United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.I., Appellant
and
DEPARTMENT OF THE ARMY, MADIGAN
ARMY MEDICAL CENTER, WA, Employer
__________________________________________

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Appearances:
Eric L. Pines, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-183
Issued: March 24, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 4, 2014 appellant, through his attorney, filed a timely appeal from a
May 8, 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 has established that he sustained an injury on July 18,
2012 in the performance of duty.
FACTUAL HISTORY
On August 14, 2012 appellant, then a 38-year-old licensed practical nurse (LPN), filed a
traumatic injury claim alleging that on July 18, 2012 he sustained low back pain radiating into
both legs and numbness of the buttocks in the performance of duty. He stated, “I was attempting
1

5 U.S.C. § 8101 et seq.

to get a catheterized urine specimen from a female patient and was bent over [the] patient to get
[the] specimen and felt a strain and pop in my lumbar region of my back and instant back pain.”
Appellant stopped work on July 30, 2012. His supervisor, Eugina Lucero, challenged the claim
as she did not receive notice of the injury until August 8, 2012. She further indicated that
appellant’s account of injury differed from what he told her before seeking medical treatment at
the employing establishment’s clinic.
By letter dated August 14, 2012, OWCP requested that appellant submit additional
factual and medical information in support of his claim, including a description of the work
incident and a comprehensive medical report addressing the relationship between any diagnosed
condition and the identified employment factor.
In a form report dated July 30, 2012, received by OWCP on August 22, 2012, Dr. Jason
Bothwell, who is Board-certified in emergency medicine and works for the employing
establishment, indicated that appellant sustained an initial injury lifting a patient who had fallen
in the parking lot on July 6, 2012 and a subsequent injury on July 18, 2012. The description of
the injury on July 18, 2012 is not legible. Dr. Bothwell diagnosed low back pain and
recommended further evaluation. He checked “yes” that the condition was caused or aggravated
by employment, noting that appellant was moving a patient.
In a statement dated July 31, 2012, received by OWCP on August 22, 2012, Ms. Lucero
related that on July 30, 2012 she asked appellant why he was limping and he replied that “his
back had been hurting for quite a while and that he was trying to ‘tough it out.’” Appellant told
her that he “helped a patient in the coffee shop area approximately three months ago and thought
he injured his back.” When Ms. Lucero questioned why he had not reported it sooner, he stated
that it was not bad initially, but had worsened a few weeks ago when he lifted a patient from a
wheelchair to an examination table.
On August 1, 2012 Dr. Peter C. Taylor, Board-certified in family medicine, diagnosed a
work-related lumbar sprain with underlying degenerative disc disease and spondylosis of the
lumbar spine. He described the injury as occurring at work on July 6, 2012 when appellant
assisted a patient who fell out of a wheelchair. Subsequently, appellant’s back pain increased.
Dr. Taylor found that appellant was unable to work July 30 to August 5, 2012.
In a report dated August 7, 2012, Dr. Taylor noted that a magnetic resonance imaging
(MRI) scan study showed “severe central canal stenosis and displacement of the cauda equine
and left S1 nerve root compression by [an] L5-S1 herniated disc.”2 He referred appellant to
Dr. Barbara E. Lazio, a Board-certified neurosurgeon, for an urgent consultation.
On August 8, 2012 appellant informed Ms. Lucero that he needed to file two separate
claims, one for the person who fell and the second one for when he was assisting with a
2

An MRI scan study of the lumbar spine dated August 3, 2012 showed disc and facet degeneration and a prior L4
and L5 laminotomy on the right, broad-based disc protrusions at L4-5 with nerve root compression, effacement of
the right L5 nerve root, stenosis and displacement of the left L5 nerve root and the nerve roots of the cauda equine,
moderate right and left neural foraminal stenosis, and a disc extrusion at L5 displacing the left S1 nerve root and
partially effacing the left subarticular recess with moderate facet arthopathy and bilateral neural foraminal stenosis.

2

catheterization on a patient who kicked him and aggravated the pain in his lower back. On
August 9, 2012 appellant advised Ms. Lucero of his need for surgery, noted that he had
significant spinal cord impingement and related, “…that is “why I have been walking with that
funny gait for the last two weeks since I did that cath specimen….”
In a statement dated August 8, 2012, Kathleen Walker, an LPN, related that appellant
helped her obtain a urine sample using a catheter on a developmentally disabled patient. The
patient was “hysterical, screaming and flailing about….” Appellant had to stop getting the
specimen until she got one of the patient’s legs out of her pants. He tried again and obtained the
specimen.
On August 8, 2012 Dr. Lazio evaluated appellant’s low back and leg pain bilaterally and
indicated that it was a workers’ compensation injury. She stated,
“[Appellant] first noted symptoms on July 6, 2012 when he assisted a patient who
had fallen face first with a facial laceration and became unresponsive. He felt a
twinge in his low back when he turned the patient over. [Appellant] continued to
work as an LPN in the family practice clinic. On July 18, 2012 he had to
catheterize a patient who was blind and somewhat combative [and] the pain
increased significantly.”
Appellant’s pain worsened until July 28, 2012, at which time he sought treatment in the
emergency room. Dr. Lazio noted that he had a history of an L4-5 lumbar discectomy due to a
2000 employment injury and an L5-S1 discectomy after a motor vehicle accident in 2004. She
diagnosed a “[l]arge recurrent L4-5 disc extrusion with radiculopathy more likely than not as a
result of his work-related injuries” on July 6 and 18, 2012. In a disability certificate dated
August 8, 2012, Dr. Lazio found that appellant should stay off work pending surgery on his
lumbar spine.
On August 9, 2012 Dr. Taylor indicated that appellant “injured his back during the course
of his employment as a nurse.”3 He diagnosed lumbar degenerative disc disease, lumbago, and
sciatica with urinary incontinence.
In a form report dated August 9, 2012, Dr. Lazio opined that on July 6, 2012 appellant
experienced low back pain after helping a patient who had fallen and on July 18, 2012
experienced a worsening of the pain with extension into his legs “catheterizing [a] combative
patient.” She diagnosed a lumbar herniated disc with radiculopathy and checked “yes” that the
condition was caused or aggravated by employment.
In a statement dated August 9, 2012, Ms. Lucero related that appellant’s description of
the injury for which he sought treatment at the employing establishment’s clinic differed from
what he listed on his claim form. She also noted that he had outside employment, which also
caused her “to question the validity of his claim.” Ms. Lucero advised that appellant did not
complain of pain or evidence a limp or movement problems before July 30, 2012.

3

On August 8, 2012 Dr. Taylor advised that appellant was unable to work.

3

In a form report dated August 10, 2012, Dr. Taylor diagnosed a disc extrusion, sciatica,
lumbago, degenerative disc disease, and spinal canal stenosis. He provided a history of appellant
experiencing back pain lifting a patient on July 6, 2012. Dr. Taylor checked “yes” that the
condition was work related and found that he was totally disabled beginning August 6, 2012.
In a form report dated September 11, 2012, Dr. Lazio provided a history of appellant
injuring his back obtaining a catheter specimen.4 She diagnosed a lumbar herniated disc
secondary to injury and checked “yes” that the condition was caused or aggravated by
employment.
By decision dated October 2, 2012, OWCP denied appellant’s claim after finding that he
did not factually establish the occurrence of the alleged July 18, 2012 work incident.
In a form report dated September 4, 2012, received by OWCP on December 31, 2012,
Dr. Lazio diagnosed lumbar spondylosis and a lumbar herniated nucleus pulposis. She listed a
history of injury as appellant getting “kicked by a patient while trying to get a foley-catheter
specimen.” Dr. Lazio checked “yes” that the condition was caused or aggravated by
employment, and provided “see above” as a rationale.
On October 17, 2012 appellant requested reconsideration. He submitted August 28 and
October 30, 2012 reports from Gregory B. Raappana, a physician assistant.
On January 16, 2013 appellant again requested reconsideration. He indicated that he
sought treatment at the employing establishment’s emergency room but was referred to his
primary care physician for an MRI scan study because the emergency room’s equipment was not
working. In a statement dated January 17, 2013, appellant described his injury on July 18, 2012.
He stated, “I was getting a catheter specimen of urine from a very ill and combative patient who
was noncompliant and thrashing and kicking the entire procedure and I was kicked numerous
times.” Appellant asserted that an MRI scan study performed in October 2004 did not show an
injury at L4-5 but that his August 3, 2012 MRI scan study showed an L4-5 condition requiring
surgery.5
By decision dated March 8, 2013, OWCP denied modification of its October 2, 2012
decision. It determined that there were inconsistencies regarding whether the July 18, 2012 work
injury occurred as alleged. OWCP noted that the August 1, 2012 medical report, the first of
record, did not mention a July 18, 2012 injury but instead discussed an injury on July 6, 2012.
Appellant submitted reports from Mr. Raappana dated March 28, 2012, July 2 and 23,
2013, and January 28, 2014.
4

On August 16, 2012 Dr. Lazio performed a lumbar laminectomy at L4-5. In a progress report dated
September 11, 2012, Dr. Taylor noted that appellant underwent surgery on his lumbar spine three weeks earlier. He
diagnosed “[l]umbar degenerative disc disease and disc herniations status postsurgical treatment….” In a report
dated January 10, 2013, Dr. Lazio diagnosed status post exploration of a laminectomy and discectomy at L4-5 with
postoperative symptoms.
5

In an undated statement received by OWCP on February 8, 2013, appellant related that his injury occurred
taking a catheter sample from a “combative patient who kicked me during [the] procedure.”

4

In a September 16, 2013 addendum to her previous statement regarding the July 18, 2012
work incident, Ms. Walker related that she was holding the patient’s left leg and that her right leg
was not restrained. She stated:
“While trying to obtain catheterized urine specimen the patient was thrashing and
flailing around and unwilling to cooperate with [the] procedure. [Appellant] was
bent over at almost a 90-degree angle over [the] patient’s side to try and find [her]
urethra for [the] urine specimen. Due to [the] patient’s excessive flatus I kept the
patient’s left leg restrained while [appellant] attempted catheterization but turned
my head away due to the continuous flatus the patient was releasing….”
In a statement signed November 12, 2013, appellant related that he underwent a lumbar
discectomy and laminectomy in July 2003 after a work injury and had surgery in December 2004
for a herniated disc at L5-S1 after a motor vehicle accident. On July 6, 2012 an elderly patient
fell from his wheel chair into the street. Appellant turned him over and felt “a twinge of pain in
my lumbar spine.” The pain was not severe and required no additional pain management. On
July 18, 2012 appellant related that he was trying to get a urine sample from a mentally impaired
but strong patient. He stated, “The procedure was made incredibly difficult due to her
combativeness and unwillingness to disrobe at all for the procedure and she was physically and
verbally resistant and morbidly obese.” Appellant bent over at an 80- to 90-degree angle trying
to find the patient’s urethra. He stated:
“she was getting very agitated and started thrashing around and then had to be
restrained by her mother on her arms and Ms. Walker on her left leg. I inserted
the catheter to obtain the urine specimen, but I could not hold down her right leg
and knee at the same time. During this time, the patient kicked me with her right
knee in the stomach several times, and she began to pass excessive amounts of
bowel gas, which lasted until the procedure ended. The patient once kicked me so
hard she almost lifted me off the floor.”
Appellant informed Ms. Walker that his back hurt, that he could not breathe and that he
had to leave the room. His back pain worsened for 10 days until his supervisor sent him to the
employing establishment’s health clinic. Appellant stated, “Because I had had two different
injuries, I was initially a bit confused about the cause of my back pain.” He related that on
July 31, 2012 he told Dr. Taylor that the “primary incident was the injury of July 6, 2012 but also
explained the July 18th incident.” Appellant indicated that on August 7, 2012 he filed traumatic
injury claims for the incidents occurring on July 6 and 18, 2012. Regarding Ms. Walker’s
statements, he stated:
“The problem with [the statements] is that Ms. Walker was highly distracted by
what she herself had to do (restrain the patient’s left leg while talking to her), the
lack of clean air in the room and her need to turn her head away from the patient
to breath. In additional, while the kicks from the patient’s right knee shifted and
jarred me, I did not know at that point the degree of damage down to my spine,
although I felt very, very achy, with radiating pain down both legs and a severe
limp.

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“I should note here that due to the highly intense, unpleasant, sensitive and
difficult nature of the conditions surrounding the July 18, 201[2] incident, not to
mention the anguish it has caused me, I have found it very difficult to relate this
incident, write or talk about it. Ms. Walker has experienced similar issues. This
is the first time I have really been able to put the information down in writing. In
any case, the hospital never actually controverted my injury, which is shown in
their MSPB [Merit Systems Protection Board] brief as uploaded. I do not see
why accepting my word should be so difficult for OWCP. The bottom line is that
while I had injuries on July 6 and July 18, 2012, the July 18, 2012 injury has been
overwhelmingly more painful and problematic than the July 6, 2012 injury. I am
therefore not appealing the July 6, 2012 injury, because it ceased to be a principal
issue after July 18, 2012.”
Appellant submitted an August 27, 2013 MSPB settlement agreement. The employing
establishment agreed to accept his “voluntary resignation for medical reasons,” cancel its
removal action, and change his absent without leave status from October 2, 2012 until April 1,
2013 to leave without pay.
On February 27, 2014 appellant requested reconsideration. In a decision dated May 8,
2014, OWCP denied modification of its March 8, 2013 decision. It found that he had not
established the occurrence of the alleged July 18, 2012 employment incident. OWCP further
determined that the medical evidence submitted was from a physician assistant and thus of no
probative value.
On appeal appellant’s counsel describes his history of prior work injuries, the July 18,
2012 work incident, and his subsequent medical treatment. He argues that Ms. Walker did not
witness all of the events on July 18, 2012 because she turned her head away. Counsel relates that
appellant was initially unclear whether the July 6 or 18, 2012 work incident resulted in his
condition. He notes that a statement from a claimant that an injury occurred is of significant
probative value. Counsel further contends that the medical evidence is sufficient to establish an
injury due to the July 18, 2012 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was 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.7 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.8
6

5 U.S.C. § 8101 et seq.

7

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

8

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

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To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.9 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.10 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.11
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.12 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.13 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.14
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether time, place, and manner have been established.15 However, an employee’s statement
regarding the occurrence of an employment incident is of great probative force and will stand
unless refuted by strong or persuasive evidence.16
ANALYSIS
Appellant alleged that he injured his lower back on July 18, 2012 catheterizing a
combative patient. He related that in 2003 he had a lumbar discectomy and laminectomy and in
2004 he underwent back surgery for a herniated L5-S1 disc after a motor vehicle accident. On
July 6, 2012 at work appellant helped a patient who had fallen from his wheelchair and felt slight
9

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

10

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

11

Id.

12

See Louise F. Garnett, 47 ECAB 639 (1996).

13

See Betty J. Smith, 54 ECAB 174 (2002).

14

Id.

15

Linda S. Christian, 46 ECAB 598 (1995).

16

Gregory J. Reser, 57 ECAB 277 (2005).

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lumbar pain. On July 18, 2012 he attempted to obtain a urine sample using a catheter on a
mentally impaired patient who was flailing around and needed to be restrained. Appellant bent
over at an 80- or 90-degree angle and tried to hold one of her legs down to get the specimen but
she kicked him in the stomach multiple times. He experienced back pain that worsened with
time. Appellant indicated that when he sought medical treatment on July 31, 2012 he described
both the July 6 and 18, 2012 incidents to Dr. Taylor.
The employing establishment controverted the claim. In a statement dated July 31, 2012,
Ms. Lucero, appellant’s supervisor, related that on July 30, 2012 she asked him why he was
limping and he told her that he injured his back helping a patient in the coffee shop about three
months earlier. Appellant also told her that the back pain increased after he lifted a patient onto
an examination table. In a statement dated August 9, 2012, Ms. Lucero related that appellant did
not limp or complain of back pain prior to July 30, 2012.
The Board finds that the evidence does not contain inconsistencies sufficient to cast
serious doubt on appellant’s version of the employment incident. At the time appellant sought
treatment at the employing establishment’s clinic on July 31, 2012, he related a history of work
injuries on both July 6 and 18, 2012. On August 1, 2012 he advised Dr. Taylor that he injured
his back on July 6, 2012 helping a patient who had fallen out of a wheelchair. Appellant did not
mention the July 18, 2012 injury. He subsequently explained, however, that he was initially
uncertain which injury caused his back pain. The medical reports from Dr. Lazio contain a
detailed history of the July 18, 2012 work incident. On August 8, 2012 appellant advised
Ms. Lucero that he sustained injuries when he helped a patient who fell and assisted at a
catheterization. On August 9, 2012 he told her that he had walked with an unusual gait in the
two weeks since obtaining the catheterization specimen because he had impingement on his
spinal cord.
As discussed, an employee’s statement alleging that an injury occurred at a given time
and in a given manner is of great probative value and will stand unless refuted by strong and
persuasive evidence.17 While appellant did not inform his supervisor on July 30, 2012 of the
circumstances surrounding his injury, in a subsequent statement he related that he found the
incident difficult to discuss due to its unpleasant nature. There is further considerable evidence
supporting the occurrence of the July 18, 2012 work incident. In a statement dated August 8,
2012, Ms. Walker, a coworker, related that appellant obtained a urine specimen from a patient
who was thrashing about and hysterical. On September 16, 2013 she confirmed that appellant
was bent over trying to get the urine specimen from the combative patient. Ms. Walker indicated
that she restrained one of the patient’s legs but kept her head turned away from the
catheterization because of the patient’s excessive flatulence. The employing establishment did
not dispute that appellant catheterized an uncooperative patient on July 18, 2012. Under the
circumstances of this case, the Board finds that his allegations have not been refuted by strong or
persuasive evidence.18 The Board, therefore, finds that the evidence is sufficient to establish that
the July 18, 2012 incident occurred at the time, place, and in the manner alleged.

17

D.S., Docket No. 11-634 (issued October 5, 2011); Allen C. Hundley, 53 ECAB 551 (2002).

18

See M.H., 59 ECAB 461 (2008).

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As OWCP denied appellant’s claim on the grounds that he did not establish the
occurrence of the July 18, 2012 employment incident, it did not fully consider the medical
evidence.19 The case will be remanded to OWCP for evaluation of the medical evidence to
determine whether he sustained a medical condition and disability due to the July 18, 2012 work
incident. After such further development as deemed necessary, it should issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 8, 2014 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further proceedings consistent
with this decision of the Board.
Issued: March 24, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

19

OWCP noted its May 8, 2014 decision that the chiropractor’s reports were of no probative value. It did not
consider the other medical evidence of record.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Toledo, OH, Employer
__________________________________________

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Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-711
Issued: December 1, 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 January 25, 2011 appellant, through his attorney, filed a timely appeal from an Office
of Workers’ Compensation Programs’ (OWCP) merit decision dated October 26, 2010. 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.
ISSUES
The issues are: (1) whether appellant sustained a low back injury on July 25, 2001 in the
performance of duty; (2) whether appellant sustained a consequential urinary incontinence
condition; and (3) whether OWCP abused its discretion by denying appellant authorization for an
August 2002 laminectomy procedure.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is the fourth appeal before the Board. Appellant, a 31-year-old clerk, filed a claim
for benefits, alleging that he sustained an injury to his lower back on August 19, 1987. OWCP
accepted the claim for lower back strain. By decision dated March 9, 1990, it reduced
appellant’s compensation based on his wage-earning capacity as a personnel worker. An OWCP
hearing representative affirmed the March 9, 1990 decision by decision dated January 2, 1992.
In a March 23, 1994 decision, the Board reversed OWCP’s decisions and reinstated appellant’s
compensation.2 OWCP subsequently accepted the conditions of chronic pain syndrome and
aggravation of degenerative disc disease at L5-S1. Appellant returned to light duty in July 1999.
On July 30, 2001 appellant filed a claim for benefits based on traumatic injury, alleging
that he sustained an injury to his lower back while pushing a heavy mail cart on July 25, 2001.
Appellant submitted several reports from Dr. William D. Richardson, Board-certified in internal
medicine, who stated that appellant was unable to work due to an acute flare up of chronic back
pain which resulted from the July 25, 2001 work incident. He opined that appellant’s increased
pain and disability were due to acute strain, inflammation and muscle spasms of the muscles and
that the July 25, 2001 incident aggravated the lumbar condition and caused his urinary
incontinence. OWCP referred appellant for a second opinion examination with Dr. Edwin S.
Carter, a Board-certified orthopedic surgeon, who opined that appellant did not sustain any
injury or condition due to the July 25, 2001 injury and that back surgery was not necessitated by
the July 2001 injury. By decision dated June 25, 2002, OWCP denied appellant’s claim for
benefits based on traumatic injury, finding that he failed to submit sufficient medical evidence in
support of his claim.3 Appellant submitted additional reports from Dr. Richardson in which he
expounded on his previously-stated findings and noted that appellant underwent an L5-S1
laminectomy procedure in August 2002 to ameliorate his low back pain. By decision dated
November 12, 2003, an OWCP hearing representative affirmed the June 25 and December 19,
2002 OWCP decisions and denied authorization for the August 2002 back surgery. By decision
dated March 11, 2004, OWCP denied appellant’s request for reconsideration.
In a November 10, 2005 decision,4 the Board set aside OWCP’s November 12, 2003
decision. The Board found that there was a conflict in the medical evidence between
Dr. Richardson, the attending physician, and Dr. Carter, the referral physician, regarding whether
appellant’s alleged lumbar sprain was causally related to the July 25, 2001 work incident,
whether he sustained a consequential urinary incontinence condition and whether his
August 2002 L5-S1 laminectomy was necessitated by this alleged injury. The Board therefore
remanded the case to OWCP for referral to an impartial medical examiner to resolve the conflict.
Dr. R. Peter Mirkin, a Board-certified orthopedic surgeon and OWCP’s impartial specialist,
opined that appellant’s lumbar symptomatology would have been the same whether or not the
July 25, 2001 incident had occurred, that his urinary continence condition was not work related
and that his August 2002 back surgery was performed for a condition which preexisted the
2

Docket No. 93-799 (issued March 23, 1994).

3

OWCP also denied the recurrence of disability claim by decision dated December 19, 2002.

4

Docket No. 04-1268 (issued November 10, 2005).

2

July 25, 2001 injury. In a May 12, 2008 decision, OWCP denied appellant’s claim, finding that
Dr. Mirkin’s report represented the weight of the medical evidence.
In a September 24, 2009 decision,5 the Board set aside OWCP’s May 12, 2008 decision,
finding that Dr. Mirkin did not provide adequate medical rationale in support of his conclusions
and that his February 22, 2006 report was not sufficient to meet the standard for an impartial
medical specialist. The Board remanded the case to OWCP for referral to a new medical
specialist, to resolve the outstanding conflict in the medical evidence regarding whether
appellant sustained an injury on July 25, 2001, whether his urinary incontinence condition was
sustained as a consequence of his accepted lumbar conditions and whether his August 2002 back
surgery was necessitated by an employment-related condition. The complete facts of this case
are set forth in the Board’s November 10, 2005 and September 24, 2009 decisions and are herein
incorporated by reference.6
In order to resolve the conflict in the medical evidence, OWCP referred the case to
Dr. Marvin R. Mishkin, a Board-certified orthopedic surgeon. In a January 5, 2010 report, he
stated findings on examination, thoroughly reviewed the medical history and the statement of
accepted facts and asserted that appellant had diffuse and various subjective complaints of back
and lower extremity pain which did not correlate with a lack of objective findings. Dr. Mishkin
advised that he had negative straight leg raising on the lower extremities, no evidence of motor
weakness, no muscle atrophy and excellent range of motion in his back. Appellant had no
significant objective findings of radiculopathy, sciatica or neurological deficit and his clinical
findings were not consistent with his diffuse persistent subjective complaints, including back and
lower extremity pain.
Dr. Mishkin noted that when appellant underwent surgery in August 2002 there was a
bulging of the annulus, but no extrusion of the disc into the spinal canal and no nerve root being
compressed by a pathological disc. He opined that this indicated very minimal clinical findings
to correlate with magnetic resonance imaging (MRI) scan results in the record and represented a
bulging or protruded disc without herniation and definitive compression of the nerve root.
Dr. Mishkin concluded, based on a reasonable degree of medical certainty, that there was no
injury resulting from the July 25, 2001 incident that necessitated or resulted in the subsequent
surgery and his current complaints of pain and discomfort. In addition, he was unable to explain
or determine the cause of the urinary incontinence appellant sustained based on the clinical
findings and the MRI scan results as noted in the medical records. Dr. Mishkin opined that any
urinary problems he had were unrelated to the surgery of August 22, 2002 and the August 19,
1987 and July 25, 2001 work injuries.
Dr. Mishkin further opined, with reasonable medical certainty, that he would not have
recommended the back surgery appellant underwent on August 22, 2002, based on his review of
the medical records. He reiterated his opinion that the MRI scan findings, subjective complaints
5

Docket No. 08-2097 (issued September 24, 2009).

6

The Board noted that appellant had filed a separate claim for recurrence of disability stemming from the July 25,
2001 work incident, which it considered separately in its decision. The Board denied a claim based on a recurrence
of disability as of July 25, 2001.

3

and the lack of objective findings were not consistent with appellant’s subjective complaints.
Dr. Mishkin concluded that appellant’s August 22, 2002 back surgery was not a result of, related
to or caused by or necessitated by the August 19, 1987 and July 25, 2001 employment injuries.
By decision dated January 29, 2010, OWCP determined that appellant did not sustain a
low back injury in the performance of duty on July 25, 2001, that his claimed urological
condition was not causally related to an accepted condition and denied authorization for his
August 2002 surgery. It found that Dr. Mishkin’s referee opinion represented the weight of the
medical evidence.
On February 26, 2010 appellant requested an oral hearing, which was held on
August 3, 2010.
In a June 2, 2010 report, Dr. Harry O. Cole, Board-certified in neurosurgery, reviewed
appellant’s medical history and diagnostic tests and stated that an April 30, 2010 MRI scan
showed degenerative changes without evidence of a disc herniation. He advised that appellant’s
pattern of symptoms was consistent with a residual pain syndrome, probably chronic radicular
compression which was no longer present. Dr. Cole recommended that appellant undergo a
lumbar myelography and computerized axial tomography (CT) scanning.
In a report dated June 9, 2010, Dr. Cole reviewed the results of the myelogram and CT
scan appellant underwent that day and found that there was no indication of disc herniation or
nerve root entrapment. He advised that there was no direct surgical management for appellant’s
current complaints, although he could be a candidate for a dorsal column stimulator.
In a June 23, 2010 report, Dr. Richardson stated that appellant continued to have low
back pain stemming from the 1987 work injury. He stated that an implantation of a dorsal
column stimulator had been recommended in an attempt to relieve the pain.
In a July 6, 2010 report, Dr. Richard S. Gahn, Board-certified in pain medicine and
anesthesiology, stated that the myelogram and CT scan appellant underwent on June 9, 2010 was
notable for multi-level degenerative changes as well as a disc protrusion at T1-12. He also
advised that appellant had spondylitic changes at L5-Sl. Dr. Gahn administered a lumbar MRI
scan and advised that the results of this test showed moderate disc degeneration at L3-4, L4-5
and L5-S1, with evidence of moderate degenerative spurring at L3-4, L4-5 and L5-S1. He stated
that the April 30, 2010 MRI scan of the lumbar spine revealed degenerative changes from L3-4
through L5-Sl, postsurgical changes at L4 and L5 and mild neuroforaminal stenosis at L5-S1
bilaterally.
Dr. Gahn asserted that appellant had chronic radicular low back symptoms which
appeared to be neuropathic in origin. He advised that appellant was not a surgical candidate and
had exhausted nearly all forms of conservative management, including physical therapy,
medications, behavioral modalities and injections. Dr. Gahn noted that he discussed with
appellant the possibility of trying a spinal cord stimulator.
By decision dated October 26, 2010, an OWCP hearing representative affirmed the
January 29, 2010 decision.

4

LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA7 has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury.8 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.10 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.11 The medical evidence
required to establish causal relationship is usually rationalized medical evidence. Rationalized
medical opinion evidence is medical evidence which includes a physician’s rationalized opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and 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.12
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.13
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.14
7

5 U.S.C. § 8101-8193.

8

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

9

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

10

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

11

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

12

Id.

13

See Joe T. Williams, 44 ECAB 518, 521 (1993).

14

Id.

5

ANALYSIS -- ISSUE 1
Dr. Mishkin, the new impartial medical specialist, stated in his January 5, 2010 report
that appellant had no significant objective findings of radiculopathy, sciatica or neurological
deficit. He explained that a review of medical records concurrent with the July 25, 2001 injury
and leading up to the August 2002 surgery revealed that appellant’s clinical findings and
subjective complaints of back and lower extremity pain did not correlate with the lack of
objective findings. Dr. Mishkin advised that appellant had negative straight leg raising on the
lower extremities, no evidence of motor weakness, no muscle atrophy and excellent range of
motion in his back. He opined that the MRI scan results from 2002 showed a bulging or
protruded disc without herniation and definitive compression of the nerve root. Dr. Mishkin
concluded, based on a reasonable degree of medical certainty, that there was no injury resulting
from the July 25, 2001 incident that necessitated or resulted in the subsequent surgery and his
current complaints of pain and discomfort. OWCP relied on his opinion in its January 29, 2010
decision, finding that appellant had no condition or disability causally related to the July 25,
2001 work incident and was therefore not entitled to compensation or medical benefits.
The Board finds that Dr. Mishkin’s referee opinion negated a causal relationship between
appellant’s condition and disability and constituted medical evidence sufficient to establish that
his low back condition was not causally related to the July 25, 2001 work incident. His opinion
is sufficiently probative, rationalized and based upon a proper factual background. Therefore,
OWCP properly accorded Dr. Mishkin’s opinion the special weight of an impartial medical
examiner,15 and found in its January 29, 2010 decision that appellant did not sustain an injury in
the performance of duty on July 25, 2001.
Following this decision, appellant requested reconsideration and submitted reports from
Drs. Cole, Richardson and Gahn. In the June 2, 2010 report, Dr. Cole advised that appellant’s
pattern of symptoms was consistent with residual pain syndrome, most likely chronic radicular
compression which was no longer present. He stated that an April 30, 2010 MRI scan showed
degenerative changes without evidence of a disc herniation. In his June 9, 2010 report, Dr. Cole
opined that the June 6, 2010 myelogram and CT scan results showed no evidence of disc
herniation or nerve root entrapment. Dr. Richardson opined in his June 23, 2010 report that
appellant continued to have low back pain stemming from the 1987 work injury and noted that
an implantation of a dorsal column stimulator had been recommended to alleviate his back pain.
Dr. Gahn stated in the July 6, 2010 report that the CT scan/myelogram appellant underwent on
June 9, 2010 was notable for multi-level degenerative changes as well as a disc protrusion at T112. He also advised that he had spondylitic changes at L5-Sl. Dr. Gahn asserted that the July 6,
2010 lumbar MRI scan revealed moderate disc degeneration at L3-4, L4-5 and L5-Sl moderate
degenerative spurring at L3-4, L4-5 and L5-S1. He stated that the April 30, 2010 lumbar MRI
scan indicated degenerative changes from L3-4 through L5-Sl, postsurgical changes at L4 and L5
and mild neuroforaminal stenosis at L5-S1 bilaterally. Dr. Gahn advised that appellant had
chronic radicular low back symptoms which appeared to be neuropathic in origin.

15

Gary R. Seiber, 46 ECAB 215 (1994).

6

The reports appellant submitted subsequent to the January 29, 2010 decision are not
sufficient to overcome OWCP’s finding that Dr. Mishkin’s impartial opinion represented the
weight of the medical evidence. The weight of medical opinion is determined by the opportunity
for and thoroughness of examination, the accuracy and completeness of the physician’s
knowledge of the facts of the case, the medical history provided, the care of analysis manifested
and the medical rationale expressed in support of stated conclusions.16 While Drs. Cole and
Gahn noted complaints of continuing low back pain and indicated that appellant had findings of
moderate abnormalities based on various myelogram, CT scan and MRI scan tests, neither of
these physicians provided a medical rationale explaining how appellant’s diagnosed low back
conditions in 2010 were causally related to the July 25, 2001 work incident. Dr. Richardson’s
June 23, 2010 report merely contained a restatement of prior findings and his previously stated
opinion that appellant’s injuries and resulting conditions and disability were causally related to
the July 25, 2001 work incident. Dr. Richardson’s opinion is lacking in probative value because
it is merely a restatement of one side of the conflict in the medical evidence which was resolved
by Dr. Mishkin’s referee opinion.17 Thus an OWCP hearing representative properly found in his
October 26, 2010 decision that appellant had submitted no evidence sufficient to undermine
OWCP’s finding, in its January 29, 2010 decision, that the opinion of Dr. Mishkin represented
the weight of the medical evidence.
LEGAL PRECEDENT -- ISSUE 2
While the initial employment injury must arise out of and in the course of claimant’s
federal employment, later nonindustrial injuries may also be compensable.18 If a member
weakened by an employment injury contributes to a later fall or other injury, the subsequent injury
will be compensable as a consequential injury, if the further medical complication flows from the
compensable injury, so long as it is clear that the real operative factor is the progression of the
compensable injury, with an exertion that would not be unreasonable in the circumstances.19
A claimant bears the burden of proof to establish a claim for a consequential injury.20 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.21
16

See Anna C. Leanza, 48 ECAB 115 (1996).

17

Daniel F. O’Donnell, Jr., 54 ECAB 456 (2003).

18

See S.M., 58 ECAB 166 (2006).

19

S.A., Docket No. 09-2339 (issued July 22, 2010); see also Larson, The Law of Workers’ Compensation § 10.01
at p. 10-2 (2004).
20

J.J., Docket No. 09-27 (issued February 10, 2009).

21

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

7

ANALYSIS -- ISSUE 2
OWCP had accepted that appellant sustained the conditions of lower back strain, chronic
pain syndrome and aggravation of degenerative disc disease at L5-S1 as a result of his 1987
employment injury. Appellant subsequently requested compensation for a urinary incontinence
claim as a consequence of these conditions. As noted above, there was a conflict in the medical
evidence regarding whether this issue, which was referred to Dr. Mishkin, the impartial medical
examiner. Following his examination of appellant and a thorough review of his medical history,
including clinical findings and MRI scans, Dr. Mishkin stated that he was not able to explain or
determine the cause of appellant’s urinary incontinence condition. He opined that any urinary
problems he had were unrelated to the surgery of August 22, 2002 and the August 19, 1987 and
July 25, 2001 work injuries. The Board finds that Dr. Mishkin’s opinion that appellant’s claimed
urinary incontinence condition did not arise as a consequence of his work-related conditions is
sufficiently thorough and well rationalized to merit the weight of an impartial medical examiner.
OWCP properly found that his January 5, 2010 report represented the weight of the medical
evidence with regard to this issue.22
LEGAL PRECEDENT -- ISSUE 3
Section 8103 of FECA23 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 the monthly
compensation.24 In interpreting this section of FECA, the Board has recognized that OWCP has
broad discretion in approving services provided under FECA. OWCP has the general objective
of ensuring that an employee recovers from his injury to the fullest extent possible in the shortest
amount of time. It therefore has broad administrative discretion in choosing means to achieve
this goal. The only limitation on OWCP’s authority is that of reasonableness. 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.25
ANALYSIS -- ISSUE 3
OWCP had accepted that appellant sustained the conditions of lower back strain, chronic
pain syndrome and aggravation of degenerative disc disease at L5-S1 as a result of his 1987
employment injury. Appellant underwent a laminectomy procedure in August 2002. There was
a conflict in the medical evidence between Dr. Richardson, his treating physician, who asserted
22

The Board notes that none of the medical reports appellant submitted following the January 29, 2010 OWCP
decision mentioned or addressed the issue of whether he sustained a consequential urinary continence condition.
23

5 U.S.C. § 8101 et seq.

24

Id. at § 8103.

25

Daniel J. Perea, 42 ECAB 214 (1990).

8

that appellant’s August 2002 laminectomy was necessary to alleviate low back pain from the
claimed July 25, 2001 work injury and Dr. Carter, the second opinion physician, who opined that
appellant did not sustain any injury or condition due to the July 25, 2001 incident and that back
surgery was not necessitated by the July 2001 injury.
As noted above, the only restriction on OWCP’s authority to authorize medical treatment
is one of reasonableness. OWCP has properly determined in this case that the weight of the
medical evidence of record, as represented by Dr. Mishkin’s impartial opinion, establishes that
appellant’s August 2002 low back surgery was not necessitated by the July 25, 2001 work
incident, which was not work related or by any other accepted condition. In his January 5, 2010
report, he found based on a reasonable degree of medical certainty and his review of the medical
records, that there was no injury resulting from the August 19, 1987 work injury or July 25, 2001
work incident that necessitated or resulted in the August 22, 2002 surgery and that he would not
have recommended this surgery. The Board finds that Dr. Mishkin’s referee opinion is
sufficiently probative, rationalized and based upon a proper factual background. Therefore,
OWCP properly accorded Dr. Mishkin’s opinion the special weight of an impartial medical
examiner.26 There are no grounds to modify OWCP’s prior determination denying authorization
for appellant’s request for laminectomy surgery.
CONCLUSION
The Board finds that appellant failed to establish that he sustained a low back injury on
July 25, 2001. The Board finds that appellant failed to establish that he sustained a consequential
urinary incontinence condition in the performance of duty. The Board finds that OWCP properly
denied appellant authorization for his August 2002 laminectomy procedure.

26

Gary R. Seiber, supra note 15.

9

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 1, 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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1989
Issued: June 5, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 25, 2017 appellant filed a timely appeal from a September 6, 2017 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 appellant received an overpayment of compensation in the
amount of $2,405.30 for the period December 12, 2015 through June 25, 2016 because OWCP
failed to deduct health benefit and life insurance premiums, for which appellant was not at fault;
(2) whether OWCP abused its discretion by denying waiver of recovery of the overpayment; and
(3) whether OWCP properly required recovery of the overpayment by deducting $150.00 every 28
days from appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

On appeal appellant does not contest the fact or amount of the overpayment. Rather, he
contends that he should not be obligated to pay interest as OWCP unreasonably delayed payment
of his compensation benefits for six months, which created significant financial hardship.
FACTUAL HISTORY
On October 28, 2015 appellant, then a 52-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that he was involved in a work-related motor vehicle accident
when his delivery vehicle was struck by a car on October 27, 2015, causing multiple injuries. He
stopped work on October 27, 2015.
OWCP accepted the claim, assigned OWCP File No. xxxxxx648, for bilateral rotator cuff
tears, and fractures of the C5 and C6 vertebrae.3 It placed appellant’s case on the periodic rolls
effective June 26, 2016.
2

Appellant had a prior claim accepted under OWCP File No. xxxxxx606 for a lumbar sprain,
displacement of lumbar disc, and lumbosacral disc degeneration sustained on December 16, 2008.
In a July 5, 2016 letter, the employing establishment noted that prior to OWCP’s acceptance of
appellant’s claim under File No. xxxxxx648, appellant was paid wage-loss compensation on the
periodic compensation rolls under File No. xxxxxx606 for two hours a day. Appellant would be
paid the remaining six hours a day of compensation under File No. xxxxxx648. He had used leave
from December 26, 2015 through February 5, 2016.
In a July 14, 2016 initial payment memorandum, OWCP noted that the employing
establishment confirmed that as of February 23, 2016, appellant earned $60,520.00 a year, or
$1,163.85 a week. Appellant was enrolled in a federal employee health benefits (HB) plan, basic
life insurance (BLI), and optional life insurance (OLI).
On August 3, 2016 OWCP administratively combined OWCP File Nos. xxxxxx606 and
xxxxxx648, with File No. xxxxxx606 serving as the master file. Appellant remained off work.
In an August 8, 2016 telephone memorandum (Form CA-110), OWCP confirmed that HB,
BLI, and OLI deductions had been stopped on December 11, 2015.
In an August 8, 2016 file memorandum, OWCP calculated that from December 12, 2015
through June 25, 2016, it had paid appellant $4,874.23 in wage-loss compensation under OWCP
File No. xxxxxx606. However, failed to deduct HB premiums in the amount of $1,887.68, and
BLI and OLI premiums in the amount of $517.62 for the period December 12, 2015 to June 25,
2016, totaling $2,405.30.
By notice dated November 2, 2016, OWCP advised appellant of its preliminary
determination that he had received an overpayment of compensation in the amount of $2,405.30
2

On July 5, 2015 appellant underwent authorized left rotator cuff repair. On April 7, 2016 he underwent a C5-6
anterior discectomy and fusion. Appellant underwent authorized right rotator cuff repair on February 24, 2017.
3
OWCP initially denied the claim by decision dated December 23, 2015 as fact of injury was not established.
Following additional development, it accepted the claim on June 23, 2016.

2

because failed to deduct health or life insurance premiums for the period December 12, 2015 to
June 25, 2016. It provided a calculation of the overpayment, noting that appellant was without
fault in its creation. OWCP requested that appellant provide information regarding his income,
assets, and expenses on an enclosed Overpayment Recovery Questionnaire (Form OWCP-20)
within 30 days, or indicate if he contested that an overpayment occurred.
Appellant responded by an overpayment action request dated November 28, 2016,
postmarked November 29, 2016, in which he requested a prerecoupment hearing before a
representative of OWCP’s Branch of Hearings and Review. He contended that OWCP should
waive recovery of the overpayment as OWCP delayed paying his wage-loss compensation until
June 2016.
During the hearing, conducted on June 19, 2017, appellant acknowledged the fact and
amount of the overpayment and expressed his willingness to repay the debt. In a July 18, 2017
letter, he contended that he was not at fault in creation of the overpayment. Appellant asserted
that he was unwilling to divulge the requested information regarding his income, assets, and
expenses, as this had “no bearing on the case.” He submitted an incomplete Overpayment
Recovery Questionnaire (Form OWCP-20). Appellant provided no financial information.
In an August 31, 2017 memorandum, OWCP determined that no compromise of principal
was necessary.
By decision dated September 6, 2017, OWCP’s hearing representative finalized that
appellant had received a $2,405.30 overpayment of compensation for the period December 12,
2015 to June 25, 2016 as OWCP failed to deduct health and life insurance premiums. Appellant
was not at fault in creation of the overpayment. However, he failed to provide the requested
financial information. The hearing representative found that as appellant was paid $3,103.28 in
compensation every 28 days, he was able to repay the overpaid compensation at the rate of $150.00
a month from his continuing compensation payments, and that this rate of recovery would not
defeat the purpose of FECA or be against equity and good conscience.
LEGAL PRECEDENT -- ISSUE 1
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
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which the individual is entitled.5
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employees Health Benefits program. The regulation of OPM, which administers
the Federal Employees Health Benefits program, provides guidelines for the registration,

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

3

enrollment, and continuation of enrollment for federal employees. In this connection, 5 C.F.R.
§ 890.502(a)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment continues.
In each pay period for which health benefits withholdings or direct premium
payments are not made, but during which the enrollment of an employee or
annuitant continues, he or she incurs an indebtedness to the United States in the
amount of the proper employee withholding required for that pay period.”6
In addition, 5 C.F.R. § 890.502(c) provides:
“An establishment that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable
establishment contributions required under section 8906 of the title, 5 United States
Code, to OPM for deposit in the Employee’s Health Benefits Fund.”7
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.8 An establishment that withholds less than the
proper health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.9 The Board has recognized that, when an underwithholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
OWCP must pay the full premium to OPM when the error is discovered.10
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly found that appellant received an overpayment of
compensation in the amount of $2,405.30 for the period December 12, 2015 through June 25, 2016
because OWCP failed to deduct health benefit and life insurance premiums.
The record establishes that OWCP failed to withhold appellant’s HB, BLI, and OLI
insurance premiums for the period December 12, 2015 to June 25, 2016. As previously stated, an
overpayment of compensation occurs when an underwithholding of health insurance and life
insurance premiums is discovered.11 A fiscal worksheet demonstrated that from December 12,
2015 to June 25, 2016 OWCP failed to deduct a total of $2,405.30 from appellant’s compensation
payments, $1,887.68 for HB premiums and $517.62 for BLI and OLI premiums. Accordingly,
6

Id. at § 890.502(a)(1).

7

Id. at § 890.502(c).

8

Id. at § 890.502(b)(1).

9

Id. at § 890.502(d).

10

James Lloyd Otte, 48 ECAB 334 (1997).

11

Id.

4

OWCP calculated that appellant owed a total of $2,405.30 in health and life insurance premiums
due to the under deduction.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received an overpayment of compensation in the amount of $2,405.30 for the time period
at issue.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by OWCP is a matter that
rests within OWCP’s discretion pursuant to statutory guidelines.12 These statutory guidelines are
found in section 8129(b) of FECA which provides: Adjustment or recovery of an overpayment by
the United States may not be made when incorrect payment has been made to an individual who
is without fault and when adjustment or recovery would defeat the purpose of this subchapter or
would be against equity and good conscience.13 When a claimant is found to be without fault in
the matter of the overpayment, then, in accordance with section 8129(b), OWCP may only recover
the overpayment if it determined that recovery of the overpayment would neither defeat the
purpose of FECA nor be against equity and good conscience.
Section 10.436 of the implementing regulations14 provide that recovery of an overpayment
will defeat the purpose of FECA if such recovery would cause hardship to a currently or formerly
entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified
amount as determined by OWCP from data furnished by the Bureau of Labor Statistics.15 An
individual is deemed to need substantially all of his or her income to meet current ordinary and
necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.16
Section 10.437 provides that recovery of an overpayment is considered to be against equity
and good conscience when an individual who received an overpayment would experience severe
financial hardship attempting 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.17

12

See Robert Atchison, 41 ECAB 83, 87 (1989).

13

5 U.S.C. § 8129(b).

14

20 C.F.R. § 10.436.

15

OWCP’s procedures provide that the assets must not exceed a resource base of $4,800.00 for an individual or
$8,000.00 for an individual with a spouse or dependent plus $960.00 for each additional dependent. Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.6(a) (June 2009).
16

Id.; see also Sherry A. Hunt, 49 ECAB 467, 473 (1998).

17

20 C.F.R. § 10.437.

5

Section 10.438 of the regulations provide 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 on an overpayment would defeat
the purpose of FECA or be against equity and good conscience. Failure to submit the requested
information within 30 days of the request shall result in denial of waiver.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying waiver of recovery of
the overpayment.
OWCP found appellant to be without fault in the creation of the overpayment. The issue
is whether recovery of the overpayment would defeat the purpose of FECA or be against equity
and good conscience. In the November 2, 2016 preliminary determination of overpayment,
OWCP requested that he submit information regarding his assets, income, and expenses on an
enclosed Form OWCP-20. Appellant was notified of the provisions of 20 C.F.R. § 10.438.
On July 18, 2017 appellant submitted an overpayment recovery questionnaire without
providing information regarding his income, assets, and expenses. He asserted that he was
unwilling to provide the requested financial information as it had “no bearing on the case.”
The Board finds that the hearing representative properly denied waiver of recovery of the
overpayment. As appellant submitted no financial information, OWCP did not abuse its discretion
in finding that recovery of the overpayment would not defeat the purpose of FECA or be against
equity and good conscience.19 Appellant has the responsibility to submit the necessary evidence.
Pursuant to 20 C.F.R. § 10.438, OWCP must deny waiver of the overpayment if financial
information is not received.20 For this reason, it properly denied waiver in conformance with the
implementing federal regulations.
LEGAL PRECEDENT -- ISSUE 3
The Board’s jurisdiction over recovery of an overpayment is limited to reviewing those
cases where OWCP seeks recovery from continuing compensation under FECA.21 Section
10.441(a) of the regulations provide:
“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
soon as the error is discovered or his or her attention is called to same. If no refund
is made, OWCP shall decrease later payments of compensation, taking into account
18

Id. at § 10.438.

19

See also D.I., Docket No. 13-0469 (issued July 1, 2013). See N.R., Docket No. 12-1853 (issued June 10, 2013).

20

Id.

21

Lorenzo Rodriguez, 51 ECAB 295 (2000).

6

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….”22
ANALYSIS -- ISSSUE 3
The Board finds that OWCP properly required recovery of the overpayment through
deduction of $150.00 from appellant’s continuing compensation payments.
The hearing representative found that appellant received FECA compensation benefits on
the periodic rolls in the amount of $3,103.28 every 28 days. Appellant provided no information
regarding his income, assets, or expenses. Therefore, OWCP’s hearing representative found that
appellant could repay the overpayment at a rate of $150.00 per month. Based on the evidence,
OWCP gave due regard to the relevant factors noted above and did not abuse its discretion in
setting the rate of recovery.23 The Board finds that it properly required recovery of the
overpayment by deducting $150.00 from appellant’s continuing compensation payments.
On appeal appellant acknowledges the fact and amount of the overpayment. He contends
that OWCP unreasonably delayed payment of his compensation benefits for six months, creating
significant financial hardship that should negate his obligation to pay interest on the overpayment.
OWCP’s procedures provide that interest may be waived or compromised. Regarding
waiver of interest, the FECA procedure manual provides:
“Waiver of Interest and Other Charges. There are only three circumstances where
charges may be waived. Waiver is mandatory under subparagraphs a. and c. below;
it is discretionary under subparagraph b.
a. If the principal is repaid in full within 30 days of notification that charges
are applicable, then charges are waived. This may be extended for one
additional 30-day period (for a total of 60 days) on a case-by-case basis for
good cause shown.
b. If the full amount of the principal is paid after charges have accrued, and
the additional cost of recovering the charges is greater than the amount of
the accrued charges, then OWCP may, at its discretion, waive the charges.
c. Where the debtor is without fault in the creation of the debt and a
repayment agreement has been established, charges are waived if:
(1) the monthly payment is so small that it does not cover the
interest, or

22

20 C.F.R. § 10.441(a).

23

See M.D., Docket No. 11-1751 (issued May 7, 2012).

7

(2) there is so little left after interest that the debt will not be paid
off within the lifetime of the debtor as determined by actuarial
tables.”24
Appellant’s argument that OWCP delayed the payment of his compensation does not
require waiver of interest pursuant to OWCP’s procedures.
The Board also notes OWCP’s procedures, the compromise of all or part of the
overpayment and any charges may be made depending upon the claimant’s financial circumstances
in order to set a repayment schedule. Compromise of the principal of the overpayment can be
considered if application of the interest charges would extend the period of repayment more than
35 percent. Such a determination is made at the time the repayment schedule is established.25
OWCP considered compromise in its August 31, 2017 memorandum and denied compromise.
Compromise is a matter which rests in the discretion of OWCP26 and a compromise order is not
subject to review by the Board.27
The Board, therefore, finds that OWCP properly determined appellant’s repayment
schedule.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount of
$2,405.30 and that he was not at fault in its creation. The Board further finds that OWCP did not
abuse its discretion by denying waiver of recovery of the overpayment. The Board also finds that
OWCP properly required recovery of the overpayment by deducting $150.00 every 28 days from
appellant’s continuing compensation.

24

See Federal (FECA) Procedure Manual, supra note 15 at Chapter 6.300.4 (May 2004).

25

See Federal (FECA) Procedure Manual, supra note 15 at Chapter 6.300.5 (May 2004); see Jorge E. Diaz, 53
ECAB 403 (2002).
26

D.C., Docket No. 10-1046 (issued January 19, 2011); Linda D. Lane, 46 ECAB 727 (1995).

27
See R.G., Docket No. 15-0144 (issued July 27, 2014). Federal (FECA) Procedure Manual, supra note 15 at
Chapter 6.300.5 (May 2004).

8

ORDER
IT IS HEREBY ORDERED THAT the September 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

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

Docket No. 12-1949
Issued: January 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 24, 2012 appellant, through her attorney, filed a timely appeal from an
August 23, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her emotional condition claim. 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 sustained an emotional condition in the performance of
duty causally related to factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated March 8, 2004, the
Board set aside a May 17, 2002 decision denying appellant’s request to reopen her case for
1

5 U.S.C. § 8101 et seq.

further review of the merits.2 By decision dated April 2, 2009, the Board affirmed as modified
an April 30, 2008 decision denying her emotional condition claim.3 The Board found that
appellant’s stress while performing her duties as a window clerk constituted a compensable
employment factor. It noted that she experienced difficulty working the machines at the window
and had to ask coworkers for assistance. The Board further determined, however, that appellant
had not established harassment or discrimination by her supervisor or that management erred in
denying her leave requests or failing to provide her with training. The Board concluded that the
medical evidence was insufficient to show that she sustained an emotional condition due to the
compensable work factor. By decision dated July 21, 2011, the Board set aside a March 25,
2010 decision finding that appellant had not established an emotional condition claim causally
related to factors of her federal employment.4 The Board found that she had submitted sufficient
medical evidence supporting that she sustained an emotional condition performing work as a
window clerk to warrant further development. The Board instructed OWCP to refer appellant
for a second opinion examination to determine whether she sustained an emotional condition due
to a compensable factor of employment. The facts and circumstances of the case as set forth in
the Board’s prior decisions are hereby incorporated by reference.
On November 1, 2011 OWCP referred appellant, together with the case record and a
statement of accepted facts (SOAF) to Dr. E. Richard Dorsey, a Board-certified psychiatrist, for
a second opinion examination. It provided a narrative SOAF that described in detail appellant’s
job duties on pages one through three.
On December 7, 2011 Dr. Dorsey discussed appellant’s complaints of stress which she
attributed to working the window without adequate training, the need to ask for assistance, being
responsible for any shortages of money while working the window, denials of requests for time
off and assessments of her performance. Dr. Dorsey noted that the SOAF was “unusual in being
very long and narrative, rather than a relatively brief list of specific actual or claimed
occupational events.” He reviewed the medical evidence of record and the results of
psychological testing performed at his request. Dr. Dorsey diagnosed generalized anxiety
disorder, depressive disorder not otherwise specified, panic disorder with agoraphobia and
obsessive-compulsive personality traits. He explained how appellant’s symptoms supported the
diagnosed conditions and stated:
“The objectively-minor stressors at work listed in the SOAF as ‘factors of
employment’ interacted with her obsessive-compulsive personality traits to cause
the mental symptoms listed above. The other factual events, including dislike of
her assignment to the window and the dispute over her annual leave were
aggravated factors.

2

Docket No. 03-1387 (issued Marcy 8, 2004).

3

Docket No. 08-1655 (issued April 2, 2009). On December 29, 1998 appellant, then a 39-year-old clerk, filed an
occupational disease claim alleging that she sustained anxiety arising from her supervisor’s harassment and
discrimination, the denial of leave, receipt of a letter of warning and working as a window clerk.
4

Docket No. 10-2271 (issued July 21, 2011).

2

“She has temporary (not permanent) total disability for her job as a ‘vacation
relief clerk’ for [the employing establishment] especially if the duties include
working at the window.”
Dr. Dorsey recommended psychiatric treatment.
On March 1, 2012 OWCP requested that Dr. Dorsey more specifically address causation
and the minor stressors that interacted with appellant’s compulsive personality. In a March 8,
2012 response, Dr. Dorsey related:
“The condition is not ‘self-generated’ in that, in the absence of the occupational
stressors accepted by OWCP as listed in my report on page 2 and in the SOAF on
October 5, 2011 on page 1, [appellant] would not have developed the mental
symptoms complained of at the time she did….
“Stated somewhat differently, the ‘objectively minor’ stressors as set forth above
and accepted by the OWCP constitute the ‘proximate cause’ of her current mental
symptoms, which did not exist prior to her encountering these stressors,
developed at the time of and in response to the stressors, and have persisted
thereafter in the absence of any other significant contemporaneous
nonoccupational stressors.
“The best orthopedic analogy to psychiatric cases like this is the woman with
severe osteoporosis who is asymptomatic until sustaining a minor fall at work,
which results in multiple fractures. In the absence of the fall, she would not have
developed the fractures of the related pain and disability. On the other hand, if
not for her osteoporosis, the fall would not likely have resulted in significant
physical injuries or symptoms.”
By decision dated August 23, 2012, OWCP denied modification of its September 8, 2009
decision. It found that Dr. Dorsey did not identify any compensable work factor as causing
appellant’s emotional condition.
On appeal, appellant’s attorney argues that Dr. Dorsey’s opinion establishes that
appellant has an emotional condition arising from compensable factors of employment. She
notes that he described appellant’s embarrassment trying to work machines. Counsel requests
that the Board reverse OWCP’s decision.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employment, the disability comes within the coverage of FECA.5 On the other hand, the
5

5 U.S.C. § 8101 et seq.; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.8
Causal relationship is a medical issue, and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.9 The opinion of the
physician must be based on a complete factual and medical background of the claimant,10 must
be one of reasonable medical certainty11 explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.12
In Beth P. Chaput,13 the Board set aside and remanded the case to OWCP stating, “it is
not necessary to provide a significant contribution of factors of employment to a condition for
the purpose of establishing causal relationship. If the medical evidence revealed that [a work
factor] contributed in any way to [the employee’s] condition, such condition would be
considered employment related for the purpose of compensation benefits under [FECA].”14
ANALYSIS
The Board found in its July 21, 2011 decision that appellant’s stress performing her
duties as a window clerk, including working the machines and asking coworkers for assistance,
constituted a compensable employment factor. The Board further determined, in its July 21,
6

Gregorio E. Conde, 52 ECAB 410 (2001).

7

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

8

Id.

9

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

10

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

11

John W. Montoya, supra note 9.

12

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

13

37 ECAB 158 (1985).

14

See also Glenn C. Chasteen, 42 ECAB 493 (1991); Arnold Gustafson, 41 ECAB 131 (1989).

4

2011 decision, that she had submitted sufficient medical evidence to warrant further
development and instructed OWCP to refer her for a second opinion examination.
OWCP referred appellant to Dr. Dorsey for evaluation of her emotional condition. The
Board finds that Dr. Dorsey’s opinion is sufficient to establish that compensation work factors
contributed, at least in part, to the diagnosed conditions of generalized anxiety disorder, panic
disorder with agoraphobia and depressive disorder not otherwise specified. In a report dated
December 7, 2011, Dr. Dorsey noted that appellant complained of stress when she had to work
the window and disliked asking for assistance. He further discussed her stress due to
noncompensable work factors, including inadequate training, denials of leave and performance
assessments. Dr. Dorsey related that the factors of employment set forth in the SOAF combined
with her obsessive-compulsive personality to cause her symptoms and noted that aggravating
factors were her dislike of working the window and leave matters. In a supplemental report
dated March 8, 2012, he attributed appellant’s condition to occupational stressors set forth on
page one of the SOAF and on page two of his report. Dr. Dorsey explained that the relatively
minor work stress combined with her personality to cause her emotional condition and disability.
Board precedent provides that it is not necessary to provide a significant contribution of
factors of employment to establish causal relationship. If the medical evidence revealed that a
work factor contributed in any way to appellant’s condition, such condition is employment
related.15 Dr. Dorsey provided a clear opinion that accepted employment factors contributed to
the diagnosed emotional conditions. He opined that the factors of employment set forth in the
SOAF on page one, which included a description of appellant’s work duties as well as the factors
listed on page two of his report, which included a discussion of her stress due to working the
window and asking for assistance, contributed to her emotional condition. Dr. Dorsey’s opinion
is well rationalized and based on a proper factual and medical background. Consequently, it
represents the weight of the evidence and establishes that the diagnosed conditions of
generalized anxiety disorder, panic disorder with agoraphobia and depressive disorder are work
related. The medical evidence, however, does not contain a clear finding regarding any periods
of disability related to these accepted conditions.
The case will be remanded to OWCP for further development of this matter. After such
development as deemed necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that appellant sustained an emotional condition in the performance of
duty causally related to factors of her federal employment. The case is remanded to OWCP to
determine any periods of disability due to the accepted condition.

15

See R.L., Docket No. 11-115 (issued June 14, 2011).

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ORDER
IT IS HEREBY ORDERED THAT the August 23, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 3, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENTS COMMAND,
Anniston, AL, Employer
__________________________________________

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

Docket No. 15-363
Issued: April 1, 2015

Case Submitted on the Record

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

JURISDICTION
On December 8, 2014 appellant filed a timely appeal from a November 20, 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 his burden of proof to establish more than 12 percent
permanent impairment of his right arm, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on August 5, 2013 appellant, then a 60-year-old heavy mobile
equipment mechanic inspector, sustained injury due to lifting a storage cart starter into a buggy
1

5 U.S.C. §§ 8101-8193.

cart at work. It initially accepted that he sustained a left inguinal hernia with obstruction
(without gangrene); it later accepted that he sustained a rotator cuff tear of his right shoulder.
Appellant stopped work on August 5, 2013 and received disability compensation on the daily
rolls. On August 5, 2013 Dr. John Valente, an attending Board-certified orthopedic surgeon,
performed left inguinal hernia repair surgery. On December 11, 2013 Dr. Gordon Hardy, an
attending Board-certified orthopedic surgeon, performed arthroscopic surgery on appellant’s
right shoulder including rotator cuff debridement and lysis of adhesions. These procedures were
authorized by OWCP.
OWCP previously accepted (under File No. xxxxxx287) that on March 22, 2005
appellant sustained sprains of his right rotator cuff and upper arm.2 In connection with this other
claim, it had granted him a schedule award on April 6, 2006 for 12 percent permanent
impairment of his right arm under the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment. The award ran for 37.44 weeks from March 15 to
December 2, 2006.
In a June 18, 2014 report, Dr. Hardy diagnosed several right shoulder conditions,
including a tear and sprain of the rotator cuff. He indicated, without elaboration, that appellant
had a five percent impairment of his right arm under the sixth edition of the A.M.A., Guides
(6th ed. 2009).
On July 9, 2014 Dr. Hardy cosigned a June 4, 2014 report in which appellant’s physical
therapist provided an assessment of his right arm impairment. He added the word “agree” above
his signature. The report indicated that the impairment evaluation was made under the sixth
edition of the A.M.A., Guides and stated:
“Using Table 15-5 (page 402), the best fit for the examinee’s diagnosis was
‘Rotator cuff injury, partial-thickness tear,’ [c]lass 1, second tier. Adjustments
[for grade modifier functional history, grade modifier physical examination, and
grade modifier clinical studies] were 3, 1, and 2, and resulted in a net adjustment
of plus three, or [g]rade E, [c]lass. Grade E is five percent [upper extremity
impairment]. If needed, the whole-person impairment conversion, using Table
15-11, page 420, is 3 percent. This examiner recommends a five percent right
upper extremity impairment.”3
On July 15, 2014 appellant filed a claim for a schedule award (Form CA-7) due to his
August 5, 2013 employment injury.
On July 24, 2014 Dr. James W. Dyer, a Board-certified orthopedic surgeon serving as an
OWCP medical adviser, discussed appellant’s medical history, including his history of surgery,
and indicated that in 2006 he had received a schedule award for 12 percent permanent
2

The record further reveals, that in 2005, appellant underwent OWCP-authorized right shoulder arthroscopy with
intrasubstance rotator cuff repair, biceps debridement and acromioclavicular joint resection.
3

In a brief report dated July 9, 2014, Dr. Hardy reiterated that appellant had a five percent impairment of his right
arm under the sixth edition of the A.M.A., Guides.

2

impairment of his right arm. He noted that Dr. Hardy had assigned five percent impairment
based on Table 15-5 of the sixth edition of the A.M.A., Guides, a diagnosis-based evaluation
related to the right rotator cuff tear. Dr. Dyer stated:
“I agree with Dr. Hardy. The previous 12 percent [schedule award] of right
shoulder already paid in 2006 was for the same problem. Therefore, no additional
[schedule award] can be assigned and paid for the … surgery on
December 11, 2013. The adjusted, additional impairment [for right upper
extremity] is equal to [the schedule award]. [Right upper extremity] equals …
zero percent.
In a July 28, 2014 informational letter, OWCP advised appellant that his current right arm
impairment rating was not in addition to his previous 12 percent right arm impairment rating and
that he had 0 percent additional impairment of his right arm.
By decision dated September 4, 2014, OWCP denied appellant’s claim for additional
schedule award compensation because he did not submit medical evidence showing that he has
more than a 12 percent permanent impairment of his right arm. It noted that he had already been
compensated for the five percent right arm impairment described by Dr. Hardy.
Appellant submitted an August 12, 2014 report in which Dr. Hardy noted that appellant
was placed at maximal medical improvement with a five percent right arm impairment as
previously detailed on July 9, 2014 based on the sixth edition of the A.M.A., Guides. Appellant
brought a July 28, 2014 letter from the Department of Labor stating that he had previous
impairment rating for his right arm, dated April 6, 2006, of “12 percent to the right arm.” It was
noted that the letter stated that his current right arm impairment rating was not in addition to his
previous right arm impairment rating and that he had zero percent additional impairment of his
right arm. Dr. Hardy indicated that appellant was counseled that his current right arm
impairment due to his current right shoulder condition stood as previously discussed on
June 3, 2014. He stated, “The patient was counseled that he would have to discuss his concerns
regarding the previous upper extremity impairment rating with [the] Department of Labor. Both
ratings are correlated to the right upper extremity. There are not separate ratings for the shoulder
and arm.”
On September 11, 2014 appellant added a handwritten notation to Dr. Dyer’s July 24,
2014 report and asserted that he was entitled to additional compensation for right arm
impairment because Dr. Hardy’s rating was “not the same problem” as covered by the previous
12 percent impairment award.
In a November 20, 2014 decision, OWCP affirmed its September 4, 2014 decision
finding that appellant failed to establish more than 12 percent permanent impairment of his right
arm.

3

LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.6 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.7
ANALYSIS
OWCP accepted that on August 5, 2013 appellant sustained a left inguinal hernia and
rotator cuff tear of his right shoulder due to moving a storage cart starter. On December 11,
2013 Dr. Hardy, an attending Board-certified orthopedic surgeon, performed OWCP-authorized
arthroscopic surgery on his right shoulder including rotator cuff debridement and lysis of
adhesions. OWCP had previously accepted, under another claim, that on March 22, 2005
appellant sustained sprains of his right rotator cuff and upper arm. In connection with the
previous claim, OWCP had awarded a schedule award for 12 percent permanent impairment of
his right arm.
On July 15, 2014 appellant filed a claim for additional schedule award compensation due
to his accepted August 5, 2013 employment injury. The Board finds that OWCP properly denied
appellant’s claim for additional schedule award compensation because he failed to establish more
than 12 percent permanent impairment of his right arm, for which he had received a schedule
award.
On July 9, 2014 Dr. Hardy provided an assessment of his right arm impairment under the
sixth edition of A.M.A., Guides and found that, using Table 15-5 (Shoulder Regional Grid),8
appellant had total right arm impairment of five percent due to a partial-thickness tear of his right
rotator cuff.9
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6 (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 (January 2010).
7

Federal (FECA) Procedure Manual, Part 2 id. at Chapter 2.808.5a (February 2013).

8

A.M.A., Guides 401-05, Table 15-5.

9

The impairment rating included adjustments for a grade modifier functional history of three, grade modifier
physical examination of one, and grade modifier clinical studies of two. See id. at 406-11, Table 15-6 through
Table 15-9.

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Dr. Hardy clarified that his five percent right arm rating was included in the 12 percent
award that appellant had previously received in 2006.10 In addition, Dr. Dyer, an OWCP
medical adviser, produced a report on July 24, 2014 in which he agreed with Dr. Hardy’s
assessment that appellant had five percent right arm impairment based on the sixth edition of the
A.M.A., Guides. Dr. Dyer stated that the previous 12 percent schedule award paid in 2006 was
“for the same problem.” No additional schedule award could be paid as no additional right arm
impairment was established.
Although appellant claimed that the April 6, 2006 schedule award was not for the same
right arm problem evaluated by Dr. Hardy and Dr. Dyer, his own opinion regarding his right arm
impairment would not supplant the opinions of these physicians. The record does not contain a
rationalized medical report establishing more than 12 percent permanent impairment of his right
arm, for which he already received a schedule award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish more than 12
percent permanent impairment of his right arm, for which he received a schedule award.

10

With respect to the rating for the April 6, 2006 schedule award and his current right arm impairment rating,
Dr. Hardy stated, “Both ratings are correlated to the right upper extremity. There are not separate ratings for the
shoulder and arm.”

5

ORDER
IT IS HEREBY ORDERED THAT the November 20, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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