United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Clarita, CA, Employer
__________________________________________

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Appearances:
Stephen Larkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket Nos. 15-1548; 15-1574
Issued: March 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 11, 2015 appellant filed two timely appeals from two March 18, 2015 merit
decisions of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established work-related disability for the period
July 1 to November 26, 2013; (2) whether OWCP met its burden of proof to terminate
appellant’s wage-loss compensation and medical benefits effective November 27, 2013; and
(3) whether appellant met her burden of proof to establish work-related disability or entitlement
to medical benefits after November 27, 2013.

1

The appeal of each decision was docketed as a separate appeal.

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 14, 2013 appellant, then a 52-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained a left knee condition due to
the standing, bending, and stooping required by her job over time. OWCP accepted her claim for
temporary aggravation of left knee osteoarthritis, Sub OWCP File No. xxxxxx505. On
March 14, 2013 appellant also filed an occupational disease claim alleging that she sustained a
right knee condition due to the same job duties. OWCP accepted her claim for temporary
aggravation of right knee osteoarthritis, Master OWCP File No. xxxxxx468.3 Appellant stopped
work on July 1, 2013 and filed a claim for compensation (Form CA-7) alleging that she had
work-related disability for the period July 1 to August 5, 2013. Appellant later filed a claim for
compensation alleging work-related disability for the period August 6 to November 29, 2013.
In a note dated July 8, 2013, Dr. Pankaj Shukla, an attending Board-certified internist,
indicated that appellant should be off work from July 1 to August 5, 2013 due to her left knee
condition. In a note dated July 17, 2013, Dr. Pritam Badesha, an attending Board-certified
internist at the Department of Veterans Affairs, noted that she was medically unable to return to
work until October 5, 2013.
OWCP referred appellant for a second opinion evaluation of her work-related condition
to Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon.
In an August 28, 2013 report, Dr. Hanley detailed appellant’s factual and medical history,
including her accepted work injuries and past history of medical treatment. He indicated that
upon physical examination on August 28, 2013 appellant had full range of motion in her left
knee, but also had ligament instability and significant effusion. Appellant had no effusion or
instability in her right knee. Dr. Hanley determined that appellant had confirmed diagnoses of
advanced degenerative arthritis of the left knee, as a consequence of long-standing knee
instability and mild osteoarthritis of the right knee. He acknowledged that appellant’s work
activities as a mail processing clerk aggravated her underlying knee conditions, but indicated that
the aggravation was temporary and ceased when she no longer performed the work activity.
Dr. Hanley noted that there was no evidence of material and substantive change that occurred as
a result of the work exposure. He noted that what had occurred was the natural progressive
history of an unstable knee in a susceptible individual. Dr. Hanley opined that there is no period
of total disability due to the work-related temporary aggravation. Appellant’s total disability was
related to the underlying knee condition and would continue to exist until definitive treatment
occurred.4
In a September 27, 2013 decision, OWCP denied appellant’s claim for work-related
disability for the period July 1 to November 29, 2013 (File No. xxxxxx468). It noted that several
3

OWCP initially developed the two occupational disease claims under separate claim files, but it later combined
them into the same master file. It appears from the record that appellant was granted 20 percent disability rating
from the Department of Veterans Affairs due to a 2003 left knee injury.
4

Dr. Hanley completed a work capacity evaluation form on August 28, 2013 indicating that appellant had
permanent restrictions with regard to standing, walking, pushing, pulling, lifting, climbing, kneeling, and squatting
due to her underlying preexisting condition.

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attending physicians had placed her off work for various periods beginning July 1, 2013, but that
the record did not contain a rationalized medical opinion relating her disability on or after that
date to the accepted work injuries.
In an October 10, 2013 letter, OWCP advised appellant that it proposed to terminate her
wage-loss compensation and medical benefits because she no longer had residuals of her
accepted work injuries (File No. xxxxxx505). It indicated that the proposed action was justified
by the August 28, 2013 report of Dr. Hanley, the OWCP referral physician. OWCP provided
appellant 30 days to submit evidence and argument challenging the proposed termination action.
Appellant requested reconsideration of the September 27, 2013 decision. She also
submitted a letter in response to the proposal to terminate her compensation benefits in which
she argued that the medical evidence showed that she continued to have disabling residuals of
her accepted work injuries. She submitted an August 29, 2013 report in which Dr. Alfred
Coppola, an attending Board-certified orthopedic surgeon, indicated that she could not work due
to her advanced osteoarthritis. In a disability slip dated August 29, 2013, Dr. Coppola noted that
appellant could not work for three months. On September 6, 2013 he noted that appellant was
totally disabled from September 6, 2013 until approximately November 29, 2013. In an
August 12, 2013 note, Dr. Shukla noted that appellant was seen on July 1, 2013 for left knee pain
and was taken off work for the period July 1 to August 5, 2013.
By decision dated November 27, 2013, OWCP terminated appellant’s wage-loss and
medical compensations benefits effective November 27, 2013 because it found that she did not
have residuals of her accepted work injuries after that date. It indicated that the weight of the
medical evidence, with respect to work-related residuals, rested with the August 28, 2013 report
of Dr. Hanley. OWCP found that the reports of attending physicians did not contain a
rationalized medical opinion relating appellant’s continuing disability or need for medical care
due to the accepted work injuries.
In a February 3, 2014 decision, OWCP denied modification of its September 27, 2013
decision denying appellant’s claim for work-related disability for the period July 1 to
November 29, 2013. It again found that appellant had not submitted rationalized medical
evidence establishing the claimed period of work-related disability and noted that her wage-loss
compensation and medical benefits had been terminated effective November 27, 2013.
On February 4, 2014 appellant requested reconsideration of the November 29, 2013
termination decision.
In a June 5, 2014 note, Dr. Coppola reported that appellant was scheduled for surgery on
June 10, 2014 and that she was temporarily disabled for three months.
In an August 9, 2014 letter, appellant’s counsel also requested reconsideration of the
November 27, 2013 decision and argued that the medical evidence of record showed that
appellant had work-related disability since July 1, 2013.
Counsel submitted a June 25, 2014 report by Dr. Badesha who noted that appellant had a
20 percent service-connected disability rating due to a left knee injury in 2003 and noted that,
over the past few years, her left knee condition had worsened. He noted that the work appellant
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performed for the employing establishment included prolonged bending, stooping, standing,
walking, pushing, and pulling. This work gradually affected her condition causing aggravation
to the injury affecting both knees. Dr. Badesha noted that appellant had been advised to be off
work by her private physician since July 1, 2011 due to her knee condition. He indicated that on
June 10, 2014 appellant underwent total knee replacement surgery of her left knee and concluded
that, as a result, she had been advised to remain off work for an additional three months
postsurgery.5
In an October 27, 2014 decision, OWCP denied modification of its February 3, 2014
decision finding that appellant did not meet her burden of proof to establish work-related
disability for the period July 1 to November 29, 2013. It found that the newly submitted medical
evidence did not contain rationalized medical opinion evidence relating her continuing disability
since July 1, 2013 to the accepted work injuries.
In an October 29, 2014 decision, OWCP denied modification of its November 27, 2013
decision terminating appellant’s wage-loss compensation and medical benefits effective
November 27, 2013 noting that the weight of the medical evidence with respect to work-related
residuals continued to rest with the August 28, 2013 report of Dr. Hanley. It also found that the
medical evidence appellant submitted after the November 27, 2013 termination action did not
establish her work-related disability or need for medical treatment after November 27, 2013.
Appellant, through counsel, request reconsideration of OWCP’s October 27 and 29, 2014
decisions, which OWCP received on December 20, 2014.
In a December 20, 2014 report, Dr. Coppola noted that he had reviewed appellant’s chart
and found confirmation of disability forms and clinical appointments that supported the fact that
she was on disability from July 1 through November 29, 2013. He noted that appellant’s
diagnosis was directly related to the progression of her knee osteoarthritis and he felt that office
notes and dictations supported that diagnosis and those findings. Dr. Coppola noted that his
disability reports and findings were in complete agreement with a December 11, 2014 report of
an attending physician6 who concluded that appellant’s “progression was related to activities
associated at the [employing establishment].” He concluded that the physical findings,
radiographic findings, and symptoms were all concurrent and consistent.
By decision dated March 18, 2015, OWCP denied modification of its October 29, 2014
decision, noting that it met its burden of proof to terminate appellant’s compensation benefits
effective November 27, 2013 and that appellant did not meet her burden of proof to establish
work-related disability or entitlement to medical benefits after November 27, 2013.
In another decision dated March 18, 2015, OWCP denied modification of its October 27,
2014 decision finding that appellant did not establish work-related disability for the period July 1
to November 29, 2013.
5

There is no indication in the record that this surgery, left total knee replacement, has been determined to be
related to appellant’s accepted work conditions.
6

The referenced December 11, 2014 report does not appear to be in the record.

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LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden to establish the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was 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.7 In general the term disability under FECA means incapacity
because of injury in employment to earn the wages which the employee was receiving at the time
of such injury.8 This meaning, for brevity, is expressed as disability for work.9
The medical evidence required to establish a causal relationship between a claimed
period of disability and an employment injury is rationalized medical opinion evidence. 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.10
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for temporary aggravation of bilateral knee
osteoarthritis. Appellant stopped work on July 1, 2013 and filed a claim for compensation (Form
CA-7) alleging that she had work-related disability commencing July 1, 2013 and continuing.
The Board finds that appellant did not establish work-related disability for the period July 1 to
November 26, 2013.11
Appellant submitted reports indicating that she had disability for various periods on or
after July 1, 2013. However, none of these reports contained a rationalized medical opinion
relating her disability on or after that date to the accepted work injuries.
In a note dated July 8, 2013, Dr. Shukla, an attending Board-certified internist, indicated
that appellant should be off work from July 1 to August 5, 2013 due to her left knee condition.
In an August 12, 2013 note, he noted that appellant was seen on July 1, 2013 for left knee pain
and was taken off work for the period July 1 to August 5, 2013. The Board finds that these
reports do not establish appellant’s claim for work-related disability for the period July 1 to
7

J.F., Docket No. 09-1061 (issued November 17, 2009).

8

Roberta L. Kaaumoana, 54 ECAB 150 (2002); see also A.M., Docket No. 09-1985 (issued April 23, 2010); 20
C.F.R. § 10.5(f).
9

Id.

10

See E.J., Docket No. 09-1481 (issued February 19, 2010).

11

The Board notes that appellant actually filed Forms CA-7 covering the period July 1 to November 29, 2013, but
that her wage-loss compensation (and medical benefits) were terminated November 27, 2013. Therefore, appellant’s
entitlement to wage-loss compensation from November 27, 2013 onwards will be considered under the portion of
this decision concerning the second and third issues of the case.

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November 26, 2013 because they do not contain an opinion that her disability was due to the
accepted work injuries. The Board has held that medical evidence which does not offer any
opinion regarding the cause of an employee’s condition or disability is of limited probative value
on the issue of causal relationship.12
In a note dated July 17, 2013, Dr. Badesha, an attending Board-certified internist at the
Department of Veterans Affairs, noted that appellant was medically unable to return to work
until October 5, 2013. However, he did not provide any opinion on the cause of this period of
disability. In a June 25, 2014 report, Dr. Badesha noted that appellant had 20 percent serviceconnected disability rating due to a left knee injury in 2003 and further noted that, over the past
few years, her left knee condition had worsened. He indicated that appellant’s work gradually
affected her condition causing aggravation to the injury affecting both knees. Dr. Badesha
reported that appellant had been advised to be off work by her private physician since July 1,
2011 due to her knee condition and that on June 10, 2014 she underwent total knee replacement
surgery of her left knee (with her private physician recommending three months off postsurgery).13 In his June 25, 2014 report, he merely repeated the disability opinion of another
physician without providing his own opinion. The Board notes that it was accepted that
appellant’s knee condition was aggravated by work factors, but that the present question is
whether that work-related aggravation caused disability on or after July 1, 2013. The reports of
Badesha do not directly address that question.
Appellant submitted an August 29, 2013 report in which Dr. Coppola, an attending
Board-certified orthopedic surgeon, indicated that she could not work due to her advanced
osteoarthritis. In a disability slip dated August 29, 2013, he noted that appellant could not work
for three months. On September 6, 2013 Dr. Coppola noted that appellant was totally disabled
from September 6 until approximately November 29, 2013. In a June 5, 2014 note, he noted that
appellant was scheduled for surgery on June 10, 2014 and that she was temporarily disabled for
three months. The Board finds that these reports do not establish appellant’s claim for workrelated disability for the period July 1, 2013 and continuing because they do not contain an
opinion that her disability was due to the accepted work injuries.
In a December 20, 2014 report, Dr. Coppola noted that appellant was on disability from
July 1 through November 29, 2013 due to the progression of her knee osteoarthritis. He noted
that his disability reports and findings were in complete agreement with a December 11, 2014
report of an attending physician14 who concluded that appellant’s “progression was related to
activities associated at the [employing establishment].”
Although Dr. Coppola related
appellant’s disability beginning July 1, 2013 to work factors, he did not provide a rationalized
medical opinion in support of this position. He did not describe the accepted work injuries in
any detail or explain how they would have been competent to cause disability on or after
12

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

13

The Board notes that there is no indication in the record that this surgery, left total knee replacement, has been
determined to be related to appellant’s accepted work conditions and the medical evidence does not otherwise
establish such a relationship to work.
14

Supra note 6.

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July 1, 2013. Dr. Coppola did not explain why appellant’s disability was not due to a nonworkrelated condition.
For these reasons, appellant did not establish work-related disability for the period July 1
to November 26, 2013.15
LEGAL PRECEDENT -- ISSUE 2
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.16 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.17 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.18
ANALYSIS -- ISSUE 2
OWCP terminated appellant’s wage-loss compensation and medical benefits effective
November 27, 2013 based on the August 28, 2013 report of Dr. Hanley, a Board-certified
orthopedic surgeon and OWCP referral physician. The Board finds that the thorough, wellrationalized opinion of Dr. Hanley is sufficient to terminate benefits by OWCP. The August 28,
2013 report of Dr. Hanley fails to establish disability or need for medical treatment due to her
accepted work injuries after November 27, 2013.
In an August 28, 2013 report, Dr. Hanley detailed appellant’s factual and medical history,
including her accepted work injuries and past history of medical treatment. He determined that
appellant had confirmed diagnoses of advanced degenerative arthritis of the left knee, as a
consequence of long-standing knee instability, and mild osteoarthritis of the right knee.
Dr. Hanley acknowledged that appellant’s work activities as a mail processing clerk aggravated
her underlying knee conditions, but indicated that the aggravation was temporary and ceased
when she no longer performed the work activity. He noted that there was no evidence of
material and substantive change that occurred as a result of the work exposure. Dr. Hanley
opined that there is no period of total disability due to the work-related temporary aggravation.
Appellant’s total disability was related to the underlying knee condition and would continue to
exist until definitive treatment occurred.19 Appellant has not presented competent medical
evidence to refute the opinion of Dr. Hanley.

15

On appeal, appellant alleged that the medical evidence supported her work-related disability for this period, but
she did not identify rationalized medical evidence relating her disability to the accepted work conditions.
16

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

17

Charles E. Minniss, 40 ECAB 708, 716 (1989).

18

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

19

Dr. Hanley completed a work capacity evaluation form on August 28, 2013 indicating that appellant had work
restrictions, but that these were due to her underlying preexisting condition.

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The Board has carefully reviewed the opinion of Dr. Hanley and notes that it has
reliability, probative value, and convincing quality with respect to its conclusions regarding the
relevant issue of the present case. Dr. Hanley provided a thorough factual and medical history
and accurately summarized the relevant medical evidence.20 He provided medical rationale for
his opinion by explaining that the temporary aggravation of appellant’s underlying degenerative
bilateral knee condition had resolved.21
LEGAL PRECEDENT -- ISSUE 3
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation benefits shifts to appellant. In
order to prevail, appellant must establish by the weight of the reliable, probative, and substantial
evidence that he or she had an employment-related disability which continued after termination
of compensation benefits.22
ANALYSIS -- ISSUE 3
After OWCP’s November 27, 2013 decision terminating appellant’s wage-loss
compensation and medical benefits effective November 27, 2013, appellant submitted additional
medical evidence which she claimed establishes that she was entitled to compensation after
November 27, 2013 due to residuals of her accepted work injuries. Given that the Board has
found that OWCP properly relied on the opinion of Dr. Hanley in terminating appellant’s wageloss compensation and medical benefits effective November 27, 2013, the burden shifts to
appellant to establish that she is entitled to compensation after that date.
The Board has reviewed the additional evidence submitted by appellant and notes that it
is not of sufficient probative value to establish that she had residuals of her accepted work
injuries after November 27, 2013.
In several reports, Dr. Coppola noted that appellant was totally disabled for a period that
extended through November 29, 2013. In June 5 and December 20, 2014 reports, Dr. Coppola
mentioned appellant’s June 10, 2014 left total knee replacement surgery and indicated that she
was disabled from around the time of the surgery until three months postsurgery. However,
Dr. Coppola did not provide a rationalized medical opinion relating appellant’s disability or need
for medical care due to work factors. In a June 25, 2014 report, Dr. Badesha noted that appellant
had been advised to be off work by her private physician since July 1, 2011 due to her knee
condition and that on June 10, 2014 she underwent left total knee replacement surgery (with her
20

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

21

Appellant submitted notes of Dr. Shukla, Dr. Badesha, and Dr. Coppola which found disability around that time
of Dr. Hanley’s August 28, 2013. However, for the reasons described above, these reports had limited probative
value on the issue of causal relationship. On appeal, appellant alleged that the medical evidence supported her
work-related disability and need for medical treatment on and after November 27, 2013, but she did not identify
rationalized medical evidence relating her disability and need for medical treatment on and after November 27, 2013
to the accepted work conditions.
22

Wentworth M. Murray, 7 ECAB 570, 572 (1955).

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private physician recommending three months off postsurgery). However, as noted above,
Dr. Badesha merely repeated the disability opinion of another physician without providing his
own opinion.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish work-related disability for the period
July 1 to November 26, 2013. The Board further finds that OWCP met its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits effective November 27, 2013
and that appellant did not meet her burden of proof to establish work-related disability or
entitlement to medical benefits after November 27, 2013.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2015 decisions of the Office of
Workers’ Compensation Programs are affirmed.
Issued: March 15, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF THE TREASURY, OFFICE
OF THE SECRETARY, Washington, DC,
Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0321
Issued: October 25, 2018

Case Submitted on the Record

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

JURISDICTION
On November 30, 2017 appellant, through counsel, filed a timely appeal from a June 6,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established that the acceptance of the claim should be
expanded to include the additional conditions of concussion; postconcussion syndrome; posttraumatic migraine; occipital headaches and fatigue; occipital neuritis; neck sprain; cervical strain
syndrome with cervicalgia; saccadic eye movement deﬁciency and vestibular dysfunction;
cervical, lumbar, and brachial radiculopathy symptoms; ulnar neuropathy; and carpal tunnel
syndrome.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On October 21, 2013 appellant, then a 31-year-old economist, filed a traumatic injury claim
(Form CA-1) alleging that, on August 16, 2013, she sustained injuries when she fell down stairs
while entering the building where she worked.
By decision dated January 7, 2014, OWCP initially denied the claim, finding that appellant
had not established that the claimed incident occurred as alleged. On February 4, 2015 it accepted
her claim for knee sprain, bilateral ankle sprain, right tibia contusion, and lumbar sprain.
In correspondence dated February 12, 2015, counsel requested that the acceptance of
appellant’s claim be expanded to include the additional conditions of: myofascial pain syndrome;
reflex sympathetic disorder (RSD) which affected his lower right and upper left extremities; a
concussion; postconcussion syndrome; post-traumatic migraine; occipital headaches and fatigue;
occipital neuritis; neck sprain; cervical strain syndrome with cervicalgia; saccadic eye movement
deficiency and vestibular dysfunction; cervical, lumbar, and brachial radiculopathy symptoms;
ulnar neuropathy; and carpal tunnel syndrome.
Medical evidence subsequently submitted included an October 19, 2014 report in which
Dr. Henry M. Friedman, an optometrist, noted seeing appellant for a vision and eye health
examination due to dizziness with eye movement, headache and eyestrain associated with reading,
and blurred distance vision, all of which began with a concussion injury on August 16, 2013.
Following eye examination, Dr. Friedman had advised that appellant’s saccadic eye movements
showed occasional undershoots and her binocular coordination was grossly abnormal, and noted
that testing caused pain. He recommended a program of vision therapy to improve spatial
localizing skills, binocular posturing, and visual-vestibular integration in an aid to eliminate
dizziness, headache, and eyestrain. In a January 30, 2015 report, Dr. Friedman opined that
appellant’s symptoms were atypical of most developmental or stress-induced visual problems and,
therefore, it seemed logical that they were the result of brain injury.
In follow-up reports dated May 27 to September 16, 2015, Dr. James Weiss, a Boardcertified orthopedic surgeon, noted appellant’s complaints of RSD in her hands and continued
upper and lower back, right hip and thigh, and right knee symptoms, and had been seen by a
3

Docket No. 17-1448 (issued December 19, 2017).

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neurosurgeon, had a sleep study done, was going to vision therapy, physical therapy, and had
acupuncture treatments. He noted gradual improvement but opined that appellant continued to
have significant residuals.
In a report dated October 19, 2015, Dr. Kevin Crutchfield, a Board-certified neurologist,
noted a current diagnosis of resolving post-traumatic occipital neuritis, with secondary headaches
associated with sensitivity to fluorescent lighting and computer screens. He advised that appellant
continued to improve clinically, but had not reached maximum medical improvement and needed
ongoing care for trauma-induced migraine headaches. Dr. Crutchfield noted that appellant’s visual
disturbances and psychological issues further limited her ability to work, but that from a
neurological standpoint she could have returned to part-time work in July 2015. He opined that,
with a high degree of medical certainty or probability of at least 51 percent certainty, that
August 16, 2013 employment injury clearly initiated appellant’s inability to function in her prior
employed position.
In October 2015 OWCP referred appellant to Dr. Donald Heitman, a Board-certified
orthopedic surgeon, and Dr. Chandra Sharma, Board-certified in psychiatry and neurology, for
second opinion evaluations. Each OWCP referral physician was to provide an opinion on as to
appellant’s current condition, whether any diagnoses were a consequence of the August 16, 2013
employment injury, whether the diagnosed RSD was caused by the employment injury, whether
appellant continued to suffer residuals of the employment injury, and any period of total disability
due to the work-related condition.
In a report dated October 28, 2015, Dr. Heitman noted the history of injury and his review
of the medical record including diagnostic testing. He described appellant’s complaints of low
back bilateral knee, and bilateral ankle pain. Dr. Heitman found tenderness on examination of the
right lumbosacral junction, right patellofemoral joint line, bilateral Achilles tendon, and right ankle
joint with full range of motion of both knees and both ankles. He opined that appellant had a
chronic lumbar strain with radiculopathy and advised that it could be connected to the work injury,
but noted that diagnostic studies did not show any significant findings in the low back.
Dr. Heitman found no current findings of knee or ankle pathology bilaterally and advised that he
could not comment regarding RSD as that was out of his scope of expertise. He concluded that
appellant had reached maximum medical improvement with respect to the accepted lumbar sprain,
bilateral ankle sprain, and tibia contusion, that she required no further treatment, had no continuing
residuals, and that there no periods of total disability for the accepted conditions.
In a report dated November 23, 2015, Dr. Sharma noted the history of injury, her review
of the medical record, and appellant’s complaints of neck, upper and lower back, and right hip
pain, and RSD involving both feet and the left arm, and vision problems. Following neurological
examination, Dr. Sharma diagnosed multiple subjective pains and normal neurological
examination. She opined that there were no neurological injuries sustained from the employment
injury, and that no further treatment was warranted. Dr. Sharma related that the subjective pains
were related to the employment injury, but did not cause any neurological problems. Regarding
RSD, she indicated that the sensory changes reported in appellant’s feet and left hand were causally
related, but again opined that these changes did not affect neurological function. Dr. Sharma
opined that appellant had no periods of total neurological disability and could work without
restriction.

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Additional medical evidence included follow-up treatment notes dated January 11 and
May 6, 2016 in which Dr. Weiss noted that appellant was doing better, but still had residual
tenderness, noting that the right hip still caused discomfort. On May 12, 2016 Dr. Weiss indicated
that he had reviewed medical records, including Dr. Heitman’s report and opined that he disagreed
with the Dr. Heitman’s conclusions. He indicated that diagnostic studies would be negative for
RSD, and he found that appellant did have objective findings and needed continuing treatment.
Dr. Weiss opined that, due to her employment injuries, appellant was totally disabled from
August 16, 2013 to January 17, 2014, and partially disabled from January 17 to June 17, 2014.
In a June 29, 2016 report, Dr. Crutchfield reiterated his opinion that the August 16, 2013
fall had resulted in a stretch injury to her greater occipital nerve that caused post-traumatic occipital
neuritis, which had induced chronic, secondary headaches, and photosensitivity which made it
impossible to perform office work. He opined that appellant’s signs and symptoms were caused
by head and neck trauma she suffered when she fell on the stairs on August 16, 2013.
In a September 28, 2016 report, Dr. Weiss noted that he had not seen appellant for
approximately five months and she had improved significantly. He advised that she still had very
slight residual myofascial symptoms and slight RSD.
By letter dated March 15, 2017, counsel again requested that OWCP accept additional
conditions of: myofascial pain syndrome; RSD, which affects both her lower right extremity and
her upper left extremity; concussion; postconcussion syndrome; post-traumatic migraine; occipital
headaches and fatigue; occipital neuritis; neck sprain; cervical strain syndrome with cervicalgia;
saccadic eye movement deficient and vestibular dysfunction; cervical, lumbar, and brachial
radiculopathy symptoms; ulnar neuropathy; and carpal tunnel syndrome. He contended that all
of these conditions were part of the original claim, but were never developed despite medical
evidence of record from appellant’s treating physicians, and a decision had not been made on the
February 12, 2015 request for expansion of the claim to include these same additional conditions.
Counsel, therefore, requested that OWCP review the medical evidence of record and develop
whether the additional conditions should be accepted.
By development letter dated May 4, 2017, OWCP advised appellant that it had reviewed
the medical evidence submitted and found it insufficient to expand acceptance of the claim to
include the additional claimed conditions. It informed appellant of the type of evidence needed to
establish expansion of the claim. This was to include a report from a treating physician who should
provide a history of the injury including any similar problems which may have preexisted the
conditions for which she was treated, current clinical findings and results of diagnostic testing, and
any diagnosis or diagnoses resulting from the employment injury, along with a report of any
condition of the injured member or body part which preexisted the claimed conditions. The
physician was to also provide a rationalized medical opinion regarding causal relationship, if any,
between the accepted work injury and the condition or conditions for which appellant was
currently being treated. OWCP afforded appellant 30 days to submit the necessary evidence.
By letter dated May 30, 2017, counsel contended that the evidence already of record was
sufficient to establish that the claimed conditions were employment related, and that expansion of
the acceptance of the claim was therefore warranted. He noted that the issue of claim expansion
has never been developed. Counsel requested that OWCP review the entire case file and all of the

4

medical evidence previously submitted and issue a decision on the claim expansion request. He
noted that “in the event that you find the medical evidence is not sufficient, please explain
specifically why it is not.”
By decision dated June 6, 2017, OWCP denied appellant’s request to expand the
acceptance of the claim to include additional diagnoses. It noted that “upon receipt of [the
March 15, 2017] request, the evidence of record since the issuance of the [February 4, 2015]
acceptance letter was thoroughly reviewed.” OWCP found that the evidence was insufficient to
establish additional diagnoses causally related to the accepted injury as appellant had not provided
a rationalized medical opinion from a qualified physician in response to its May 4, 2017
development letter.
LEGAL PRECEDENT
An employee has the burden of proof to establish that any specific condition for which
compensation is claimed is causally related to the employment injury.4 Causal relationship is a
medical issue, and the medical evidence required to establish causal relationship is rationalized
medical evidence.5 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 employee.6 Neither the mere fact that a disease
or condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by employment factors or incidents is sufficient to establish
causal relationship.7
When an injury arises in the course of employment, every natural consequence that flows
from that injury likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to claimant’s own intentional misconduct.8 Thus, a subsequent
injury, be it an aggravation of the original injury or a new and distinct injury, is compensable if it
is the direct and natural result of a compensable primary injury.9 A claimant bears the burden of
proof to establish a claim for a consequential injury. As part of this burden, he or she must present
rationalized medical opinion evidence.10

4

Kenneth R. Love, 50 ECAB 276 (1999).

5

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

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

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

8

Mary Poller, 55 ECAB 483, 487 (2004); 1 Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation
10-1 (2006).
9

D.K., Docket No. 17-1549 (issued July 6, 2018).

10

Charles W. Downey, 54 ECAB 421 (2003).

5

ANALYSIS
The Board finds that appellant has not established that the claimed additional conditions of
concussion; postconcussion syndrome; post-traumatic migraine; occipital headaches and fatigue;
occipital neuritis; neck sprain; cervical strain syndrome with cervicalgia; saccadic eye movement
deficiency and vestibular dysfunction; cervical, lumbar, and brachial radiculopathy symptoms;
ulnar neuropathy; and carpal tunnel syndrome were caused or aggravated by the August 16, 2013
employment injury.11
The opinion of a physician supporting causal relationship must be based on a complete
factual and medical background, supported by affirmative evidence, must address the specific
factual and medical evidence of record, and must provide medical rationale explaining the nature
of the relationship between the diagnosed condition and the established incident or factor of
employment.12 No such evidence is of record in this case.
The diagnostic studies of record did not provide a cause of any diagnosed conditions, and
medical evidence that does not offer any opinion regarding the cause of an employee’s condition
is of limited probative value on the issue of causal relationship.13 Moreover, when diagnostic
testing is delayed, uncertainty mounts regarding the cause of the diagnosed condition and a
question arises as to whether that testing in fact documents the injury claimed by the employee.
The greater the delay in testing, the greater the likelihood that an event not related to employment
has caused or worsened the condition for which the employee seeks compensation.14 Most of the
diagnostic testing in this case was performed in February 2014, almost six months after the
employment injury. Furthermore, none of the test results revealed a trauma-induced diagnosis.
Dr. Friedman’s reports are also insufficient to meet appellant’s burden of proof. He merely
reported that appellant’s symptoms of dizziness with eye movement, headache and eyestrain
associated with reading, and blurred distance vision began with a concussion injury on August 16,
2013, and it seemed logical that they were the result of a brain injury. As noted, postconcussion
syndrome has not been accepted as employment related. This report does not establish that the
diagnosed conditions were directly caused or a consequence of the accepted injury.15
On October 19, 2015 Dr. Crutchfield noted a current diagnosis of resolving post-traumatic
occipital neuritis, with secondary headaches. It is unclear from his reports whether he considered
11
With regard to the claimed RSD condition, the Board found in its prior decision that appellant had not met her
burden of proof, as Dr. Sharma’s November 23, 2015 second opinion, which found no evidence of RSD, carried the
weight of the medical evidence. Supra note 3. The Board’s prior findings with regard to the condition of RSD are
res judicata. See A.C., Docket No. 18-0484 (issued September 7, 2018). With regard to the issue of expansion of the
claim to include the additional condition of myofascial pain syndrome, OWCP did not address that condition in its
June 6, 2017 decision. Thus, this issue is not presently before the Board. See 20 C.F.R. §§ 501.2(c) and 501.3.
12

Robert Broome, 55 ECAB 339 (2004).

13

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

14

Mary A. Ceglia, 55 ECAB 626 (2004).

15

Supra note 13.

6

that the additional diagnoses of post-traumatic migraine headaches, vestibular dysfunction, and
saccadic eye movement were related to postconcussion syndrome and/or occipital neuritis, which
are not employment related. If not, other than his general conclusion that all diagnoses were caused
by the August 16, 2013 employment injury, Dr. Crutchfield provided no additional rationale
explaining exactly how the employment injury caused any of his diagnosed conditions. Medical
conclusions unsupported by rationale are of diminished probative value and are insufficient to
establish causal relation.16
Regarding the diagnoses of neck sprain, cervical strain syndrome with cervicalgia, cervical,
lumbar, and brachial radiculopathy, as indicated above, Dr. Crutchfield provided insufficient
rationale to support any of his diagnoses.
OWCP referred appellant to Dr. Heitman, an orthopedic surgeon, and Dr. Sharma, a
neurologist, for second opinion evaluations. Neither physician found additional employmentrelated conditions. Dr. Heitman advised that appellant had no continuing residuals of the accepted
conditions, and Dr. Sharma advised that appellant had no neurological injuries due to the
employment injury.
Rationalized medical evidence is evidence which relates a work incident or factors of
employment to a claimant’s condition, with stated reasons of a physician. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.17 The Board finds that appellant has not submitted sufficient rationalized
medical evidence to establish causal relationship between the August 16, 2013 employment injury
and the claimed additional conditions of concussion; postconcussion syndrome; post-traumatic
migraine; occipital headaches and fatigue; occipital neuritis, neck sprain; neck sprain; cervical
strain syndrome with cervicalgia; saccadic eye movement deficiency and vestibular dysfunction;
cervical, lumbar, and brachial radiculopathy symptoms; ulnar neuropathy; and carpal tunnel
syndrome.
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 her burden of proof to establish that the
acceptance of the claim should be expanded to include additional conditions of concussion;
postconcussion syndrome; post-traumatic migraine; occipital headaches and fatigue; occipital
neuritis; neck sprain; cervical strain syndrome with cervicalgia; saccadic eye movement deficiency
and vestibular dysfunction; cervical, lumbar, and brachial radiculopathy symptoms; ulnar
neuropathy; and carpal tunnel syndrome.

16

J.B., Docket No. 08-1721 (issued January 26, 2009); Albert C. Brown, 52 ECAB 152 (2000).

17

C.O., Docket No. 10-189 (issued July 15, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the June 6, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 25, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 21-0619
Issued: December 16, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 11, 2021 appellant filed a timely appeal from a February 12, 2021 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $90,771.08 for which she was without fault, for
the period May 1, 2013 through August 15, 2020, because she concurrently received Social
Security Administration (SSA) age-related retirement benefits and FECA wage-loss
compensations without an appropriate offset; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the

1

5 U.S.C. § 8101 et seq.

overpayment by deducting $457.36 every 28 days from appellant’s continuing compensation
payments.
FACTUAL HISTORY
On September 17, 1999 appellant, then a 48-year-old flat sorter operator, filed an
occupational disease claim (Form CA-2) alleging that she sustained overuse syndrome and
tendinitis of the right hand while keying in the performance of duty on or before August 14, 1999.
OWCP accepted the claim for right hand and wrist tenosynovitis and right carpal tunnel syndrome.
Appellant performed full-time limited-duty work from September 16, 1999 through May 11, 2009.
OWCP paid her wage-loss compensation for intermittent work absences related to the accepted
conditions.
On May 12, 2009 appellant claimed a recurrence of disability (Form CA-2a) commencing
that date as there was no work available within her medical limitations. OWCP paid her wageloss compensation on the periodic rolls, effective June 7, 2009.
Appellant began receiving SSA disability benefits in November 2009.
By decision dated April 28, 2011, OWCP reduced appellant’s wage-loss compensation
effective May 8, 2011, based on her capacity to earn wages in the constructed position of Gate
Guard, Department of Labor, Dictionary of Occupational Titles (DOT) #379.367-010, at the rate
of $340.00 per week.
In a January 27, 2012 letter, appellant elected to receive retirement benefits through the
Office of Personnel Management retroactive to July 19, 2011. On April 24, 2012 she elected to
receive FECA wage-loss compensation in lieu of OPM retirement benefits effective
April 20, 2012. OWCP resumed appellant’s wage-loss compensation on the periodic rolls.
On December 10, 2012 OWCP informed appellant that section 8116(d)(2) of FECA
(5 U.S.C. § 8116(d)(2)) requires that her continuing compensation benefits be reduced if she
begins receiving SSA retirement benefits based on her age and federal service. It advised that
because she was approaching her 62 nd birthday they were notifying her of this requirement. OWCP
further advised that failure to report receipt of retirement benefits to OWCP could result in an
overpayment of compensation, which could be subject to recovery.
In a June 25, 2013 letter, SSA noted that appellant was entitled to monthly retirement
benefits commencing May 2013. Appellant’s retirement coverage was listed as Federal
Employees Retirement System (FERS). 2
On January 17, 2020 OWCP provided SSA a dual benefits calculation form. It listed the
computation period as May 11, 2009 to present. On August 4, 2020 OWCP received the
completed FERS/SSA dual benefits calculation form, wherein SSA calculated SSA benefit rates
2

In a November 28, 2016 letter, SSA notified appellant that her SSA benefits would change from disability
retirement to age-related retirement beginning in December 2016 as she would attain the full retirement age on
December 9, 2016.

2

with and without a FERS offset from May 1, 2013 through July 2020. Beginning May 1, 2013,
the SSA rate with FERS was $1,268.80 and without FERS was $428.10. Beginning December 1,
2013, the SSA rate with FERS was $1,287.80 and without FERS was $434.50. Beginning
December 1, 2014, the SSA rate with FERS was $1,309.70 and without FERS was $441.90.
Beginning November 1, 2015, the SSA rate with FERS was $1,309.70 and without FERS was
$441.90. Beginning December 1, 2016, the SSA rate with FERS was $1,797.00 and without FERS
was $631.00. Beginning December 1, 2017, the SSA rate with FERS was $1,832.90 and without
FERS was $643.60. Beginning December 1, 2018, the SSA rate with FERS was $1,884.20 and
without FERS was $661.60. Beginning December 1, 2019, the SSA rate with FERS was $1,914.30
and without FERS was $672.10. Beginning July 1, 2020, the SSA rate with FERS was $1,914.30
and without FERS was $672.10. At the bottom of the FERS/SSA dual benefits calculation form,
SSA indicated that appellant was entitled to SSA retirement benefits “from May 2013 to
November 2015” and “from December 2016 to [p]resent.” SSA noted that “[i]n between that
time,” she was entitled to SSA disability benefits, and that the FERS/SSA dual benefit offset
applied for the periods in which she received SSA retirement benefits.
On September 4, 2020 OWCP prepared a FERS offset calculation based on the SSA
documentation wherein it noted the calculation of appellant’s overpayment from May 1, 2013
through August 15, 2020.3 It determined that: during the period May 1, 2013 through
November 30, 2013, she received an overpayment in the amount of $5,931.09; during the period
December 1, 2013 through November 30, 2014, appellant received an overpayment in the amount
of $10,267.73; during the period December 1, 2014 through November 30, 2015, appellant
received an overpayment in the amount of $10,442.21; during the period December 1, 2016
through November 30, 2017, appellant received an overpayment in the amount of $14,030.44;
during the period December 1, 2017 through November 30, 2018, appellant received an
overpayment in the amount of $14,310.81; during the period December 1, 2018 through
November 30, 2019, appellant received an overpayment in the amount of $14,711.51; and during
the period December 1, 2019 through August 15, 2020, appellant received an overpayment in the
amount of $10,606.48. The total overpayment was determined to be $80,300.26.
On September 8, 2020 OWCP issued a preliminary overpayment determination, finding
that an overpayment of compensation in the amount of $90,771.08 had been created because the
SSA/FERS offset was not applied to payments for the period May 1, 2013 through
August 15, 2020. It determined that: during the period May 1 through November 30, 2013,
appellant received an overpayment in the amount of $5,931.09; during the period De cember 1,
2013 through November 30, 2014, appellant received an overpayment in the amount of
$10,267.73; during the period December 1, 2014 through November 30, 2016, appellant received
an overpayment in the amount of $20,913.03; during the period De cember 1, 2016 through
November 30, 2017, appellant received an overpayment in the amount of $14,030.44; during the
period December 1, 2017 through November 30, 2018, appellant received an overpayment in the
amount of $14,310.81; during the period December 1, 2018 through November 30, 2019, appellant
received an overpayment in the amount of $14,711.51; and during the period December 1, 2019
through August 15, 2020, appellant received an overpayment in the amount of $10,606.48.

3

The worksheet notes that the overpayment calculations were certified as correct.

3

OWCP determined that appellant was without fault in the creation of the overpayment
because she relied on misinformation given in writing by OWCP or another government agency,
which she had reason to believe was connected with the administration of benefits. It requested
that she submit a completed overpayment recovery questionnaire (Form OWCP-20) to determine
a reasonable repayment method, and advised her that she could request a waiver of recovery of the
overpayment. OWCP further requested financial information, including copies of income tax
returns, bank account statements, bills, pay slips, and any other records to support income and
expenses. It further notified appellant that, within 30 days of the date of the letter, she could
contest the overpayment and request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing.
In response, appellant provided a Form OWCP-20 signed on September 16, 2020
requesting a prerecoupment hearing. 4 She contended that the overpayment should be waived as
she was found without fault in the creation of the overpayment and she had fully and accurately
reported all SSA benefits to OWCP. Appellant noted monthly household income in the amount
of $4,732.00, including $1,769.00 in SSA benefits, $1,119.00 from her spouse who resided with
her, and $1,844.00 in FECA compensation. She listed monthly expenses of $1,910.00, including
$270.00 in rent or mortgage, $400.00 for food, $200.00 for clothing, $371.00 for utilities, $300.00
in miscellaneous expenses, $239.00 for a telecommunications package, and $130.00 in debt
repayment. Appellant also listed assets of $500.00 cash, noting that she would not disclose her
checking or savings account balances. She asserted that she did not own stocks, bonds, or valuable
personal property. In an attached statement, appellant noted that she had a Thrift Savings Plan
account, but did not disclose the account balance. She did not submit documentation of her
income, assets, or expenses.
By decision dated February 12, 2021, an OWCP hearing representative finalized that the
September 8, 2020 preliminary overpayment determination that appellant had received an
overpayment of compensation in the amount of $90,771.08 for the period May 1, 2013 through
August 15, 2020, because OWCP had failed to offset her compensation payments by the portion
of her SSA benefits that were attributable to federal service and that appellant did not have actual
knowledge of the calculation error. The hearing representative further found that she was without
fault in the creation of the overpayment, but denied waiver of recovery of the overpayment because
the evidence of record failed to establish that recovery of an overpayment would defeat the purpose
of FECA as her monthly income exceeded her reported monthly expenses by more than $50.00.
Additionally, appellant did not submit written documentation to support her assets, income, and
expenses. The hearing representative further found that recovery of the overpayment would not
be against equity and good conscience as appellant had not shown that she would experience severe
financial hardship in attempting to repay the debt, and that she had not asserted detrimental

4

In a notice dated November 10, 2020, OWCP’s Branch of Hearings and Review notified appellant that a telephonic
hearing would be conducted in her case on January 6, 2021 at 12:00 p.m., Eastern Standard Time (EST) and provided
the call-in number and passcode. In a telephone memorandum (Form CA-110) dated January 7, 2021, OWCP’s
Branch of Hearings and Review noted that she had left a voice mail message at 3:04 p.m. EST indicating that she
thought that the hearing was scheduled from 12:00 p.m. Pacific Standard Time. As the hearing could not be
rescheduled, the Branch of Hearings and Review conducted a review of the written record.

4

reliance. OWCP’s hearing representative required recovery of the overpayment by deducting
$457.36 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.5 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States. 6
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of SSA age-related retirement benefits that are attributable
to federal service of the employee.7 FECA Bulletin No. 97-09 provides that FECA benefits have
to be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation.
The evidence of record indicates that, while appellant was receiving wage-loss
compensation benefits under FECA, she was also receiving SSA age-related retirement benefits
that were attributable to her federal service without appropriate offset. A claimant cannot
concurrently receive FECA wage-loss compensation and SSA age-related retirement benefits
attributable to federal service for the same period. 9 Consequently, fact of overpayment has been
established. 10
The Board further finds, however, that this case is not in posture for decision regarding the
period(s) and amount of overpayment.
To determine the amount of the overpayment, the portion of the SSA age-related retirement
benefits that were attributable to federal service must be calculated. OWCP received
5

5 U.S.C. § 8102(a).

6

Id. at § 8116.

7

20 C.F.R. § 10.421(d); M.R., Docket No. 20-1622 (issued June 30, 2021); S.S., Docket No. 19-1945 (issued
March 25, 2021); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).
8

FECA Bulletin No. 97-09 (February 3, 1997).

9

Supra note 6. M.R., supra note 7; M.R., Docket No. 20-0427 (issued October 30, 2020). See also N.B., Docket
No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued February 21, 2019).
10

See K.H., Docket No. 18-0171 (issued August 2, 2018).

5

documentation from SSA with respect to the specific amount of SSA age-related retirement
benefits that were attributable to federal service. SSA provided age-related retirement benefit rates
with and without FERS for specific periods commencing May 1, 2013 through August 15, 2020.
SSA also indicated, in the remarks section of the form, that appellant was entitled to SSA agerelated retirement benefits “from May 2013 to November 2015” and “from December 2016 to
[p]resent.” SSA noted that “[i]n between that time,” appellant was entitled to SSA disability
benefits, and that the FERS/SSA dual benefit offset applied for the periods in which appellant
received SSA age-related retirement benefits. On September 8, 2020 OWCP issued a preliminary
overpayment determination, finding an overpayment in the amount of $90,771.08. However, it
failed to exclude appellant’s receipt of SSA disability benefits from the overpayment period and
amount. OWCP, by decision dated February 12, 2021, finalized the preliminary overpayment
determination.
Accordingly, the Board finds that the case must be remanded to OWCP. On remand,
OWCP shall determine the proper period(s) and amount of overpayment of compensation. It shall
then issue a new preliminary overpayment determination, with an overpayment action request
form, a Form OWCP-20, and instructions for appellant to provide supporting financial
information. After this, and other such further development as deemed ne cessary, OWCP shall
issue a de novo decision.11
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation because she concurrently received SSA age-related retirement benefits while also
receiving FECA benefits without an appropriate offset. The Board further finds that the case is
not in posture for decision with respect to the period(s) and amount of the overpayment.

11

In light of the Board’s disposition regarding Issue 1, Issues 2 and 3 are rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the February 12, 2021 merit decision of the Office
of Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
to OWCP for further proceedings consistent with this decision of the Board .
Issued: December 16, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chambers, GA, Employer
__________________________________________

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

Docket No. 12-1567
Issued: November 8, 2012

Case Submitted on the Record

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

JURISDICTION
On July 16, 2012 appellant filed a timely appeal from a March 5, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) which granted him a schedule award.
He also appealed an April 24, 2012 decision finding that he abandoned his request for a hearing.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has more than 10 percent impairment of his right
arm for which he received a schedule award; and (2) whether OWCP properly determined that
appellant abandoned his request for a hearing.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On September 30, 2008 appellant, then a 51-year-old letter carrier, filed a Form CA-1,
notice of traumatic injury, alleging that he sustained a right shoulder injury while delivering a
heavy parcel. He did not stop work but returned to a limited-duty position and full duty on
January 28, 2010. OWCP accepted appellant’s claim for sprain of the right shoulder, trapezius
and osteoarthritis of the right shoulder.
Appellant came under the treatment of Dr. Thomas Branch, a Board-certified orthopedist,
from January 13, 2009 to December 10, 2010, for a right shoulder injury sustained on
September 28, 2008 while lifting a parcel of mail at work. He noted tenderness over the
acromioclavicular joint with a positive impingement sign. Dr. Branch diagnosed tendinitis of the
right rotator cuff, disorders of the bursae and displacement of the cervical intervertebral disc. On
September 17, 2010 he noted appellant’s continued complaints of right shoulder pain in the
acromioclavicular region and recommended surgery. On December 10, 2010 appellant
underwent an authorized right shoulder diagnostic arthroscopy, distal clavicle resection and
subacromial decompression. Dr. Branch diagnosed arthritis of the shoulder, subacromial
bursitis, rotator cuff tendinitis and shoulder pain. On January 26, 2010 appellant underwent a
magnetic resonance imaging (MRI) scan of the right shoulder which revealed marginal anatomic
setting for impingement. An MRI scan of the cervical spine dated January 26, 2010 revealed
generalized degenerative disc changes at all levels of the cervical spine from C4-5 and C7-T1.
Appellant continued to be treated by Dr. Branch, who noted in reports dated
December 23, 2010 to August 23, 2011, that appellant was progressing well postoperatively and
returned to work limited duty on June 12, 2011 and full duty on August 23, 2011. Dr. Branch
diagnosed adhesive capsulitis of the shoulder, osteoarthrosis of the primary shoulder region,
bicipital tenosynovitis and disorders of the bursae and tendons of the shoulder.
On December 9, 2011 appellant filed a claim for a schedule award. He submitted an
October 4, 2011 report from Dr. Branch who noted appellant’s symptoms remained stable for 10
months. Dr. Branch noted tenderness of the anterior acromion and biceps tendon, abduction was
165 degrees, external rotation was 85 degrees, negative impingement sign, cross body abduction
revealed residual pain at the acromioclavicular joint and the biceps stress test was positive. He
opined that appellant was at maximum medical improvement. Dr. Branch provided an
impairment rating in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)2 of 12 percent permanent
impairment of the right upper extremity. He noted that, pursuant to Table 15-5, Shoulder
Regional Grid, Ligament/Bone/Joint, for the distal clavicle resection, appellant had a 12 percent
impairment of the right upper extremity.
In a December 20, 2011 report, OWCP’s medical adviser reviewed the medical evidence
and opined that appellant reached maximum medical improvement on October 4, 2011. He
noted that there were two methodologies to be considered in rating a case under the A.M.A.,
Guides, the Diagnosis-Based Impairment or range of motion method. The medical adviser noted
2

A.M.A., Guides (6th ed. 2008).

2

that the greater of the two methods was the most appropriate. He noted that, pursuant to section
15.2, Diagnosis-Based Impairment, Table 15-5, Shoulder Regional Grid, Ligament/Bone/Joint,
for the diagnosed acromioclavicular disease, status post distal clavicle resection, appellant was a
class 1 rating for status post distal clavicle resection, grade C, with a default rating of 10 percent
upper extremity impairment. The medical adviser noted that, pursuant to the adjustment grid:
functional history, Table 15-7, appellant was assigned a grade modifier 1 for pain symptoms.
For physical examination adjustment, appellant was assigned a grade modifier of 1 as the
physical examination reported motion loss. For clinical studies adjustment, there was no grade
modifier. The medical adviser noted that the adjustments were for functional history grade
modifier 1, physical examination grade modifier of 1. Application of the net adjustment formula
resulted in a grade C and 10 percent upper extremity impairment. The medical adviser noted
that, with regard to the range of motion method for impairment evaluation, Table 15-34,
Shoulder Range of Motion, provides that 165 degrees of abduction and 85 degrees of external
rotation yields no impairment.3 He noted that the diagnosis-based impairment provided the
greatest impairment.
On January 30, 2012 OWCP requested Dr. Branch to review the impairment rating of the
medical adviser and address whether he concurred with his impairment determination. In a
February 16, 2012 report, Dr. Branch noted reviewing the report of the medical adviser and
concurring in his finding that appellant sustained 10 percent impairment of the right upper
extremity. He opined that his impairment rating of 12 percent was incorrect.
In a decision dated March 5, 2012, OWCP granted appellant a schedule award for 10
percent impairment of the right arm. The period of the award was from January 4 to
August 9, 2012.
Appellant requested an oral hearing. On March 7, 2012 OWCP advised him that a
telephone hearing would be held on April 13, 2012 at 9:45 p.m. Eastern Time. It instructed
appellant to call the provided toll-free number a few minutes before the hearing time and enter
the pass code to gain access to the conference call. OWCP mailed the April 13, 2012 letter to
appellant’s address of record.
Appellant submitted operative reports for the December 10, 2010 arthroscopic surgery,
previously of record.
By decision dated April 24, 2012, OWCP found that appellant had abandoned his request
for a hearing. It determined that he received a written notice of the hearing 30 days before the
scheduled hearing but did not appear and did not explain his absence either before or after the
scheduled hearing.

3

Id. at 495, Table 15-34.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8107 of FECA4 and its implementing federal regulations,5 set forth the number of
weeks of compensation payable to employees sustaining permanent impairment from loss or loss
of use, of scheduled members or functions of the body. However, FECA does not specify the
manner in which the percentage of loss shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.6 For decisions after February 1, 2001, the fifth
edition of the A.M.A., Guides is used to calculate schedule awards.7 For decisions issued
beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be used.8
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted by OWCP for trapezius sprain of the right shoulder and
osteoarthritis of the right shoulder for which he underwent surgery on December 15, 2010 for
distal clavicle resection and subacromial decompression. On December 9, 2011 he filed a claim
for a schedule award. The Board finds that the medical evidence of record establishes 10 percent
impairment to appellant’s right arm.
Under the sixth edition of the A.M.A., Guides, impairments of the upper extremities are
covered by Chapter 15. Section 15-2, entitled diagnosis-based impairment, which indicates that
diagnosis-based impairment is the primary method of evaluation of the upper limb.9 The initial
step in the evaluation process is to identify the impairment class by using the corresponding
diagnosis-based regional grid. Appellant’s treating physician, Dr. Branch, in reports dated
October 4, 2011 and February 16, 2012, noted tenderness of the anterior acromion and biceps
tendon, abduction was 165 degrees, external rotation was 85 degrees, negative impingement
sign, cross body abduction revealed residual pain at the acromioclavicular joint and the biceps
stress test was positive. He utilized the Shoulder Regional Grid, Table 15-5, A.M.A., Guides,
page 402, and identified a class 1 impairment based on a distal clavicle resection. Dr. Branch
noted that, pursuant to the shoulder regional grid, ligament/bone/joint, for the distal clavicle
resection, appellant was entitled to a 10 percent impairment of the right upper extremity.10
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

Section 15.2, A.M.A., Guides 387.

10

In his October 4, 2011 report, Dr. Branch opined that appellant had 12 percent right arm impairment but he did
not explain how he applied the A.M.A., Guides to reach this rating. It is well established that, when the attending
physician fails to provide an estimate of impairment conforming to the A.M.A., Guides, his opinion is of diminished
probative. Linda Beale, 57 ECAB 429 (2006). As noted, infra, Dr. Branch acknowledged in his February 16, 2012
report that his 12 percent rating was incorrect and concurred with OWCP’s medical adviser’s rating of 10 percent.

4

Based on Dr. Branch’s physical examination, an OWCP medical adviser utilized the sixth
edition of the A.M.A., Guides to rate 10 percent impairment of the right arm. The medical
adviser noted that there were two methodologies to be considered in rating a case under the
A.M.A., Guides, the diagnosis-based impairment or range of motion method. He noted that the
greater of the two methods was the most appropriate. Under the range of motion method, the
medical adviser found, as noted above, that there was no ratable impairment. He noted that
pursuant to section 15.2, diagnosis-based impairment, Table 15-5, shoulder regional grid,
ligament/bone/joint, for the diagnosed acromioclavicular disease, status post distal clavicle
resection, appellant was a class 1 rating for status post distal clavicle resection with a default
grade C, impairment rating of 10 percent upper extremity impairment. After determining the
impairment class (CDX) and default grade, the medical adviser determined whether there were
any applicable grade adjustments for so-called nonkey factors or modifiers. These include
adjustments for Functional History (GMFH), Physical Examination (GMPE) and Clinical
Studies (GMCS). The grade modifiers are used in the net adjustment formula to calculate a net
adjustment.11 The final impairment grade is determined by adjusting the grade up or down from
the default value C by the calculated net adjustment. The medical adviser identified two
modifiers; one based on the functional history and the other based on physical examination. For
the functional history, he assigned a grade modifier 1 based on pain symptoms. The medical
adviser also assigned a grade modifier 1 based on appellant’s right shoulder physical
examination findings.12 Applying the net adjustment formula resulted in a modifier of zero. The
corresponding upper extremity impairment for a class 1, grade C, distal clavicle resection was 10
percent.13 As noted, Dr. Branch, in his February 16, 2012 report, concurred with this rating.
The Board finds that the medical adviser properly applied the A.M.A., Guides (6th ed.
2008) to rate impairment to appellant’s right arm. There is no medical evidence in conformance
with the A.M.A., Guides that supports any greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
OWCP regulations provide guidance as to how a claimant may postpone a hearing, and
when a hearing will be considered to be abandoned. Section 10.622 of the regulations provide:
“(c) Once the oral hearing is scheduled and OWCP has mailed appropriate
written notice to the claimant and representative, OWCP will, upon submission of
proper written documentation of unavoidable serious scheduling conflicts (such as
court-ordered appearances/trials, jury duty or previously scheduled outpatient
procedures), entertain requests from a claimant or his representative for
11

Net Adjustment = (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX). Section 15.3d, A.M.A., Guides 411.

12

Table 15-8, A.M.A., Guides 408.

13

Table 15-5, A.M.A., Guides 402.

5

rescheduling as long as the hearing can be rescheduled on the same monthly
docket, generally no more than seven days after the originally scheduled time.
When a request to postpone a scheduled hearing under this subsection cannot be
accommodated on the docket, no further opportunity for an oral hearing will be
provided. Instead, the hearing will take the form of a review of the written record
and a decision issued accordingly.
“(d) Where the claimant or representative is hospitalized for a nonelective reason
or where the death of the claimant’s or representative’s parent, spouse, child or
other immediate family prevents attendance at the hearing, OWCP will, upon
submission of proper documentation, grant a postponement beyond one monthly
docket.
“(e) Decisions regarding rescheduling under paragraphs (b) through (d) of this
section are within the sole discretion of the hearing representative and are not
reviewable.
“(f) A claimant who fails to appear at a scheduled hearing may request in writing
within 10 days after the date set for the hearing that another hearing be scheduled.
Where good cause for failure to appear is shown, another hearing will be
scheduled and conducted by teleconference. The failure of the claimant to request
another hearing within 10 days, or the failure of the claimant to appear at the
second scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing. Where good cause is shown for failure
to appear at the second scheduled hearing, review of the matter will proceed as a
review of the written record.”14
ANALYSIS -- ISSUE 2
By decision dated March 5, 2012, OWCP granted appellant a schedule award for 10
percent impairment of the right arm. Appellant timely requested an oral hearing. In a March 7,
2012 letter, OWCP notified him that a telephone hearing was scheduled for April 13, 2012 at
9:45 p.m., Eastern Time. It instructed appellant to telephone a toll-free number and enter a pass
code to connect with the hearing representative. Appellant did not telephone at the appointed
time. He did not request a postponement of the hearing or explain his failure to appear at the
hearing within 10 days of the scheduled hearing date of April 13, 2012.15 The Board therefore
finds that appellant abandoned his request for a hearing.

14

20 C.F.R. § 10.622. With respect to abandonment of hearing requests, OWCP’s procedures provide that the
failure of the claimant to request another hearing within 10 days, or the failure of the claimant to appear at the
second scheduled hearing without good cause shown, shall constitute abandonment of the request for a hearing.
Under these circumstances, the Branch of Hearings and Review will issue a formal decision finding that the
claimant has abandoned his or her oral request for a hearing. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Hearings and Review of the Written Record, Chapter 2.1601.6(g) (October 2011).
15

Id.

6

On appeal appellant asserted that he underwent surgery and was heavily medicated and
could not remember daily events and did not abandon the hearing. As explained, he failed to
request a postponement; failed to appear at a scheduled hearing; and failed to provide any
notification for such failure within 10 days of the scheduled date and therefore abandoned his
request for a hearing.
CONCLUSION
The Board finds that appellant has no more than 10 percent impairment of the right arm,
for which he received a schedule award. The Board further finds that he abandoned his request
for an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the April 24 and March 5, 2012 decisions of Office
of Workers’ Compensation Programs are affirmed.
Issued: November 8, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Willimantic, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Richard Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 13-1052
Issued: October 24, 2013

Case Submitted on the Record

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

JURISDICTION
On March 20, 2013 appellant filed a timely appeal from a February 21, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a back condition
causally related to a February 20, 2010 work incident or factors of his employment.
FACTUAL HISTORY
On February 23, 2010 appellant, through his attorney, then a 43-year-old mail carrier,
filed a traumatic injury claim alleging that he injured his back on February 20, 2010 when he
turned to exit his truck and step down. He also noted that he had “bounced around” in his truck

1

5 U.S.C. § 8101 et seq.

all week. Appellant did not submit any evidence with the claim. The employing establishment
controverted the claim.
In a February 26, 2010 letter, OWCP advised appellant of the deficiencies in his claim
and requested additional factual and medical evidence. He was advised that, under FECA, the
term “physician” included chiropractors only to the extent that their reimbursable services were
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray.
In a statement received March 29, 2010, appellant advised that he returned to work on
Tuesday, February 16, 2010 after being out for a long weekend and the President’s Day holiday.
Because there was a major snow event and the back-up of mail, he was forced to use the RD19
Truck, which had a worn driver’s seat with no support and a knotted shoulder harness, which
could not be adjusted. Appellant indicated that he had to drive on poorly plowed roads and
experienced many bumps, jolts and dismounts throughout the day. He stated that the road
conditions remained bad the entire delivery week following the snowstorm, from February 17 to
20, 2010. Appellant experienced his first back spasm on February 20, 2010 while getting out of
the truck to change a flat tire. He continued to work the remainder of the day, without taking
lunch. The next day, appellant awoke with disabling back pain and could hardly get out of bed.
He went to his chiropractor on February 22, 2010. Appellant informed his supervisor on
February 23, 2010 filled out a Form CA-1 and went home.
Appellant provided the March 5 and 23, 2010 treatment notes from Dr. Thomas Gray, a
chiropractor, who stated that appellant presented to his office on February 22, 2010 with
complaint of severe back pain radiating into his left leg primarily and intermitted proximal right
leg pain. The onset occurred after progressively “hitting ice pockets.” The examination was
suggestive of lumbosacral plexus disorder sprain/sprain and the diagnostic study was confirmed
for lumbar IVD disorder. Dr. Gray noted that appellant was referred to Dr. Gordon D. Donald, a
Board-certified orthopedic surgeon, who confirmed the diagnosis. Dr. Donald stated that
appellant had a preexisting low back condition unrelated to his current injury as confirmed by
pre and post magnetic resonance imaging (MRI) scans.
Appellant also provided a March 4, 2010 letter from the employing establishment to
Dr. Gray; a February 24, 2010 workers’ compensation questionnaire filled out by appellant; a
March 5, 2010 MyoVision Dynamic Report; one page of undated patient examination; and a
March 5, 2010 lumbar spine rehabilitation assessment form.
By decision dated March 31, 2010, OWCP denied appellant’s claim finding that the fact
of injury had not been established. It found that none of the chiropractic reports provided a
diagnosis of spinal subluxation as confirmed on x-ray.
On April 8, 2010 appellant’s representative requested an oral hearing, which was held on
July 1, 2010. He submitted additional treatment notes from Dr. Gray, who diagnosed disc
displacement, lumbosacral neuritis, sacroiliac sprain, pelvic and sacrum strains, muscle spasms,
difficulty in walking, back ache and pain in limb. A February 24, 2010 MRI scan showed
osteopenia and mild osteophytosis with no evidence of fracture, subluxation, bone destruction,
spondylolysis or spondylolisthesis. There was also no intervertebral disc space narrowing. No
additional medical evidence was received, despite the record left open for 30 days.
2

By decision dated August 24, 2010, an OWCP hearing representative denied the claim on
the grounds that there was no diagnosed medical condition causally related to the employment
incident.
On August 26, 2010 appellant’s representative requested reconsideration and submitted
an August 16, 2010 report from Dr. Donald who stated that appellant was evaluated on March 2,
2010 and provided a history that he had been driving a mail truck during a snowstorm.
Appellant bounced around in the truck due to ice and snow and felt a jolt of low back pain.
Although he was able to finish the day at work, he could not stand the next day secondary to low
back pain and spasm. Dr. Donald opined that appellant sustained a herniated disc at L4-5
causing moderate spinal stenosis and symptoms consistent with neurogenic claudication. He
stated that the pathology was causally related to trauma from his February 20, 2010 work
accident.
In a September 14, 2010 letter, OWCP requested that Dr. Donald further address how
riding in a truck on snowy roads with a seat belt that could not be adjusted caused or aggravated
appellant’s herniated disc. Dr. Donald responded on a copy of the September 14, 2010 letter that
the activity of riding in a truck on snowy days with a seat belt that could not be adjusted was an
activity that could easily result in high axial loading and torsional stresses that were well
corroborated with the mechanism of annular tearing and disc herniation. Additional chiropractic
treatment reports from Dr. Gray were also received.
By decision dated November 26, 2010, OWCP denied modification of its August 24,
2010 decision.
On July 11, 2011 appellant’s representative requested reconsideration and provided
arguments as to why Dr. Donald’s reports were well rationalized.
By decision dated February 9, 2012, OWCP denied modification of the November 26,
2010 decision. It noted that, as there was a delay in rendering the decision, appellant was being
accorded a merit review in order to preserve his appeal rights.
On September 13, 2012 appellant’s representative requested reconsideration and noted
that he previously sent a letter and a medical report from Dr. Donald. No additional evidence
was received.
In a nonmerit decision dated September 28, 2012, OWCP denied appellant’s
reconsideration request. It found that his letter did not raise any substantive legal questions or
include new and relevant evidence.
On October 31, 2012 appellant’s representative again requested reconsideration. In an
April 23, 2012 report, Dr. Donald noted appellant’s examination findings. He stated that
appellant had persistent lumbar radiculitis and low back pain causally related to a lumbar disc
herniation secondary to his work injury of driving and bouncing around in his truck while
delivering mail. The injury occurred on February 20, 2010 and it was clear that the axial loading
and torsional activities experienced while driving a truck in adverse weather conditions, on
snowy icy roads and other types of activities may physically induce lumbar disc herniation.
Dr. Donald stated that the injury was without question causally secondary to the work-related
event.
3

By decision dated February 21, 2013, OWCP denied modification of its February 9, 2012
decision.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.3
Causal relationship is a medical issue4 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,5 must be
one of reasonable medical certainty6 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.7
Section 8101(2) of FECA provides that the term physician includes chiropractors only to
the extent that their reimbursable services are limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.8 A spinal
subluxation is an incomplete dislocation, off-centering, misalignment, fixation or abnormal
spacing of the vertebrae.9 If the diagnosis of a subluxation as demonstrated by x-ray is not
established, the chiropractor is not a physician under FECA and the report of the chiropractor is
of no probative value to the medical issue presented.10
ANALYSIS
OWCP accepted that the employment incident of February 20, 2010 occurred at the time,
place and in the manner alleged. Appellant alleged that he experienced back pain when he
turned and stepped out of his truck, after being bounced around in his truck due to inclement
2

5 U.S.C. § 8102(a).

3

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

4

Mary J. Briggs, 37 ECAB 578 (1986).

5

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

6

See Morris Scanlon, 11 ECAB 384, 385 (1960).

7

See William E. Enright, 31 ECAB 426, 430 (1980).

8

5 U.S.C. § 8101(2).

9

See 20 C.F.R. § 10.5(bb).

10

See Jack B. Wood, 40 ECAB 95, 109 (1988).

4

weather during the past week. The issue is whether his back condition resulted from the
accepted employment incident. The Board finds that appellant did not meet his burden of proof
to establish a causal relationship between the condition for which compensation is claimed and
the employment incident.
In an August 16, 2010 report, Dr. Donald noted a history of appellant being bounced
around in his mail truck due to ice and snow conditions. He opined, without providing adequate
medical rationale, that appellant sustained a herniated disc at L4-5 due to the February 20, 2010
employment incident. Medical reports not providing rationale to support causal relation are of
diminished probative value and are generally insufficient to meet an employee’s burden of
proof.11 In a September 14, 2010 letter, OWCP requested Dr. Donald to further explain how the
activity of riding in a truck on snowy days with a seat belt that could not be adjusted caused or
aggravated appellant’s herniated disc. Dr. Donald responded, both on a copy of OWCP’s
September 14, 2010 letter and in an April 23, 2012 report, that the axial loading and torsional
activities appellant experienced while driving a truck in adverse weather conditions, on snowy
icy roads and other types of activity, were well corroborated with the mechanism of annular
tearing and disc herniation and could physically induce lumbar disc herniation. The Board finds
that Dr. Donald’s opinion is speculative and equivocal in nature.12 Dr. Donald failed to explain
the nature of the axial loading and torsional activities appellant experienced while driving a truck
in adverse weather conditions or how such activity caused or aggravated the disc herniation.13
Lacking thorough medical rationale on the issue of causal relationship, his reports are of limited
probative value and insufficient to establish that appellant sustained an employment-related
injury in the performance of duty on February 20, 2010.
A medical issue such as causal relationship can only be resolved through the submission
of probative medical evidence from a physician.14 Before the evidence can be considered for its
probative value, the chiropractor must be established as a physician under FECA. Under FECA
the term “physician” includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist. Dr. Gray did not refer to any obtained x-rays or provide a
diagnosis of spinal subluxation. The evidence of record does not establish Dr. Gray as a
physician under 5 U.S.C. § 8101(2).15
As there is no medical evidence which offers a well-reasoned explanation of how the
February 20, 2010 incident or other work-related activities caused his lumbar condition.
Appellant has not met his burden of proof to establish his claim for compensation benefits. The
Board will affirm the February 21, 2013 OWCP decision.
11

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

12

Vaheh Mokhtarians, 51 ECAB 190 (1999).

13

See K.W., Docket No. 10-98 (issued September 10, 2010).

14

Gloria J. McPherson, 51 ECAB 441 (2000).

15

An MRI scan would not be sufficient to establish a subluxation, as FECA specifically provides the diagnosis
must be demonstrated by x-ray. The Board notes that the MRI scan of record did not provide a diagnosis of a spinal
subluxation. See Jay K. Tomokiyo, 51 ECAB 361 (2000).

5

On appeal, appellant’s representative contended that Dr. Donald’s reports provide a wellrationalized opinion supporting causal relationship. For the reasons stated, Dr. Donald failed to
provide thorough medical rationale on the issue of causal relationship.
Appellant may submit new evidence or argument as part of a formal 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 that his back
condition is causally related to the February 20, 2010 work incident or employment factors.
ORDER
IT IS HEREBY ORDERED THAT the February 21, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6