United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
BLOOMFIELD VETERANS CENTER,
East Orange, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1786
Issued: January 30, 2017

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 September 7, 2016 appellant, through counsel, filed a timely appeal from a May 19,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
On appeal counsel contends that appellant had submitted sufficient medical evidence to
establish that he sustained a back strain on March 14, 2014 or that OWCP should have further
developed the medical evidence.
1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
traumatic injury causally related to the March 14, 2014 employment incident.
FACTUAL HISTORY
On March 17, 2014 appellant, then a 41-year-old technology specialist, filed a traumatic
injury claim (Form CA-1) alleging that he developed a possible strain due to lifting heavy
objects in the performance of duty on March 14, 2014.
Dr. Boqing Chen, a Board-certified physiatrist, examined appellant on March 18, 2014.
He completed both a narrative report and a form report and listed appellant’s history of injury as
lifting heavy objects on March 14, 2014 which caused acute, severe, lower back pain. Dr. Chen
opined that there was causal relationship between his acute onset back pain and the heavy lifting
that he did on March 14, 2014. He indicated that appellant’s condition was caused by lifting
multiple objects weighing over 70 pounds. Dr. Chen subsequently completed a narrative report
on March 25, 2014 and described his employment incident on March 14, 2014 as moving three
heavy objects, each weighing more than 75 pounds, while at work. He found that appellant was
experiencing severe back pain with radiation to his feet. Dr. Chen indicated that appellant had a
prior back injury, but that the pain from the previous condition had subsided after treatment. He
diagnosed persistent and severe radicular low back pain likely from lumbar radiculopathy as well
as low back pain likely from discogenic pain, facet joint pain, or sprain/strain.
On March 25, 2014 Dr. Wei Xu, a Board-certified physiatrist, completed a form report.
He described appellant’s work incident as lifting heavy objects on March 14, 2014 which caused
acute severe lower back pain. Dr. Xu diagnosed acute low back pain and lumbar radiculitis. He
concluded that appellant’s condition was caused by lifting multiple heavy objects weighing more
than 70 pounds. Appellant also submitted physical therapy notes.
Dr. Chen again examined appellant on April 22, 2014 and added the diagnosis of
persistent and severe periscapular/rhomboids pain likely secondary to cervical radiculopathy. He
also noted appellant’s report of headaches originating from the employment incident. Dr. Chen
repeated his findings and conclusions on May 20, 2014.
In a letter dated June 6, 2014, OWCP informed appellant that additional factual and
medical evidence was necessary to establish his traumatic injury claim. It afforded him 30 days
for a response.
Dr. Chen completed a note on June 30, 2014 describing appellant’s ongoing symptoms of
upper back pain and headaches. He reviewed appellant’s cervical magnetic resonance imaging
(MRI) scan which demonstrated a left central C6-7 disc herniation. Appellant’s lumbar MRI
scan demonstrated L5-S1 disc with lateral recess stenosis on the right.
By decision dated July 9, 2014, OWCP denied appellant’s traumatic injury claim, finding
that the factual evidence was insufficient to establish the events of March 14, 2014 which

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appellant felt caused or contributed to his back conditions. It further noted that Dr. Chen had not
provided clear diagnoses of a medical condition.
Appellant provided additional factual evidence on July 10, 2014. He explained that on
March 14, 2014 he was directed to install printers which entailed moving six printers. Three of
the printers weighed from 15 to 30 pounds and had to be moved to different rooms. The other
three printers weighed over 75 pounds each and had to be unpacked from boxes. There was no
help available, so appellant moved all the printers by himself. He noted that, while unpacking
and lifting the heavier printers, he felt that he had pulled something in his back. After the initial
pull, appellant’s back pain increased and continued to worsen after he went home.
Appellant submitted a July 7, 2014 report from Dr. Chen describing appellant’s
employment incident of moving printers at work. He indicated that the weight of the printers
varied between 15 and 75 pounds. Dr. Chen noted that appellant had a prior back injury on
December 12, 2011, but that his back pain subsided after treatment. He reviewed appellant’s
three 2012 spine MRI scans and noted that these tests demonstrated a central disc herniation at
L5-S1, moderate disc bulging at T5-6, and disc herniation at C6-7. Dr. Chen diagnosed radicular
low back pain from lumbar radiculopathy and low back pain likely from discogenic pain or facet
joint pain or sprain/strain. He opined that there was causal relationship between appellant’s
acute onset back pain and the heavy lifting that he performed on March 14, 2014.
OWCP provided appellant’s factual statement to the employing establishment on
July 18, 2014. On July 18, 2014 the employing establishment noted that the printers appellant
lifted weighed 65 rather than 75 pounds.
Appellant requested a review of the written record from OWCP’s Branch of Hearings and
Review on August 6, 2014.
On August 8, 2014 OWCP received an addendum report from Dr. Chen, noting that his
July 7, 2015 report had been updated to reflect his condition and work up to date. Dr. Chen
continued to opine that appellant’s symptoms were causally related to the March 14, 2014
incident.
In a note dated August 18, 2014, Dr. Chen found that appellant’s symptoms had
worsened with a return to work. He diagnosed severe radicular low back pain likely from a
lumbar radiculopathy, low back pain likely from discogenic pain, facet joint pain, or
sprain/strain, persistent periscapular/rhomboids pain likely secondary to cervical radiculopathy,
and persistent and severe thoracic back pain.
In a February 4, 2015 decision, an OWCP hearing representative found that appellant had
submitted factual evidence sufficient to establish that he installed six printers weighing between
15 and 65 pounds on March 14, 2014. She further found that appellant’s physicians diagnosed
sciatica, lumbar radiculitis, and cervical radiculitis as a result of lifting printers on
March 14, 2014. However, the hearing representative found that the medical evidence of record
did not contain medical rationale explaining how or why appellant’s diagnosed condition
resulted from his accepted employment incident. She noted that a medical opinion that a

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condition is causally related to an incident because the employee was asymptomatic before the
injury, without supporting rationale, was not sufficient to establish causal relationship.
Counsel requested reconsideration on January 15, 2016 and submitted additional notes
from Dr. Chen dated April 29, July 21 October 21, and November 21, 2014. He contended that
Dr. Chen established that appellant experienced a traumatic injury on March 14, 2014 while in
the course of his employment. In the additional notes, Dr. Chen requested a lumbar MRI scan,
indicated that appellant wished to return to light-duty work, and described appellant’s history of
injury including lifting objects weighing 75 pounds. He also added the diagnosis of bilateral
carpal tunnel syndrome.
Counsel provided appellant’s January 19, 2012 cervical MRI scan which showed a small
central subligamentous disc herniation at C6-7 and mild disc bulging at C5-6. A thoracic MRI
scan of the same date demonstrated moderate disc bulging at T5-6 and T6-7. The January 19,
2012 lumbar MRI scan presented evidence of central disc herniation at L5-S1 and mild disc
bulging at L4-5.
In notes dated January 3, 17, and 24, February 7, and 14, April 10, and June 5, 2012,
Dr. Chen reported that appellant experienced neck, mid thoracic, and lower back pain after a fall
at work on December 12, 2011. He diagnosed right ankle sprain, thoracic spine sprain, lumbar
spine sprain, and cervical sprain and reviewed appellant’s three MRI scans. In his June 2012
report, Dr. Chen indicated that appellant had returned to full duty and indicated that he
experienced 90 percent improvement of his symptoms. He diagnosed improving thoracic and
low back pain.
Counsel submitted additional evidence in support of the request for reconsideration on
March 10, 2016. In a note dated February 23, 2016 and an addendum dated March 8, 2016,
Dr. Chen provided a detailed description of appellant’s work incident including lifting printers
weighing between 20 and 75 pounds on March 4, 2014. He noted that appellant felt a sudden
pull in his low back with pain that developed immediately after lifting the heavier printers.
Dr. Chen opined that appellant experienced a work-related injury. He diagnosed low back pain,
radiculopathy of the thoracolumbar region, spondylosis with radiculopathy in the lumbar region,
cervicocranial syndrome, spondylosis with radiculopathy in the cervical region, and cervicalgia.
By decision dated May 19, 2016, OWCP denied modification of the February 4, 2015
decision, finding that the medical evidence of record did not contain medical reasoning sufficient
to establish that appellant’s diagnosed conditions were causally related to his March 14, 2014
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including the fact that the individual is an “employee of the United States” within the
meaning of FECA, that the claim was timely filed within the applicable time limitation period of
FECA, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment

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injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as: “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6 Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.7
A medical report is of limited probative value on a given medical question if it is
unsupported by medical rationale.8 Medical rationale includes a physician’s detailed opinion on
the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment activity. The opinion of the physician must be based on a
complete factual and medical background of the claim, 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 activity or factors identified by the
claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the March 14, 2014 employment incident.
OWCP found that appellant, a technology specialist, established an employment incident
on March 14, 2014 in that he was required to lift and move six printers weighing up to 65 pounds
on that date. It further found that appellant’s attending physician had provided medical evidence
of conditions of sciatica, lumbar radiculitis, and cervical radiculitis which appellant felt were
attributable to the March 14, 2014 lifting incident. However, OWCP denied appellant’s claim
finding that the medical evidence of record was not sufficiently rationalized to establish causal
relationship between appellant’s accepted employment incident and his diagnosed conditions.
3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

20 C.F.R. § 10.5(ee).

6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

8

T.F., 58 ECAB 128 (2006).

9

A.D., 58 ECAB 149 (2006).

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The Board finds that the medical opinion evidence of record is insufficient to establish
causal relationship between appellant’s diagnosed conditions and his accepted employment
incident. Dr. Chen provided a series of reports describing the lifting incident on March 14, 2014
and opined that appellant’s diagnosed conditions were related to this incident. However, he did
not explain how or why he believed that the March 14, 2014 lifting incident caused or
contributed to appellant’s back conditions. While he noted that appellant had returned to fullduty work without further treatment after his 2012 back injuries, Dr. Chen did not explain the
relationship between appellant’s diagnosed conditions and his March 14, 2014 lifting incident.
He did not describe how lifting printers weighing up to 65 pounds would have caused or
contributed to appellant’s diagnosed back conditions. The Board has held that a temporal
relationship alone is insufficient to establish causal relationship between an employment incident
and diagnosed conditions.10 Furthermore, appellant’s personal belief that his employment
activities caused or contributed to his condition, is not sufficient, by itself to establish causal
relationship.11
Counsel contends on appeal that Dr. Chen’s report were sufficient to establish appellant’s
traumatic injury claim. The Board disagrees for the reasons listed above.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury causally related to the March 14, 2014 employment incident.

10

Louis T. Blair, Jr., 54 ECAB 348 (2003); A.S., Docket No. 15-0972, 15-1005 (issued September 27, 2016).

11

See D.I., 59 ECAB 158, 162 (2007); Phillip L. Barnes, 55 ECAB 426, 440 (2004); L.L., Docket No. 16-0896
(issued September 13, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the May 19, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 30, 2017
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.N., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
WEAPONS STATION, Seal Beach, CA,
Employer
__________________________________________

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

Docket No. 07-1092
Issued: January 9, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 18, 2007 appellant filed a timely appeal from the September 19, 2006
nonmerit decision of the Office of Workers’ Compensation Programs denying his untimely
request for reconsideration and finding that it failed to establish clear evidence of error. Because
more than one year has elapsed between the last merit decision dated April 11, 2005 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and not establishing clear evidence of error.

FACTUAL HISTORY
On April 2, 2004 appellant, then a 40-year-old ordnance equipment mechanic, filed a
traumatic injury claim alleging that on March 26, 2004 he injured his right lower groin while
lifting a barrel of saw dust.
By letter dated April 14, 2005, the Office informed appellant that the evidence was
insufficient to support his claim. The Office advised him as to the medical and factual evidence
required to support his claim. Appellant did not respond.
By decision dated May 27, 2004, the Office denied appellant’s claim on the grounds that
he failed to establish fact of injury. The Office noted that the record was devoid of any medical
evidence containing a diagnosis.
Subsequent to the decision, the Office received a June 15, 2004 ultrasound and a July 20,
2004 disability and return to work certificate. The ultrasound found no evidence of a right
inguinal hernia. It noted a small bilateral varicocele and approximately a 0.3 centimeter bilateral
peritesticular vein measurement. The return to work certificate indicated that appellant could
return to work on July 21, 2004 with restrictions.
On March 28, 2005 appellant requested reconsideration and submitted a January 31, 2005
report by Dr. Dennis L. Clark, an attending Board-certified internist and a March 21, 2005 report
by Dr. David Wall, a treating physician. Dr. Clark noted that appellant had been diagnosed with
a right torn groin muscle. He noted that the condition would heal faster if appellant was not
required to lift up to 40 pounds or push and pull up to 100 pounds, as required by his job.
Dr. Wall opined that it was “very likely [that] the groin injury” sustained by appellant “could
have been caused by him lifting the barrel in an awkward way at work.”
By decision dated April 11, 2005, the Office denied modification of the May 27, 2004
decision. The Office found that the medical evidence appellant submitted did not establish that
the diagnosed condition was causally related to the accepted March 26, 2004 employment
incident.
In an April 11, 2006 memorandum of telephone call, the Office noted that appellant
requested an extension to file a request for reconsideration, which the Office advised could not
be granted.
In a letter dated April 6, 2006 and received on June 22, 2006, appellant requested
reconsideration. He stated that he was including a statement by his surgeon. The date of the
postmark on the envelope is illegible. In a May 25, 2006 report, Dr. William B. Hutchinson, Jr.,
a treating physician, noted that appellant was being treated for a hernia and surgery was
scheduled. He related that appellant informed him that the hernia occurred on March 26, 2004
when he was lifting a barrel.
By decision dated September 19, 2006, the Office denied appellant’s request on the
grounds that it was not timely filed and did not present clear evidence of error.

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LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.2 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.3 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.4 If submitted by mail, the application will be deemed timely if postmarked
by the U.S. Postal Service within the time period allowed. If there is no such postmark, or it is
not legible, other evidence such as (but not limited to) certified mail receipts, certificate of
service, and affidavits, may be used to establish the mailing date.5 In the absence of this
evidence, the Office procedures state that the date of the reconsideration request letter should be
used to determine timeliness.6
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit, and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.7 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office. To show clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s
decision. The Board makes an independent determination of whether a claimant has submitted

1

5 U.S.C. § 8101 et seq.

2

20 C.F.R. § 10.605.

3

Id. at 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1) (June 2002).

7

See Alberta Dukes, 56 ECAB ___ (Docket No. 04-2028, issued January 11, 2005); see also Leon J. Modrowski,
55 ECAB 196 (2004).

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clear evidence of error on the part of the Office such that the Office abused its discretion in
denying merit review in the face of such evidence.8
ANALYSIS
In its September 19, 2006 decision, the Office determined that appellant failed to file a
timely application for review. Although his letter requesting reconsideration is dated
April 6, 2006. The evidence does not support that the report was timely. The postmark on the
envelope is illegible. The Office procedure manual states that when a postmark is illegible, other
evidence may be used to determine the date of the mailing. When there is no evidence to
establish the date of the mailing, the date of the letter requesting reconsideration should be used.9
Although appellant’s letter requesting reconsideration was dated April 6, 2006, which the
Board notes is within one year of April 11, 2005, the Board finds that the evidence does not
support that his request was timely. The record contains a memorandum of telephone call by
appellant on April 11, 2006. Appellant called to request an extension of time to file his
reconsideration request, which the Office denied. He noted in his letter that he was including a
medical report. A May 25, 2006 report by Dr. Hutchinson was received by the Office on
June 22, 2006. This was the same day that the Office received appellant’s April 6, 2006 letter
requesting reconsideration. The evidence of record does not support that April 6, 2006 was the
date that he filed his reconsideration request with the Office. As appellant’s letter requesting
reconsideration and accompanying medical report were received by the Office on June 22, 2006,
and as appellant called the Office on April 11, 2006 requesting an extension of time to file a
request for reconsideration, the Board finds that he filed his request for reconsideration on
June 22, 2006. The Office rendered its most recent merit decision on April 11, 2005. As
appellant’s letter requesting reconsideration was received by the Office on June 22, 2006, which
is more than one year after the April 11, 2005 merit decision it was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, the Office properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error which would warrant reopening the case for further merit review under section
8128(a). The Office reviewed the evidence submitted by appellant in support of his application
for review, but found that it did not clearly establish that the Office’s prior decision was in error.
The evidence submitted on reconsideration, a May 25, 2006 report by Dr. Hutchinson, do
not establish clear evidence of error by the Office. As noted, the evidence submitted must be
relevant to the issue which was decided by the Office. Here, appellant’s claim was denied on the
grounds that the medical evidence did not establish a causal relationship between appellant’s
diagnosed condition and the March 26, 2004 employment incident. Accordingly, the evidence
submitted in support of the reconsideration request must address causal relationship and be so
persuasive that it shifts the weight of the evidence in favor of the claimant and raises a
substantial question as to the correctness of the Office’s decision. Evidence such as a detailed,
8

See Alberta Dukes, supra note 7.

9

Jack D. Johnson, 57 ECAB ___ (Docket No. 06-433, issued May 17, 2006); see also 20 C.F.R. § 10.607(a);
supra note 6.

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well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is insufficient to show clear
evidence of error.10 The May 25, 2006 report by Dr. Hutchinson noted that appellant was being
treated for a hernia, which appellant attributed to his lifting a barrel on March 26, 2004.
Dr. Hutchinson provided no supporting rationale explaining how appellant’s condition was
caused by the March 26, 2004 employment incident. Accordingly, his report is insufficient to
establish clear evidence of error in the Office’s April 11, 2005 merit decision. Appellant has
submitted no other evidence sufficient to shift the weight of the evidence in his favor and raise a
substantial question as to the correctness of the Office’s decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration,
as the request was filed outside the one-year time limitation and did not establish clear evidence
of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 19, 2006 is affirmed.
Issued: January 9, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10

See Alberta Dukes, supra note 7.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH Employer
__________________________________________

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

Docket No. 09-186
Issued: September 23, 2009

Case Submitted on the Record

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

JURISDICTION
On October 27, 2008 appellant filed a timely appeal of the July 21, 2008 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a recurrence of disability on May 2, 2008 causally related to her January 7, 1986
employment injury.
FACTUAL HISTORY
This case has previously been before the Board. On January 6, 1986 appellant fractured
and displaced her coccyx in the performance of duty. The Office accepted her claim for fracture
of the coccyx. Appellant sustained a second injury on January 3, 1995, accepted for lumbosacral
strain and aggravation of preexisting degenerative disc disease. The Office accepted that
appellant sustained a recurrence of disability on January 10, 1997 and appellant returned to

limited-duty work as a part-time flexible modified distribution clerk on January 26, 1997.
Appellant’s physical restrictions included no lifting over 10 pounds, no climbing, pushing,
pulling, lifting, bending, squatting, twisting or kneeling. She underwent an arthroscopic
discectomy on January 20, 2000. Appellant returned to work on April 26, 2001 and the Office
reduced her compensation benefits based on her actual earnings as a modified clerk on
February 8, 2002. Appellant’s restrictions included no bending, squatting, kneeling or twisting,
no reaching above the shoulder, no outside work in below freezing temperature, intermittent
standing, sitting, walking and stair climbing. The Branch of Hearings and Review affirmed this
decision on January 14, 2003. In an August 8, 2003 decision, the Board reversed the wageearning capacity determination. The facts and the circumstances of the case as set out in the
Board’s prior decision are incorporated herein by reference.1
Following the Board’s August 8, 2003 decision, the Office accepted appellant’s claim for
major depressive disorder on October 2, 2003. By decision dated October 22, 2003, it reduced
her wage-loss benefits to zero based on her actual earnings as a modified clerk, finding that they
fairly and reasonably represented her wage-earning capacity. Appellant did not seek review of
this decision.
Appellant requested a schedule award on November 3, 2005. By decision dated
November 14, 2006, the Office granted a schedule award for three percent permanent
impairment of the right lower extremity. The Branch of Hearings and Review affirmed this
decision on May 15, 2007. The Office granted appellant a schedule award for an additional 11
percent impairment of her right lower extremity on July 19, 2007.
On May 14, 2008 appellant filed a claim for wage-loss compensation from May 3
to 16, 2008. Dr. Hong Shen, a physician Board-certified in physical medicine and rehabilitation,
examined appellant on May 2, 2008. He diagnosed degenerative disc disease and recurrent
depression. Dr. Shen reported appellant’s statement that she was very depressed due to constant
pain and that she became tired and wiped out after eight hours of work. He recommended
decreasing appellant’s work hours to four hours a day until her medication became effective.
Appellant submitted form reports dated May 7, 2008 from Dr. Shen, diagnosing chronic low
back pain, lumbosacral joint sprain, degenerative joint disease and depression. His findings
included acute exacerbation of sciatica, depression due to pain and limited ability. Dr. Shen
indicated with a checkmark “yes” that appellant’s condition was aggravated by bending, twisting
and lifting eight hours a day. He found that appellant could work four hours a day with
intermittent lifting, carrying, sitting, standing, walking, bending, pulling, pushing and twisting.
Appellant accepted a modified-duty assignment on May 9, 2008.
On May 27, 2008 the Office requested that appellant submit additional evidence in
support of her claim for a recurrence of disability. It allowed 30 days for a response. The Office
referred appellant for a second opinion evaluation on June 10, 2008 with Karl V. Metz, MD.2

1

Docket No.03-1184 (issued August 8, 2003).

2

The Office did not receive Dr. Metz’s report prior to denying appellant’s claim.

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By decision dated July 21, 2008, the Office denied appellant’s claim for recurrence of
disability on May 3, 2008. It found that appellant had not submitted sufficient factual and
medical evidence to establish a recurrence of disability.
On appeal, appellant contends that the Office had accepted her recurrence claim based on
an August 18, 2008 letter, in which it noted that her claim had been accepted for strain and
aggravation of preexisting disc disease, major depressive disorder and fracture of the coccyx.
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.3
For each period of disability claimed, a claimant has the burden of proving by a
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of her employment injury. Whether a particular injury caused an employee to be
disabled for employment and the duration of that disability are medical issues which must be
provide by preponderance of the reliable probative and substantial medical evidence.4
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. The Board has stated that, when a physician’s statements
regarding an employee’s ability to work consist only of a repetition of the employee’s complaints
that he or she hurts too much to work, without objective signs of disability being shown, the
physician has not presented a medical opinion on the issue of disability or a basis for payment of
compensation.5
ANALYSIS
The Office accepted that appellant had sustained a strain and aggravation of preexisting
disc disease, major depressive disorder and fracture of the coccyx due to her accepted
employment injuries. Appellant worked in a light-duty position eight hours a day until
May 2, 2008. Appellant filed a claim for wage-loss compensation for four hours a day beginning
May 3, 2008. In support of her claim, she submitted reports from Dr. Shen, an attending
physician Board-certified in physical medicine and rehabilitation, who examined appellant on
3

20 C.F.R. § 10.5(x).

4

Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

5

Id.

3

May 2, 2008 and diagnosed degenerative disc disease and recurrent depression. He noted
appellant’s statement that she was very depressed due to constant pain. He decreased her work
hours to four hours a day until her medication became effective. The Board finds that Dr. Shen
did not provide any objective findings to support his conclusion that appellant could no longer
work eight hours a day in her light-duty position. Rather, his notations regarding appellant’s
ability to work consist of a repetition of her complaints of pain. He did not address how her
accepted conditions had spontaneously changed such that she was partially disabled as of
May 2, 2008. As noted, the Board has held that without objective signs of disability being
shown, the physician has not presented a medical opinion on the issue of disability or a basis for
payment of compensation. This report is therefore not sufficient to meet appellant’s burden of
proof.
On May 7, 2008 Dr. Shen diagnosed chronic low back pain with acute exacerbation of
sciatica and depression. He indicated with a checkmark “yes” that appellant’s condition was
aggravated by bending, twisting and lifting eight hours a day. Dr. Shen opined that appellant
could work four hours a day with intermittent lifting, carrying, sitting, standing, walking,
bending, pulling, pushing and twisting. He did not provide objective findings on examination in
support of his opinion; instead, he listed chronic low back pain with acute exacerbation of
sciatica, depression due to pain and limited ability. Dr. Shen did not provide any test results,
range of motion or description of sensory disturbance. The Board has held that an opinion on
causal relationship which consists only of a physician checking “yes” to a medical form report
question on whether the claimant’s condition was related to the history given is of little probative
value. Without any explanation or rationale for the conclusion reached, such a report is
insufficient to establish causal relationship.6 The Board finds that these reports are not sufficient
to meet appellant’s burden of proof.
CONCLUSION
The Board finds that appellant had not submitted the necessary medical opinion evidence
to establish that she sustained a recurrence of disability on May 3, 2008 causally related to her
accepted employment injuries.

6

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

4

ORDER
IT IS HEREBY ORDERED THAT the July 21, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.S., Appellant
and
DEPARTMENT OF THE ARMY, VIRGINIA
NATIONAL GUARD, FORT PICKETT,
Blackstone, VA, Employer
__________________________________________

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

Docket No. 16-0096
Issued: March 9, 2016

Case Submitted on the Record

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

JURISDICTION
On October 19, 2015 appellant, through counsel, filed a timely appeal from an August 19,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to an April 22, 2014 employment incident, as alleged.
On appeal appellant, through counsel, argues that appellant was denied due process and
that OWCP’s decision was contrary to law and fact.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 22, 2014 appellant, then a 54-year-old information technology network
specialist, filed a traumatic injury claim (Form CA-1) alleging that on that date his left knee
twisted and gave out as he was climbing stairs entering an office building. The record does not
indicate that appellant stopped work.
By letter dated January 29, 2015, OWCP asked that appellant submit further information
in support of his claim. In response, appellant answered questions on February 24, 2015,
indicating that immediately after the incident, his left knee was swollen and he was unable to
walk on it. He noted that he reported the incident to his supervisor on April 22, 2014, but that
his supervisor did not sign the claim form until August 22, 2014 as he was not available.
Appellant submitted a February 24, 2015 report from his treating Board-certified
orthopedic surgeon, Dr. Geoffrey Higgs. Dr. Higgs noted that he evaluated appellant for left
knee, right knee, right hip, and left hip pain on numerous dates from June 3 through
December 22, 2014. He stated that on June 3, 2014 appellant was evaluated and that his workup
was consistent with a left knee medial and lateral meniscus tear as well as chondromalacia.
Dr. Diggs indicated that appellant reported that on April 14, 2014 he was ascending stairs when
he had instant pain. On July 9, 2014 appellant had undergone a left arthroscopic partial medial
and lateral meniscectomy and diffuse chondroplasty of the medial and lateral femoral condyles.
Dr. Higgs opined that appellant had grade 3 and 4 chondromalacia diffusely over the lateral
femoral condyle and grade 2 chondromalacia of the central medial femoral condyle. Dr. Diggs
noted that he reevaluated appellant on October 13, 2014 and found that the left knee surgery had
been beneficial. He noted that on November 24, 2014 appellant reported that his left knee was
doing well and he was back to his normal activities. On this date he complained of right hip and
left hip pain and radiographs were consistent with femoral acetabular impingement with some
early osteoarthritis. Dr. Higgs noted that when he saw appellant on December 22, 2014, his right
and left hip pain had improved. He stated that he did not know if the April 14, 2014 incident
occurred at work, but that if it did occur at work, it certainly would be related to the diagnosis of
his left knee meniscus tears and all subsequent treatment rendered would be due to that injury.
By decision dated March 4, 2015, OWCP denied appellant’s claim as the medical
evidence did not demonstrate that the claimed medical condition was related to the established
work-related event.
On March 16, 2015 OWCP received a copy of a May 19, 2014 magnetic resonance
imaging (MRI) scan of the left knee which showed complex radial tearing of the posterior horn
root insertion of the medial meniscus, mild-to-moderate degeneration of the medial joint
compartment; and a 14 x 15 mm full thickness cartilage defect posterior weight-bearing surface
lateral femoral condyle with adjacent subtle undersurface tearing posterior horn lateral meniscus.
On March 26, 2015 appellant requested review of the written record by an OWCP
hearing representative. In support of his request, he submitted a March 26, 2015 statement from
the office manager, Kaye Edmonds, indicating that on April 22, 2014 she observed appellant
entering his office limping and that he informed her that he had just suffered an injury coming up
the steps to the building. She noted that he immediately informed her about what happened and
that once she received the accident report she forwarded it to the Human Resources office.
Appellant also submitted a statement by Timothy K. Wine indicating that on April 22, 2014,
2

appellant entered the building and appeared to be in knee pain, and that he explained that he
twisted his knee on the steps leading into the building.
On May 20, 2015 appellant, through counsel, requested reconsideration. By letter dated
May 26, 2015, OWCP informed counsel that appellant had previously requested a review of the
written record. It explained that as it may consider only one type of appeal at a time, there would
be no further action on counsel’s request for reconsideration at this time.
Appellant also submitted additional evidence. In March 15 and April 5, 2010 reports,
Brian Sokol, an occupational therapist, discussed his treatment of appellant’s right upper
extremity. Appellant also submitted reports by Dr. Higgs dated June 3, September 15, and
October 13, 2014. These reports were discussed in detail in Dr. Higgs’ February 15, 2015 report.
By decision dated August 19, 2015, the hearing representative affirmed OWCP’s
March 4, 2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. 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.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.3
In order to meet his or her burden of proof to establish the fact that he or she sustained an injury
in the performance of duty, an employee must submit sufficient evidence to establish that he or
she actually experienced the employment injury or exposure at the time, place, and in the manner
alleged.4
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.5 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
2

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

3

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

4

Linda S. Jackson, 49 ECAB 486 (1998).

5

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

3

the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.6
ANALYSIS
The evidence establishes that on April 22, 2014 appellant was climbing stairs entering the
office building when his left knee twisted, and the evidence also establishes that appellant has
diagnosed conditions of his left knee, including a left knee meniscus tear. However, the Board
finds that appellant has not submitted medical evidence establishing that his left knee conditions
were causally related to the accepted employment incident.
The Board notes that Dr. Higgs listed April 14, 2014 as the date of injury, but that
appellant had noted on his claim form that the employment incident occurred on April 22, 2014.
Of greater importance, Dr. Higgs did not provide a rationalized medical opinion linking this
incident to appellant’s conditions. He noted that appellant was ascending stairs when he had
instant pain. Dr. Higgs also noted that he did not know if the April 14, 2014 incident occurred at
work, but that if it did occur at work, it certainly would be related to the diagnosis of left knee
meniscus tear and all subsequent treatment rendered would be due to that injury. However, the
reports of Dr. Higgs are insufficient to meet appellant’s burden of proof. Neither the fact that a
disease or condition manifests itself during a period of employment nor the belief that the
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.7 Dr. Higgs did not explain the process by which this employment incident
would cause or contribute to the diagnosed condition or why such condition would not be due to
nonwork factors. A mere conclusion without the necessary rationale explaining how and why
the physician believes that a claimant’s accepted incident could result in a diagnosed condition is
not sufficient to meet a claimant’s burden of proof regarding causal relationship.8 As such,
Dr. Higg’s opinion is not based on a proper factual background and sufficiently rationalized to
meet appellant’s burden of proof.
The MRI scan report is also insufficient as it does not address causation, and is therefore
of limited probative value.9

6

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

7

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

8

G.M., Docket No. 14-2057 (issued May 12, 2015).

9

Id.

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The reports from the occupational therapist and physician assistant are not probative
evidence. The Board has held that notes signed by a nurse, therapist, or physicians assistants are
not considered medical evidence as these providers are not a physician under FECA.10
An award of compensation may not be based on surmise, conjecture, speculation, or upon
appellant’s own belief that there was a causal relationship between his or her condition and his or
her employment.11 As appellant did not submit a rationalized medical opinion supporting that
his left knee conditions were causally related to the accepted April 22, 2014 employment
incident, he did not meet his burden of proof to establish an employment-related traumatic
injury.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish an injury
causally related to an April 22, 2014 employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 19, 2015 is affirmed.
Issued: March 9, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
10

L.D., 59 ECAB 648 (2008) (a nurse practitioner is not a physician as defined under FECA). See David P.
Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical
therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a
physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law).
11

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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Appearances:
Bettye L. Richardson, for the appellant
No appearance, for the Director

Docket No. 08-1122
Issued: January 2, 2009

Oral Argument October 15, 2008

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 15, 2008 appellant filed a timely appeal of the January 3, 2008 decision of
the Office of Workers’ Compensation Programs, which affirmed the denial of his claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue in this case is whether appellant met his burden of proof to establish that his
cerebral vascular accident on January 13, 1997 was caused or aggravated by his federal
employment.
FACTUAL HISTORY
This case is before the Board for the fifth time. On the first appeal, the Board found that
the Office properly denied appellant’s request for a hearing under section 8124 of the Federal
Employees’ Compensation Act in its September 22, 1998 decision. The Board noted that it did

not have jurisdiction to review the Office’s August 7, 1997 merit decision.1 In the second
appeal, the Board found that the Office properly determined that appellant’s June 11, 2000
request for reconsideration was untimely filed and did not establish clear evidence of error.2 In
the third appeal, the Board found that the Office’s November 25, 2005 decision properly denied
appellant’s February 18, 2005 request for reconsideration decision as untimely. However, as the
Office did not address his argument that he had timely filed a hearing request on August 21,
1997, the Board remanded the case to the Office for further review. It was directed to conduct a
merit review if it denied appellant’s request for a hearing.3 In the fourth appeal, the Board
affirmed the Office’s November 20, 2006 decision, which denied appellant’s request for a
hearing. However, the Board set aside a September 29, 2006 merit decision as the Office did not
address appellant’s contention that he timely filed a request for a hearing on August 21, 1997.
The Board remanded the case to the Office to address his evidence and argument.4 The findings
of fact and conclusions of law from the prior decisions are hereby incorporated by reference.
The record reflects that on February 19, 1997 appellant, then a 49-year-old mail handler,
filed a claim alleging that the January 13, 1997 cerebral vascular accident (CVA) he sustained at
work was caused or aggravated by his employment. The work factors he identified were
“excessive work habits.” At a telephonic hearing was held on November 8, 2007, appellant
testified that on January 13, 1997 he was pulling all-purpose containers with his mule to make
room for incoming business mail when the stroke occurred. He testified that, when he showed
up for work, the worksite was messy from the previous tour. Appellant indicated that two trucks
loaded with mail were expected and there was no room on the east dock. He became angry
which caused stress and contributed to his stroke. Prior to his stroke, appellant worked 10 to12
hours a day, six to seven times a week. He contended that he was not paid for all the time he
worked, which was an additional stressor contributing to his stroke. Appellant stated that he was
cleared to return to work three months after the stroke, but he did not return to work until
January 2, 1998. His wife testified that Dr. Jody K. Meek, a Board-certified psychiatrist, advised
that the stroke was work related. She contended that appellant was mistreated upon returning to
work.
In a January 9, 2007 report, Dr. M. Shahidul Islam, a Board-certified psychiatrist,
diagnosed post status stroke and anxiety disorder. Appellant reported to the physician that he
was under serious stress during the 1997 holiday season. He had no help and became extremely
angry due to the work overload, which led to a stroke, hospitalization and treatment for the
stroke. Dr. Islam noted that appellant had no history of high blood pressure. He stated that
people can experience a stroke or heart attack due to serious stress. Dr. Islam stated that the
mind and body always work together and, when the mind is under too much pressure, the body
can react in a different outburst. He opined that it was possible that appellant may have had a
1

Docket No. 99-0602 (issued May 11, 2000).

2

Docket No. 02-695 (issued June 18, 2003).

3

Docket No. 06-767 (issued September 11, 2006).

4

Docket No. 07-405 (issued June 18, 2007). On February 28, 2007 the Board issued an Order Dismissing Appeal
in Docket No. 07-870. The Board noted two appeals were docketed for one Office file number and allowed Docket
No. 07-405 to proceed. Docket No. 07-870 (issued February 28, 2007).

2

stroke due to his work situation. In a July 9, 2007 report, Dr. Islam advised that stress can raise
the blood pressure to a point that can rupture the blood vessels and cause a stroke. He opined
that appellant was under stress during the January 1997 period, working by himself and
becoming upset about his work situation, which may have caused his blood pressure to rise and
result in a stroke. Dr. Islam stated that it was well documented that people can sustain a heart
attack or stroke due to stress along with other physical conditions.
Appellant also submitted copies of speech-language pathologists reports, copies of
medical bills from 1997; a Shreveport Fire Department Emergency Medical Services Incident
Report; and other medical reports and diagnostic studies pertaining to his hospitalization and
treatment of his CVA. In a February 7, 1997 report, Dr. Meek diagnosed delirium, Wernicke’s
aphasia and social change secondary to CVA.
By decision dated January 3, 2008, an Office hearing representative affirmed the denial
of appellant’s claim, finding there was no evidence that his January 13, 1997 stroke was caused
by a compensable factor of employment.
LEGAL PRECEDENT
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 an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.5 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of reduction-inforce or his frustration from not being permitted to work in a particular environment or to hold a
particular position.6
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship and which are not deemed compensable factors
of employment and may not be considered.7 When a claimant fails to implicate a compensable
factor of employment, the Office should make a specific finding in that regard. If a claimant
does implicate a factor of employment, the Office should then determine whether the evidence of
record substantiates that factor.8 As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim but rather must be corroborated by the
evidence.9 Where the claimant alleges compensable factors of employment, he must substantiate
5

5 U.S.C. §§ 8101-8193.

6

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007); Lillian Cutler, 28 ECAB 125 (1976).

7

M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007); Dennis J. Balogh, 52 ECAB 232 (2001).

8

Margaret S. Krzycki, 43 ECAB 496 (1992).

9

See Charles E. McAndrews, 55 ECAB 711 (2004).

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such allegations with probative and reliable evidence.10 When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, then the Office must base its decision on an analysis of the medical evidence.11
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.12 Rationalized medical
opinion evidence is medical evidence which includes a physician’s opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors.13 The opinion of the physician must be based on a complete
factual and medical background, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific compensable employment factors identified by the claimant.14
ANALYSIS
The evidence establishes that appellant sustained a CVA or stroke while at work on
January 13, 1997. The issue is whether his stroke was caused or contributed to by his federal
employment. Appellant noted that when he arrived at work that day he found that the previous
tour had left the East Dock messy with no room for the incoming mail expected from two trucks.
He pulled all purpose containers to make room for incoming business mail at the time of the
stroke. The Board has held that conditions related to stress from situations in which an employee
is performing his regular or specially assigned duties are compensable.15 The evidence
establishes that appellant was performing his regular assigned work duties at the time of the
stroke. The employing establishment did not dispute appellant’s description of the work he was
performing and there is no contrary evidence of record. Under Cutler,16 appellant has
established a compensable work factor. However, appellant must also establish a causal
connection between this compensable factor of employment and his diagnosed medical
condition.17
Appellant submitted two medical reports from Dr. Islam, who stated that it was possible
that he may have developed a stroke due to the situation at work on January 13, 1997. However,
Dr. Islam’s reports are insufficient to establish appellant’s claim. The Board has held that
medical opinions which are speculative or equivocal in character are of diminished probative
10

Joel Parker, Sr., 43 ECAB 220 (1991).

11

See Charles D. Edwards, 55 ECAB 258 (2004).

12

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

13

D.D., 57 ECAB 734 (2006).

14

Gary J. Watling, 52 ECAB 278 (2001); Donna Faye Cardwell, 41 ECAB 730 (1990).

15

Beverly R. Jones, 55 ECAB 411 (2004).

16

Lillian Cutler, supra note 6.

17

Doretha M. Belnavis, 57 ECAB 311 (2006); Beverly R. Jones, supra note 15.

4

value.18 Dr. Islam’s opinion is speculative regarding causal relation. On January 9, 2007 report
Dr. Islam relied on appellant’s account of his history and opined it was “possible” appellant may
have sustained a stroke due his work situation. On July 9, 2007 Dr. Islam opined that appellant
was under stress during the period January 1997, noting and that he was working by himself and
became upset which “may have” raised his blood pressure and resulted in a stroke. He noted that
people can have a stroke or heart attack due to serious stress and that, when the mind is under too
much pressure, the body can react in a different outburst. The Board finds that Dr. Islam opinion
is not well rationalized in explaining how appellant’s work duties contributed to his stroke.
Dr. Islam’s opinion is not supported by a complete factual and medical history or rationale
explaining the nature of the relationship between the diagnosed condition and the established
factors of employment. He merely noted that appellant was under stress during the holiday
season in 1997 and became upset. Dr. Islam did not provide a detailed history of the work in
which appellant was engaged. Lacking a detailed awareness of appellant’s work factors,
Dr. Islam failed to describe with any specificity how the work appellant was doing caused or
aggravated his stroke. A mere conclusion, without medical rationale explaining why a physician
believes that a claimant’s accepted work factors resulted in a diagnosed condition, is not
sufficient to meet appellant’s burden of proof. The medical evidence must include a complete
factual history and medical rationale explaining how the physician reached his conclusion.19
Dr. Islam’s reports are insufficient to establish causal relation.
While Dr. Meek diagnosed conditions secondary to the CVA, she failed to provide
medical rationale explaining the causal relationship between appellant’s diagnosed condition and
the accepted employment factor.20 The Board finds that Dr. Meek’s report is also insufficient to
establish appellant’s claim.
The other medical evidence of record, including diagnostic studies provide no opinion on
the issue of counsel relationship and are insufficient to establish appellant’s claim. The reports
from a speech therapist are of no probative value as a speech therapist is not a physician under
the Act.21
The Board finds that appellant has not submitted sufficient medical evidence to establish
that his stroke was causally related to his federal employment
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an injury while in
the performance of duty.

18

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Kathy A. Kelley, 55 ECAB
206 (2004).
19

Beverly A. Spencer, 55 ECAB 501 (2004).

20

Caroline Thomas, 51 ECAB 451 (2000).

21

See 5 U.S.C. § 8101(2); Paul Foster, 56 ECAB 208 (2004); Thomas R. Horsfall, 48 ECAB 180 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the January 3, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: January 2, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRUBUTION CENTER,
City of Industry, CA, Employer
__________________________________________

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

Docket No. 07-1248
Issued: November 13, 2007

Case Submitted on the Record

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

JURISDICTION
On April 5, 2007 appellant filed a timely appeal from an August 30, 2006 merit decision
of the Office of Workers’ Compensation Programs granting him a schedule award and a
March 22, 2007 nonmerit decision denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case and over
the March 22, 2007 nonmerit decision.
ISSUES
The issues are: (1) whether appellant has more than a 26 percent permanent impairment
of the left upper extremity and a 5 percent permanent impairment of the right upper extremity for
which he received schedule awards; and (2) whether the Office properly denied his request for
merit review of his claim under 5 U.S.C. § 8128.

FACTUAL HISTORY
On September 20, 2004 appellant, then a 58-year-old clerk, filed an occupational disease
claim alleging that he sustained problems with his upper extremities and knees causally related to
factors of his federal employment. The Office accepted the claim, assigned file number
132114176, for bilateral carpal tunnel syndrome, left medial epicondylitis and right trigger
finger.1 Appellant stopped work on February 22, 2005. He underwent a left carpal tunnel
release on February 22, 2005, and a right carpal tunnel release on March 23, 2005.
The Office referred appellant to Dr. William C. Boeck, Jr., a Board-certified orthopedic
surgeon, for an evaluation to determine the nature and extent of appellant’s work-related
condition and disability. On February 22, 2006 Dr. Boeck noted his history of bilateral carpal
tunnel releases and continuing complaints of pain in the wrists. He listed range of motion
findings for the upper extremities and measured arm circumference and grip strength. For the
right shoulder, Dr. Boeck measured forward flexion of 160 degrees, backward elevation of 60
degrees, abduction of 120 degrees, adduction of 45 degrees, external rotation of 80 degrees and
internal rotation of 60 degrees. For the left shoulder, he measured forward flexion of 150
degrees, backward elevation of 60 degrees, abduction of 120 degrees, adduction of 45 degrees,
external rotation of 80 degrees and internal rotation of 60 degrees. Dr. Boeck further listed range
of motion findings for the elbows, forearms and wrists. He stated, “Examination of the upper
extremities reveals tenderness to palpation over the right shoulder. There is positive right
shoulder impingement test. There are normal intrinsic motions in the hands. Muscle strength
and sensation appear intact.” Dr. Boeck diagnosed resolved epicondylitis and right trigger
fingers, status postoperative bilateral carpal tunnel syndrome, left shoulder tendinitis and status
post lumbar surgery. He concluded that appellant had a slight limitation in shoulder elevation
and range of motion of the wrists, a positive impingement test of the right shoulder and
subjective complaints of pain in the wrists radiating to the shoulder on the right side.2
On April 27, 2006 appellant filed a claim for a schedule award. An Office medical
adviser reviewed Dr. Boeck’s opinion on May 15, 2006 and noted that he “has not calculated
impairment ratings.” He opined that appellant had no impairment due to his left lateral
epicondylitis or right trigger finger and no impairment for loss of motion or weakness of the
upper extremities. The Office medical adviser concluded that appellant had a five percent
impairment of each upper extremity due to carpal tunnel syndrome and reached maximum
medical improvement on February 22, 2006.
On June 8, 2006 an Office medical adviser noted that appellant received a schedule
award for a 22 percent impairment of the left upper extremity under file number 132097807. On
1

The Office accepted that appellant sustained left shoulder strain, left shoulder tendinitis, neck strain and an ulnar
lesion of the upper extremities under file number 132067807. By decision dated July 22, 2005, the Board set aside a
March 22, 2005 decision denying his request for reconsideration of a schedule award decision under section 8128.
Martin Gaitan, Docket No. 05-1028 (issued July 22, 2005). By decision dated September 7, 2005, the Office denied
modification of its March 2, 2004 decision finding that appellant had no more than a 22 percent permanent
impairment of the left upper extremity.
2

Based on Dr. Boeck’s report, the Office found a conflict in medical opinion on the issue of whether appellant
could perform limited-duty employment and further developed the medical evidence.

2

June 16, 2006 he opined that appellant was entitled to an additional five percent left upper
extremity award for carpal tunnel syndrome. The Office medical adviser combined the prior 22
percent award for the left upper extremity with the 5 percent award for residuals of his carpal
tunnel syndrome and concluded that appellant had a 26 percent left upper extremity impairment.
He also noted that appellant had a five percent right upper extremity impairment.
By decision dated August 30, 2006, the Office granted appellant a schedule award for an
additional four percent permanent impairment of the left upper extremity and a five percent
impairment of the right upper extremity. The period of the award ran for 28.08 weeks from
May 14 to November 26, 2006.
On January 11, 2007 appellant requested reconsideration. He asserted that he continued
to experience pain and numbness radiating from his fingers to his shoulders which resulted in
significant limitations. In a decision dated May 22, 2007, the Office denied appellant’s request
for reconsideration under section 8128 on the grounds that the evidence submitted was
insufficient to warrant merit review of the August 30, 2006 decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act,3 and its
implementing federal regulations,4 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 for all
claimants, the Office has adopted the American Medical Association, Guides to the Evaluation
of Permanent Impairment (5th ed. 2001) as the uniform standard applicable to all claimants.5
Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in 2001, for all
decisions made after February 1, 2001.6
Regarding carpal tunnel syndrome, the A.M.A., Guides provide:
“If, after an optimal recovery time, following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present-(1) Positive clinical findings of median nerve dysfunction and
electrical conduction delay(s): the impairment due to residual CTS
[carpal tunnel syndrome] is rated according to the sensory and/or
motor deficits as described earlier.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

20 C.F.R. § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

3

(2) Normal sensibility and opposition strength with abnormal
sensory and or motor latencies or abnormal EMG
[electromyogram] testing of the thenar muscles: a residual CTS is
still present and an impairment rating not to exceed five percent of
the upper extremity may be justified.
(3) Normal sensibility (two-point discrimination and SemmesWeinstein monofilament testing), opposition strength and nerve
conduction studies: there is no objective basis for an impairment
rating.”7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral carpal tunnel syndrome, left medial
epicondylitis and right trigger finger due to factors of his federal employment in file number
13114176. Appellant underwent a left carpal tunnel release on February 22, 2005 and a right
carpal tunnel release on March 23, 2005. He had a prior accepted condition of left shoulder
strain, left shoulder tendinitis, neck strain and an ulnar lesion under file number 132067807.
Appellant received a schedule award for a 22 percent impairment of the left upper extremity
under that file number.
The Office referred appellant to Dr. Boeck for a second opinion examination on the issue
of whether he had any further employment-related condition and disability. Dr. Boeck
diagnosed resolved epicondylitis and right trigger finger, status bilateral carpal tunnel releases
and left shoulder tendinitis. He noted appellant’s continued complaints of wrist pain. On
examination of the upper extremities, Dr. Boeck found tenderness over the right shoulder and a
positive impingement test but normal muscle strength and sensation. He listed range of motion
findings for the upper extremities and measured grip strength and arm circumference.
Page 495 of the A.M.A., Guides states that, after an optimal recovery time following
surgical decompression of carpal tunnel syndrome, three scenarios are possible: if positive
clinical findings of median nerve dysfunction are present, the impairment is rated according to
sensory or motor deficits; with normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG testing, an impairment rating not to exceed five percent
may be justified; finally, with normal sensibility, opposition strength and nerve conduction
studies, there is no objective basis for an impairment rating.8
An Office medical adviser reviewed Dr. Boeck’s report and opined that appellant had a
five percent impairment of the right and left upper extremity due to his bilateral carpal tunnel
syndrome. He combined the prior 22 percent prior award for the left upper extremity award with
the 5 percent award due to carpal tunnel syndrome and found a 26 percent impairment of the left
upper extremity. The Office medical adviser indicated that appellant had a five percent
impairment of the right upper extremity. He did not, however, adequately explain how he
7

A.M.A., Guides 495.

8

Id.

4

derived this impairment rating due to carpal tunnel syndrome. The Office medical adviser
apparently applied the second scenario outlined on page 495 of the A.M.A., Guides for rating
carpal tunnel syndrome, which provides an impairment rating not to exceed five percent for
residual carpal tunnel syndrome as demonstrated by normal sensibility and opposition strength
with abnormal sensory and/or motor latencies or abnormal EMG testing of the thenar muscles. It
does not appear, however, that appellant underwent electrodiagnostic testing after his carpal
tunnel releases.
The Board further notes that the Office medical adviser failed to consider Dr. Boeck’s
range of motion measurements for the upper extremities. For the right shoulder, 160 degrees of
forward flexion yields a one percent impairment,9 60 degrees extension yields no impairment,10
120 degrees abduction yields a two percent impairment,11 45 degrees adduction yields no
impairment,12 80 degrees external rotation yields no impairment,13 and 60 degrees internal
rotation yields a two percent impairment.14 While a right shoulder condition has not been
accepted as employment related, it is well established that in determining the amount of a
schedule award for a given member of the body that sustained an employment-related
impairment, preexisting impairments of that scheduled member of the body are to be included.15
Dr. Boeck also provided measurements for the left shoulder which resulted in loss of range of
motion. For the left shoulder, 60 degrees of forward flexion yields a two percent impairment,16
60 degrees extension, yields no impairment,17 120 degrees abduction yields a two percent
impairment,18 45 degrees adduction yields no impairment,19 80 degrees external rotation yields
no impairment,20 and 60 degrees internal rotation yields a two percent impairment.21 Appellant
did not have an impairment of the elbows or forearms due to loss of range of motion.22
9

Id. at 476, Figure 16-40.

10

Id.

11

Id. at 477, Figure 16-43.

12

Id.

13

Id. at 479, Figure 16-46.

14

Id.

15

See Clary J. Cleary, 57 ECAB ___ (Docket No. 05-1558, issued May 10, 2006); Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(3) (June 2003).
16

Id. at 476, Figure 16-40.

17

Id.

18

Id. at 477, Figure 16-43.

19

Id.

20

Id. at 479, Figure 16-46.

21

Id.

22

Id. at 472, 474, Figures 16-34, 16-37.

5

Accordingly, as the Office medical adviser did not comply with the A.M.A., Guides and
the Office’s procedures, the Board will remand the case for a recalculation of the extent of
appellant’s left and right upper extremity impairment. After such further development as the
Office deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.23
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated March 22, 2007 and August 30, 2006 are set aside and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: November 13, 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

23

In view of the Board’s disposition of the merits, the issue of whether the Office properly denied appellant’s
request for reconsideration under section 8128 is moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.L., Appellant
and
PEACE CORPS, GRENADA, EASTERN
CARIBBEAN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-76
Issued: April 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 9, 2007 appellant filed a timely appeal from an October 1, 2007 decision of
the Office of Workers’ Compensation Programs, which found that she received an overpayment
of compensation in the amount of $1,347.43. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of the appeal.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $1,347.43 for the period August 1 to September 1, 2007; and (2) whether the Office
properly determined that she was at fault in accepting the overpayment and was therefore not
entitled to waiver.
FACTUAL HISTORY
On July 28, 1991 appellant, then 41 years old, was sexually assaulted while serving as a
peace corps’ volunteer. On August 19, 1991 the Office accepted that she sustained employmentrelated post-traumatic stress disorder, and she was placed on the periodic rolls. By decision

dated December 14, 1993, appellant’s wage-loss compensation was reduced to reflect that her
actual earnings as a part-time pre-school teacher trainee fairly and reasonably represented her
wage-earning capacity.1 Her wage-loss compensation was deposited electronically.
By letters dated June 18 and 26, 2007, the Office informed appellant that a second
opinion evaluation was scheduled for August 1, 2007. On July 15, 2007 appellant stated:
“Please cancel. I don’t need it. I am working.” On July 20, 2007 the Office proposed to
suspend appellant’s wage-loss compensation for failure to cooperate with a scheduled
examination. The Office noted that her reasons for requesting cancellation of the scheduled
appointment were not valid and that she had to attend the examination scheduled for
August 1, 2007. By letter dated July 23, 2007, appellant informed the Office that she wished to
relinquish her claim.
In an August 31, 2007 decision, the Office suspended appellant’s compensation, effective
August 1, 2007.2
By letter dated August 31, 2007, the Office issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $1,347.43 for the period
August 1 to September 1, 2007 because she received disability compensation after her wage-loss
compensation was suspended effective August 1, 2007. The Office found her at fault in the
creation of the overpayment because she knew or should have known that she was not entitled to
wage-loss compensation after missing a scheduled second opinion evaluation. An overpayment
worksheet contained in the record provides that, during this period, appellant received
compensation totaling $1,347.43. It shows that she received a direct deposit payment on
September 1, 2007 for the period August 5 to September 1, 2007 and that the preceding direct
deposit included four days of overpaid compensation, August 1 to 4, 2007.
By decision dated October 1, 2007, the Office found that appellant was at fault in the
creation of an overpayment in compensation in the amount of $1,347.43. Appellant was advised
that she should forward the $1,347.43 to the Office within 30 days.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act3 and Office regulations provide that an
employee shall submit to examination by a medical officer of the United States, or by a
physician designated or approved by the Secretary of Labor, after the injury and as frequently
and at the times and places as may be reasonably required.4 If an employee refuses to submit to
or obstructs an examination, his or her right to compensation is suspended until the refusal or
obstruction stops. Compensation is not payable while a refusal or obstruction continues, and the
1

The December 14, 1993 decision amended a November 12, 1993 decision that failed to indicate that appellant’s
actual earnings were based on part-time work.
2

Appellant did not file an appeal with the Board of this decision.

3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8123(a); 20 C.F.R. § 10.320.

2

period of the refusal or obstruction is deducted from the period for which compensation is
payable to the employee.5
To invoke this provision of the law, the Office must ensure that the claimant has been
properly notified of his or her responsibilities with respect to the medical examination scheduled.
Either the claims examiner or the medical management assistant may contact the physician
directly and make an appointment for examination. The claimant and representative, if any,
must be notified in writing of the name and address of the physician to whom he or she is being
referred as well as the date and time of the appointment. The notification of the appointment
must contain a warning that benefits may be suspended under section 8123(d) of the Act for
failure to report for examination. The claimant must have a chance to present any objections to
the Office’s choice of physician, or any reasons for failure to appear for the examination, before
the Office acts to suspend compensation.6
If the claimant does not report for a scheduled appointment, he or she should be asked in
writing to provide an explanation within 14 days. If good cause is not established, entitlement to
compensation should be suspended in accordance with section 8123(d) until the date on which
the claimant agrees to attend the examination. Such agreement may be expressed in writing or
by telephone (documented on Form CA-110). When the claimant actually reports for
examination, payment retroactive to the date on which the claimant agreed to attend the
examination may be made. The claimant’s statement that he or she will not appear for an
examination is not sufficient to invoke the penalty. Refusal to schedule an examination at the
direction of the Office is also insufficient to invoke section 8123(d).7
Section 8102(a) of the Act provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.8 Section 8129(a) of the Act provides, in pertinent part:
“When an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations
prescribed by the Secretary of Labor by decreasing later payments to which an
individual is entitled.”9
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $1,347.43. The record establishes that she received compensation from the date of her wage5

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (July 2000); see E.B., 59 ECAB ____ (Docket No. 07-1618, issued January 8, 2008).
7

Id.

8

5 U.S.C. § 8102(a).

9

5 U.S.C. § 8129(a).

3

loss compensation which was suspended, August 1, 2007, until September 1, 2007. Appellant
received compensation in the amount of $1,347.43. As she was not entitled to receive
compensation after her wage-loss compensation was suspended, the Office properly found that
an overpayment in compensation in the amount of $1,347.43 had been created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”11
Section 10.433(a) of the Office’s regulation provides that the Office:
“[M]ay consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of
compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from [the Office] are proper. The recipient must
show good faith and exercise a high degree of care in reporting events which may
affect entitlement to or the amount of benefits. A recipient who has done any of
the following will be found to be at fault in creating an overpayment: (1) Made
an incorrect statement as to a material fact which he or she knew or should have
known to be incorrect; or (2) Failed to provide information which he or she knew
or should have known to be material; or (3) Accepted a payment which he or she
knew or should have known to be incorrect. (This provision applies only to the
overpaid individual).”12
In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.13

10

5 U.S.C. §§ 8101, 8110.

11

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

12

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

13

Tammy Craven, 57 ECAB ____ (Docket No. 05-249, issued July 24, 2006).

4

ANALYSIS -- ISSUE 2
The Office found appellant at fault in the creation of the overpayment as she should have
been aware that the payments she received by direct deposit for the period August 1 to
September 1, 2007 were not proper because her wage-loss compensation had been suspended.
Even though the Office may have been negligent in making incorrect payments, this does
not excuse a claimant from accepting payments he or she knew or should have known to be
incorrect.14 The Board has found the claimant to be at fault in cases where he or she is receiving
compensation checks through direct deposit which involve a series of payments over several
months with clear knowledge that the payments were incorrect.15 It is not appropriate, however,
to make a finding that a claimant has accepted an overpayment via direct deposit until such time
as a reasonable person would have been aware that this overpayment had occurred. This
awareness could be established either through documentation such as a bank statement or
notification from the Office or where a reasonable period of time has passed during which a
claimant could have reviewed independent confirmation of the incorrect payment.16
In this case, appellant received one compensation payment by direct deposit on
September 1, 2007, one day after the decision to suspend her wage-loss compensation was issued
on August 31, 2007. The suspension was effective August 1, 2007, and the overpayment
included four days from the previous direct deposit period. The Office’s regulations determine
fault by what the claimant knew or should have known at the time of acceptance. With an
electronic fund transfer, a claimant will not be at fault for accepting the first incorrect payment
because the requisite knowledge is lacking at the time of deposit. In this case, there is no
evidence of record to show the period covered by the direct deposit.17 A finding of no fault does
not mean, however, that the claimant may keep the money, only that the Office must consider
eligibility for waiver for this period. The case will be remanded for the Office to determine
whether appellant is entitled to waiver for this overpayment.
The Board finds that appellant was not at fault in the creation of the overpayment. A
direct deposit made on September 1, 2007, one day after her wage-loss compensation was
suspended on August 31, 2007, with an effective date of August 1, 2007. The case will be
remanded to the Office to determine if appellant is entitled to waiver of the $1,347.43
overpayment in compensation.
CONCLUSION
The Board finds that the Office properly determined that an overpayment arose in the
amount of $1,347.43. Appellant was not at fault in the creation of the overpayment. The case is
remanded for a determination of whether she would be entitled to waiver.
14

William E. McCarty, 54 ECAB 525 (2003).

15

See Karen K. Dixon, 56 ECAB 145 (2004).

16

See K.H., Docket No. 06-191 (issued October 30, 2006).

17

See Karen K. Dixon, supra note 15.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2007 be affirmed, in part, set aside, in part, and the
case remanded for further proceedings consistent with this opinion of the Board.
Issued: April 10, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6