United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, WESTCHESTER
PERFORMANCE CLUSTER, White Plains, NY,
Employer
__________________________________________

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

Docket No. 11-854
Issued: October 24, 2011

Case Submitted on the Record

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

JURISDICTION
On February 17, 2001 appellant filed a timely appeal from the September 16, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for a
recurrence of disability. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained a
recurrence of disability on or after January 5, 2010 due to her November 16, 2009 employment
injury.

1

20 C.F.R. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 16, 2009 appellant, then a 40-year-old city carrier,
sustained a lumbar sprain and lumbar radiculopathy due to lifting a tub of mail.2 She stopped
work on November 16, 2009 and OWCP paid compensation for total disability. On December 3,
2009 appellant returned to full-time work in her regular job.
Appellant stopped work on January 5, 2010 and filed a claim alleging that she sustained a
recurrence of disability due to her November 16, 2009 employment injury. She indicated that on
January 5, 2010 she had the same type of low back pain that she had when she injured herself on
November 16, 2009.
In a January 21, 2010 letter, OWCP advised appellant about the type of factual and
medical evidence to submit in support of her recurrence of disability claim.
Appellant submitted several physical therapy evaluation reports and related
administrative documents which were dated between November 2009 and February 2010. She
also submitted reports from attending Board-certified orthopedic surgeons, a November 23, 2009
report of Dr. David Gonzalez and a December 1, 2009 report of Dr. Alok D. Sharan. In his
December 1, 2009 report, Dr. Sharan advised appellant that she could return to full duty.
In a February 25, 2010 decision, OWCP denied appellant’s claim on the grounds that she
did not submit sufficient medical evidence to establish that she sustained a recurrence of
disability on or after January 5, 2010 due to her November 16, 2009 employment injury.
Appellant requested reconsideration and provided additional medical evidence. In a
January 25, 2010 report, Dr. Stanley Wainapel, an attending Board-certified physical medicine
and rehabilitation physician, noted that appellant reported that she twisted her back while she
was lifting mail into a truck on November 16, 2009. He indicated that she stopped work after the
incident and returned to work in early December 2009. Appellant indicated that her back pain
radiated down the backs of both legs to about the level of her thighs and knees and occasionally
lower and that she experienced some numbness and tingling in her legs on an occasional basis.
Dr. Wainapel stated that on examination appellant had significant tenderness in the right
sacroiliac area and along the right lateral thigh. He diagnosed lower back pain with sciatica and
signs suggestive of trochanteric bursitis of the right hip along with tightness of the muscles on
her right side, including the piriformis, iliotibial band and psoas muscle. Dr. Wainapel stated
that this condition is referred to as sacroiliac/trochanter/iliotibial band syndrome. He
recommended that appellant continue taking anti-inflammatory medicine and participating in
physical therapy. Dr. Wainapel indicated that appellant could not go back to her current type of
work because it involved significant lifting.

2

It appears that appellant reported having some low back pain prior to suffering her November 16, 2009 injury.
In a September 1, 2009 report, Dr. Paul E. Levin, an attending Board-certified orthopedic surgeon, noted that she
reported having low back pain without radiation for about a week. He noted that examination showed
hypersensitivity around the spinous process from the T12 disc to the sacrum and diagnosed degenerative disc
disease of the lumbar spine.

2

In a March 18, 2010 report, Dr. Wainapel indicated that appellant was first seen by him
on January 25, 2010 because of back and leg pain following a work-related injury on
November 16, 2009. He noted that he sent appellant for six weeks of physical therapy but this
treatment did not produce consistent relief of her symptoms. Appellant’s lower back pain
increased when she sneezed which suggested a relation with increased intradiscal pressure that
might indicate an annular tear or possible local lumbar disc herniation. Dr. Wainapel indicated
that he wrote a prescription for Naprosyn pain medication and recommended lumbar spine x-rays
as well as pelvis and hip x-rays to rule out sacroiliac or hip pathology. He also recommended
magnetic resonance imaging (MRI) scan testing of the lumbar spine to rule out an annular tear or
disc herniation and discontinued her physical therapy due to insufficient improvement.
Dr. Wainapel indicated that appellant was unable to resume her normal work activities which
entailed significant lifting and carrying.3
In a May 17, 2010 decision, OWCP affirmed its February 25, 2010 decision noting that
Dr. Wainapel described a medical condition that was different from appellant’s accepted medical
conditions.
Appellant requested reconsideration and submitted another March 18, 2010 report in
which Dr. Wainapel detailed the findings of her visit on that date. Dr. Wainapel indicated that
appellant reported back and leg pain, somewhat more in her back than her thighs. He stated that
on physical examination appellant exhibited hamstring tightness and back pain associated with
straight leg raising, but no clear radicular component. Dr. Wainapel noted that she had some
tightness around the piriformis muscle, more on the left side than the right, and indicated that she
had some psoas tightness, left greater than right, even though she had physical therapy to stretch
these muscles. Appellant’s motor examination was within normal limits and she was tender over
her sacroiliac joints and her lumbosacral junction. Dr. Wainapel stated that she could not
perform her regular job, but could perform lighter duty that did not require the same degree of
lifting and carrying.
In an April 19, 2010 report, Dr. Wainapel stated that appellant had an x-ray of her
lumbosacral spine and pelvis/hips which showed minimal spondylosis deformans of the lumbar
spine and no abnormalities of the sacroiliac joints or the hips. Appellant still reported back pain
which radiated into her thighs. Her physical examination showed no significant radicular signs,
but there was pain associated with facet loading bilaterally. Dr. Wainapel noted that lumbar
lordosis was increased and did not fully reverse with forward flexion, abdominal tone was lax
and there was tenderness in the area around the episacral region which might represent a painful
episacral fat pad. He recommended that appellant use some type of lumbosacral brace and
posited that, if her use of a brace produced increased tolerance for standing and lifting, she might
be in a position to consider returning to work while wearing the brace.
On June 11, 2010 Dr. Wainapel stated that appellant was awaiting approval for a
corticosteroid injection to the left episacral trigger point area. He felt that this trigger point area
was a major contributor to her symptoms of pain, going down the left leg, since he was able to
reproduce much of her symptomatology by pushing on the trigger point area. Dr. Wainapel
3

Appellant also submitted additional documents relating to her physical therapy.

3

indicated that appellant was wearing a lumbar brace, but she still had her symptoms, perhaps
because of the episacral trigger point area. He stated that once she had her corticosteroid
injection to this localized trigger point area, he expected that many of her symptoms in her left
leg would improve and she might be capable of returning to full duty. Dr. Wainapel stated:
“In reviewing [appellant’s] history, the onset of symptoms on November 16, 2010
in association with her work seems causal in nature. She has benefited from
therapy in the past with regard to some of the original symptoms that included
right-sided thigh and buttock pain.
I had referred to this as the
sacroiliac/trochanter/iliotibial band syndrome which again is, in my medical
opinion, causally related to her work injury on November 16, 2009.”
In a July 22, 2010 report, Dr. Wainapel stated that appellant complained of tenderness in
the episacral region and pain radiating from her back down her left thigh to the posterior portion
of her left knee. On physical examination, appellant had some swelling in the popliteal fossa on
the left side which was tender to touch. Dr. Wainapel indicated that knee flexion increased her
discomfort, hip motion was relatively preserved and straight leg raising testing was only
associated with back pain. Previous symptoms of right trochanteric bursitis had resolved with
therapy. Dr. Wainapel stated that the question that needed to be clarified is whether or not
appellant had a popliteal cyst in the left knee which is producing her left leg pain or whether the
pain was also contributed to by any lumbosacral radiculopathy. Appellant had some x-rays of
her lumbosacral spine and left knee which were basically within normal limits except for some
very minimal spondylosis of the lumbar spine and the x-rays of her hips and pelvis showed
normal findings. Dr. Wainapel indicated that she was disabled from her regular work and
recommended MRI scan testing of her left knee and lumbosacral spine.
In a September 16, 2010 decision, OWCP affirmed its May 17, 2010 decision.
LEGAL PRECEDENT
An individual who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which compensation is claimed is causally related to the
accepted injury.4 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disabling condition is causally related to the employment injury and supports that
conclusion with sound medical rationale.5 Where no such rationale is present, medical evidence
is of diminished probative value.6

4

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986).

5

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

6

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

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ANALYSIS
OWCP accepted that on November 16, 2009 appellant sustained a lumbar sprain and
lumbar radiculopathy due to lifting a tub of mail. Appellant stopped work on November 16,
2009 and on December 3, 2009 she returned to full-time work in her regular job. She stopped
work on January 5, 2010 and filed a claim alleging that she sustained a recurrence of disability
due to her November 16, 2009 employment injury.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained a recurrence of disability on or after January 5, 2010 due to her
November 16, 2009 employment injury.
In the January 25, 2010 report, Dr. Wainapel, an attending Board-certified physical
medicine and rehabilitation physician, noted that on examination appellant had significant
tenderness in the right sacroiliac area and along the right lateral thigh. He diagnosed lower back
pain with sciatica and signs suggestive of trochanteric bursitis of the right hip along with
tightness of the muscles on her right side, including the piriformis, iliotibial band and psoas
muscle (a condition known as sacroiliac/trochanter/iliotibial band syndrome). Dr. Wainapel
indicated that appellant could not go back to her current type of work because it involved
significant lifting. In his June 11, 2010 report, he stated that, after reviewing her history, “the
onset of her symptoms on November 16, 2010 in association with her work seems causal in
nature.” Dr. Wainapel noted that appellant benefited from physical therapy with regard to some
of the original symptoms that included right-sided thigh and buttock pain. He stated, “I had
referred to this as the sacroiliac/trochanter/iliotibial band syndrome which again is, in my
medical opinion, causally related to her work injury on November 16, 2009.”
The Board finds that Dr. Wainapel’s opinion on causal relationship is of limited probative
value because he did not provide adequate medical rationale in support of his opinion.
Appellant’s claim was accepted for a low back sprain which caused a lumbar radiculopathy.
Dr. Wainapel describes a very different type of injury when he discusses his observation of
bursitis in appellant right sacroiliac, trochanter and iliotibial regions. This observed condition
involves a different area than appellant’s accepted conditions and represents a different
physiological process, i.e., an inflammation process of the bursa versus a muscle sprain.
Dr. Wainapel did not provide any notable discussion of appellant’s accepted conditions or
explain how the condition he observed beginning in January 2010 could have been related to
these accepted conditions.
In other reports, Dr. Wainapel described other symptoms and conditions that arose after
January 2010. He continued to find that appellant was either partially or totally disabled.
However, Dr. Wainapel did not provide any opinion that these conditions were related to the
accepted employment conditions and the medical evidence of record does not otherwise establish
such a causal relationship. For example, in his April 19, 2010 report, Dr. Wainapel indicated
that appellant had tenderness in the area around her episacral region which might represent a
painful episacral fat pad. In his June 11, 2010 report, he noted that he had found a left episacral
trigger point area which might be a major contributor to the pain that went down the left leg. On
July 22, 2010 Dr. Wainapel stated that appellant had some swelling in the popliteal fossa on the

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left side which might be a popliteal cyst producing her left leg pain.7 He did not provide any
opinion that these conditions were related to the accepted employment conditions or that they
caused a work-related recurrence of disability.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.8 Appellant failed to submit rationalized medical evidence
establishing that her claimed recurrence of disability is causally related to the accepted
employment injury and, therefore, OWCP properly denied her claim for compensation.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability on or after January 5, 2010 due to her November 16, 2009
employment injury.

7

It should be noted that, in his July 22, 2010 report, Dr. Wainapel indicated that appellant’s previous symptoms
of right trochanteric bursitis had resolved with therapy.
8

See Walter D. Morehead, 31 ECAB 188, 194-95 (1986).

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ORDER
IT IS HEREBY ORDERED THAT the September 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 20-0152
Issued: August 10, 2020

Case Submitted on the Record

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

JURISDICTION
On October 25, 2019 appellant filed a timely appeal from a September 26, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $26,366.95, for which she was without fault, as
she concurrently received Social Security Administration (SSA) age-related retirement benefits
while receiving FECA wage-loss benefits for the period January 1, 2014 through March 30, 2019
without appropriate offset; (2) whether OWCP properly denied waiver of recovery of the

1

5 U.S.C. § 8101 et seq.

overpayment; and (3) whether OWCP properly required recovery of the overpayment by deducting
$404.00 from appellant’s continuing compensation payments every 28 days.
FACTUAL HISTORY
On December 10, 2015 appellant, then a 67-year-old transportation security officer
(screener), filed a traumatic injury claim (Form CA-1) alleging that on December 9, 2015 she
sustained an injury to her lower back and left leg when she picked up a bag from a roller and turned
to take the bag to a table while in the performance of duty.2 Her retirement coverage was listed as
under the Federal Employees Retirement System (FERS). OWCP initially accepted the claim for
lumbosacral radiculopathy, and later expanded acceptance of the claim to include lumbar
intervertebral disc displacement and degeneration.
Appellant filed claims for compensation (Form CA-7) for leave without pay for four hours
of disability per day while she worked four hours per day from February 28, 2016 through
January 3, 2017. She underwent a laminectomy at L4-5 and L5-S1 on January 6, 2017. Appellant
stopped work on January 6, 2017, returning to work at four hours per day on March 5, 2017.
OWCP placed her on the periodic rolls for wage-loss compensation from February 5 through
March 4, 2017. It paid appellant wage-loss compensation on the supplemental rolls for four hours
per day from March 5 through June 24, 2017. On June 9, 2017 the employing establishment
notified OWCP that it could not accommodate her work restrictions and requested that she be
referred to vocational rehabilitation. OWCP again placed appellant on the periodic rolls for wageloss compensation as of June 25, 2017. Appellant was working full time at the time of her
separation from the employing establishment, which was effective October 13, 2017.
In a Form EN1032 dated October 6, 2017, appellant indicated that she did not receive SSA
benefits as part of an annuity for federal service. However, she further noted that she received
over age 62 Social Security benefits. In an undated EN1032 form, received on September 25,
2018 appellant indicated that she received SSA benefits as part of an annuity for federal service in
the monthly amount of $1,100.00. She continued to indicate receipt of SSA benefits as part of an
annuity for federal service in a Form EN1032 dated October 9, 2018.
On March 6, 2019 OWCP received a completed FERS/SSA dual benefits calculation form
from SSA, wherein SSA calculated SSA benefit rates with a FERS offset and without a FERS
offset from January 2014 through December 2018. Beginning January 2014, the SSA rate with
FERS was $1,067.20 and without FERS was $655.00. Beginning December 2014 through
December 2015, the SSA rate with FERS was $1,085.30 and without FERS was $666.10.
Beginning December 2016, the SSA rate with FERS was $1,088.50 and without FERS was
$688.00. Beginning December 2017, the SSA rate with FERS was $1,110.20 and without FERS
was $681.30. Beginning December 2018, the SSA rate with FERS was $1,141.30 and without
FERS was $700.30.

2

In September 2010, appellant was eligible to receive age-related retirement benefits from the SSA.

2

By letter dated April 8, 2019, OWCP informed appellant that it would begin deducting the
portion of SSA age-related retirement benefits attributable to her federal service from her 28-day
periodic compensation benefits beginning March 31, 2019.
OWCP completed a FERS offset calculation form on August 21, 2019. It determined the
28-day FERS offset amount for the days in each period and computed a total overpayment of
$26,366.95. This form indicated that from January 1 through November 30, 2014 appellant
received 334 days of overpayment in the amount of $4,538.73, from December 1, 2014 through
November 30, 2016 she received 731 days of overpayment in the amount of $10,103.46, from
December 1, 2016 through November 30, 2017 she received 365 days of overpayment in the
amount of $4,819.20, from December 1, 2017 through November 30, 2018 she received 365 days
of overpayment in the amount of $5,160.94, and from December 1, 2018 through March 30, 2019
she received 120 days of overpayment in the amount of $1,744.62.
On August 21, 2019 OWCP issued a preliminary determination that appellant was overpaid
compensation in the amount of $26,366.95 for the period January 1, 2014 through March 30, 2019
because the SSA/FERS offset was not applied to payments for this period. It determined that she
was without fault in the creation of the overpayment because she relied on misinformation given
in writing by OWCP as to the interpretation of FECA or its regulations, there was documentation
to substantiate that the misinformation was communicated to her, and there was no evidence in the
case file to demonstrate that she knew or should have known the proper course of action to be
followed. OWCP requested that appellant 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. It further requested that she
provide supporting financial documentation, including copies of income tax returns, bank account
statements, bills, pay slips, and any other records to support income and expenses. OWCP advised
appellant that it would deny waiver of recovery of the overpayment if she failed to furnish the
requested financial information within 30 days. It further notified her that, within 30 days of the
date of the letter, she could request a telephone conference, a final decision based on the written
evidence, or a prerecoupment hearing. No response was received.
By decision dated September 26, 2019, OWCP determined that appellant had received an
overpayment of compensation in the amount of $26,366.95 because the SSA/FERS offset had not
been applied to payments for the period January 1, 2014 through March 30, 2019. It further found
that she was without fault in the creation of the overpayment, but denied waiver of recovery of the
overpayment, because she had not completed and returned OWCP’s Form OWCP-20. OWCP
required recovery of the overpayment by determining that the sum of $250.00 would be withheld
from appellant’s continuing compensation payments every 28 days beginning October 13, 2019.
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.3 Section 8116 limits the right of an employee to receive compensation. While an employee
3

5 U.S.C. § 8102(a).

3

is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.4
Section 10.421(d) of FECA’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.5 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.6
ANALYSIS -- ISSUE 1
The Board finds that fact of the overpayment without fault has been established. As noted,
a claimant cannot receive concurrent FECA compensation for wage-loss and SSA age-related
retirement benefits attributable to federal service.7 The evidence of record does establish that
appellant received SSA age-related retirement benefits that were attributable to her own federal
service during a period of time that she received FECA wage-loss compensation. The fact of the
overpayment is therefore established.
The Board further finds, however, that OWCP improperly determined the amount of the
overpayment.
Appellant’s accepted employment injury occurred on December 9, 2015. She therefore did
not receive wage-loss compensation under FECA in this claim until after her December 9, 2015
employment injury. Furthermore, the record indicates that appellant returned to work during
periods of time after December 9, 2015. Consequently, the SSA benefits she received prior to
December 9, 2015 and during any period of time during which she returned to full-duty work have
not been established to be dual benefits.8 A claimant is entitled to an overpayment decision that
clearly explains how the amount was calculated.9 The Board finds that the overpayment decision
in this case does not provide such an explanation. Therefore, the amount of the overpayment has
not been established.

4

Id. at § 8116.

5

20 C.F.R. § 10.421(d); see S.O., Docket No. 18-0254 (issued August 2, 2018); L.J., 59 ECAB 264 (2007).

6

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

7

Id. See also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C., Docket No. 18-1550 (issued
February 21, 2019).
8
The Board notes that appellant had three prior FECA claims which have not been consolidated with this claim
and which are unavailable for review by the Board. The current record does not substantiate that appellant received
FECA wage-loss compensation during the period January 1, 2014 through December 9, 2015.
9

L.B., Docket No. 19-1322 (issued January 27, 2020); A.J., Docket No. 18-1152 (issued April 1, 2019); J.W.,
Docket No. 15-1163 (issued January 13, 2016); see also O.R., 59 ECAB 432 (2008) with respect to overpayment
decisions, OWCP must provide clear reasoning showing how the overpayment was calculated).

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On remand OWCP shall determine the exact amount of the overpayment of compensation
and the correct dates during which the overpayment occurred. After this and other such further
development as deemed necessary, it shall issue a de novo decision.10
CONCLUSION
The Board finds that although fact of the overpayment for which he was not at fault has
been established, the case is not in posture for decision regarding the amount of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. This case is remanded
for further proceedings consistent with this decision of the Board.
Issued: August 10, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

10

Given the disposition of issue 1, the issues of waiver and recovery of the overpayment are moot.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRUBUTION CENTER, Oakland, CA,
Employer
__________________________________________

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

Docket No. 19-0778
Issued: September 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On February 25, 2019 appellant filed a timely appeal from a February 4, 2019 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
two percent permanent impairment of the left upper extremity, for which he previously received
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the February 4, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

schedule award compensation; and (2) whether he has met his burden of proof to establish greater
than seven percent permanent impairment of the left lower extremity, for which he previously
received schedule award compensation.
FACTUAL HISTORY
On October 29, 2014 appellant, then a 70-year-old distribution operations supervisor, filed
a traumatic injury claim (Form CA-1) alleging that on October 23, 2014 he injured his left hand
and fractured his left knee when he tripped and fell while in the performance of duty. He stopped
work on October 24, 2014 and returned to modified employment on May 23, 2015. OWCP
accepted the claim for a closed fracture of the left patella and a closed fracture of the left carpal
bone. It subsequently expanded acceptance of the claim to include a sprain of the carpal joint of
the left wrist.
On October 24, 2014 appellant underwent an open reduction and internal fixation of a
comminuted left patella fracture.
Appellant retired from the employing establishment on February 28, 2017.
On July 31, 2017 appellant underwent a proximal carpal synovectomy, debridement of the
triangular fibroid cartilage complex, and debridement of the scapholunate interosseous ligament.
In an impairment rating report dated February 28, 2018, Dr. Michael E. Hebrard, a Boardcertified physiatrist, measured range of motion (ROM) of appellant’s wrists, knees, and ankles.
He found paresthesia of the left ulnar and medial nerve distribution and the left lateral aspect.
Dr. Hebrard further found strength of 4/5 for the left wrist and 4/5 for the left knee, mild left knee
laxity, a positive left wrist Finkelstein’s test, a positive left patella compression test, and a mildly
antalgic gait on the left. Referencing Table 15-3 on page 395 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 he
identified the class of diagnosis (CDX) as a class 1 left wrist sprain, which yielded a default value
of one percent. Dr. Hebrard applied grade modifiers of two for functional history (GMFH) based
on appellant’s QuickDASH (disabilities of the arm, shoulder, and hand) score of 80 and found that
a grade modifier for clinical studies (GMCS) was not applicable. He found a net adjustment of
two after applying the grade modifiers and the two percent permanent impairment of the left wrist.
For the left knee, Dr. Hebrard identified a CDX of 1 displaced comminuted fracture the
left patella using Table 16-3 on page 510. He found no grade modifier adjustments from the default
value of seven percent.
On September 13, 2018 appellant filed a claim for a schedule award (Form CA-7).
On October 10, 2018 Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), reviewed the medical evidence and concurred with Dr. Hebrard’s
finding of two percent left upper extremity impairment using the DBI method. He advised that he
was unable to rate his impairment using the ROM method as Dr. Hebrard had failed to provide
3

A.M.A., Guides (6th ed. 2009).

2

three separate ROM measurements. For the left lower extremity, Dr. Fellars identified the CDX
as a class 1 comminuted patella fracture, with a default value of seven percent. Dr. Fellars applied
a GMFH of one for his antalgic limp, a grade modifier for physical examination (GMPE) of one
due to reduced motion, and a GMCS of one, which yielded no adjustment from the default value
after applying the net adjustment formula. He found that appellant had obtained maximum medical
improvement on February 28, 2018. Dr. Fellars concluded that he had two percent permanent
impairment of the left upper extremity and seven percent permanent impairment of the right upper
extremity.
By decision dated February 4, 2019, OWCP granted appellant a schedule award for two
percent permanent impairment of the left upper extremity and seven percent permanent
impairment of the left lower extremity. The period of the award ran for 26.4 weeks from
February 28 to August 31, 2018.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,4 and its implementing federal regulation,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. FECA, however, does
not specify the manner in which the percentage loss of a member shall be determined. The method
used in making such a determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of the
A.M.A., Guides, published in 2009.6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.9 The net adjustment

4

Supra note 2.

5

20 C.F.R. § 10.404.

6

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

8

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
9

Id. at 494-531.

3

formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10 Evaluators are directed to provide
reasons for their impairment choices, including the choices of diagnoses from regional grids and
calculations of modifier scores.11
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.12 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.13 Adjustments for functional history may be made if the evaluator
determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.14
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”15 (Emphasis in the original.)
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.
In a February 28, 2018 impairment evaluation, Dr. Hebrard found that appellant had 4/5
strength and a positive Finkelstein’s test of the left wrist. He measured ROM for the left wrist.
Dr. Hebrard found that appellant had two percent permanent impairment of the left upper extremity

10

Id. at 411.

11

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

12

A.M.A., Guides 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2018); V.L., Docket No. 18-0760 (issued November 13, 2018).

4

due to a class 1 left wrist sprain using the DBI method set forth at Table 15-3 on page 395 of the
A.M.A., Guides.
On October 10, 2018 Dr. Fellars, a DMA, reviewed Dr. Hebrard’s findings and concurred
with his determination that appellant had two percent permanent impairment of the left upper
extremity using the DBI method. He indicated that he could not rate his impairment using the
ROM method as Dr. Hebrard had failed to obtain three separate ROM measurements, as required
by the A.M.A., Guides.16
As noted, FECA Bulletin No. 17-06 indicates that in measuring ROM, the evaluator should
obtain three independent measurements and use the greatest measurement to determine the extent
of impairment.17 The record fails to establish that Dr. Hebrard measured the ROM of appellant’s
left wrist three times prior to rating the extent of his permanent impairment. It was incumbent
upon the DMA to obtain the necessary ROM measurements to complete the full rating.18
The Board finds that, consequently, as OWCP failed to follow the procedures outlined in
FECA Bulletin No. No. 17-06, the case must be remanded.19 On remand, OWCP should further
develop the claim to obtain three independent ROM measurements as required under FECA
Bulletin 17-06. Following this and other such development as deemed necessary, it shall issue a
de novo decision.20
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA,21 and its implementing federal regulation,22 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. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the

16

A.M.A., Guides 464.

17

FECA Bulletin No. 17-06 (issued May 8, 2017); see also J.V., Docket No. 18-1052 (issued November 8, 2018).

18

See M.D., Docket No. 18-1703 (issued January 18, 2019) (finding that a DMA should advise as to the medical
evidence necessary to complete the ROM method of rating if the medical evidence of record is insufficient to rate
appellant’s impairment using loss of ROM).
19

R.A., Docket No. 18-1331 (issued April 24, 2019); F.V., Docket No. 18-0427 (issued November 9, 2018).

20

J.F., Docket No. 17-1726 (issued March 12, 2018).

21

Supra note 2.

22

20 C.F.R. § 10.404.

5

specified edition of the A.M.A., Guides, published in 2009.23 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.24
In determining impairment for the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the knee,
the relevant portion of the leg for the present case, reference is made to Table 16-3 (Knee Regional
Grid) beginning on page 509.25 After the CDX is determined from the Knee Regional Grid
(including identification of a default grade value), the net adjustment formula is applied using
GMPH, GMPE, and GMCS. The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).26 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.27
ANALYSIS -- ISSUE 2
The Board finds that appellant has no more than seven percent permanent impairment of
the left lower extremity, for which he previously received schedule award compensation.
On February 28, 2018 Dr. Hebrard found paresthesia in the left leg at the lateral aspect, 4/5
strength of the left knee, a positive compression test of the left patella, and a mild antalgic gait on
the left side. He identified the CDX as a class 1 displaced comminuted fracture the left patella
using Table 16-3 on page 510 and found no adjustments from the default value of seven percent.
In a report dated October 10, 2018, Dr. Fellars reviewed Dr. Hebrard’s impairment rating.
He identified the CDX as a class 1 comminuted patella fracture using Table 16-3, for a default
value of seven percent. Dr. Fellars applied GMFH, GMPE, and GMCS of one, which yielded no
adjustment from the default value after applying the net adjustment formula.28 The record contains
no other probative, rationalized medical opinion establishing that appellant has greater impairment
of the left lower extremity based upon the A.M.A., Guides, and thus he has not met his burden of
proof to establish greater than seven percent permanent impairment, for which he received
schedule award compensation.29

23
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
24

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

25

Id. at 509-11.

26

Id. at 515-22.

27

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

28

The net adjustment formula, (GMFH-CDX) + (GMPE-CDX) + (GMCS–CDX), or (1-1) + (1-1) + (1-1) = 0,
yielded no adjustment.
29

See J.H., Docket No. 18-1207 (issued June 20, 2019).

6

On appeal appellant asserts that he disagrees with the impairment rating and describes his
pain and limitations due to his patellar fracture.30 He has the burden of proof, however, to submit
medical evidence in accordance with the A.M.A., Guides establishing greater permanent
impairment of the left lower extremity.31
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that the case is not in posture for decision regarding the extent of
appellant’s permanent impairment of the left upper extremity. The Board further finds that
appellant has no more than seven percent permanent impairment of the left lower extremity for
which he received schedule award compensation.

30
Appellant also maintains that he required a bed with an adjustable base and a scooter. That issue, however, is
not presently before the Board as the Board’s jurisdiction is limited to reviewing final adverse decisions issued by
OWCP within 180 days from the date of the docketing of the current appeal. 20 C.F.R. §§ 501.2(c), 501.3(a) & (e);
see N.M., Docket No. 18-1244 (issued March 4, 2019).
31

See R.R., Docket No. 17-1864 (issued March 1, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: September 18, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________

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

Docket No. 15-1731
Issued: June 2, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 17, 2015 appellant filed a timely appeal from a June 16, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral elbow
condition causally related to factors of her employment.
FACTUAL HISTORY
On October 27, 2014 appellant, then a 44-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome and
tenosynovitis as a result of casing, sorting, and delivering mail, carrying trays and packages, and
1

5 U.S.C. § 8101 et seq.

pulling down and loading mail in a vehicle for four to six hours per day, five days a week.2 She
first became aware of her condition on October 27, 2014. Appellant noted that she had
undergone three surgeries on her hands and wrists. She explained that she was first diagnosed
with bilateral carpal tunnel syndrome on February 21, 2013. Appellant related that even after her
surgeries she continued to experience numbness with no strength. She explained that once she
resumed limited duty full-time work, performing the same repetitive movements, the pain and
numbness had worsened. Appellant did not stop work.
On the reverse side of the claim form, the employing establishment indicated that
appellant first reported her condition to her supervisor on November 3, 2014. It controverted her
claim because she had an open case under File No. xxxxxx913 for carpal tunnel syndrome. The
employing establishment noted that appellant appeared to be claiming an injury to her elbows as
her carpal tunnel syndrome was accepted under the prior claim. It challenged fact of injury and
causal relationship for her allegations regarding her elbows.
A prescription note dated October 27, 2014 signed by Dr. Keith R. Johnson, a Boardcertified orthopedic surgeon, noted a diagnosis of bilateral elbow tendinitis.
In an October 28, 2014 duty status report, Dr. Johnson indicated that appellant sustained
bilateral elbow tendinitis due to overuse from carpal tunnel syndrome. He related that appellant
could return to work with restrictions on October 23, 2014.
By letter dated November 13, 2014, OWCP advised appellant that the evidence submitted
was insufficient to establish her occupational disease claim for her elbows. It advised her to
respond to questions on an attached questionnaire in order to substantiate the factual elements of
her claim. OWCP also requested additional medical evidence to establish that appellant
sustained a diagnosed condition causally related to her employment. Appellant did not provide
responses to the questionnaire.
On December 29, 2014 appellant was examined by Robert Martinez, a physician assistant
from Dr. Johnson’s office, who related in a narrative report that she had been treated for bilateral
wrist carpal tunnel syndrome, but was now complaining of elbow pain since June 3, 2014. He
found symptoms consistent with tendinitis with extensor carpi radialis brevis or tennis elbow of
both elbows. Mr. Martinez noted an ICD-9-CM Diagnosis Code of 354.0 for carpal tunnel
syndrome.
In a decision dated January 6, 2015, OWCP denied appellant’s claim because she had not
established fact of injury. It determined that she failed to provide sufficient factual evidence to
establish the employment-related activities she believed contributed to her condition and she also
failed to submit sufficient medical evidence to demonstrate a diagnosed condition as a result of
her employment.
2

The record reveals that appellant has a previously accepted occupational disease claim for bilateral carpal tunnel
syndrome under File No. xxxxxx913. On March 7, 2013 appellant filed an occupational disease claim alleging that
she first became aware of her carpal tunnel condition on February 21, 2013. She underwent right carpal tunnel
release on June 7, 2013 and left carpal tunnel release on September 13, 2013. Appellant returned to limited-duty
work four hours per day on August 7, 2014 and full-time, limited-duty work as of October 21, 2014.

2

On January 20, 2015 OWCP received appellant’s request for review of the written record
by the Branch of Hearings and Review. Appellant submitted several medical reports regarding
her previously accepted bilateral carpal tunnel syndrome claim.
By letter dated January 8, 2015, the employing establishment advised appellant that she
was not eligible for light duty and advised her of her options she could select if she believed that
she still required work restrictions.
On January 14, 2015 Dr. Johnson referred appellant for work conditioning. He indicated
ICD-9-CM Diagnosis Codes of 354.0 for carpal tunnel syndrome and 719.40 for unspecified
joint pain.
Mr. Martinez examined appellant again and noted in a February 2, 2015 narrative report
that she had experienced bilateral wrist pain for quite some time, which eventually transpired to
elbow and shoulder pain. He reported that she was previously treated for bilateral carpal tunnel
syndrome and had undergone surgery. Mr. Martinez related that appellant developed pain and
weakness to her elbows and shoulders, which transpired from her wrist. He noted that she
attempted to go back to work, but was only able to work a day and a half before she quit due to
severe pain and weakness. Upon examination, Mr. Martinez observed weakness and pain to both
upper extremities, both to appellant’s wrists, hands, elbows, and shoulders. He related that an
electromyography supported nerve damage and potential nerve recovery. Mr. Martinez
diagnosed bilateral carpal tunnel syndrome, bilateral elbow tendinitis, and bilateral shoulder
pain. He recommended more therapy and a magnetic resonance imaging (MRI) scan
examination.
In a February 18, 2015 MRI scan report, Dr. William M. Boushka, a Board-certified
diagnostic radiologist, noted appellant’s complaints of bilateral elbow pain. He reported mild
edema associated with the common extensor tendon, consistent with lateral epicondylitis, and
normal flexors and tendon. Dr. Boushka indicated no tear of the radial or ulnar ligaments. He
diagnosed mild lateral epicondylitis.
On March 11, 2015 appellant accepted a modified assignment as a rural carrier. The
duties of the modified assignment included casing mail for 2.50 hours and delivering mail for
5.50 hours. The physical requirements involved lifting no more than five pounds, sitting, and
standing for one to three hours intermittently, walking for five hours intermittently, and simple
grasping for eight hours intermittently.
In an April 23, 2015 letter, Albert Perez, a health and resource management specialist for
the employing establishment, responded to appellant’s request for review of the written record.
He contended that she had not responded to OWCP’s questionnaire, and accordingly, had not
established the employment factors she believed contributed to her symptoms. Mr. Perez also
alleged that appellant failed to submit medical evidence which contained a medical diagnosis and
explanation for how her alleged condition resulted from her employment. He noted that the
medical reports submitted were signed by a physician assistant, who was not considered a
qualified physician under FECA. Mr. Perez related that appellant had a previously accepted
claim for bilateral carpal tunnel syndrome under OWCP File No. xxxxxx913 with the date of
injury listed as February 21, 2013. He indicated that under that claim she underwent a referee

3

examination, which concluded that she was able to return to work eight hours a day with a
restriction of no lifting over five pounds.
By decision dated June 16, 2015, an OWCP hearing representative affirmed the
January 6, 2015 decision, finding that appellant had not met her burden of proof to establish fact
of injury. She found that it was unclear as to whether appellant was attributing her elbow
condition to her full-time work as a rural carrier prior to her accepted carpal tunnel injury, or to
work activities following her October 21, 2014 return to limited duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
In an occupational disease claim, appellant’s burden requires submission of the
following: (1) a factual statement identifying employment factors alleged to have caused or
contributed to the presence or occurrence of the disease or condition; (2) medical evidence
establishing the presence or existence of the disease or condition for which compensation is
claimed; and (3) medical evidence establishing that the diagnosed condition is causally related to
the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
Appellant alleges that she developed a bilateral elbow condition as a result of her
employment. In a November 13, 2014 letter, OWCP informed her that additional factual and
medical evidence was necessary to establish her claim. It included a questionnaire which
requested that appellant describe the employment-related activities, which she believed
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

4

contributed to her condition, how often she performed such activities, and for how long they
were performed. OWCP also requested a physician’s opinion based on examination and medical
rationale regarding how her work activities caused or contributed to her alleged medical
condition.
Appellant provided various medical notes and narrative reports regarding her treatment
for bilateral carpal tunnel syndrome and complaints of worsening bilateral elbow pain. She
failed, however, to provide any additional factual evidence, whether through responding to
OWCP’s questionnaire or furnishing a separate statement, which described in detail the work
activities which she believed caused or contributed to her bilateral elbow condition.
To establish a claim for compensation, the Board has held that an employee must submit
a statement which identifies the factors of employment believed to have caused his or her
condition and submit medical evidence to establish causal relation.8 On the October 27, 2014
Form CA-2 appellant claimed that she developed bilateral elbow pain as a result of casing,
sorting, and delivering mail, carrying trays and packages, and pulling down and loading mail in
the vehicle. She did not provide any further details describing her work activities, how often she
performed these activities, or for how long she performed them. Furthermore, as noted by the
hearing representative, appellant did not clarify whether her alleged elbow condition was due to
her full-time work activities prior to her accepted carpal tunnel injury, or to her work duties
following her return to limited duty on August 7, 2014. Accordingly, the Board finds that she
failed to describe the employment factors alleged to have caused or contributed to her alleged
overuse injury to her elbows.9
The medical evidence from Dr. Johnson dated October 27 and 28, 2014 and January 14,
2015 noted diagnoses of bilateral elbow tendinitis and recommended more physical therapy. His
reports, however, do not mention any of appellant’s work factors nor describe any employment
duties which may have caused or contributed to her elbow condition. Likewise, Dr. Boushka’s
February 18, 2015 MRI scan report contains only a diagnosis of mild lateral epicondylitis
without any discussion of her employment duties. None of these medical reports provide a
detailed description of the employment factors alleged to have caused or contributed to
appellant’s alleged elbow condition. Accordingly, they fail to establish fact of injury.
The record also contains narrative reports dated December 29, 2014 and February 2, 2015
by Mr. Martinez, a physician assistant. As Mr. Martinez is not considered a physician as defined
under FECA, his reports are of no probative medical value.10 A report from a lay individual can,
however, corroborate nonmedical factual matters.11 However, the reports from Dr. Martinez did
not clarify or corroborate appellant’s alleged factors of employment.

8

Donald W. Wenzel, 56 ECAB 390 (2005); Richard H. Weiss, 47 ECAB 182 (1995).

9

See A.S., Docket No. 14-1983 (issued January 14, 2015).

10

5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).

11

See generally Thelma Rogers, 42 ECAB 866 (1991) wherein a nurse’s notes corroborated appellant’s history of
injury; and see generally Jerre R. Rinehart, 45 ECAB 518 (1994).

5

On appeal, appellant alleges that she has reported all her symptoms to her doctor since
her surgeries and to management after she returned to work. She explained that there was no
light duty for rural carriers and she tried to return to her regular duties with restrictions.
Appellant notes that her treating physician took her off work to and referred her to a pain
management specialist. Her statement, however, does not provide sufficient detail describing the
specific employment factors she believed attributed to her alleged bilateral elbow condition. As
appellant has not established the employment factors alleged to have caused her claimed
condition, she has not met her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a
bilateral elbow condition causally related to factors of her employment.
ORDER
IT IS HEREBY ORDERED THAT the June 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.Y., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, Davis, UT, Employer
__________________________________________

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Appearances:
Donald J. Holdsworth, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0959
Issued: March 17, 2021

Case Submitted on the Record

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

JURISDICTION
On March 27, 2020 appellant, through counsel, filed a timely appeal from a January 3,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, counsel asserted that oral argument should be granted because it
presented the opportunity for questions to be asked and answered regarding the objective evidence that was supportive
of appellant’s claim that she had continuing residuals and disability due to the January 8, 2015 employment injury.
The Board, in exercising its discretion, denies appellant’s request for oral argument because this matter requires an
evaluation of the medical evidence presented. As such, the arguments on appeal can adequately be addressed in a
decision based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board
decision and not serve a useful purpose. As such, the oral argument request is denied and this decision is based on
the case record as submitted to the Board.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits on October 5, 2017; and (2) whether appellant has met her
burden of proof to establish continuing residuals or disability on or after October 5, 2017.
FACTUAL HISTORY
On January 14, 2015 appellant, then a 51-year-old computer assistant, filed a traumatic
injury claim (Form CA-1) alleging that she injured her right knee on January 8, 2015 when she
slipped and fell on black ice while in the performance of duty.4
Dr. Michael S. Dee, a Board-certified orthopedic surgeon, began treating appellant in
February 2015 and requested authorization for a right total knee arthroplasty (TKA). Appellant
began modified duty, based on restrictions provided by Dr. Dee.
On April 7, 2015 OWCP accepted the conditions of right knee anterior cruciate ligament
tear, acute medial meniscus tear, loss body in knee, and defect of articular cartilage. In an April 20,
2015 report, Dr. Morley Slutsky, Board-certified in occupational medicine and serving as district
medical adviser (DMA), advised that, based on appellant’s significant preexisting arthritis that was
aggravated by the January 8, 2015 fall at work, the only reasonable surgery would be right TKA.
He indicated that the need for the surgery was directly related to the accepted work injury. OWCP
authorized the surgery that was performed by Dr. Dee on June 4, 2015.
OWCP paid appellant compensation from the date of surgery and placed her on the periodic
compensation rolls, effective June 28, 2015.
Dr. Dee provided follow-up care on June 15, July 14, and August 7, 2015. On
September 24, 2015 he advised that appellant could return to modified-duty work on October 1,
2015, to begin five hours daily for three weeks and then full duty. On a September 29, 2015 work
capacity evaluation (Form OWCP-5c), Dr. Dee indicated that appellant was able to perform
sedentary work only for five hours a day and provided restrictions of no twisting, bending,
stooping, pushing, pulling, lifting, squatting, kneeling, or climbing.
OWCP paid appellant wage-loss compensation on the periodic rolls until she returned to
modified-duty work on October 1, 2015.5 An October 19, 2015 light-duty job offer indicated that
she could work five hours of sedentary duty daily with no twisting, bending, stooping, pushing,
3

5 U.S.C. § 8101 et seq.

4

A January 27, 2015 magnetic resonance imaging (MRI) scan of the right knee demonstrated severe medial
compartment osteoarthritis, moderate-to-severe patellofemoral compartment osteoarthritis, and moderate lateral
compartment osteoarthritis, chronic complete anterior cruciate ligament tear, small knee effusion, and a free body in
the posterior medial compartment.
By letter dated October 19, 2015, the employing establishment confirmed that appellant’s position was within the
restrictions provided by Dr. Dee.
5

2

pulling, lifting, squatting, kneeling, or climbing. A copy of Dr. Dee’s September 29, 2015 Form
OWCP-5c was attached.
OWCP thereafter paid appellant intermittent wage-loss compensation on the supplemental
compensation rolls, based on claims for compensation (Form CA-7) filed by appellant.
On November 6, 2015 Dr. Dee noted appellant’s complaint of increased pain. He
diagnosed osteoarthritis of the right knee, and indicated that she had full knee extension, flexion
to 150 degrees, stable to examination, and a healing incision. Dr. Dee indicated that appellant
could work six hours of light duty per day. On January 8, 2016 he noted appellant’s complaint of
continued right knee pain. Dr. Dee reported that her right knee showed a healed incision and mild
swelling, but that the knee was stable to examination with full extension and flexion of 125
degrees. Right knee x-ray demonstrated a TKA with no evidence of loosening. Dr. Dee noted that
he thought the majority of her symptoms were from weak quadricep muscles. He recommended
continued physical therapy and advised that she continue working five hours daily. On March 18,
2016 Dr. Dee reported that appellant’s postoperative course had been complicated by severe right
knee neuropathic pain. Right knee range of motion was 0 to 130 degrees, stable examination, with
a healed incision, and hypersensitivity to the lateral knee. X-rays demonstrated a right TKA.
Dr. Dee diagnosed osteoarthritis of the knee, and complex regional pain syndrome of the lower
extremity. He discussed treatment methodologies and, if no improvement over the next months,
recommended referral to pain management. Appellant was to continue working five hours daily
with current restrictions. On May 13, 2016 Dr. Dee reported that appellant had increasing right
knee pain and had trouble kneeling down at work to plug in telephone wires. He reported right
knee full extension and definite tenderness to light touch and paresthesia over the lateral knee.
Dr. Dee advised that appellant should continue light duty with current restrictions including no
lifting greater than 20 pounds.
On June 1, 2016 OWCP referred appellant to Dr. Todd A. Fellars, a Board-certified
orthopedic surgeon, for a second opinion evaluation. It asked Dr. Fellars to determine if appellant
had continuing residuals of the employment injury and whether she had work limitations.
In a July 14, 2016 report, Dr. Fellars noted appellant’s complaint of achy right knee pain,
numbness, and burning when standing, walking, and climbing stairs. He described her medical
and surgical history and noted that she had multiple back injuries associated with three automobile
accidents. Appellant described the January 8, 2015 employment injury and indicated that she was
currently working five hours daily, but that the job was more demanding than described, noting
that she was out in the field most of the day working on individual’s computers, that she had to
walk long distances on uneven surfaces, and had to lift computers, and at times would kneel and
bend, but was unable to kneel at present. She reported that her knee had not improved since the
injury. Dr. Fellars noted his review of the medical record including the statement of accepted facts
(SOAF) and that appellant had a minimally antalgic gait on the right. He advised that she could
only perform 25 percent of a squat-and-rise maneuver due to pain at the infrapatellar aspect of her
knee. Dr. Fellars measured right knee range of motion with a goniometer, noting that despite
complaints of pain, her range of motion was symmetric bilaterally from 0 to 110 degrees with
active range of motion and 0 to 112 with passive range of motion. He described right calf atrophy
of 38 centimeter (cm) when compared to 41 cm on the left. Strength testing for knee flexion and
extension was 5/5 bilaterally, and bilateral patellar and Achilles reflex testing was hyporeflexive.
Right knee sensation was decreased in the distribution of the infrapatellar branch of the saphenous
nerve. Dr. Fellars found that, on inspection, appellant had normal alignment with no evidence of
3

malalignment of the right knee, and that appellant stood with her right knee flexed approximately
20 inches. He indicated that she reported that when she tried to extend it fully when standing, she
had a sharp pain in the back of her knee, but could extend it fully when not weight bearing.
Stability testing revealed her knee was stable to varus and valgus stress with no gapping and no
mid-flexion instability. Dr. Fellars found that on palpation, appellant had diffuse pain in the
infrapatellar region and at the lateral femoral condyle on the right. He indicated that the July 14,
2015 MRI scan of the right knee showed that the TKA components were in good position with no
evidence of loosening or complication. Dr. Fellars noted the diagnoses found in the statement of
accepted facts and that appellant was status post right TKA on June 4, 2015 with complaints of
numbness in the infrapatellar branch of the saphenous nerve, which was expected almost 100
percent of the time after a TKA. He opined that this should not be limiting, and noted subjective
complaints of ongoing pain, not supported by objective evidence.
Dr. Fellars noted that OWCP had accepted that the preexisting osteoarthritis seen on
appellant’s MRI scan had been aggravated by the January 8, 2015 employment injury and this
aggravation led to the TKA. He advised that, per the documented evidence and radiology images,
appellant had no complication associated with her TKA. Dr. Fellars noted appellant’s continued
subjective complaints of pain, indicating that although TKA was a very successful surgery, there
were individuals who were outliers and continued to have pain after a TKA. He found that, based
on all objective measures, appellant had no evidence of infection or loosening and, therefore, there
was no objective evidence as to why she had complaints of ongoing pain. Dr. Fellars indicated
that appellant’s complaints of pain were more consistent with nerve complaints, and not
complaints associated with a painful knee implant, but also noted that there was no specific-named
nerve that ran in that anatomic region. He advised that she was numb in the region innervated by
the infrapatellar branch of the saphenous nerve, but that was expected, and often unavoidable, as
a result of the TKA and opined was not a limiting factor. Dr. Fellars indicated that, on a purely
objective standard, there was no reason that appellant could not work eight hours per day, finding
no objective evidence to support her subjective complaints of pain. He also found that, since she
was one year post-surgery and had not made significant improvement over the past few months,
she was likely at maximum medical improvement (MMI) for this condition. Dr. Fellars wrote that
the only thing further that could be done was a bone scan to assess loosening of the TKA
components, but noted that appellant’s complaints of pain did not correlate with aseptic loosening.
In response to specific OWCP questions, he opined that, within reasonable medical probability
based on objective ﬁndings, appellant had no continuing residuals as a result of the accepted workrelated conditions, noting that her knee prosthesis was in excellent position with no evidence of
loosening, and that she had excellent range of motion. Dr. Fellars indicated that, based on objective
medical evidence, appellant’s conditions have resolved to the point that she was at MMI, and no
further treatment would be expected to provide speciﬁc clinical and functional beneﬁt, noting that
further skilled physical therapy intervention would not provide a functional beneﬁt that would
surpass a home exercise program.
As to appellant’s work capacity, Dr. Fellars noted that the cover letter indicated that the
demands of appellant’s computer assistant position were listed as primarily sedentary in nature
with occasional periods of walking, standing, bending, and carrying light items such as paper or
small parts, but that appellant reported that she spent minimal time sitting down and when she did
sit, it was at other’s desks, and that she had to walk out onto the flight line and on uneven surfaces,
and walk up and down stairs. He indicated that appellant reported that she did this constantly, not
intermittently. Dr. Fellars noted that this difference between the official job description and what
4

appellant reported as her job duties would need to be rectified prior to his offering an opinion as
to whether she could return to work without restrictions, but indicated that, based on the job
description he had been given, appellant could return to work at full duty for eight hours per day,
finding that she was subjectively limiting herself due to her reports of pain with no objective
evidence that she could not work eight hours daily.
April 31, and September 9, 2016 memoranda of telephone call (Form CA-110) indicated
that OWCP contacted the employing establishment to ask appellant’s supervisor what appellant’s
position entailed on a daily basis so that the physical duties of the position could be established.
In a September 13, 2016 e-mail, A.E., appellant’s supervisor, indicated that parts of
appellant’s statements were correct and in compliance with her position description. He noted that
her work area was spread over 33 buildings, which involved driving and walking to provide
computer assistance. A.E. indicated that appellant’s position description contained occasional
periods of walking, standing, and bending and it also indicated that her work was performed in an
office setting or warehouse setting and that some travel could be required for mission
accomplishment or training. He continued that there would be occasional stairs, but questioned
the definition of “occasional.” A.E. wrote that he disagreed with appellant’s assertion regarding
that she consistently did this and questioned the definition of “consistently.” He noted that he
would need to sit down with appellant and see where she was working to confirm her story,
indicating that he saw her the majority of the time in their office. A.E. wrote that he thought
appellant’s claims came down to the definition of “occasionally” and “consistently,” and
maintained that the duties were nowhere near the “consistently” side. He acknowledged that she
lifted small pieces of computer equipment such as laptops, desktops, and printers, but was unsure
of the definition of “small parts.”
In a Form CA-110 dated October 11, 2016, OWCP informed the employing establishment
that clarification of appellant’s actual job duties was needed.
On August 26, 2016 Dr. Dee advised that appellant’s right knee was slightly warm to touch
and she was tender to palpation about the medial lateral joint lines with full extension flexion 130
degrees and a stable ligamentous examination. He diagnosed complex regional pain syndrome of
the lower extremity and referred her for a consultation regarding her continued right knee pain.
By letter dated October 25, 2016, M.R., an injury compensation specialist with the
employing establishment, responded to appellant’s assertions regarding her job duties. She wrote
that appellant’s supervisor A.E. indicated that her work was primarily sedentary in nature. M.R.
referred to appellant’s position description and A.E.’s description of appellant’s job duties, noting
that it could be more active at times, and that appellant did not currently have flight line access to
the best of his knowledge, but that she may have to perform work out at the flight line at times.
A.E. noted that since appellant’s work was performed in a warehouse environment, she would
always be tranversing uneven surfaces. M.R. reported that A.E. maintained that the majority of
appellant’s tasks were sedentary and could be performed with minimal exertion, but the level could
raise based on the workload. A.E. related that when an employee called for assistance, appellant
would need to go out which would involve periods of substantial walking, standing, bending, and
carrying light objects as outlined in her position description. M.R. attached copies of October 2016
e-mails from A.E. who noted that appellant provided assistance to a higher-graded computer
technician. A.E. further indicated that some of appellant’s work could be accomplished at her desk
5

such as completing reports, telephone calls, and imaging. He noted that appellant was currently
working four-hour days and was being accommodated.
In a December 9, 2016 report, Dr. Dee noted appellant’s complaint of continued severe
burning right knee pain. Examination showed full extension flexion with a stable ligamentous
examination and significant tenderness to palpation about the anterolateral knee joint. X-rays that
day demonstrated a stable-appearing right TKA with no evidence of acute complication.
In correspondence dated January 23, 2017, M.R. asked that OWCP schedule another
second opinion evaluation to address whether appellant could work full time and whether she could
perform some of the physical duties required as part of her sedentary job.
On February 13, 2017 OWCP referred appellant to Mark Hedrick, a rehabilitation
counselor, for vocational rehabilitation services. On March 27, 2017 OWCP received a March 1,
2017 job analysis form for a computer assistant position from Mr. Hedrick.6 Mr. Hedrick indicated
that job analysis assistance was provided by A.E., and that the computer assistant position was
classified as light with a 20-pound lifting requirement. It noted that physical demands were
primarily sedentary with occasional periods of walking, standing, bending, and carrying of light
items, such as paper or small parts. The work environment would require some travel for mission
accomplishment or training. It indicated that appellant would not be required to lift any weight
over about 20 pounds per her restriction and that a laptop computer, keyboard, computer mouse,
and monitor all weighed 10 pounds or less, and that some computers, monitors, printers, and
miscellaneous equipment weighed between 10 and 20 pounds or as much as 50 pounds, but that
appellant would not be required to lift anything above 20 pounds. The report indicated that the
items to be pushed included desk drawers, doors, and carts, occasionally, intermittently, for one
second to a few minutes at one time and required the use of one hand. Items to be pulled included
desk drawers, doors, and computer cables, occasionally, intermittently, for one second to a few
minutes at one time and required the use of one hand. Driving was to a location to perform
assistance, occasionally, intermittently, for two to three minutes at one time. Kneeling was
occasionally, intermittently, for two to three minutes at one time; crawling, occasionally,
intermittently, for a few seconds at one time; crouching, occasionally, intermittently, could be
avoided with body mechanics; climbing, occasionally, intermittently with average use of stairways
is approximately 10 times per day and maximum use of stairways approximately 20 times per day.
It was noted that the stairways typically had 7 steps, some had 10 or 15 steps, and the maximum
observed was a stairway with 25 steps with at least two to three minutes before returning to a
stairway to descend or ascend. Sitting averaged approximately six hours per day with at least three
hours at the computer assistant’s desk in a chair with lumbar support and armrests. Many times,
the computer assistant would have the option to sit or stand at a customer’s desk. Standing was
occasionally, intermittently at a maximum of 15 minutes at one time, and 2 hours in a working day
on carpet, asphalt, or cement floor. Walking was occasionally, intermittently at a maximum of
five minutes at one time, typically one to three minutes at one time with a maximum of two hours
in a working day, on carpet, asphalt, or cement floor and stairs with cement floor, and occasionally
on uneven sidewalks or outdoors on a ramp with a slight incline. Most walking was performed
indoors where the surfaces were flat, and walking outside would be in a parking lot and on

6

It appears that March 1, 2016 is a typographical error as the correct date is March 1, 2017.

6

sidewalks intermittently for one to two minutes at one time and would require stepping up onto
sidewalks on occasion. Walking on gravel or rocks was not required.7
In a report dated April 14, 2017, Mr. Hedrick noted that he met with appellant at the
employing establishment on March 23, 2017 and she disagreed with many of A.E.’s descriptions.
On March 24, 2017 he reviewed appellant’s comments with A.E.
On May 24, 2017 OWCP reduced appellant’s wage-loss compensation based on her actual
earnings as a computer assistant. It noted that she worked an average of 22 hours a week at a
salary of $528.88 per week and applied the Shadrick8 formula, finding net compensation of
$1,264.00 every four weeks.
In correspondence of same date, M.R. requested that OWCP issue a notice of proposed
termination, based on Dr. Fellars’ report. OWCP forwarded appellant a copy of this letter. In
undated correspondence, appellant indicated that she continued to have work-related residuals.
B.S., an OWCP rehabilitation specialist, prepared a report on June 1, 2017. He indicated
that the physical demands of appellant’s computer assistant job matched the physical demands that
Dr. Fellars used when he released appellant to perform her date-of-injury work. B.S. noted that
Dr. Fellars indicated that appellant’s physical demands were primarily sedentary, with occasional
periods of walking, standing, bending, and carrying light items, and that Mr. Hedrick, the
rehabilitation counselor, completed a job analysis on March 27, 2017 which confirmed each of the
listed factors provided by Dr. Fellars. He indicated that, while appellant told Dr. Fellars that her
physical demands were much more arduous, that she must walk constantly, Mr. Hedrick confirmed
that she walked no more than two hours per day. B.S. reported that the job definitions provided to
Dr. Fellars were accurate, and that appellant’s descriptions were incorrect. He also noted that
Dr. Fellars indicated that appellant had no continuing residuals and that her complaints of pain
were not supported by objective evidence. B.S. maintained that this also supported appellant’s
full-duty work release.
On August 30, 2017 OWCP provided appellant with a notice of proposed termination of
her wage-loss compensation and medical benefits because the medical evidence of record
established that she no longer had any residuals or continuing disability due to the January 8, 2015
employment injury. It determined that the weight of the medical evidence rested with the July 14,
2016 report of Dr. Fellars. OWCP afforded appellant 30 days to submit additional evidence or
argument. No additional evidence or argument was received within this time frame.
By decision dated October 5, 2017, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective that day. It found that the opinion of Dr. Fellars constituted the
weight of the medical evidence and established that she had no further residuals or continuing
disability causally related to her accepted right knee conditions.
On August 6, 2018 appellant, through counsel, requested reconsideration. Counsel
maintained that appellant continued to have residuals of the accepted conditions, noting that her

7

Mr. Hedrick reported that appellant was unable to work at that time due to a motor vehicle accident.

8

Albert C. Shadrick, 5 ECAB 376 (1953), codified at 20 C.F.R. § 10.403.

7

right knee had worsened in the last six months. He also asked that the acceptance of appellant’s
claim be expanded to include the conditions of chronic pain syndrome and lower back pain.
Counsel submitted a May 24, 2018 report of Dr. Betsy L. Reese, an employing
establishment physician who is Board-certified in family and sports medicine, and advised that
appellant was under her care and had many musculoskeletal disabilities that limited her ability to
work, dating back to January 2015 when she fell at work, injuring her right knee. Dr. Reese noted
that appellant continued to have chronic right knee pain to date. She also advised that appellant
had developed low back pain due to her altered gait which exacerbated the degenerative changes
seen on lumbar spine x-rays. Dr. Reese opined that appellant’s activities of daily living were
impacted by her chronic right knee and low back pain.
By decision dated October 31, 2018, OWCP denied modification of its October 5, 2017
decision. It noted that Dr. Reese did not provide physical examination findings, and found that
the weight of the medical evidence continued to rest with Dr. Fellars’ opinion.
On September 26, 2019 appellant, through counsel, again requested reconsideration. He
noted that there was a difference of opinion between Dr. Fellars and Dr. Dee regarding appellant’s
right knee pain, which continued. Counsel reiterated that appellant continued to have right knee
residuals and also had a consequential low back condition. He also indicated that, since Dr. Fellars
advised that appellant had reached MMI, OWCP should schedule appellant an impairment
evaluation for her. Counsel also indicated that appellant was requesting compensation for wage
loss during the time she was off due to the TKA.
Counsel submitted a July 22, 2019 report in which Dr. Dee noted that appellant had severe
problems following the work injury that required a TKA and continued to have severe right knee
pain, likely neurogenic in nature due to the work injury. Dr. Dee advised that a bone scan did not
show any obvious loosening with relative normal uptake, but that appellant had never improved to
the point that she could function without difficulty, which was perhaps due to some
hypersensitivity to the metal from her knee replacement versus chronic pain from neuralgia. He
diagnosed traumatic arthropathy and chronic pain of the right knee.
By decision dated January 3, 2020, OWCP denied modification of its October 31, 2018
decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.9 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

9

D.B., Docket No. 19-0663 (issued August 27, 2020); S.F., 59 ECAB 642 (2008).

8

the employment.10 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.11
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.12 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.13
The Department of Labor’s Dictionary of Occupational Titles defines sedentary work as
exerting up to 10 pounds of force occasionally or a negligible amount of force frequently to lift,
carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves
sitting most of the time, but may involve walking or standing for brief periods of time. Jobs may
be defined as sedentary when walking and standing are required only occasionally and all other
sedentary criteria are met.14
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective October 5, 2017.
The Board finds that the July 14, 2016 opinion of Dr. Fellars, which served as the basis of
OWCP’s termination action, does not provide a well-rationalized, unequivocal opinion that
appellant had no residuals or disability related to the accepted January 8, 2015 employment injury.
As to appellant’s work capacity, OWCP relied on the June 1, 2017 report of its
rehabilitation specialist B.R. Dr. Fellars, however, clearly indicated in his July 14, 2016 report
that appellant’s work capacity could not be determined at that time because her report of her job
duties and those contained in her position description did not agree. The record indicates that
appellant returned to modified duty on October 1, 2015 and that the modified job offer in place at
the time of termination was that dated October 19, 2015. It was based on restrictions provided by
Dr. Dee and provided that appellant should not twist, bend, stoop, push, pull, lift, squat, kneel, or
climb. Dr. Dee never returned appellant to full duty.
In October 2016, A.E., appellant’s supervisor, provided a thorough description of what he
determined were appellant’s job duties. He indicated that she had to climb stairs during each
workday and perform other duties required to assist in computer maintenance. However, A.E. did
not indicate that appellant’s duties complied with Dr. Dee’s restrictions attached to the job offer
that indicated that appellant had specific physical restrictions. Moreover, OWCP did not ask

10

V.S., Docket No. 19-1792 (issued August 4, 2020); I.J., 59 ECAB 408 (2008).

11

A.C., Docket No. 19-1522 (issued July 27, 2020); T.P., 58 ECAB 524 (2007).

12

D.B., supra note 9; Kathryn E. Demarsh, 56 ECAB 677 (2005).

13

A.J., Docket No 18-1230 (issued June 8, 2020); T.P., supra note 11.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Vocational Rehabilitation Services, Chapter 2.813,
Exhibit 1 (February 2011).

9

Dr. Fellars to review the October 19, 2015 job offer or to review A.E.’s report of appellant’s job
duties and did not ask him to complete a work capacity evaluation.
For these reasons, the Board finds that OWCP did not meet its burden of proof to terminate
appellant’s wage-loss compensation on October 5, 2017.15
As to the termination of medical benefits, although both Dr. Dee and Dr. Fellars indicated
that appellant had a good result from her TKA, Dr. Fellars described physical findings of right calf
atrophy, decreased sensation, and arthritis which showed that appellant had continuing right lower
extremity residuals. Although he explained that nerve loss was expected 100 percent of the time
after a TKA, this would also be a residual. Thus, as the medical evidence indicates that appellant
had continuing residuals, OWCP also did not meet its burden of proof to terminate appellant’s
medical benefits.16
On appeal counsel asserts that appellant should be additionally compensated for lost wages
during her recovery from the TKA. The record indicates that appellant received full compensation
on the periodic rolls until she returned to work on October 1, 2015 and thereafter received
intermittent compensation based on the claim forms that she filed. OWCP continued to pay
intermittent compensation until appellant’s wage-loss compensation was terminated on
October 5, 2017.17
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits on October 5, 2017.18

15

M.R., Docket No. 20-0707 (issued November 30, 2020).

16

Id.

Regarding counsel’s request for expansion of the claim, which was made following the termination of appellant’s
compensation, the Board’s jurisdiction is limited to the review of final adverse OWCP decisions issued under FECA.
OWCP has not issued a final decision regarding expansion of the claim. 20 C.F.R. §§ 501.2(c) and 501.3. See also
S.H., Docket No. 20-0253 (issued June 17, 2020).
17

18

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

10

ORDER
IT IS HEREBY ORDERED THAT the January 3, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 17, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

11