United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, ATLANTA AIRPORT
MAIL CENTER, Atlanta, GA, Employer
__________________________________________

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

Docket No. 07-50
Issued: March 27, 2007

Case Submitted on the Record

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

JURISDICTION
On October 3, 2006 appellant filed a timely appeal from an October 2, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his occupational disease
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.
ISSUE
The issue is whether appellant has established that he sustained an occupational disease
causally related to factors of his federal employment.
FACTUAL HISTORY
On June 9, 2006 appellant, then a 48-year-old former mail handler, filed an occupational
disease claim alleging that he sustained tendinitis, low back pain, lumbar disc disease, reduced
range of motion in his back, a lumbar disc bulge, degenerative disc disease, facet arthropathy, an
annular tear and arthritis due to factors of his federal employment. He attributed his condition to
working eight hours per day, six days a week, performing repetitive work. Appellant realized

that his condition was due to his federal employment on January 10, 2001. On the reverse side
of the claim form, a supervisor at the employing establishment noted that appellant did not show
up to work at that location and that he had been out of work for “a good while.”
On January 31, 2001 a physician diagnosed back pain. In a form report dated
October 30, 2002, Dr. Ahmad Jingo, a Board-certified internist, diagnosed lumbar disc disease
and found that appellant was totally disabled from October 25 to November 10, 2002. In a
progress report dated June 10, 2003, a physician noted that appellant had a history of low back
pain from a work injury. The physician diagnosed left shoulder and back pain. On June 11,
2003 a physician diagnosed left shoulder pain, back pain and depression.1
On July 7, 2006 the employing establishment notified the Office that appellant began
work on February 10, 2001 and was last in a work status on April 23, 2004. The employing
establishment argued that he had not established that he was exposed to the alleged employment
factors and had not submitted sufficient medical evidence in support of his claim.
By letter dated July 18, 2006, the Office requested that appellant provide an explanation
for his delay in filing a claim and a comprehensive medical report from his attending physician
addressing the causal relationship of any diagnosed condition.2 Appellant submitted progress
reports dated June 12, 2002 through April 4, 2004 describing his treatment for back, neck and
shoulder pain. In a letter dated January 17, 2003, Dr. Jingo opined that appellant was unable to
work due to back problems beginning October 27, 2002. He found that appellant could resume
his usual employment on January 17, 2003.
Appellant submitted progress reports dated 2004 and 2005 from the Veterans
Administration (VA) medical center describing his treatment for back pain. He received
treatment in the hospital from August 22 to September 15, 2005 for chronic low back and left
shoulder pain.3 In a progress report dated March 1, 2006, Dr. Marwan I. Zheiman, a neurologist,
diagnosed “[c]hronic low back pain with evidence of radiculopathy to the L4 and L5 areas on the
right side.”4 On July 25, 2006 Dr. Susan S. Platt, a Board-certified internist, diagnosed chronic
back pain with a history of osteoarthritis, a bulging disc and radiculopathy.
In a statement dated August 17, 2006, appellant listed supervisor and coworkers who
were aware of his disability.

1

The names of the physicians are not legible.

2

On August 3, 2006 the Office noted that the Board had affirmed the termination of appellant’s compensation for
refusing suitable work under 5 U.S.C. § 8106 in file number 062109391.
3

A computerized tomography scan dated August 31, 2005 showed degenerative changes at L2-3. A lumbar
magnetic resonance imaging scan study dated September 7, 2005 showed a disc bulge at L3-4 with compression of
the neural foramina and an annular tear at L4-5 without evidence of disc extrusion.
4

In letters to the employing establishment dated 2004, appellant described the circumstances of other
employment injuries.

2

By decision dated October 2, 2006, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish that he sustained an injury due to the established
employment factors.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was filed within the applicable time limitation, that an injury was sustained while in the
performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.6 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed;8 (2) a
factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition;9 and (3) medical evidence establishing the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.10
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence, which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.11 The
opinion of the physician must be based on a complete factual and medical background of the
claimant,12 must be one of reasonable medical certainty13 explaining the nature of the

5

5 U.S.C. §§ 8101-8193.

6

Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton, 40 ECAB 1143 (1989).

7

See Irene St. John, 50 EAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 2.
8

Solomon Polen, 51 ECAB 341 (2000).

9

Marlon Vera, 54 ECAB 834 (2003); Roger Williams, 52 ECAB 468 (2001).

10

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

11

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

12

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

13

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

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relationship between the diagnosed condition and the specific employment factors identified by
the claimant.14
ANALYSIS
Appellant attributed his tendinitis, low back pain, lumbar disc disease, reduced range of
motion in his back, a lumbar disc bulge, degenerative disc disease, facet arthropathy, an annular
tear and arthritis to performing repetitive work for eight hours per day. The employing
establishment challenged whether he was exposed to the alleged employment factors and noted
that he had not reported for work in his new work location. Appellant last worked on or about
April 23, 2004. He did not submit a statement describing the exact factors of employment to
which he attributed his condition.15 It is appellant’s burden to submit a detailed description of
the employment factors or conditions that he believes caused or adversely affected the condition
or conditions for which compensation is claimed.16 The Board thus finds that he has not
established the alleged employment factors of working eight hours per day, six days per week,
performing repetitive tasks.
Additionally, the record is devoid of medical evidence containing an opinion on causal
relationship. On October 30, 2002 Dr. Jingo diagnosed lumbar disc disease and indicated that
appellant was totally disabled from October 25 to November 10, 2002. He did not, however,
address causation. The Board has held that medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of diminished probative value on the issue of
causal relationship.17
The record contains progress notes dated 2003 from various physicians who treated
appellant for low back pain and left shoulder pain. The names of the physicians, however, are
not legible. As the progress reports lack proper identification, they do not constitute probative
medical evidence.18
Appellant received treatment from VA from 2004 to 2005 for chronic low back and left
shoulder pain. On March 1, 2006 Dr. Zheiman diagnosed chronic low back pain with
radiculopathy. On July 25, 2006 Dr. Platt diagnosed chronic back pain with a history of
osteoarthritis, a bulging disc and radiculopathy. None of the reports, however, addressed the
cause of appellant’s back pain and thus are of diminished probative value on the issue of causal
relationship.19

14

Judy C. Rogers, 54 ECAB 693 (2003).

15

The Board notes that the Office did not require further information from appellant regarding his work activities
in its July 18, 2006 development letter.
16

Penelope C. Owens, 54 ECAB 684 (2003).

17

See Conrad Hightower, supra note 11.

18

See Ricky S. Storms, 52 ECAB 349 (2001); Merton J. Sills, 39 ECAB 572 (1988).

19

Jaja K. Asaramo, 55 ECAB 200 (2004).

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An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is causal relationship between his claimed condition and his
employment.20 Appellant must submit a physician’s report in which the physician reviews the
employment factors he identified as causing his condition and, taking these factors into
consideration as well as findings upon examination, state whether the employment injury caused
or aggravated the diagnosed conditions and provide medical rationale in support of his or her
opinion.21 He failed to submit such evidence in this case and, therefore, has failed to discharge
his burden of proof to establish that he sustained an employment-related recurrence of disability.
CONCLUSION
The Board finds that appellant has not established that he sustained an occupational
disease causally related to factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 2, 2006 is affirmed.
Issued: March 27, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

20

Robert A. Boyle, 54 ECAB 381 (2003); Patricia J. Glenn, 53 ECAB 159 (2001).

21

Calvin E. King, 51 ECAB 394 (2000).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.N., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Fort Worth, TX,
Employer
__________________________________________

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

Docket No. 20-1159
Issued: April 20, 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 May 16, 2020 appellant filed a timely appeal from an April 28, 2020 merit decision of
the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’

1
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, she asserted that recovery of the overpayment was against equity and
good conscience and OWCP’s decision did not explain why it denied her request to waive recovery of the
overpayment. She requested further information to understand how OWCP determines that an overpayment should
be waived. The Board, in exercising its discretion, denies appellant’s request for oral argument because 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.

Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $54,446.67, for the period February 9, 2016 through February 29, 2020, for which she
was without fault, because she concurrently received FECA wage-loss compensation and Social
Security Administration (SSA) age-related retirement benefits, without appropriate offset;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly required recovery of the overpayment by deducting $480.50 from appellant’s
continuing compensation payments every 28 days.
FACTUAL HISTORY
On September 8, 2015 appellant, then a 62-year-old chemist, filed an occupational disease
claim (Form CA-2) alleging that she developed degenerative hand conditions due to factors of her
federal employment, including repetitive duties. She indicated that she first became aware of her
condition on October 5, 2014, and realized its relationship to her federal employment on
November 12, 2014. Appellant’s retirement system coverage was noted as Federal Employees
Retirement System (FERS). She retired effective September 26, 2015.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and lesion of the
right ulnar nerve. It paid her wage-loss compensation on the supplemental rolls from February 9,
2016 and on the periodic rolls as of March 5, 2017.
On February 24, 2020 OWCP received from SSA a January 27, 2020 FERS/SSA dual
benefits calculation form, which indicated that appellant had been in receipt of SSA age-related
retirement benefits since May 2015. The form indicated SSA benefit rates with and without a
FERS offset. Beginning May 1, 2015, appellant’s SSA rate with FERS was $1,603.00 and without
FERS was $634.00; beginning January 1, 2016, appellant’s SSA rate with FERS was $1,627.00
and without FERS was $634.00; beginning December 1, 2016, appellant’s SSA rate with FERS
was $1,632.00 and without FERS was $636.00; beginning December 1, 2017, February 1, 2018,
and March 1, 2018, appellant’s SSA rate with FERS was $1,664.00 and without FERS was
$648.00; beginning December 1, 2018, appellant’s SSA rate with FERS was $1,711.00 and
without FERS was $666.00; beginning April 20, 2019, appellant’s SSA rate with FERS was
$2,143.00 and without FERS was $666.00; beginning June 1, 2019 , appellant’s SSA rate with

2

5 U.S.C. § 8101 et seq.

3

The Board notes that appellant submitted additional evidence on appeal and OWCP received additional evidence
following the April 28, 2020 decision. 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.

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FERS was $2,142.50 and without FERS was $666.50; and beginning December 1, 2019,
appellant’s SSA rate with FERS was $2,177.60 and without FERS was $676.60.
OWCP completed a FERS offset calculation worksheet on March 9, 2020. It determined
the 28-day FERS offset amount for the days in each period and computed a total overpayment of
$54,446.67. This form indicated: during the period February 9 to November 30, 2016 appellant
received an overpayment of $9,689.93; from December 1, 2016 to November 30, 2017
$11,984.84; from December 1, 2017 to January 31 2018 $2,076.66; from February 1 to
February 28, 2018 $937.85; from March 1 to November 30, 2018 $9,210.99; from December 1,
2018 to March 31, 2019 $4,168.5; from April 1 to May 31, 2019 $2,970.23; from June 1 to
November 30, 2019 $8,904.66; and from December 1, 2019 to February 29, 2020 $4,503.00.
In a letter dated March 10, 2020, OWCP advised appellant that she had been receiving a
prohibited dual benefit. It noted that the SSA had confirmed that a portion of her SSA age-related
retirement benefits were attributed to her years of federal service as an employee under the FERS
retirement program and that portion required an offset of her FECA compensation benefits, in the
amount of $1,385.54 every 28 days. OWCP indicated that, to account for her SSA offset,
appellant’s FECA wage-loss compensation would be adjusted to reflect a new net compensation
amount of $4,656.00 beginning March 1, 2020.
On March 10, 2020 OWCP issued a preliminary overpayment determination that appellant
received an overpayment of compensation in the amount of $54,446.67, because she concurrently
received FECA wage-loss compensation benefits and SSA age-related retirement benefits for the
period February 9, 2016 through February 29, 2020. It explained that it had calculated the
overpayment of compensation by determining the difference between appellant’s SSA benefit rates
with and without FERS for each period, and then multiplying that amount by the number of days
in each period. OWCP further found that appellant was without fault in the creation of the
overpayment, as she was not aware, nor could she reasonably have been aware, due to the
complexity of SSA and FECA benefits administration that she had been paid compensation
incorrectly. It requested that she complete an enclosed overpayment recovery questionnaire (Form
OWCP-20) and submit supporting financial documentation. OWCP advised appellant that failure
to submit the requested information within 30 days would result in the denial of waiver and no
further request would be considered until the requested information was received. Additionally,
it notified appellant that within 30 days of the date of the letter, she could request waiver of
recovery of the overpayment based on the written record or a prerecoupment hearing.
On April 6, 2020 OWCP received appellant’s request for waiver because she was found to
be without fault in the creation of the overpayment. Appellant did not complete the Form OWCP20. In an undated letter, she explained that she could not recall exact dates, but that she believed
she applied for SSA retirement benefits in January 2016. Appellant learned that she could receive
SSA disability instead of SSA age-related retirement benefits and requested that her SSA agerelated retirement benefits be suspended. She then received SSA disability benefits as of
March 2016. After her FECA benefits were approved, appellant informed SSA that she would
like to refund the SSA disability benefits paid to her. After she turned 66 in April 2019, she
inquired about full SSA age-related retirement benefits. Appellant submitted an August 11, 2016
letter from SSA which related that she was entitled to SSA disability benefits as of March 2016.

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She submitted another April 12, 2017 SSA statement form wherein she certified that she had
initially applied for and received SSA disability benefits in 2015. However, since FECA disability
benefits were retroactively granted to March 2016, appellant requested that her SSA disability
benefits be converted to retirement benefits as of the same March 2016 date. She also submitted
another SSA statement form dated September 18, 2019 (p19) wherein she certified that the SSA
notice dated August 11, 2016 found that she was eligible to receive monthly SSA disability
benefits effective March 2016. Appellant further related that she understood that her SSA
disability benefits were reduced by FECA workers’ compensation benefits, therefore she elected
to receive SSA age-related retirement benefits beginning May 2015 and continuously. She related
that she understood her SSA age-related retirement benefits would not be reduced by her FECA
benefits.
By decision dated April 28, 2020, OWCP finalized its preliminary overpayment
determination that appellant had received an overpayment of compensation in the amount of
$54,446.67, because the SSA/FERS offset was not applied to FECA wage-loss compensation
payments for the period February 9, 2016 through February 29, 2020. It also 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 Form OWCP-20. OWCP required recovery of the
overpayment by deducting $480.50 from appellant’s continuing compensation payments every 28
days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.4 Section 8116 limits the right of an employee to receive
compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related retirement benefits that are
attributable to the employee’s federal service.6 FECA Bulletin No. 97-09 states that FECA
benefits have to be adjusted for the FERS portion of SSA age-related retirement benefits because

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018); L.J., 59 ECAB 264 (2007).

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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.7
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount of
$54,446.67, for the period February 9, 2016 through February 29, 2020, for which she was not at
fault, because she concurrently received FECA benefits and SSA age-related retirement benefits,
without appropriate offset.
As noted, a claimant cannot receive both FECA wage-loss compensation and SSA agerelated retirement benefits attributable to federal service for the same period.8 According to the
evidence received from SSA, appellant had received SSA age-related retirement benefits that were
attributable to her own federal service from February 9, 2016 through February 29, 2020. Thus,
the record establishes that she received an overpayment of FECA wage-loss compensation.9
In determining the amount of the overpayment, OWCP relied on evidence received from
SSA with respect to the specific amount of SSA age-related retirement benefits that were
attributable to federal service. The SSA provided appellant’s SSA benefit rates with FERS, and
without FERS, for specific periods commencing February 9, 2016 through February 29, 2020.
OWCP calculated the overpayment by determining the 28-day offset amount and then multiplying
that amount by the number of days in each period. It provided to appellant its calculations for each
relevant period based on the SSA worksheet and no contrary evidence was received. The Board
has reviewed OWCP’s calculation of benefits received by appellant for the period February 9,
2016 through February 29, 2020, and finds that an overpayment of compensation in the amount of
$54,446.67 was created.10
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an individual who is without fault in creating or
accepting an overpayment is still subject to recovery of the overpayment unless adjustment or
recovery would defeat the purpose of FECA or would be against equity and good conscience.11
Section 10.437 of FECA implementing regulations provides that recovery of an
overpayment is considered to be against equity and good conscience when an individual who
received an overpayment of compensation would experience severe financial hardship attempting

7

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019).

8
20 C.F.R. § 10.421(d); see L.W., Docket No. 20-0296 (issued October 26, 2020); see also N.B., id.; A.C., Docket
No. 18-1550 (issued February 21, 2019).
9

See R.M., Docket No. 19-1570 (issued June 1, 2020).

10

See R.W., Docket No. 19-0334 (issued August 7, 2020); D.C., Docket No. 17-0559 (issued June 21, 2018).

11

5 U.S.C. § 8129; 20 C.F.R. §§ 10.433, 10.434, 10.436, and 10.437.

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to repay the debt; and when an individual, in reliance on such payments or on notice that such
payments would be made, gives up a valuable right or changes his or her position for the worse.12
Section 10.438 of the implementing regulations provides that the individual who received
the overpayment is responsible for providing information about income, expenses, and assets as
specified by OWCP. This information is needed to determine whether or not recovery of an
overpayment would defeat the purpose of FECA or be against equity and good conscience. The
information is also used to determine the repayment schedule, if necessary.13 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the overpayment.
Although OWCP found appellant without fault in the creation of the overpayment, waiver
must be considered, and repayment is still required unless adjustment or recovery of the
overpayment would defeat the purpose of FECA or be against equity and good conscience.15
Appellant, however, had the responsibility to provide the appropriate financial information and
documentation to OWCP.16
In its preliminary overpayment determination dated March 10, 2020, OWCP clearly
explained the importance of providing the completed Form OWCP-20 and supporting financial
documentation. It advised appellant that it would deny waiver of recovery if she failed to furnish
the requested financial information within 30 days. Appellant, however, did not submit a
completed Form OWCP-20 or otherwise submit the financial information necessary for OWCP to
determine if recovery of the overpayment would defeat the purpose of FECA or if recovery would
be against equity and good conscience.17
Consequently, as appellant did not submit the information required under 20 C.F.R.
§ 10.438, which was necessary to determine her eligibility of waiver, OWCP properly denied
waiver of recovery of the overpayment of compensation in the amount of $54,446.67.

12

20 C.F.R. § 10.437.

13

Id. at § 10.438(a); see Ralph P. Beachum, Sr., 55 ECAB 442 (2004).

14

Id. at § 10.438.

15

Id. at § 10.436.

16

Id. at § 10.438.

17

See S.W., Docket No. 20-0544 (issued September 21, 2020); S.M., supra note 7.

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LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations18 provides in pertinent part:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
the error is discovered or his attention is called to the same. If no refund is made,
OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize
any hardship.”19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$480.50 from appellant’s continuing compensation every 28 days.
OWCP provided appellant a Form OWCP-20 with its March 10, 2020 preliminary
overpayment determination and advised her to submit supporting financial documentation with
her completed form.20 Appellant did not complete the Form OWCP-20 or provide the necessary
financial information to report her income and expenses prior to the April 28, 2020 overpayment
decision. The overpaid individual is responsible for providing information about income,
expenses, and assets as specified by OWCP.21 When an individual fails to provide requested
financial information, OWCP shall follow minimum collection guidelines designed to collect the
debt promptly and in full.22 As appellant did not submit supporting financial documentation to
OWCP as requested, the Board finds that there is no evidence of record to establish that OWCP
erred in directing recovery of the $54,446.67 overpayment at the rate of $480.50 every 28 days
from appellant’s continuing compensation payments.23
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $54,446.67, for the period February 9, 2016 through February 29,
2020, for which she was without fault, as she concurrently received FECA wage-loss
compensation and SSA age-related retirement benefits, without appropriate offset. The Board
18

20 C.F.R. § 10.441(a).

19

Id.; see C.M., Docket No. 19-1451 (issued March 4, 2020).

20

Id. at § 10.438.

21

Id. at § 10.438(a); see M.S., Docket No. 18-0740 (issued February 4, 2019).

22

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Final Overpayment Determinations, Chapter 6.400.3
(September 2018).
23

See E.K., Docket No. 18-0587 (issued October 1, 2018); S.B., Docket No. 16-1795 (issued March 2, 2017).

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further finds that OWCP properly denied waiver of recovery of the overpayment and properly
required recovery of the overpayment by deducting $480.50 from appellant’s continuing
compensation payments every 28 days.
ORDER
IT IS HEREBY ORDERED THAT the April 28, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 20, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF NUCLEAR POWER,
Soddy Daisy, TN, Employer
__________________________________________

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

Docket No. 17-1259
Issued: July 16, 2018

Case Submitted on the Record

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

JURISDICTION
On May 19, 2017 appellant, through counsel, filed a timely appeal from a March 3, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.3

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
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its March 3, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met his burden of proof to establish a lumbar injury
causally related to the accepted March 22, 2016 employment incident.
FACTUAL HISTORY
On April 21, 2016 appellant, then a 43-year-old craftsman, filed a traumatic injury claim
(Form CA-1) alleging that on March 22, 2016 he experienced a back strain during the performance
of his federal employment duties, which then worsened over a period of three weeks. He related
that on March 22, 2016 he was one of three craftsmen who removed four wash screens for divers,
each screen weighed between 350 to 400 pounds. While removing the second screen, one of the
other craftsmen lost control of the screen and he experienced a low back strain while trying to hold
the screen. Appellant stopped work April 21, 2016.
On the Form CA-1 the employing establishment acknowledged that appellant was engaged
in moving screens on March 22, 2016 and that a screen had shifted or slipped and came to rest on
the grating below. However, it disputed that the entire weight of the basket was placed on
appellant. The employing establishment advised that a 14-foot screen weighed 338 pounds and a
10-foot screen weighed 242 pounds. It further related that appellant did not mention any back
injury in an e-mail he sent that day and he did not lose time from work until the second week of
April 2016.
An undated work release from Erlanger North Emergency Department noted that appellant
could return to work without restriction on April 18, 2016.
In an April 7, 2016 report, Dr. Mark G. Freeman, a Board-certified orthopedic surgeon,
evaluated appellant for right hip complaints. Appellant indicated that he had an S1 joint injection
six to seven months prior at the chiropractor’s office and that the pain went away. However, the
pain returned three weeks ago. Appellant denied having any accidents or injuries. Dr. Freeman
provided an impression of right hip impingement syndrome. He opined that he did not believe
that appellant’s hip was the cause of his complaints and recommended an evaluation of appellant’s
spine. Other medical history was significant for lumbar spine fusion, femoral acetabular
impingement, and obesity.
An April 13, 2016 lumbar spine computerized tomography (CT) scan indicated that
appellant was status post spinal fusion from L2 through S1. The scan revealed L3 on L4 and LI
on L2 retrolisthesis with intervertebral disc space narrowing and vacuum disc phenomenon and
severe L3-4 spinal stenosis secondary to disc bulging and ligamentum flavum hypertrophy
hyperfrophy and osteophytes. No acute compression fracture was seen. An impression was
provided of multilevel lumbar spondylosis with severe L3-4 spinal stenosis.
In an April 18, 2016 note, Gary Elledge, a certified family nurse practitioner, noted
appellant’s history that he hurt his lower back approximately three weeks prior while moving some
heavy screens. He also noted that appellant had undergone lumbar spinal fusion in 1998. Nurse
Elledge noted that appellant’s April 13, 2015 CT scan showed multilevel spondylosis, severe L45 spinal stenosis, and status post L2-S1 transpedicular spinal fusion.

2

An April 21, 2016 lumbar spine magnetic resonance imaging (MRI) scan revealed severe
L3 spinal stenosis secondary to large disc bulging and retrolisthesis, status post L2-S1
transpedicular spinal fusion, and mild L1-2 spinal stenosis.
In an April 21, 2016 report, Eric A. Henderson, a physician assistant, noted appellant’s
history of L2 thru S1 posterior fusion in 1999 and cervical fusion in 2014. He reported that
appellant presented with a three-week history of progressive back pain after carrying a 400-pound
object overhead, which a coworker dropped, and he was forced to catch in an awkward motion.
Appellant noted that he felt a pop in his low back. An assessment of L4-3 stenosis with
radiculopathy, right L4, L5, S1 parathesias, and history of L2 through S1 posterior fusion by
Dr. Broadstone in 1999 was provided.
In an April 22, 2016 return to work note, Mr. Henderson indicated that appellant had back
and lower extremity pain and would remain off work until surgical evaluation on May 16, 2016.
He also noted that appellant had missed work for the above problems since April 11, 2016.
In a May 2, 2016 report, Dr. Daniel Kueter, a Board-certified neurosurgeon, indicated that
appellant underwent a successful cervical decompression and fusion in 2014. Appellant reported
that his right leg went numb in March 2016, which he thought was caused by 400 pounds of
equipment and weight imposed on his back. Dr. Kueter indicated that appellant was disabled and
unable to work due to this condition. He diagnosed previous anterior cervical decompression and
fusion with revision, L2 through S1 posterior spinal decompression and fusion, new onset severe
right lumbar radiculopathy after a workers’ compensation incident, lumbar disc rupture L3-4 right,
and lumbar stenosis L5-S1 right. Dr. Kueter recommended an expedited lumbar laminotomy and
discectomy at L2-4 on the right and a lumbar laminectomy with partial facetectomy at L5-S1 on
the right. He noted that spinal fusion would have to be explored. In an accompanying May 2,
2016 note, Dr. Kueter indicated that appellant was evaluated for severe low back, hip, and right
leg pain. He noted that appellant was to remain off work for the month of May.
OWCP, by development letter dated May 18, 2016, advised appellant that it had paid a
limited amount of medical expenses as his injury appeared minor and was not controverted.
However, it was now formally adjudicating his claim. OWCP requested that appellant submit
additional factual and medical information, including a detailed report from his attending physician
addressing causal relationship between any diagnosed condition and the identified work incident.
Appellant was afforded 30 days in which to provide the requested information.
In a May 23, 2016 statement, appellant explained that another worker had lost his handhold
on the screen that they were carrying and that the screen tried to flip away, which put all the weight
on him. He indicated that he delayed reporting his injury and in seeking treatment because he did
not realize that he was hurt badly when the incident occurred. Appellant reported that he had no
back problems between his low back surgery in 1998 and the March 22, 2016 screen handling
incident.
In a May 25, 2016 report, Dr. Kueter essentially repeated the contents of his earlier May 2,
2016 report.

3

On June 2, 2016 Dr. Kueter performed laminectomy, foraminotomy and facetectomy, and
microdiscectomy. Treatment was for the diagnoses of acute lumbar strain, lumbar radiculopathy,
spinal stenosis, and disc bulge at L5-S1.
In a June 9, 2016 letter, Dr. Brenda K. Sowter, a senior employing establishment physician
and osteopathic manipulative therapy specialist, acknowledged that, during the March 22, 2016
incident, that there was a slipping of the equipment during maneuvering, the weight of 350 pounds
was distributed amongst three workers. She noted that appellant did not indicate any pain or
symptoms at the time of the incident and did not voice any complaints or injury occurring after the
incident. It was not until four weeks later (and time away from work) that appellant returned to
work and then indicated that he had sustained an injury to his back. Dr. Sowter further noted that
he has had extensive surgery previously to his back and that he had indicated through witness
statements that “‘there was no issue with the disc, but [that] there was some issue with pins from
a previous surgery.’” She additionally advised that the treating physician’s diagnosis of lumbar
stenosis supported a longstanding and slow process to form in the spine and was not sustained as
a result of an alleged work injury. Dr. Sowter concluded that, given the circumstances validated
by eye witnesses and participants in the work event, the significant delay in reporting the alleged
injury and the preexisting diagnosis and prior surgery, the claim should be deemed a nonworkrelated injury.
In an undated witness statement, M.S., a coworker, related that he spoke with appellant
over the telephone on May 5, 2016. He indicated that appellant stated that he needed surgery and
that there was no issue with the disc, “but [that] there was an issue with some pins from a previous
surgery.” An unsigned, undated account of injury, which supported Dr. Sowter’s description of
the incident, was also provided.
By decision dated June 22, 2016, OWCP denied appellant’s claim. It found that the
medical evidence of record contained insufficient rationale to establish that his diagnosed medical
condition was causally related to the accepted March 22, 2016 employment incident.
On July 8, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on January 25, 2017. He further described the
screen/basket-handling incident from March 22, 2016. Appellant indicated that he had never
previously engaged in this particular screen-handling activity. He also confirmed that he returned
to work in a light-duty capacity, but had intermittent absences due to pain until he stopped work
completely to undergo the December 12, 2015 low back surgery. Appellant indicated that he
remained off work.
Additional evidence was received prior to and after the hearing.
In a June 30, 2016 report, Dr. Kueter opined that appellant sustained a workers’
compensation injury on March 22, 2016 when a 400-pound wash screen from a frame was being
carried and the weight was transferred to appellant. He noted that appellant immediately felt the
onset of back pain, which progressively worsened over the next few weeks and worsened to include
lumbar radiculopathy. Dr. Kueter summarized his examination of appellant on May 2, 2016 and
indicated that he was diagnosed with workers’ compensation injury on that date. Immediate
surgical intervention was recommended. Appellant underwent surgery on June 2, 2016, with

4

significant improvement. Dr. Kueter concluded that appellant’s clinical symptomatology was
consistent with a workers’ compensation injury due to heavy lifting performed on March 22, 2016,
with significant weight burden transferred to his body and subsequent absorption by his spine.
A copy of the June 5, 2016 operative report and a June 30, 2016 postoperative report from
Dr. Kueter were also received.
In a July 7, 2016 note, Dr. Kueter released appellant to light-duty work with restrictions
effective July 11, 2016. Appellant returned to work with restrictions effective July 11, 2016.
On December 12, 2016 Dr. Kueter removed indwelling hardware from L2 through S1
followed by a new posterior interbody and L3-4 fusion with instrumented hardware from L3
through L5. In a January 9, 2017 report, Sarah C. Johnson, a physician assistant, reported on
appellant’s status post hardware removal L2 through S1 with new posterior fusion L3 through L5.
By decision dated March 3, 2017, an OWCP hearing representative affirmed OWCP’s
June 22, 2016 decision. The hearing representative found the medical evidence was insufficient
to establish “a work-related causation of or contribution to any low back condition” resulting from
the March 22, 2016 employment-related lifting incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee sustained a traumatic injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components that must be considered conjunctively. First, the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident that is alleged to have occurred.7 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8

4

Supra note 2.

5

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

6

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

7

Gary J. Watling, 52 ECAB 278 (2001).

8

Deborah L. Beatty, 54 ECAB 340 (2003).

5

The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty and must be supported by medical rationale explaining
the nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
ANALYSIS
The Board finds that appellant has not established that the accepted March 22, 2016
employment incident caused his diagnosed lumbar condition.
The determination of whether an employment incident caused an injury is generally
established by medical evidence.10
Dr. Freeman’s April 7, 2016 report is insufficient to establish the claim as he did not
provide a history of injury11 or specifically address whether appellant’s employment activities had
caused or aggravated the diagnosed right hip impingement syndrome.12
Appellant submitted several reports from Dr. Kueter. In his May 2 and 25, 2016 reports,
Dr. Kueter noted that appellant stated that his right leg went numb in March 2016, which he
thought was caused by 400 pounds of equipment and weight imposed on his back. He indicated
that it was a workers’ compensation injury. Dr. Kueter provided an impression of new onset severe
right lumbar radiculopathy, lumbar disc rupture L3-4 right, and lumbar stenosis L5-SI right and
recommended an expedited surgery. He also opined that appellant was totally disabled. However,
Dr. Kueter did not provide any medical rationale explaining the basis of his conclusory opinion
regarding causal relationship between appellant’s back condition and the accepted work incident.13
Therefore, his opinion is insufficient to meet appellant’s burden of proof.
In his June 30, 2016 report, Dr. Kueter related that appellant underwent surgical
intervention on June 2, 2016. He indicated that appellant sustained a workers’ compensation
injury on March 22, 2016 when a 400-pound wash screen from a frame was being carried and the
9

Solomon Polen, 51 ECAB 341 (2000).

10

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

11

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
12
A.D., 58 ECAB 149 (2006); Docket No. 06-1183 (issued November 14, 2006) (medical evidence which does not
offer any opinion regarding the cause of an employee s condition is of limited probative value on the issue of causal
relationship).
13

See T.M., Docket No. 08-0975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).

6

weight was transferred to appellant. Appellant immediately felt the onset of back pain, which
progressively worsened over the next few weeks to include radiculopathy. Dr. Kueter concluded
that appellant’s clinical symptomatology was consistent with a workers’ compensation injury due
to heavy lifting performed on March 22, 2016, with significant weight burden transferred to his
body and subsequent absorption by his spine. The Board finds that Dr. Kueter’s opinion is
conclusory in nature without any additional explanation as to how appellant’s work activities
physiologically caused, precipitated, or aggravated the diagnosed lumbar conditions.14 The Board
has held that the fact that a condition manifests itself or worsens during a period of employment
or that work activities produce symptoms revelatory of an underlying condition does not raise an
inference of causal relationship between a claimed condition and employment factors.15
Dr. Kueter did not otherwise provide medical rationale explaining how or why appellant’s back
condition was caused or aggravated by the accepted March 22, 2016 employment incident. A
well-rationalized opinion is particularly warranted when there is a history of preexisting
condition.16 For these reasons, Dr. Kueter’s report is insufficient to establish appellant’s claim.
Appellant submitted evidence from a nurse practitioner and a physician assistant.
However, these health care providers are not considered physicians under FECA.17 Thus, these
records are of no probative medical value in establishing appellant’s claim.
Appellant also submitted diagnostic test reports. These reports are of limited probative
value as they fail to provide an opinion on causal relationship between his accepted employment
incident and his diagnosed lumbar conditions. For this reason, this evidence is insufficient to meet
appellant’s burden of proof.18
OWCP also received a report from Dr. Sowter, an employing establishment physician,
dated June 9, 2016. Dr. Sowter noted appellant’s history of injury, as well as his medical history.
She concluded that, given the circumstances validated by an eyewitness to the accepted
employment incident, appellant’s delay in reporting the alleged injury, and his preexisting lumbar
conditions, his current lumbar conditions were not work related.

14

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
15

B.B., Docket No. 13-0256 (issued August 13, 2013); Richard B. Cissel, 32 ECAB 1910, 1917 (1981).

16

See J.D., Docket No. 16-0887 (issued November 4, 2016); L.M., Docket No. 16-0143 (issued February 19, 2016).

17

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); Sean O Connell, 56 ECAB 195 (2004)
(reports by nurse practitioners and physician assistants are not considered medical evidence as these persons are not
considered physicians under FECA). 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by State law).
18

See A.D., supra note 12.

7

As appellant has not submitted medical evidence sufficient to establish that his diagnosed
lumbar condition was causally related to the accepted March 22, 2016 employment incident, he
has failed to meet his burden of proof.
On appeal, counsel contends that OWCP nitpicked the evidence. However, as explained
above, appellant has not submitted sufficient medical evidence to establish his 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 his burden of proof to establish a lumbar
injury causally related to the accepted March 22, 2016 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the March 3, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 16, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Lexington, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0428
Issued: April 19, 2018

Case Submitted on the Record

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

JURISDICTION
On December 19, 2016 appellant, through counsel, filed a timely appeal from an
October 25, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.3

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
3

5 U.S.C. § 8101 et seq.

The record provided the Board includes evidence received after OWCP issued its October 25, 2016 decision. The
Board’s review is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the Board
lacks jurisdiction to review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether OWCP properly denied authorization for sacroiliac joint arthrodesis.
FACTUAL HISTORY
On March 10, 2010 appellant, then a 43-year-old correctional officer, filed a traumatic
injury claim (Form CA-1) alleging injuries sustained to his back, left hip, and right shoulder as a
result of slipping on a wet floor in the performance of duty. He stopped work on September 26,
2010 and has not returned. OWCP accepted appellant’s claim for left hip contusion, right shoulder
contusion, lumbar back sprain, acromioclavicular right shoulder strain, and left shoulder rotator
cuff sprain.
OWCP paid appellant wage-loss compensation benefits on the periodic rolls commencing
October 24, 2010. Appellant underwent an August 10, 2011 authorized left shoulder surgery.
Effective September 24, 2014, OWCP reduced appellant’s compensation benefits as he had
the capacity to earn wages as a customer complaints clerk, Department of Labor, Dictionary of
Occupational Titles, No. 241.367-014, at the rate of $504.40 per week.
By decision dated December 18, 2014, OWCP denied modification of the loss of wageearning capacity determination.
On January 8, 2016 OWCP received a medical authorization request for arthrodesis (fusion
surgery) of the left sacroiliac joint. In support of the request, appellant submitted diagnostic studies
dated May 23, 2014 and June 8, 2015 of the lumbar spine and pelvis.
Multiple reports from Dr. Harry Lockstadt, an attending Board-certified orthopedic
surgeon, dated April 22, 2015 through January 7, 2016 were received. He diagnosed right and left
sacroiliac joint dysfunction and indicated that appellant required sacroiliac joint arthrodesis, first
left side then right side. Dr. Lockstadt advised that appellant had failed all nonoperative treatment
and a bilateral sacroiliac joint arthrodesis was the next logical course of treatment as alternative
diagnoses had been ruled out.
In his reports, Dr. Lockstadt provided an assessment of work-related traumatic right and
left sacroiliac joint dysfunction with severe symptoms which occurred secondary to a twisting
sensation through the lower spine. He indicated that appellant’s imaging studies were consistent
with right and left sacroiliac joint dysfunction. Dr. Lockstadt noted that there was no evidence to
indicate that appellant’s employment injury had returned to preinjury status. He advised that the
accepted injury and related conditions were still present and disabling.
In a November 2, 2015 report, Dr. Lockstadt advised that he had not found any evidence
that the sacroiliac joint dysfunction preexisted the work injury. He noted that his records showed
that appellant’s symptoms in his lower back were a consequence of his March 10, 2010 workrelated injury.

2

In a January 20, 2016 letter, OWCP denied authorization for the arthrodesis sacroiliac joint
procedure. It found that appellant’s sacroiliac dysfunction was a nonwork-related condition and
preexisted his employment injury.
On February 25, 2016 OWCP received a January 7, 2016 authorization request for
arthrodesis sacroiliac joint.
In a February 15, 2016 report, Dr. Melanie Ledford, a Board-certified physiatrist, provided
an assessment of chronic pain, lumbar degenerative disc disease, lumbar spondylosis, lumbar facet
arthropathy, and sacroiliac joint dysfunction. She noted that appellant’s low back pain radiated
into his bilateral hips, left greater than right, into his legs to the toes.
In a development letter dated February 26, 2016, OWCP advised appellant of the evidence
needed in order to expand his case to include sacroiliac dysfunction and authorize the requested
medical treatment. Appellant was afforded 30 days to provide the necessary medical evidence.
In response, OWCP received a duplicate copy of Dr. Ledford’s February 15, 2016 report.
It also received a request from appellant to have the acceptance of his case expanded to include
injury to his right and left sacroiliac joints.
On March 24, 2016 OWCP advised appellant that it previously reviewed the medical
evidence and had found in a prior December 18, 2014 decision that the sacroiliac dysfunction was
preexisting and not causally related to the March 10, 2016 work injury. Appellant was advised to
follow his appeal rights if he disagreed with the December 18, 2014 decision.
By decision dated March 31, 2016, OWCP denied appellant’s request for authorization of
arthrodesis sacroiliac joint. It found that Dr. Ledford failed to provide the requisite medical
rationale and an accurate and complete medical history as to what caused or aggravated the
sacroiliac joint dysfunction. OWCP also referenced its prior decision which found that the
sacroiliac dysfunction was preexisting and not causally related to the March 10, 2015 work injury.
On July 7, 2016 appellant requested reconsideration. April 21 and June 16, 2016 hospital
reports from Saint Joseph East Hospital were received accompanied by physical therapy notes
dated June 21 through July 20, 2016.
Medical reports from Dr. Lockstadt dated April 21 through September 15, 2016 were also
received. In his May 5, 2016 report, he indicated that appellant had traumatic work-related
sacroiliac arthropathy. Dr. Lockstadt also indicated that there was no evidence in the medical
record of any preexisting sacroiliac joint dysfunction. He opined that appellant suffered a workrelated traumatic right and left sacroiliac joint dysfunction with severe symptoms which occurred
secondary to a twisting sensation through the lower spine. Dr. Lockstadt indicated that appellant’s
claim had been accepted for a left hip contusion, which involved contusing the structures around
the left hip including the supportive sacroiliac joint ligaments. He explained that, when a patient
fell on his left side contusing the left hip, this caused a force to be transmitted through the left
pelvis, left sacroiliac joint, and caused a ligamentous injury at the sacroiliac joint on the left side.
Dr. Lockstadt also noted that the claim was accepted for lumbar back sprain. He advised that this
included the ligaments that support the back and the sacroiliac. Dr. Lockstadt explained that, with
a sprain, the ligamentous structures no longer provide the support necessary to support the
3

sacroiliac joint. He additionally noted that appellant’s left side was worse than his right side.
Dr. Lockstadt also provided indicators as to why appellant was a good candidate for sacroiliac
joint arthrodesis minimal invasive surgery. He concluded that the evidence-based medicine was
overwhelming that appellant suffered a traumatic sacroiliac joint dysfunction. Dr. Lockstadt
reasoned that no evidence had been provided to him that this was a preexisting condition.
In an April 21, 2016 report, Dr. Ledford continued to provide assessments of chronic pain,
lumbar degenerative disc disease, lumbar spondylosis, lumbar facet arthropathy, and sacroiliac
joint dysfunction.
Medical reports were received from Dr. James Oliver, a pain management specialist and
anesthesiologist, dated April 21 through September 15, 2016. He noted the history of injury and
provided assessments of lumbar disc disease, lumbar spinal stenosis, lumbar facet arthritis, and
chronic S1 joint dysfunction.
On September 26, 2016 OWCP requested that its medical adviser review the medical
reports and address whether the requested procedure was medically necessary for and causally
related to the accepted conditions.
In an October 17, 2016 report, OWCP’s medical adviser reviewed the provided statement
of accepted facts (SOAF) and the medical record. He advised that OWCP had not accepted the
condition of sacroiliac joint dysfunction. The medical adviser opined that the requested arthrodesis
sacroiliac joint was not causally related to the accepted medical conditions, but rather was due to
the degenerative changes noted on appellant’s computerized tomography (CT) scan. He indicated
that appellant had an accepted condition of hip contusion and that the treatment for contusion was
not sacroiliac joint fusion. Thus, the medical adviser advised that the proposed arthrodesis of the
sacroiliac joint was not causally related to the accepted medical condition. He additionally
indicated that, while appellant has met many of the criteria for sacroiliac joint fusion, he had not
met all and that all the criteria must be documented completely before such surgery would be
medically necessary. Therefore, the medical adviser concluded that the proposed arthrodesis of
the sacroiliac joint was not medically necessary.
By decision dated October 25, 2016, denied modification of its March 31, 2016 decision.
It found that the weight of the medical evidence rested with its medical adviser who opined that
the proposed arthrodesis of the sacroiliac joint was not causally related to the accepted medical
conditions and was not medically necessary.
LEGAL PRECEDENT
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of monthly compensation.4
While OWCP is obligated to pay for treatment of employment-related conditions, the employee

4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

4

has the burden of proof to establish that the expenditure is incurred for treatment of the effects of
an employment-related injury or condition.5
In interpreting this section of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided under section 8103, with the only limitation on OWCP’s
authority being that of reasonableness.6 Abuse of discretion is generally shown through proof of
manifest error, clearly unreasonable exercise of judgment, or actions taken which are contrary to
both logic and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.7 To be entitled to
reimbursement of medical expenses, a claimant has the burden of proof to establish that the
expenditures were incurred for treatment of the effects of an employment-related injury or
condition. Proof of causal relationship in a case such as this must include supporting rationalized
medical evidence.8 In order for a surgical procedure to be authorized, a claimant must submit
evidence to show that the surgery is for a condition causally related to an employment injury and
that it is medically warranted. Both of these criteria must be met in order for OWCP to authorize
payment.9
ANALYSIS
OWCP accepted appellant’s claim for left hip contusion, right shoulder contusion, lumbar
back sprain, acromioclavicular right shoulder strain, and left shoulder rotator cuff sprain. On
January 8, 2016 it received a medical authorization request for arthrodesis of the left sacroiliac
joint. OWCP denied appellant’s request for authorization of surgery.
The Board finds that the case is not in posture for decision as there is an unresolved conflict
in medical opinion evidence as to whether the sacroiliac joint dysfunction is causally related to the
employment injury.
In order for the proposed arthrodesis of the sacroiliac joint to be considered, it must first
be determined whether a causal relationship exists between the accepted employment injury and
the condition of sacroiliac joint dysfunction. Dr. Lockstadt opined that appellant suffered a workrelated traumatic right and left sacroiliac joint dysfunction with severe symptoms which occurred
secondary to a twisting sensation through the lower spine. He explained that appellant’s claim
was accepted for a left hip contusion, which involved contusing the structures around the left hip
including the supportive sacroiliac joint ligaments. Dr. Lockstadt explained that it was common
that, when a patient falls on his left side contusing the left hip, this caused a force to be transmitted
through the left pelvis, left sacroiliac joint, and causes a ligamentous injury at the sacroiliac joint
on the left side. He also noted that the claim was accepted for lumbar back sprain, which included
5

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

6

See D.K., 59 ECAB 141 (2007).

7

Minnie B. Lewis, 53 ECAB 606 (2002).

8

M.B., 58 ECAB 588 (2007).

9

R.C., 58 ECAB 238 (2006).

5

the ligaments that support the back and the sacroiliac. Dr. Lockstadt explained that, with a sprain,
the ligamentous structures no longer provided the support necessary to support the sacroiliac joint.
OWCP’s medical adviser, however, opined that the proposed arthrodesis of the sacroiliac
joint was not causally related to the accepted medical conditions. He indicated that appellant had
an accepted hip contusion and explained that treatment for contusion did not include a sacroiliac
joint fusion. The medical adviser explained that the sacroiliac joint dysfunction was due to
degenerative changes noted on his CT scan. He did not discuss appellant’s accepted lumbar strain
or address whether the work injury contributed to appellant’s degenerative changes of the
sacroiliac joint dysfunction.
If there is disagreement between OWCP’s referral physician and appellant’s physician,
OWCP will appoint a third physician who shall make an examination.10 For a conflict to arise, the
opposing physicians’ viewpoints must be of virtually equal weight and rationale.11 The Board
finds that the medical opinions of Dr. Lockstadt and OWCP’s medical adviser are of equal weight.
The dispute between these physicians centers on their opinions of whether the work injury caused
or aggravated appellant’s sacroiliac joint dysfunction for there to be causal relationship between
the accepted conditions and a need for surgery, which ostensibly supported their respective
opinions of the proposed arthrodesis of the sacroiliac joint. Accordingly, there was an unresolved
conflict in medical opinion regarding the causal relationship of his sacroiliac joint dysfunction.
Because there is an unresolved conflict in medical opinion, pursuant to 5 U.S.C. § 8123(a),
the case will be remanded to OWCP for referral of appellant, together with the medical record and
an updated SOAF, to an appropriate Board-certified physician or specialist in the proper field of
medicine for an impartial medical examination as to the causal relationship of appellant’s
sacroiliac joint dysfunction and the proposed arthrodesis of the sacroiliac joint. After such further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

11

Darlene R. Kennedy, 57 ECAB 414 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated October 25, 2016 is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: April 19, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE ARMY, ARMY TEST
& EVALATION COMMAND, WHITE SANDS
MISSLE RANGE, NM, Employer
__________________________________________

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Appearances:
Sally F. LaMacchia, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1672
Issued: August 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 28, 2014 appellant, through counsel, filed a timely appeal from an April 22, 2014
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
period January 31 through October 27, 2011, causally related to her accepted conditions.
On appeal, counsel contends that OWCP’s April 22, 2014 decision should be reversed.
She also asks the Board to add a consequential injury for adjustment disorder to the accepted
conditions and to issue an order for prompt payment of wage-loss compensation beginning
January 31, 2011.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 10, 2011 appellant, then a 51-year-old accounting technician, filed a
traumatic injury claim alleging that on January 7, 2011 after a controversial e-mail discussion,
she carried files on steps and injured her shoulders, back, and both knees. In a separate
statement, she reported that, on that date, she was ordered to carry a box of files weighing 50 to
60 pounds up two flights of stairs.
In a January 21, 2011 note, Dr. Mark C. Leatherwood, a family practitioner, stated that,
due to appellant’s January 7, 2011 job injury, it was his recommendation that she be excused
from work from January 24 through March 31, 2011.
In a February 15, 2011 memorandum, Dr. Scott E. Cherry, DO, MPH, CIME, and a Chief
of Occupational Health Officer for the employing establishment, indicated that appellant
reported to him that on January 10, 2011 she sustained a job injury, and that she wanted 45 days
off for this injury. He stated that some time off may be appropriate depending on what her
medical condition warranted. Dr. Cherry stated that appellant questioned whether he was a real
physician. He informed her that she had a right to choose her own physician. The record also
contains a January 10, 2011 light-duty status recommendation wherein Dr. Cherry placed
appellant on desk duty and noted that she would follow up with her primary care physician.
By decision dated February 23, 2011, OWCP denied appellant’s claim for compensation.
It determined that she neglected to provide a comprehensive medical narrative report supporting
that the work incident caused the claimed injury. OWCP noted that medical evidence must not
only contain a diagnosis, but must establish that the diagnosed medical condition was causally
related to the claimed injury.
On March 16, 2011 appellant requested review of the written record by an OWCP
hearing representative.
In a March 8, 2011 report, Dr. Leatherwood stated that appellant had been his patient
since March 2010 and that her injuries were sustained while carrying a 50- to 60-pound box up
the stairs during her employment. He diagnosed knee pain and a sharp stabbing pain in her back
as a result of carrying the box up the flight of stairs. Dr. Leatherwood noted that appellant had
underlying osteoarthritis and that her medication alleviates the pain in her back and knees, but
makes her quite drowsy. He requested an additional two-month extension off work.
An x-ray taken of the back on January 28, 2011 reflected no fracture or dislocation, no
lytic or sclerotic lesions, no compression fracture or deformities and no scoliosis. Bilateral
x-rays of the knees taken on the same date also reflected no fracture or dislocation, no lytic or
sclerotic lesion, but marketed narrowing at the patellofemoral joints consistent with degenerative
osteoarthritic changes.
In a decision dated June 16, 2011, an OWCP hearing representative affirmed the
February 23, 2011 decision.
On July 18, 2011 appellant requested reconsideration.

2

In a July 15, 2011 report, Dr. Leatherwood noted that on January 18, 2011 appellant
came to see him as a result of an injury she sustained during her federal employment when she
was forced to carry a 50- to 60-pound box up a flight of stairs. He noted that her x-rays, which
he had reviewed on the February 2, 2011 visit, showed osteoarthritis. Dr. Leatherwood opined
that appellant has had osteoarthritis for many years and that, had she not been forced to carry the
boxes up the stairs, she never would have had this exacerbation of acute pain related to her
underlying condition of osteoarthritis. He opined that the diagnosis of chronic pain is directly
related to the exacerbation of her underlying condition and, therefore, is the result of the incident
that occurred while at work. Dr. Leatherwood noted that appellant was still in need of strong
pain relievers to control her symptoms.
On October 20, 2011 OWCP accepted appellant’s claim for temporary aggravation of
bilateral knee osteoarthritis and temporary aggravation of lumbar spine osteoarthritis. However,
on the same date, it denied her claim for continuation of pay as she had not provided sufficient
medical evidence supporting that the employment injuries resulted in her incapacity to perform
her duties as an accounting technician.
In an August 23, 2011 report, Dr. Leatherwood diagnosed severe back and knee pain with
underlying osteoarthritis exacerbated by an episode at appellant’s place of employment. He
opined that the prognosis was unclear due to pending further evaluations. Dr. Leatherwood
stated that appellant’s pain inhibited her abilities to perform at work and her home life had been
severely impacted. He stated that her diagnosis of osteoarthritis placed her in too great a risk of
suffering further injury or harm by performing her duties at work until further treatment could be
accomplished. Dr. Leatherwood reiterated that appellant took medication that caused drowsiness
and would directly influenced her ability to function as an accounting technician.
An August 16, 2012 magnetic resonance imaging (MRI) scan of the lower extremities
reflected chondromalacia in the medial femoral trochlea.
In a December 2, 2011 letter, Dr. Leatherwood contended that a senior claims examiner
accepted appellant’s claim for temporary aggravation of bilateral knee osteoarthritis and
temporary aggravation of lumbar spine osteoarthritis, and that the nonsenior claims examiner
concluded that there was no objective medical evidence to support disability due the accepted
condition. He reiterated that, if appellant had not been forced to carry the boxes, she would not
have incurred the accepted disability.
On January 25, 2012 OWCP denied appellant’s claim for total disability compensation
benefits from January 31 to October 27, 2011.
On January 22, 2013 appellant requested reconsideration based on new evidence from her
treating, Board-certified psychiatrist and requested that her claim be accepted for the additional
employment-related condition of adjustment disorder and that she be awarded compensation
commencing January 31, 2011 as a result.
By decision dated March 4, 2013, OWCP denied modification of the January 25, 2012
decision. It determined that the evidence was insufficient to establish temporary total disability

3

for the time period January 31 to October 27, 2011. OWCP noted that appellant’s psychiatrist
had diagnosed appellant with adjustment disorder, which would be addressed separately.
On September 12, 2013 OWCP referred appellant to Dr. Joshua P. Herzog, a Boardcertified orthopedic surgeon, for a second opinion regarding whether she continued to suffer
from disabling residuals of her accepted condition. In addition, it asked that, if he found that one
or more of the accepted employment-related conditions were active, to describe her limitations
resulting from the employment-related disability. In a September 30, 2013 medical opinion,
Dr. Herzog listed appellant’s diagnoses as aggravation of bilateral osteoarthrosis and aggravation
of lumbar degenerative disc disease. He opined that she continued to suffer residuals from these
conditions and provided a work capacity evaluation allowing appellant to work eight hours a day
with limitations of no more than of four hours sitting, two hours walking, standing, and
pushing/pulling lifting up to 10 pounds, and no twisting, bending, stooping, squatting, kneeling,
and climbing.
In a November 1, 2011 attending physician’s report, received by OWCP on August 22,
2013, Dr. Leatherwood diagnosed osteoarthritis, and reiterated that this was due to an
employment activity as appellant has been required to carry heavy objects, and that she was
disabled from March 1, 2010 through May 31, 2012.
In November 14, 2013 medical reports, Dr. Daniel A. Romanelli, a Board-certified
orthopedic surgeon, noted that appellant had been referred to him by a Dr. Mark Beale.2 He
diagnosed preexisting degenerative arthritis, patellofemoral joint, particularly trochlear groove
based on x-ray examination as well as MRI scan. Dr. Romanelli noted that appellant had
preexisting flat feet and gait abnormality secondary to knee complaints. He opined that the work
injury did not cause the arthritis in her knee. Dr. Romanelli further opined that perhaps going up
and down stairs did cause some increased complaints of pain which typically would have
resolved with conservative measures, and that he would not expect appellant to now be at the
point where she needed a cane and a sleeve. He noted that an injection helped with the pain
somewhat, but that she was not a candidate for surgery. Dr. Romanelli stated that at this point he
had nothing more to offer appellant, and that she was stable and stationary at maximum medical
improvement. He noted that she had no disability or impairment under the American Medical
Association, Guides to the Evaluation of Permanent Impairment. Dr. Romanelli further noted
that as appellant was retired, he would return her to full duty.
In response to OWCP’s query, Dr. Herzog issued an addendum on March 26, 2014
wherein he stated that appellant has had constant bilateral knee pain since the date of injury and
has radiographic evidence of marked narrowing of the patellofemoral joints consistent with
arthritic changes, which is consistent with his examination findings. He noted that the
aggravation appeared to be permanent since there was no significant functional improvement or
reduction in pain since January 2011.
By decision dated April 22, 2014, OWCP denied modification of the March 4, 2013
decision finding that the new evidence did not support that appellant’s psychological condition
should be accepted as a consequential injury. Furthermore, it determined that the medical
2

No further information was provided regarding Dr. Beale.

4

evidence of record still did not support that she suffered total disability due to the accepted workrelated conditions for the period January 31 to October 27, 2011.3
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.5 With respect to a
claimed period of disability, an employee has the burden of establishing that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.6 The term disability is defined as the incapacity because of an employment injury to earn
the wages the employee was receiving at the time of the injury, i.e., a physical impairment
resulting in loss of wage-earning capacity.7
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.8 The medical evidence required to
establish a period of employment-related disability is rationalized medical evidence.9
Rationalized medical evidence is medical evidence based on a complete factual and medical
background of the claimant, of reasonable medical certainty, with an opinion supported by
medical rationale.10 The Board, however, will not require OWCP to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed.11 To do so, would essentially allow an employee to selfcertify their disability and entitlement to compensation.12

3

OWCP also noted that in order to get a resolution on whether appellant’s case should be upgraded to add
adjustment disorder, the file would have to be referred for a second opinion, which is a separate matter and would be
addressed separately.
4

5 U.S.C. §§ 8101-8193.

5

V.N., Docket No. 13-1909 (issued July 29, 2014).

6

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

7

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury, but no
loss of wage-earning capacity).
8

See Fereidoon Kharabi, 52 ECAB 291 (2001); see also T.A., Docket No. 14-1334 (issued October 27, 2014).

9

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

10

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

11

Sandra D. Pruitt, 57 ECAB 126 (2005).

12

See William A. Archer, 55 ECAB 674 (2004); Feridon Kharabi, supra note 8.

5

ANALYSIS
OWCP accepted that appellant carried a heavy box up stairs on January 7, 2011 as part of
her federal employment. It also accepted her claim for temporary aggravation of bilateral knee
osteoarthritis and temporary aggravation of lumbar spine osteoarthritis. However, OWCP denied
appellant’s claim for wage-loss compensation and continuation of pay. The Board finds that this
case is not in posture for decision.
OWCP referred appellant for a second opinion evaluation with Dr. Herzog regarding,
whether she continued to suffer from disabling residuals of her accepted temporary aggravation
of bilateral knee osteoarthritis and temporary aggravation of lumbar spine osteoarthritis.
Dr. Herzog opined that she continued to suffer residuals from her accepted employment
condition, including bilateral knee pain, and radiographic evidence of marked narrowing of the
patellofemoral joints and allowed her to work eight hours a day with limitations. However, he
never addressed appellant’s disability for the period commencing January 31, 2011.
The Board finds that this case is not in posture for decision. Proceedings before OWCP
are not adversarial in nature and OWCP is not a disinterested arbiter; in a case where OWCP
proceeds to develop the evidence and to procure medical evidence, it must do so in a fair and
impartial manner.13 OWCP referred appellant to Dr. Herzog for a second opinion evaluation, but
he was never asked whether she was disabled for the period of time commencing January 31,
2011 due to the temporary aggravation of her bilateral knee osteoarthritis and temporary
aggravation of lumbar spine osteoarthritis. Once OWCP undertakes development of the record,
it must do a complete job in procuring medical evidence that will resolve all relevant issues in
the case.14 The Board finds that OWCP is obligated to request a supplemental report from
Dr. Herzog addressing disability as of January 31, 2011. After this and such other development
as OWCP deems necessary, OWCP should issue a de novo decision.
The Board further notes that on appeal, appellant, through counsel, asks that the Board
add a consequential injury for adjustment disorder. OWCP did not rule on the claimed
psychiatric conditions. It determined that a second opinion was necessary and that this issue
would be addressed separately. As this issue is currently interlocutory in nature, the Board lacks
jurisdiction to review this matter.15
CONCLUSION
The Board finds that this case is not in posture for decision as OWCP must further
develop the medical record.

13

Walter A. Fundringer, Jr., 37 ECAB 200, 204 (1985); see also J.G., Docket No. 14-1987 (issued
January 21, 2015).
14

Richard F. Williams, 55 ECAB 343, 346 (2004).

15

See 20 C.F.R. § 501.2(c)(2) (there will be no appeal with respect to any interlocutory matter decided or not
decided) by OWCP during the pendency of the case.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 22, 2014 is set aside, and the case is remanded for further
action consistent with this opinion.
Issued: August 12, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7