends that the award is insufficient as it does not take into
account his inability to run and play sports as he did prior to his employment injury. In
evaluating schedule impairment, the Office has adopted the A.M.A., Guides, as a uniform
standard to allow for consistent results and to ensure equal justice under the law to all claimants.
The Board has held that factors such as inability to exercise or play sports do not enter into the
calculation of impairment for schedule award purposes.8
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than a
three percent permanent impairment of the left lower extremity for which he received a schedule
award.
ORDER
IT IS HEREBY ORDERED that the September 20, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 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

8

Ted R. Soares, 38 ECAB 480 (1987).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 16-0685
Issued: August 3, 2016

Case Submitted on the Record

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

JURISDICTION
On February 23, 2016 appellant filed a timely appeal from a December 22, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s claim for a schedule award.

1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3
On February 6, 2007 appellant, then a 34-year-old social services assistant, filed a
traumatic injury claim (Form CA-1) alleging that he sustained a right knee injury at work on
February 4, 2007 when he slipped while walking up stairs covered with snow salt and felt pain in
his right knee while recovering his balance. He stopped work on February 4, 2007. OWCP
accepted appellant’s claim for a tear of the medial meniscus of his right knee.
On May 9, 2007 Dr. Mark D. Russ, an attending Board-certified orthopedic surgeon,
performed OWCP-authorized right knee arthroscopic surgery with medial shelf plica excision and
minor synovectomy. During the operation, he found appellant’s right medial meniscus to be
intact. Appellant received disability compensation on the daily rolls beginning May 9, 2007 and
on the periodic rolls on September 30, 2007.
In April 2009, OWCP expanded appellant’s accepted conditions to include deep vein
thrombosis of his right lower extremity due to the May 9, 2007 knee surgery.
To determine appellant’s current work capacity, OWCP referred him for a second opinion
examination, which was performed on December 3, 2013 by Dr. Nicholas Sotereanos, a Boardcertified orthopedic surgeon. Dr. Sotereanos posited that appellant’s work-related conditions had
resolved and indicated that he had patellar tendinitis, which was not related to his February 4,
2007 injury or authorized surgery.
By decision dated March 5, 2014, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective March 9, 2014 because he no longer had any residuals from his
accepted work injury. The termination action was based on the December 3, 2013 opinion of
Dr. Sotereanos. Appellant requested a telephone hearing with an OWCP hearing representative
regarding OWCP’s termination action and a hearing was held on September 10, 2014. By
decision dated November 3, 2014, the OWCP hearing representative denied modification of
OWCP’s March 5, 2014 decision.
On March 25, 2015 appellant filed a claim for compensation (Form CA-7) claiming
schedule award compensation for permanent impairment due to his accepted work injuries. In an
April 6, 2015 letter, OWCP requested that he submit medical evidence addressing whether he had
permanent impairment of his right lower extremity under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (6th ed. 2009). Appellant was provided 30 days to submit such evidence, but he did not
submit it within the allotted time.

3

In late 2009, appellant requested OWCP to approve a second right knee surgery and to accept the condition of
arthrofibrosis as due to the February 4, 2007 work injury. In decisions dated November 16, 2010 and October 24,
2011, OWCP denied his requests for surgery and expansion of the accepted conditions. By decision dated June 25,
2012, the Board affirmed OWCP’s October 24, 2011 decision. Docket No. 12-0302 (issued June 25, 2012).

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By decision dated May 12, 2015, OWCP denied appellant’s schedule award claim because
he had failed to submit sufficient medical evidence establishing permanent impairment of his right
lower extremity due to his work-related injury.
In May 2015, appellant, through counsel, requested a telephonic hearing with an OWCP
hearing representative.
In September 2015, OWCP received a July 30, 2015 report from Dr. Catherine W.
Campbell, an attending Board-certified orthopedic surgeon. Dr. Campbell concluded that
appellant had 11 percent permanent impairment of his right lower extremity due to peripheral
vascular disease in that extremity. In order to calculate this impairment, she referenced Table 4-12
on page 69 of the sixth edition of the A.M.A., Guides. Dr. Campbell posited that appellant had
reached maximum medical improvement on January 1, 2009 a date she characterized as being
approximately six months after he developed acute venous thrombus.
The OWCP hearing representative, in a November 30, 2015 decision, issued a decision
prior to the requested telephonic hearing. She set aside OWCP’s May 12, 2015 decision and
remanded the case to OWCP for further development. The hearing representative noted that
appellant had submitted a report from Dr. Campbell, which provided an impairment rating for his
right lower extremity. She indicated that there was now sufficient evidence to warrant further
development of appellant’s schedule award claim and directed OWCP to carry out such
development.
On December 2, 2015 OWCP referred the case to an OWCP medical adviser for evaluation
of whether the medical evidence of record, including the July 30, 2015 impairment evaluation of
Dr. Campbell, showed that appellant had permanent impairment of his right lower extremity under
the standards of the sixth edition of the A.M.A., Guides.4
In a December 22, 2015 decision, OWCP denied appellant’s claim for a schedule award
due to permanent impairment of his right lower extremity. It discussed the July 30, 2015
impairment evaluation of Dr. Campbell and indicated that “the weight of the medical evidence
continues to lie with the opinion of Dr. Sotereanos who concluded that the claimant no longer
demonstrated residuals or disability causally related to his February 4, 2007 work injury or
OWCP-approved surgery. The new medical evidence submitted fails to address the issue at
hand.” OWCP did not mention that appellant’s case had been referred to an OWCP medical
adviser on December 2, 2015 for evaluation of whether he had a permanent impairment of his
right lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
4

In particular, OWCP asked the OWCP medical adviser to consider whether it was appropriate for Dr. Campbell to
choose a retroactive date of maximum medical improvement for appellant’s right lower extremity condition.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404 (1999).

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loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.7 The effective date of the sixth edition of the A.M.A., Guides is
May 1, 2009.8
OWCP procedures provide that after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment under the relevant standards of the A.M.A., Guides.9 As a matter of
course, the OWCP medical adviser should provide rationale for the percentage of impairment
specified. When more than one evaluation of the impairment is present, it will be especially
important for the OWCP medical adviser to provide such medical reasoning.10
OWCP procedures provide that termination of a claim for all benefits due to a finding of
no residuals of work-related condition does not automatically bar a subsequent schedule award.
Rather, OWCP should consider the schedule award matter separately from the termination of
benefits. If a claimant applies for a schedule award after termination, and submits medical
evidence reflecting permanent impairment as a result of the work-related injury or exposure,
OWCP should develop the claim further, even if a finding of no residuals has previously been
made.11
ANALYSIS
OWCP accepted that on February 4, 2007 appellant sustained a tear of the medial meniscus
of his right knee. On May 9, 2007 appellant underwent OWCP-authorized right knee arthroscopic
surgery with medial shelf plica excision and minor synovectomy. OWCP expanded his accepted
conditions to include deep vein thrombosis of his right lower extremity due to the May 9, 2007
knee surgery.12 On March 25, 2015 appellant filed a claim for a schedule award due to his
accepted work injuries. OWCP denied his schedule award claim in decisions dated May 12 and
December 22, 2015.

7

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010); id., at Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (January 2010).
8

Id., at Chapter 2.808.5a (February 2013); see also id., at Chapter 3.700, Exhibit 1 (January 2010).

9

Id., at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6f (February 2013).

10

Id., at Chapter 2.808.6f(1) (February 2013).

11

Id., at Chapter 2.808.11 (February 2013).

12

By decision dated March 5, 2014, OWCP terminated appellant’s wage-loss compensation and medical benefits
effective March 9, 2014 based on the December 3, 2013 opinion of Dr. Sotereanos, an OWCP referral physician. In a
November 3, 2014 decision, an OWCP hearing representative denied modification of OWCP’s March 5, 2014
decision.

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The Board notes that, on December 2, 2015, the hearing representative referred appellant’s
case to an OWCP medical adviser for evaluation of the medical records, including the July 30,
2015 impairment rating report from Dr. Campbell, to determine whether appellant had permanent
impairment of his right lower extremity.
While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.13 Accordingly, once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in the proper manner.14
The Board finds that OWCP began developing appellant’s schedule award claim through
referral to an OWCP medical adviser on December 2, 2015, but did not complete such
development prior to issuing its decision denying his claim on December 22, 2015.15 Upon return
of the case file, OWCP shall prepare a statement of accepted facts and forward it along with the
relevant medical records, including the July 30, 2015 impairment rating report of Dr. Campbell, to
an OWCP medical adviser for consideration. The OWCP medical adviser should consider all
relevant aspects of appellant’s schedule award claim and provide an impairment rating in
accordance with the standards of the sixth edition of the A.M.A., Guides. After carrying out this
development, OWCP shall issue a de novo decision regarding appellant’s schedule award claim
for his right lower extremity.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied appellant’s claim for a schedule award.

13

Russell F. Polhemus, 32 ECAB 1066 (1981).

14

Robert F. Hart, 36 ECAB 186 (1984).

15

The Board notes that the termination of appellant’s wage-loss compensation and medical benefits effective
March 9, 2014 would not serve as an automatic bar to appellant receiving schedule award compensation. See supra
note 11; R.L., Docket No. 09-1948 (issued June 29, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the December 22, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: August 3, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, FORT WORTH
PROCESSING & DISTRIBUTION CENTER,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 20-1058
Issued: June 21, 2021

Case Submitted on the Record

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

JURISDICTION
On April 21, 2020 appellant filed a timely appeal from a March 12, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $2,542.68 for the period December 7, 2019 to January 4, 2020 for which he was without

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2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 12, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

fault because he continued to receive compensation following his return to work; and (2) whether
OWCP properly denied waiver of recovery of the overpayment.
FACTUAL HISTORY
On July 7, 2015 appellant, then a 57-year-old tractor trailer operator, filed an occupational
disease claim (Form CA-2) alleging that he sustained limited mobility of the upper extremities and
numbness of the hands and fingers causally related to factors of his federal employment including
use of heavy mail transport equipment. OWCP accepted the claim for bilateral shoulder
impingement syndrome, bilateral carpal tunnel syndrome, and left upper limb lesion of the ulnar
nerve, and later expanded the acceptance of appellant’s claim to include bilateral trigger thumb.
Appellant stopped work on July 25, 2016. OWCP paid him wage-loss compensation on the
supplemental rolls from July 27 through August 20, 2016, and on the periodic rolls beginning
August 21, 2016.
On July 5, 2019 appellant accepted a modified (limited-duty) job offer as a motor vehicle
operator with the employing establishment for eight hours a day. His scheduled days off were
noted as Saturday and Sunday.
On December 4, 2019 appellant underwent OWCP-authorized left shoulder arthroscopic
surgery including arthroscopic glenohumeral debridement and synovectomy, arthroscopic superior
labrum anterior and posterior lesion repair, and revision surgeries of arthroscopic subacromial
decompression and bursectomy, arthroscopic distal clavicle resection, and arthroscopic-assisted
rotator cuff repair.
On December 16, 2019 appellant filed a claim for wage-loss compensation (Form CA-7)
for disability from work for the period December 1 through 13, 2019. On the reverse side of the
claim form a supervisor indicated that appellant had returned to work with restrictions on
December 9, 2019. On December 24, 2019 he filed a Form CA-7 for leave without pay and loss
of night differential for the period December 14 through 20, 2019.
On January 10, 2020 OWCP paid appellant wage-loss compensation via electronic funds
transfer (EFT) for the period December 1, 2019 through January 4, 2020 in the net amount of
$3,068.75.
In a note from a field nurse dated January 14, 2020, the field nurse stated that appellant
informed her that he went off work on December 4, 2019 for surgery, but returned to work on
December 8, 2019 in a modified position. The field nurse confirmed with the employing
establishment that appellant was working and recommended closure of the file.
In an Automated Compensation Payment System (ACPS) termination worksheet dated
January 17, 2020, OWCP calculated an overpayment of $2,542.68 for the period December 7,
2019 through January 4, 2020, noting that a field nurse stated that appellant informed her he went
off work on December 4, 2019 for surgery and returned to work on December 8, 2019 in a
modified position.
On February 5, 2020 OWCP notified appellant that a preliminary determination was made
that he had received an overpayment of compensation in the amount of $2,542.68 for the period
2

December 7, 2019 through January 4, 2020 because he continued to receive wage-loss
compensation for total disability after he returned to work on December 7, 2019. It further found
that he was not at fault in the creation of the overpayment. OWCP explained that, at the time of
the overpayment, appellant was on the periodic rolls receiving net compensation every 28-calendar
days in the amount of $3,068.75. It calculated that, for the period December 7, 2019 through
January 4, 2020, he received $2,542.68 in overpaid wage-loss compensation. OWCP requested
that appellant complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and
submit supporting financial documentation. It advised appellant that failure to submit the
requested information within 30 days would result in the denial of waiver and no further request
would be considered until the requested information was received. Additionally, it provided an
overpayment action request form and notified appellant that, within 30 days of the date of the
letter, she could request waiver of recovery of the overpayment based either on a decision based
on the written record, or a prerecoupment hearing. In a Form OWCP-20 dated February 11, 2020,
appellant requested a waiver of recovery because he was found to be without fault in the creation
of the overpayment. Attached to his request were medical work excuse notes and confirmations
of appointments dating from January 7 through February 4, 2020.
By decision dated March 12, 2020, OWCP finalized its preliminary determination that
appellant received an overpayment of compensation in the amount of $2,542.68 for the period
December 7, 2019 through January 4, 2020, based on his receipt of wage-loss compensation after
he had returned to full-time, limited duty work on December 7, 2019. It found that he was not at
fault in the creation of the overpayment, but denied waiver of recovery because there was no
evidence to substantiate that adjustment or recovery would defeat the purpose of FECA or be
against equity and good conscience. OWCP required recovery of the overpayment by repayment
for the full amount of the $2,542.68 overpayment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 Section 8116(a) of FECA provides that, while an employee is receiving
compensation or if he or she has been paid a lump sum in commutation of installment payments
until the expiration of the period during which the installment payments would have continued,
the employee may not receive salary, pay, or remuneration of any type from the United States,
except in limited specified instances.4 OWCP’s procedures provide that an overpayment of
compensation is created when a claimant returns to work, but continues to receive wage-loss
compensation.5

3

Supra note 1 at § 8102(a).

4

Id. at § 8116(a).

5

See L.H., Docket No. 20-0115 (issued September 4, 2020); E.R., Docket No. 19-1365 (issued December 23, 2019);
J.L., Docket No. 18-1266 (issued February 15, 2019); K.E., Docket No. 18-0687 (issued October 25, 2018); B.H.,
Docket No. 09-0292 (issued September 1, 2009); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.1(a) (September 2018).

3

ANALYSIS
The Board finds that fact of overpayment has been established.
The evidence of record establishes that appellant stopped work on December 4, 2019 to
undergo a surgical procedure and returned to limited-duty work at eight hours per day a few days
thereafter. However, OWCP continued to pay appellant wage-loss compensation for temporary
total disability through January 4, 2020. As noted above, a claimant is not entitled to receive
compensation for total disability during a period in which he or she had actual earnings.6
Therefore, an overpayment of compensation was created in this case.
The Board further finds, however, that this case is not in posture for decision with regard
to the amount of overpayment. In the February 5, 2020 preliminary notice, OWCP determined the
overpayment of compensation to be $2,542.68 for the period December 7, 2019 through January 4,
2020 because OWCP continued to pay appellant wage-loss compensation for total disability after
he returned to work on December 7, 2019. However, the note from a field nurse dated January 14,
2020 indicated that appellant returned to work on December 8, 2019 in a modified-duty position,
while in the December 16, 2019 Form CA-7, a supervisor indicated that he returned to work with
restrictions on December 9, 2019. The Board notes that December 7 and 8, 2019 were a Saturday
and a Sunday and that, based on his accepted July 5, 2019 modified job offer, Saturdays and
Sundays were his scheduled days off.
OWCP did not adequately explain the amount of the overpayment in this case, as it found
an overpayment beginning December 7, 2019 despite the evidence of record demonstrating that
appellant returned to full-time limited-duty work on or about December 9, 2019. A claimant is
entitled to an overpayment decision that clearly explains how the amount was calculated.7 The
Board, therefore, finds that OWCP has not established the period and amount of the overpayment
in question.
The case will be remanded to OWCP for recalculation of the period and amount of the
overpayment, to be followed by a new preliminary determination of overpayment and a de novo
overpayment decision.8
CONCLUSION
The Board finds that OWCP properly determined that an overpayment of compensation
was created. The Board further finds, however, that the case is not in posture for decision regarding
the period and amount of the overpayment.9

6

Id.

7

See M.M., Docket No. 17-0560 (issued August 23, 2017); R.H., Docket No. 08-2025 (issued July 20, 2009); see
also O.R., 59 ECAB 432 (2008).
8

See L.H., supra note 5.

9

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

4

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is remanded
for further proceedings consistent with this decision of the Board.
Issued: June 21, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, SAN FRANCISCO
PROCESSING & DISTRIBUTION CENTER
FINANCE POST OFFICE, San Francisco, CA,
Employer
__________________________________________

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

Docket No. 20-0679
Issued: November 10, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 4, 2020 appellant filed a timely appeal from a January 9, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 9, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted November 7, 2019 employment incident.
FACTUAL HISTORY
On December 5, 2019 appellant, then a 63-year-old motor vehicle operator, filed a
traumatic injury claim (Form CA-1) alleging that on November 7, 2019 he twisted his left ankle
when he was exiting his truck while in the performance of duty. He explained that his left foot
slipped off the truck step and hit the pavement, causing pain and swelling in his left ankle.
Appellant stopped work that day.
In a November 7, 2019 industrial work status report, Dr. Sarah J. Janssen, Board-certified
in occupational medicine, placed appellant on modified activity at home and work from
November 8 through 22, 2019.
A November 8, 2019 after-visit summary noted that appellant had been seen that day by
Dr. Hallam M. Gugelmann, an emergency medicine specialist, who diagnosed acute left ankle pain
and a work-related injury. In a doctor’s first report of occupational injury or illness of even date,
Dr. Gugelmann noted that appellant was injured on November 7, 2019 and again diagnosed left
ankle pain. He indicated that appellant was unable to perform his usual work. In a work excuse
note of even date, Dr. Gugelmann excused appellant from work indefinitely. In a prescription slip
of even date, he prescribed pain medication.
A November 26, 2019 after-visit summary noted that appellant had been seen that day by
a physical therapist.
In a December 26, 2019 development letter, OWCP advised appellant of the deficiencies
of his claim and afforded him 30 days to submit appropriate medical evidence. No further evidence
was submitted.
By decision dated January 9, 2020, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish the medical component of fact of
injury as no medical condition was diagnosed. It concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time

3

Supra note 2.

2

limitation of FECA,4 that an injury was sustained in the performance of duty, as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted November 7, 2019 employment incident.
On November 8, 2019 Dr. Gugelmann noted that appellant was injured on November 7,
2019 and diagnosed left ankle pain. The Board has consistently held that pain is a description of
a symptom and not, in itself, considered a firm medical diagnosis.10 The Board has also held that
a medical report lacking a firm diagnosis and a rationalized medical opinion regarding causal

4

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

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

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

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
See C.H., Docket No. 20-0228 (issued October 7, 2020); T.G., Docket No. 19-0904 (issued November 25, 2019).
Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).

3

relationship is of no probative value.11 As Dr. Gugelmann failed to provide a specific diagnosis,
his assessment of left ankle pain was insufficient to establish appellant’s claim.
On November 7, 2019 Dr. Janssen placed appellant on modified activity from November 8
through 22, 2019, but provided no diagnosis. Similarly, Dr. Gugelmann, in his November 8, 2019
work excuse note and prescription slip, excused appellant from work indefinitely and prescribed
Motrin without a medical diagnosis. Lacking a firm diagnosis and rationalized medical opinion
regarding causal relationship, this medical evidence is of no probative value.12
Currently, there is no evidence of record that establishes a medical diagnosis in connection
with the accepted November 7, 2019 employment incident. Consequently, appellant failed to
establish that he sustained an injury causally related to the accepted employment incident.13
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted November 7, 2019 employment incident.

11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

M.V., Docket No. 19-1515 (issued January 2, 2020): M.M., Docket No. 16-1617 (issued January 24, 2017);
Robert Broome, 55 ECAB 339 (2004).
13
M.H., Docket No. 18-1737 (issued March 13, 2019); J.L., Docket No. 18-1804 (issued April 12, 2019). John J.
Carlone, supra note 7.

4

ORDER
IT IS HEREBY ORDERED THAT the January 9, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 10, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Saint Rose, LA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-562
Issued: January 30, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On January 17, 2012 appellant filed a timely appeal of the January 3, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), which denied his reconsideration request
as untimely.
OWCP had issued a merit decision on September 27, 2011 denying appellant’s claim that
he suffered a recurrence of disability beginning June 27, 2011.1 The attached notice of appeal
rights advised that any request for reconsideration had to be received within one calendar year of
the date of the decision.
Appellant requested reconsideration of the September 27, 2011 decision on
October 19, 2011. OWCP received his request on October 25, 2011. It also received an
October 10, 2011 report from Dr. John B. Logan, a Board-certified orthopedic surgeon, who
reviewed his treatment of appellant and who addressed the questions posed by OWCP in its
1

Appellant, a 48-year-old screening manager, sustained a traumatic injury on December 27, 2005 when he loaded
a heavy piece of luggage onto a cart and felt a pop in his back. OWCP accepted his claim for thoracic back sprain
and neck sprain. It would later accept brachial neuritis or radiculitis not otherwise specified and thoracic
spondylosis without myelopathy. OWCP accepted a recurrence of disability on October 18, 2006.

July 19, 2011 recurrence development letter. It was his opinion that appellant’s condition had
progressed to the point that he was no longer able to work in the capacity required of his position
and that the medical record offered appropriate substantiation of his difficulties.
In a January 3, 2012 decision, OWCP denied appellant’s reconsideration request. It
found the request untimely and further found that appellant did not present clear evidence of
error in the September 27, 2011 decision.
The Board has duly considered the matter and finds that OWCP’s January 3, 2012
decision denying appellant’s reconsideration request must be set aside.
OWCP may review an award for or against payment of compensation at any time on its
own motion or upon application.2 An employee (or representative) seeking reconsideration
should send the request for reconsideration to the address as instructed by OWCP in the final
decision. The request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.4 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or argument that meets at
least one of these standards. If reconsideration is granted, the case is reopened and the case is
reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, OWCP will deny the request for reconsideration without reopening the case for a
review on the merits.5
As the statement of appeal rights attached to OWCP’s September 27, 2011 decision
advised, appellant had one calendar year, or until September 27, 2012, to deliver any
reconsideration request to OWCP. OWCP received his request within a month. The Board
therefore finds that his request was timely and subject to the standard of review in 20 C.F.R.
§ 10.606(b)(3). The Board will remand the case for an application of the proper standard of
review.

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606.

4

Id. at § 10.607(a).

5

Id. at § 10.608.

2

IT IS HEREBY ORDERED THAT the January 3, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: January 30, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hollywood, FL, Employer
__________________________________________

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

Docket No. 12-557
Issued: June 4, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 13, 2012 appellant filed a timely appeal from a November 23, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) affirming the termination
of her wage-loss and medical benefits. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of
the case.2
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of July 31, 2011.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence after issuance of the November 23, 2011 decision. The
Board lacks jurisdiction to review evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1). However,
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.

On appeal appellant contends that she cannot physically perform her duties as a letter
carrier, because of her back injury. She noted that she was willing to work within her limitations
as a modified clerk.
FACTUAL HISTORY
On July 23, 2004 appellant, then a 44-year-old letter carrier, filed a traumatic injury claim
alleging that on July 21, 2004 she sprained her back when, while leaning down to deliver mail,
she felt something crack in her back. On August 4, 2004 OWCP accepted her claim for lumbar
strain.
In an August 14, 2009 report, appellant’s treating Board-certified physiatrist, Dr. Bryce
Epstein, stated that appellant had a long history of low back pain dating back to July 21, 2004
when she injured her back when she bent over to put some mail in a box and was unable to stand
up straight. He listed his impression as history of left lumbar radiculopathy. Dr. Epstein saw
appellant on a monthly basis. On April 22, 2010 he stated that a magnetic resonance imaging
(MRI) scan of her lumbar spine looked good with no frank disc herniations or stenosis.
Dr. Epstein stated that he would return appellant to work and see how she faired. In a
September 7, 2010 report, he noted that she had good and bad days concerning her low back and
still required medication. Dr. Epstein opined that appellant could not return to work as a letter
carrier, but could continue in a light-duty capacity on a permanent basis. In an October 13, 2010
report, he noted that she was laid off from work since the middle of August. Dr. Epstein stated
that neurologically, there were no new changes. Although appellant’s MRI scan was essentially
unremarkable, he did not think she was physically capable of lifting 50 pounds to 75 pounds in a
repetitive fashion, which she stated was required to be a letter carrier. Dr. Epstein stated that it
was medically necessary for her to continue with her restrictions and to avoid lifting anything
more than 20 pounds repetitively. On November 8, 2010 he opined that the lumbar strain had
resolved, that appellant had long reached maximum medical improvement, and was currently on
a home exercise program to strengthen her back. Dr. Epstein did not believe that appellant was
in a condition to be a letter carrier.
On May 6, 2011 OWCP referred appellant to Dr. David B. Lotman, a Board-certified
orthopedic surgeon, for a second opinion. In a June 7, 2011 opinion, Dr. Lotman reported that
appellant had apparently sustained a lumbar strain on July 21, 2004 that had resolved. He noted
that there were no objective findings of any ongoing problem. Dr. Lotman described evidence of
symptom magnification.
On June 20, 2011 OWCP proposed terminating appellant’s medical benefits and
compensation for wage loss for the reason that her accepted condition had resolved.
By letter dated June 29, 2011, appellant disagreed with the proposed termination and
contended that she could not return to her position as a letter carrier due to her back injury. She
could not bend, kneel, climb or lift over 50 pounds, which was required. Appellant contended
that she had pain in both sides of her buttock, piercing down the left side of her leg.

2

On July 28, 2011 OWCP terminated appellant’s medical benefits and wage-loss
compensation effective July 31, 2011 for the reason that the weight of the medical evidence of
record established that appellant’s injury had ceased.
On August 22, 2011 appellant requested review of the written record by an OWCP
hearing representative. In an accompanying letter, she stated that she was not able to perform the
duties of letter carrier due to back pain, nerve damage and weakness. Appellant could not lift
more than 10 pounds intermittently. She also alleged that she was unable to do any climbing,
kneeling, bending, twisting, pushing and pulling. Appellant also used narcotic medication which
interfered with her ability to function.
By decision dated November 23, 2011, the hearing representative affirmed the July 28,
2011 decision of OWCP.
LEGAL PRECEDENT
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 was no longer related to the employment.3
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.4
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.5 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.6
ANALYSIS
OWCP accepted appellant’s claim for lumbar strain. It terminated appellant’s
compensation and medical benefits as of July 31, 2011 for the reason that the lumbar strain had
resolved. The Board finds that OWCP met its burden of proof to terminate appellant’s medical
and compensation benefits. Dr. Lotman, the second opinion physician, opined that appellant’s
lumbar strain had resolved. He found that the employment-related lumbar strain had resolved
and his opinion was in agreement with that of appellant’s treating physician, Dr. Epstein. In a
November 8, 2010 report, Dr. Epstein also opined that appellant’s lumbar strain had resolved.
He did note that appellant had work limitations, however, he did not provide any medical

3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001); see also C.B., Docket No. 1623
(issued April 11, 2011).
4

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

5

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

6

Id.

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rationale as to why appellant was restricted in her abilities. Furthermore, because Dr. Epstein’s
opinion does not address the cause of appellant’s limitations, it is of little probative value.7
The weight of the medical evidence establishes that appellant’s accepted injury had
resolved without residuals or disability. As such, OWCP properly terminated appellant’s wageloss compensation and medical benefits effective July 31, 2011.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective July 31, 2011.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 23, 2011 is affirmed.
Issued: June 4, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

L.F., Docket No. 11-1784 (issued March 6, 2012).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Phoenix, AZ, Employer
__________________________________________

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

Docket No. 16-1453
Issued: May 12, 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 July 6, 2016 appellant filed a timely appeal from a March 24, 2016 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.3

1

The Board notes that appellant submitted additional evidence after OWCP rendered its March 24, 2016 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. 20 C.F.R. § 501.2(c)(1).
2
3

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its
discretion, the Board by January 12, 2017 order denied her request noting that her arguments on appeal could be
adequately addressed in a Board decision based on a review of the case record as submitted. Order Denying
Request for Oral Argument, Docket No. 16-1453 (issued January 12, 2017).

ISSUE
The issue is whether appellant has established an emotional condition in the performance
of duty causally related to compensable factors of her federal employment.
FACTUAL HISTORY
On June 25, 2015 appellant, then a 40-year-old medical support assistant, filed an
occupational disease claim (Form CA-2) alleging that she had anxiety attacks, dizziness,
fainting, and vomiting as a result of her federal employment. On the claim form she described
the nature of the disease or illness as schizoaffective, bi-polar personality type.
In a March 7, 2015 memorandum, an employing establishment workers’ compensation
program manager indicated that appellant was hired on July 27, 2014 and her employment was
terminated on December 4, 2014.4 A March 12, 2015 letter from the employing establishment
reported that her employment was terminated during her probationary period for misconduct.
The employing establishment indicated that appellant had requested mediation through its Equal
Employment Opportunity (EEO), and the parties reached a settlement agreement wherein the
employing establishment agreed to cancel the termination and accept her resignation.
Appellant submitted a July 13, 2015 statement reporting that she had been diagnosed with
schizoaffective, bi-polar personality type, with post-traumatic stress disorder (PTSD) due to
military sexual trauma and that she had been in recovery since 1989.5 She felt that her condition
had been aggravated by her federal employment. As to specific incidents, appellant discussed
incidents commencing May 2, 2014. She described times when she felt ashamed during her
vocational rehabilitation. There was a reference to the assistant chief of social work calling
appellant at home and she reported that she felt bullied. Other references are to individuals, such
as coworker L.K., who got upset at appellant and caused her to feel threatened.
Appellant alleged that on August 20, 2014 she was punched by a coworker, C.V. On
August 25, 2014 another coworker yelled at her. Other incidents included a pharmacist getting
angry at appellant, workers treating her poorly, and her supervisors ignoring her or making her
feel bullied. Appellant noted that she worked overtime, on October 1, 2014 she was reassigned
to supervisor S.L.’s team, and she felt S.L. put pressure on her. According to her, on
November 16, 2014 she filed a police report. Appellant felt like she was being followed and the
whole world hated her. On November 21, 2014 she alleged that she had received a crank
telephone call and S.L. later told her she was a liar.
The record contains a brief statement from appellant regarding an August 7, 2015
incident. She reported that she went to “transportation” to get cash, and a patient’s spouse asked
4

In a January 24, 2014 letter, an employing establishment rehabilitation counselor indicated that appellant was
currently participating in a vocational rehabilitation program. The counselor indicated that she was in a training
program to determine feasibility of further employment.
5

A March 16, 2015 letter from the employing establishment indicated that appellant had a 100 percent serviceconnected disability.

2

her to move out of the way for a patient with a walker. Appellant alleged that someone made an
obscene gesture.
With respect to additional evidence, on July 6, 2015 appellant submitted numerous
treatment notes and lab reports.6 By report dated September 23, 2014, Dr. Maria Hamilton, a
psychologist, indicated that she discussed with appellant the need to balance her activity as she
had been working a lot of overtime. She diagnosed schizoaffective disorder with depression and
anxiety. In a report dated October 8, 2014, Dr. Hamilton wrote that appellant reported a negative
interaction with a peer and work supervisor, regarding her unfriendly demeanor. In a report
dated January 6, 2015, Dr. Jayant Geete, a psychiatrist, indicated that appellant did not want her
mother involved in her care. In a February 20, 2015 report, Dr. Michael Miranda, a psychiatrist,
diagnosed schizoaffective disorder and PTSD. In a March 7, 2015 report, Dr. Alysha Bundy, a
psychologist, reported that appellant had hired a counselor when she was fired, and the
termination was ultimately changed to a resignation.
The record contains a May 1, 2015 letter from the employing establishment relating that
on November 20, 2014 appellant had made a complaint of inappropriate access to her medical
records. The employing establishment indicated that an investigation determined that three staff
members had accessed her medical chart without a correlation to services provided to her.
Additional medical evidence submitted included a July 17, 2015 note from Dr. Geete,
who wrote that appellant had been receiving continuing treatment for PTSD, schizoaffective
disorder, and borderline personality disorder. She reported that appellant had 100 percent
service-connected disability and she had significant impairment due to severe symptoms. In a
July 22, 2015 report, Dr. Tracy Westlake, noted that appellant had been hospitalized in the past
for schizoaffective disorder.
An employing establishment supervisor, S.L., submitted a September 29, 2015 statement,
contending that he had no knowledge of any employees threatening appellant and that she had a
history of making false statements. The supervisor indicated that he was not appellant’s
supervisor at the time of the alleged incident with C.V., and had no knowledge of any allegation.
As to overtime, S.L. explained that she volunteered for overtime as she indicated that she needed
the extra money. He indicated that overtime was not required and appellant was never
discouraged or prohibited from taking breaks.
On November 19, 2015 OWCP prepared a statement of accepted facts (SOAF) indicating
that one compensable work factor had been established: three staff members had improperly
accessed appellant’s medical records. It indicated that no additional compensable work factors
were established.
OWCP referred appellant, the SOAF, and medical records, to Dr. Alvin Burstein, a
Board-certified psychiatrist, and Dr. H. Daniel Blackwood, a clinical psychologist. In a report
dated December 14, 2015, Dr. Blackwood provided a history and indicated that appellant
completed an Minnesota Multiphasic Personality Inventory (MMPI). He reported that diagnostic
6

The treatment notes do not always provide identification of the author. Some of the notes were prepared by a
physician assistant.

3

possibilities from the MMPI profile included paranoid schizophrenia, PTSD, and mixed
personality disorder with schizoid, dependent, compulsive, and passive-aggressive features.
In a report dated January 8, 2016, Dr. Burstein provided a history and results on
examination. He diagnosed schizoaffective disorder, and by history PTSD and borderline
personality disorder. Dr. Burstein noted the SOAF confirmed that staff members had improperly
accessed appellant’s medical records. He opined, “There is no evidence that [appellant’s]
psychiatric condition is different now than it has been in the past. Since appellant had a
preexisting psychotic disorder with symptoms largely of a paranoid and an often sexual nature,
and her current symptomatology is consistent to what it was before working, and while she was
working, there is no evidence that her work impacted her psychiatric condition, [t]herefore, the
work factors did not contribute to her condition.” Dr. Burstein noted that there was no evidence
that work aggravated appellant’s emotional condition. He further opined that she was disabled
from work as a medical support assistant, but any disability was not causally related to her
medical file being accessed.
By decision dated January 26, 2016, OWCP denied the claim for compensation. It found
that the medical evidence did not establish a condition casually related to the accepted
compensable work factor.
On February 8, 2016 appellant requested reconsideration. In a February 2, 2016 letter,
she alleged that the “emotional stress and pressure” that the employing establishment “put upon
me to work hard” caused her to break her left leg on December 2, 2014 while on a treadmill.7
Appellant wrote that being sent around to different clinics, working overtime, and having her
medical chart accessed put pressure on her to lower her body weight. According to her, other
employees snapped their fingers at her and wrote her up without proper cause. Appellant alleged
that upper management harassed her and threatened using her mother to scare her. She asserted
that on August 25, 2015 a clerk called the police because she talked back to him. Appellant
submitted chiropractor reports with respect to low back treatment. On February 10, 2016 she
submitted additional treatment notes for her psychiatric condition.
By decision dated March 24, 2016, OWCP reviewed the merits of the claim and denied
modification. It found that appellant had not established any additional compensable work
factors and that the evidence of record did not establish her claim.
LEGAL PRECEDENT
Appellant has the burden of proof to establish by the weight of the reliable, probative, and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.8 To establish her claim that she sustained an
emotional condition in the performance of duty, appellant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to her condition;
(2) medical evidence establishing that she has an emotional or psychiatric disorder; and
7

Appellant also referred to falling off a bicycle and fracturing her right hand on January 27, 2015.

8

Pamela R. Rice, 38 ECAB 838 (1987).

4

(3) rationalized medical opinion evidence establishing that the identified compensable employment
factors are causally related to her emotional condition.9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it, but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or to secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his or her regular or specially assigned work duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.10 When the
matter asserted is a compensable factor of employment and the evidence of record establishes the
truth of the matter asserted, OWCP must base its decision on an analysis of the medical evidence.11
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.12 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.13
ANALYSIS
Appellant has alleged that she sustained an emotional condition casually related to factors
of her federal employment. The record indicates that she underwent vocational rehabilitation
and then worked as a medical support assistant from July 27 to December 4, 2014. The
compensable work factor accepted by OWCP in this case was based on a May 1, 2015 letter
from the employing establishment. In this letter the employing establishment acknowledged that
three staff members had accessed appellant’s medical chart without a proper basis. It is well
established that administrative error is a compensable work factor.14
The Board has reviewed the evidence of and finds that appellant has not established any
additional compensable work factors.
Appellant has alleged that she sustained an emotional condition due to working overtime.
An allegation of overwork could be a compensable work factor, if it is substantiated by the
9

See Donna Faye Cardwell, 41 ECAB 730 (1990).

10

Lillian Cutler, 28 ECAB 125 (1976).

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

13

Margreate Lublin, 44 ECAB 945, 956 (1993).

14

Id.

5

evidence,15 but she provided little evidence supporting a compensable work factor in this regard.
A general allegation of voluntarily working long hours does not establish a compensable work
factor.16 Supervisor S.L. indicated that any overtime work was voluntary, and there is no
evidence substantiating a compensable work factor as to overtime.
The record indicates that appellant’s employment and the parties subsequently reached a
settlement agreement, wherein the employing establishment accepted her resignation. The
modification or reduction of a disciplinary action does not itself establish error or abuse in an
administrative matter. There is no admission or acknowledgment of error by the employing
establishment, and the mere fact that an administrative action is later modified or rescinded does
not, in and of itself, establish error or abuse.17
In addition, appellant has alleged that certain work incidents contributed to an emotional
condition. Some of the incidents describe interactions with others at vocational rehabilitation,
where she felt like she was being bullied or threatened, but the allegations do not establish any
error or abuse by the employing establishment, and no supporting evidence was provided. The
Board has addressed the difficulty in determining whether interactions between employees will
give rise to coverage under FECA where harassment is alleged through verbal altercations or
difficult relationships between employees.18
The difficulty in such claims is the subjective nature of a claimant’s perceptions to his or
her work environment. To support a claim for compensation, the claimant must specifically
delineate those factors or incidents to which the emotional condition is attributed and submit
supporting factual evidence verifying that the implicated work situations or incidents occurred as
alleged. Vague or general allegations of perceived harassment, abuse, or difficulty arising in the
employment are insufficient to give rise to compensability under FECA.19 Appellant has alleged
that she felt bullied, or made general allegations that coworkers snapped their fingers at her or
improperly “wrote her up” without providing any relevant detail or supporting evidence. She
also alleged harassment from upper management. Appellant provided no clear explanation or
supporting evidence to establish harassment in this case.
Appellant described an incident where she alleged that she was hit in the stomach after
beginning work as a medical support assistant on July 27, 2014. Certainly, physical contact,
arising in the course of employment, may be a compensable work factor if substantiated by the
evidence of record,20 but there is little detail provided as to the alleged incident, and the
15

Bobbie D. Daly, 53 ECAB 691 (2002).

16

T.H., Docket No. 16-1164 (issued February 24, 2017).

17

See Michael Thomas Plante, 44 ECAB 510 (1993); Richard J. Dube, 42 ECAB 916 (1991) (reduction of a
disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing
establishment).
18

E.H., Docket No. 11-0798 (issued March 22, 2012); Paul Trotman-Hall, 58 ECAB 189 (2006).

19

Id.

20

See D.S., Docket No. 15-0585 (issued July 11, 2016).

6

supervisor reported no knowledge of the incident. Appellant provided no witness statements or
any evidence to support that the incident occurred as alleged.
Therefore, the Board finds that the only compensable work factor is the erroneous
accessing of appellant’s medical chart by coworkers, which was accepted by OWCP. Since a
compensable work factor has been established, the medical evidence is reviewed to determine if
a diagnosed condition is established as causally related to the compensable work factor.21
The medical evidence does not establish an employment-related injury. To be of
probative value, the opinion of the physician must be based on a complete factual and medical
background, must be of reasonable medical certainty, and supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.22 None of the attending physicians provided a
rationalized opinion establishing a diagnosed condition causally related to the compensable work
factor. Dr. Geete, for example, diagnosed PTSD, schizoaffective disorder, and borderline
personality disorder, without discussing the compensable work factor. The Board has held that
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value.23
The only rationalized opinion of record was from Dr. Burstein, the second opinion
psychiatrist. In the January 8, 2016 report, he provided a complete history and results on
examination. Dr. Burstein opined that the work factor did not contribute to a diagnosed
condition, noting that appellant had a preexisting psychiatric condition that had remained
unchanged. His report represents the weight of the medical evidence.24
On appeal, appellant contends that OWCP mistakenly denied her claim. As discussed
above, the Board has considered the evidence of record and finds that she has not established her
emotional condition claim.
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 10.607.25
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty causally related to compensable work factors.
21

Supra note 11.

22

See G.S., Docket No. 16-1443 (issued February 23, 2017); Jennifer Atkerson, 55 ECAB 317, 319 (2004).

23

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
24

Dr. Blackwood merely provided results of MMPI clinical testing.

25

To the extent appellant is alleging that, a consequential physical injury occurred on December 2, 2014, she may
file a claim for a traumatic injury (Form CA-1) before OWCP.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 24, 2016 is affirmed.
Issued: May 12, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 10-1401
Issued: March 17, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 27, 2010 appellant filed a timely appeal of a February 22, 2010 Office of
Workers’ Compensation Programs’ decision that affirmed the denial of her request for disability
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction.
ISSUE
The issue is whether appellant met her burden of proof to establish that she was disabled
from January 8 to 22 and April 16 to September 16, 2006 as a result of her employment-related
conditions.
FACTUAL HISTORY
On November 9, 2004 appellant, then a 37-year-old management and program analyst,
filed an occupational disease claim alleging that she sustained insomnia, stress, depression,
extreme anxiety and headaches in the performance of duty commencing on August 13, 2004.
She stopped work on September 23, 2004 and returned on December 21, 2004.

In an October 28, 2004 attending physician’s report, Dr. Eddie L. Whitehead, a Boardcertified internist, diagnosed headaches and anxiety. He found that appellant’s conditions were
due to “increased stress with job relations.” Dr. Whitehead placed her off work from August 26
to December 20, 2004.
On March 31, 2005 the Office referred appellant to Dr. Russell Prince, a Board-certified
psychiatrist for a second opinion examination.1 In a May 16, 2005 report, Dr. Prince diagnosed
major depression in remission for months. He also diagnosed obesity and a history of headaches,
which were in remission. Dr. Prince advised that the diagnosis of major depression, which was
now in remission, was causally related to the increased stress experienced secondary to
appellant’s work duties which included a heavy workload, meeting deadlines, working without
an assistant, as well as a demotion in June 2003 and to the multiple changes in her job
assignments. He found that she could perform her full-time regular duties.
On May 23, 2005 the Office accepted appellant’s claim for major depression. It advised
her regarding how to claim wage-loss compensation for periods of disability.2
The Office subsequently received disability certificates dated January 4 and 30, 2006
from Faith Wright, a social worker, who noted treating appellant since October 11, 2004.
Ms. Wright placed appellant off work from December 27, 2005 to January 27, 2006 and released
her to work on January 28, 2006. On January 30, 2006 she advised that appellant was released to
work on February 9, 2006.
In a March 6, 2006 report, Dr. Gregory W. Melieste, a Board-certified psychologist and
neurologist, advised that appellant was referred by her therapist. He noted that appellant had
been off work since December 27, 2005. While there were no specific new job-related incidents,
there were minor stressors at work such as having her desk moved on four different occasions.
Dr. Melieste noted that appellant saw these as part of her original job stressors. In a separate
report of the same date, he diagnosed recurrent atypical depression and placed her off work from
March 6 to June 6, 2006.3
In an April 5, 2006 report, Dr. Valeria Fullwood, a Board-certified obstetrician and
gynecologist, noted seeing appellant on September 23, October 18, November 4, December 2,
2005 and February 22, 2006. She advised that appellant was treated for fibroids and
dysfunctional uterine bleeding on these dates.
In a June 11, 2007 report, Dr. Melieste indicated that appellant was under his care from
March 6 to December 5, 2006.
1

The Office found as employment factors that appellant’s job involved project deadlines, her workload involved
varied duties, she had a heavy workload and that her workload increased when a subordinate employee was moved
to another job in February 2004.
2

The Office paid wage-loss compensation from September 7 to December 20, 2004.

3

Appellant filed claims for wage-loss compensation for the periods January 23 to February 17 and February 20 to
April 15, 2006. In an April 28, 2006 decision, the Office denied the claim for the period January 23 to February 18,
2006 and, in a February 5, 2007 decision, it denied the claim for the period February 20 to April 15, 2006.

2

On March 9, 2009 appellant filed a Form Ca-2a, notice of recurrence of disability. She
alleged that she was disabled beginning December 26, 2005. Appellant indicated that she
returned to work on December 21, 2004 with no limitations but that she subsequently
encountered difficulties which included being subjected to retaliation for filing a claim.
On June 17, 2009 appellant filed a Form CA-7 claim for compensation for the period
January 8 to September 16, 2006.4
In a letter dated June 24, 2009, the employing establishment disputed the claim. It
advised that appellant was not an employee since September 16, 2006, noting she was issued a
removal letter on September 8, 2006. The employing establishment also noted that she was
released to full duty without restrictions in December 2004 and had worked over 60 days in her
current position without residuals. In a July 7, 2009 letter, it advised that appellant was absent
without leave since June 6, 2006 and removed from the employing establishment on
September 16, 2006.
In letters dated August 31 and September 10, 2009, the Office informed appellant of the
evidence needed to support her claim of wage loss from January 8 to 22 and April 16 to
September 16, 2006. It advised that it had previously denied compensation for the periods
January 23 to February 17 and February 20 to April 15, 2006.
In a September 21, 2009 report, Dr. Melieste noted that appellant was followed for
outpatient psychiatric treatment from March 6 to December 5, 2006. Appellant was off work for
significant depression and related symptoms since December 2005. Dr. Melieste advised that
appellant perceived that her ongoing symptoms and disability were directly related to her on-thejob incident occurring in November 2004, for which she had previously received time off and
compensation. He stated that “[o]ccupational stress remained the obvious causal explanation for
her relapse and subsequent disability.”
In an October 28, 2009 decision, the Office denied the claim for compensation from
January 8 to 22 and April 16 to September 16, 2006. It found that the medical evidence did not
establish disability for the periods claimed.
On November 23, 2009 appellant requested an examination of the written record. In a
letter also dated November 23, 2009, she alleged that her disability from work was due to workrelated stress. Appellant stated that her gynecological problems were also work related because
of stress.
In a February 22, 2010 decision, an Office hearing representative affirmed the
October 28, 2009 decision.

4

Appellant stated that she did not claim the period May 28 to June 10, 2006.

3

LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act5 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.6 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.7 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.8 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.9
ANALYSIS
In support of her claim for disability for the period January 8 to 22 and April 16 to
September 16, 2006, appellant provided several reports from her treating physician, Dr. Melieste.
The Board finds that Dr. Melieste did not provide sufficient medical opinion to establish
appellant’s claim of work-related total disability.
On March 6, 2006 Dr. Melieste noted that appellant had been off work since
December 27, 2005. He explained that, while there were no specific new job-related incidents,
there were minor stressors at work such as having her desk moved on four different occasions.
Appellant saw these incidents as part of her original job stressors. In a September 21, 2009
report, Dr. Melieste noted treating appellant from March 6 to December 5, 2006 and stated that
she was off work for significant depression and related symptoms since December 2005. He
advised that she perceived that her ongoing symptoms and disability were directly related to her
on-the-job incident occurring in November 2004, for which she had previously received time off
and compensation. Dr. Melieste also opined that “[o]ccupational stress remained the obvious
causal explanation for her relapse and subsequent disability.” The Board notes that Dr. Melieste
supported causal relationship largely based on appellant’s belief that her disability was due to her
employment. However, the belief of a claimant that a condition was caused or aggravated by the
employment is not sufficient to establish causal relation.10 Dr. Melieste did not provide
sufficient medical reasoning to explain why appellant was unable to work for the specific periods

5

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

6

Paul E. Thams, 56 ECAB 503 (2005).

7

W.D., Docket No. 09-658 (issued October 22, 2009); Paul E. Thams, id.

8

Id.

9

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Robert A. Boyle, 54 ECAB 381 (2003).

4

at issue due to her accepted emotional condition.11 This is important as the second opinion
physician, Dr. Prince, found that the accepted condition of depression was in remission. He
cleared appellant to return to her regular duties on May 16, 2005. As Dr. Melieste did not
provide adequate reasoning explaining how the periods of claimed disability were causally
related to the accepted condition, his opinion is of diminished probative value. No other reports
from him specifically attributed any period of disability to the accepted condition.
In an April 5, 2006 report, Dr. Valeria Fullwood, a Board-certified obstetrician and
gynecologist, noted that appellant was seen on September 23, October 18, November 4,
December 2, 2005 and February 22, 2006. Appellant was treated for fibroids and dysfunctional
uterine bleeding. Although she asserted that her gynecological problems were work related
because of stress, the Board notes that Dr. Fullwood did not offer any opinion addressing the
issue of whether appellant was disabled for the claimed periods. Dr. Fullwood did not explain
how any diagnosed condition was caused or aggravated by the accepted condition of major
depression or stress from work. Her opinion is insufficient to establish appellant’s claim.
The Office received evidence from Ms. Wright, a social worker; however, a social
worker is not a physician as defined under the Act. Thus, her opinion is of no probative value.12
Appellant alleges on appeal that her claimed disability is employment related and that
several things happened at work that caused her to slip back into depression. As noted the
medical evidence of record does not establish that her claimed disability is related to her
accepted emotional condition. The medical evidence provides insufficient reasoning to explain
how the accepted depression caused disability for the claimed period. Appellant has not met her
burden of proof to establish that her claim.
CONCLUSION
The Board finds that appellant failed to establish that she was totally disabled for the
periods January 8 to 22 and April 16 to September 16, 2006 as a result of her employmentrelated conditions.

11

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
12

Roy L. Humphrey, 57 ECAB 238, 242 (2005); 5 U.S.C. § 8101(2) of the Act provides as follows: (2) physician
includes surgeons, podiatrists, dentists, clinical psychologist, optometrists, chiropractors and osteopathic
practitioners within the scope of their practice as defined by State law.

5

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 17, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6