United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Galvin, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0061
Issued: October 27, 2015

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 October 14, 2014 appellant filed a timely request for review of May 6 and June 24,
2014 merit decisions 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 OWCP abused its discretion by denying appellant authorization for
the rental of a motorized scooter.2
On appeal, appellant argues that she needs a scooter because she has a history of falling.
She also contends that the medical evidence demonstrates her need for a scooter.
1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence after OWCP’s June 24, 2014 merit decision, but the Board cannot
consider such evidence for the first time on appeal. See 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case has previously been before the Board on multiple occasions. The facts as set
forth in the Board’s prior decisions are incorporated herein by reference.3 The relevant facts are
set forth below. On January 28, 1998 appellant, then a 47-year-old postmaster, filed a traumatic
injury claim (Form CA-1) alleging that she injured her back and left leg while moving bulk mail
and packages on December 2, 1997. OWCP accepted that her work activities of December 2,
1997 resulted in a sprain of her back, lumbar region; degeneration of lumbar or lumbosacral
intervertebral disc; prolonged depressive reaction; and other acquired deformities of the ankle
and foot.
Dr. Barbara E. Lazio, appellant’s treating Board-certified neurosurgeon, noted in a report
of February 20, 2014 that appellant has had three back surgeries. She noted that the first surgery
was in 1988 at L4-5. Dr. Lazio stated that appellant returned to work but reinjured herself on
December 2, 1997 and thereafter underwent surgery again at L4-5 in 1998. She noted that
appellant again returned to work but injured herself again in January 1999, and that in
February 1999 she underwent laminotomies. Dr. Lazio noted that appellant contended that, after
that surgery, she had left ankle dorsiflexion weakness and has been wearing a foot drop splint.
She further reported that appellant noted left ankle dorsiflexion weakness and noted that her legs
are weak especially when she stands in line at the store. Dr. Lazio listed appellant’s impressions
as low back pain; status post lumbar discectomy and lumbar radiculopathy. She referred
appellant for a magnetic resonance imaging (MRI) scan.
In a March 19, 2014 MRI scan report, Dr. Betsy Holland, a Board-certified radiologist,
noted distal vertebral body at the lumbosacral junction designated L5 and L2 with previous
report; interval midline laminotomy at L4-5; interval midline/left hemilaminotomy at L3-4; mild
annular bulge of the L2-3 intervertebral disc; and internal development of a mild annular disc
bulge of the L1-2 intervertebral disc.
In a progress report dated March 27, 2014, appellant’s treating physician assistant,
Gregory B. Reappana, noted that appellant stated that she does not get around much because she
is afraid of falling. He noted that when she goes to Wal-Mart she tries to use a scooter and that if
she cannot use a scooter she does not shop. Mr. Reappana noted that he prescribed physical
therapy starting with pool therapy and a mobility scooter. In a prescription note dated March 27,
2014, he prescribed a mobility scooter and noted appellant’s diagnosis as falls, impaired
mobility, lumbar radiculopathy, and lumbar stenosis. Mr. Reappana circled the name of
Dr. Lazio, but she did not sign the note.
3

Docket No. 99-1590 (issued July 27, 2000) (the Board remanded the case for clarification of appellant’s pay
rate); Docket No. 02-1258 (issued June 13, 2002) (the Board dismissed the appeal at appellant’s request); Docket
No. 03-1460 (issued October 14, 2004) (the Board issued an Order granting OWCP’s request for a remand); Docket
No. 05-1554 (issued January 3, 2006) (the Board remanded the case for proper assemblage of the record); Docket
No. 06-1095 (issued April 5, 2007) (the Board found that appellant had not established that she sustained a new
injury to her left leg on February 16, 1999 and failed to establish that she suffered sexual dysfunction causally
related to her December 2, 1997 injury); Docket No. 07-1485 (issued May 29, 2008) (the Board dismissed the
appeal as it determined that appellant had not meant to file an appeal); Docket No. 07-1498 (issued June 8, 2007)
(the Board dismissed the appeal as it was duplicative).

2

In a form dated March 31, 2014, Kirk’s Medical Services requested authorization for the
purchase of a motorized scooter, noting “required for mobility.”
In a statement dated April 3, 2014, appellant related that her doctor ordered her a scooter
as she was unable to stand or move more than a few minutes. She noted that her most recent
MRI scan showed that her back is worse and that she now has problems with both legs with
falling and spasms and that a scooter was extremely necessary at this point. Appellant contended
that she was not able to go shopping in the mall because most malls do not have scooters.
In an April 28, 2014 neurosurgical follow-up visit, Mr. Reappana reiterated that he gave
appellant a prescription for a mobility scooter.
On April 23, 2014 OWCP asked its medical adviser to give an opinion with regard to
appellant’s need for a motorized scooter. In an April 28, 2014 opinion, the medical adviser
recommended that appellant’s request for a motor scooter is denied. He noted that the use of a
personal motorized scooter will not cure any condition that she had, either accepted under this
claim or not. The medical adviser also concluded that the use of a motorized scooter will not
improve any of her underlying conditions, and in fact, would decrease the amount of exercise she
engages in. He noted appellant’s obesity and noted that the use of a motorized scooter when she
is capable of walking on her own, albeit with a cane and/or foot drop brace, would be
counterproductive. The medical adviser also opined that it was inconsistent for her provider to
recommend physical therapy to increase her activity and at the same time recommend a scooter
to decrease her activity. He also noted that the scooter will not lessen the amount of monthly
compensation. The medical adviser concluded that the motorized scooter was not medically
necessary and noted that appellant was able to walk and does not have a problem with chronic
falls. He noted that she needed to walk more, not less, to improve her lumbar spine condition,
her obesity, and her poor physical conditioning.
By decision dated May 6, 2014, OWCP denied appellant’s request for the rental of a
motorized scooter.
By letter dated May 20, 2014, appellant requested a second opinion examination so that
she could be approved for a scooter. She contended that she was unable to stand more than a few
minutes at a time and the average amount of walking she did was limited to walking to the mail
box approximately 35 feet, three times a week. Appellant stated that, when just walking on flat
floors in her home, she trips and falls, and that the last time she fell in her driveway she broke
her foot. She contended that she was now having trouble with her good leg.
In support of her request, appellant submitted a May 20, 2014 prescription note wherein
Dr. Lazio prescribed a motorized scooter for status post lumbar discectomy.
In a May 23, 2014 progress report, Mr. Reappana again noted that he gave appellant a
prescription for a motorized scooter.
On June 1, 2014 appellant requested reconsideration of the May 6, 2014 decision for a
scooter. She argued that her physicians indicated that she needed a scooter. Appellant also
contended that her file did show problems with chronic falling.

3

On June 10, 2014 appellant submitted an appeal request form requesting reconsideration.
By decision dated June 24, 2014, OWCP denied modification of its May 6, 2014
decision.
LEGAL PRECEDENT
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances, and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability, or aid in lessening the amount of
any monthly compensation.
While OWCP is obligated to pay for treatment of
employment-related conditions, appellant has the burden of establishing that the expenditure is
incurred for treatment of the effects of any employment-related injury or condition.4 Proof of
causal relationship in a case such as this must include supporting rationalized medical evidence.5
OWCP must exercise discretion in determining whether the particular service, appliance,
or supply is likely to affect the purposes specified in FECA.6 The only limitation on OWCP’s
authority is that of reasonableness.7
ANALYSIS
The Board finds that OWCP acted within its discretion when it denied appellant’s request
for a motorized scooter.
Appellant has not submitted medical evidence sufficient to establish her need for a
motorized scooter. The Board notes that she submitted reports from Dr. Lazio, her treating
neurosurgeon, detailing appellant’s medical history, her treatment of appellant, and diagnoses.
Dr. Lazio noted that appellant complained of weak legs, especially when standing in line at the
store. However, she did not give an opinion in her February 20, 2014 medical report with regard
to appellant’s need for a scooter. Dr. Lazio did write a prescription note for a scooter on May 20,
2014, but she did not provide a rationalized medical opinion explaining why appellant needed
the scooter. Mr. Reappana, Dr. Lazio’s physician assistant, opined that appellant needed a
scooter due to falls, impaired mobility, lumbar radiculopathy, and lumbar stenosis. However, the
Board notes that Dr. Lazio did not sign Mr. Reappana’s report. Therefore, Mr. Reappana’s
report is insufficient to establish appellant’s need for a motor scooter as physician assistants are

4

See Kennett O. Collins, Jr., 55 ECAB 648 (2004); Debra S. King, 44 ECAB 203, 209 (1992).

5

K.H., Docket No. 15-148 (issued February 24, 2015); see also M.B., 58 ECAB 588 (2007); Bertha L. Arnold, 38
ECAB 282 (1986).
6

OWCP has broad discretionary authority in the administration of FECA and must exercise its discretion to
achieve the objectives of section 8103. Marjorie S. Greer, 39 ECAB 1099 (1988); see also L.M., Docket
No 15-0818 (August 4, 2015).
7

Daniel J. Perea, 42 ECAB 214 (1990); see also D.M., Docket No. 15-0814 (issued July 16, 2015).

4

not considered physicians under FECA.8 Dr. Holland merely reported her findings with regard
to appellant’s MRI scan. She never addressed appellant’s need for a motorized scooter and its
relationship to her accepted injury.
Based on the evidence of record, the Board finds that OWCP did not abuse its discretion
by denying appellant’s request for a scooter. As noted above, the only restriction on OWCP’s
authority to authorize medical treatment is one of reasonableness. The Board finds that OWCP
acted reasonably in denying this request.9
Appellant may submit new evidence or argument as part of a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant
authorization for the rental of a motorized scooter.

8

The term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8102(2); see
Lyle E. Dayberry, 49 ECAB 369 (1998) (the reports of a physician assistant are entitled to no weight as a physician
assistant is not a physician as defined by section 8102(2) of FECA.
9

W.T., Docket No. 14-1729 (issued June 9, 2015).

5

ORDER
IT IS HEREBY ORDERED THAT the June 24 and May 6, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: October 27, 2015
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, PHILADELPHIA
)
INTERNATIONAL AIRPORT, Philadelphia, PA, )
Employer
)
__________________________________________ )
A.F., Appellant

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

Docket No. 12-713
Issued: March 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On February 13, 2012 appellant, through her attorney, filed a timely appeal from a
December 19, 2011 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 OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the constructed position of information clerk.
On appeal, appellant’s attorney asserts that the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 17, 2007 appellant, then a 57-year-old lead transportation security screener,
sustained an employment-related lumbar sprain and right rotator cuff sprain.2 She was placed on
the periodic compensation rolls. On September 19, 2007 and June 4, 2008 Dr. Paul A.
Marchetto, an attending Board-certified orthopedic surgeon, performed arthroscopic right
shoulder rotator cuff procedures.
In November 2008, OWCP referred appellant to Dr. Zohar Stark, a Board-certified
orthopedist, for a second opinion evaluation. In a December 9, 2008 report, Dr. Stark noted the
history of injury, his review of the medical record and appellant’s complaints of right shoulder
and radiating low back pain. Physical examination demonstrated normal cervical range of
motion. There was tenderness over the right trapezius muscle with no spasm and no apparent
sensory deficit of the upper extremities. Right upper extremity motor strength and range of
motion were not tested due to allegations of severe pain. Lumbosacral range of motion was
decreased. Lower extremity sensory and motor examinations were normal. Dr. Stark advised
that appellant had a frozen right shoulder caused by the April 17, 2007 work injury. He
indicated that her low back complaints were due to degenerative disc disease and not due to the
April 2007 lumbar sprain. Dr. Stark concluded that appellant could not return to her previous
employment as a security screener due to the frozen shoulder and low back restrictions of no
repetitive bending or standing for a prolonged length of time. In an attached work capacity
evaluation, he advised that she was permanently unable to perform the duties of her prior
position. In a supplementary report dated December 30, 2008, Dr. Stark advised that appellant
could work with no use of the right shoulder.
By report dated January 15, 2009, Dr. Marchetto advised that appellant continued to have
problems with her right shoulder.
In May 2009, OWCP referred appellant to Sherry Kristal-Turetzky, a vocational
rehabilitation counselor. Appellant was approved for disability retirement and elected to
continue to receive FECA benefits. On August 30, 2010 the vocational rehabilitation counselor
identified the positions of cashier two and information clerk as within the light strength category,
with occasional lifting of 20 pounds. She advised that, based on May 2009 Bureau of Labor
Statistics data from Metropolitan Philadelphia, Pennsylvania, the positions were reasonably
available in the local labor market at entry level annual wages of $370.00 and $526.00 a week
respectively. Appellant began a job search in March 2010.

2

The acceptance letter indicated that a left upper extremity injury was accepted. This was later changed to the
right upper extremity.

2

By letter dated June 3, 2011, OWCP proposed to reduce appellant’s compensation
benefits based on her capacity to earn wages as an information clerk.3 It indicated that she was
released to full-time work and that the information clerk position was within the permanent
restrictions identified by Dr. Stark. OWCP further noted that the labor market survey prepared
by the rehabilitation counselor indicated that the position was reasonably available in the local
labor market at a weekly wage of $526.00.
Appellant and her attorney disagreed with the proposed reduction, stating that she had
unsuccessfully applied for many jobs and did not have the capacity to earn wages in excess of
$500.00 a week.
By decision dated July 6, 2011, OWCP reduced appellant’s compensation benefits,
effective July 31, 2011, based on her capacity to earn wages as an information clerk, which
yielded a 45 percent loss of wage-earning capacity. Appellant, through counsel, timely requested
a hearing, that was held on October 13, 2011. Counsel argued that there was no such job as an
information clerk. Appellant testified regarding her job search. She indicated that she had four
years of college education and that she was currently working as a part-time greeter for the
Philadelphia Phillies. Appellant stated that she continued to see her physician every two months.
In reports dated November 3, 2011, Dr. Marchetto described her surgical history. He stated that
five days previously appellant fell and broke her right humerus; thus he was unable to evaluate
her rotator cuff progress. In a November 3, 2011 work capacity evaluation, Dr. Marchetto
indicated that she could work eight hours a day with restrictions of no overhead lifting; one hour
reaching above the shoulder; one to four hours pushing, pulling and lifting, with a lifting
restriction of 10 to 20 pounds.
On November 4, 2011 the workers’ compensation coordinator for the employing
establishment provided comments on the hearing transcript.4 Information regarding bills
processed by ACS from May 2009 through August 2010 was attached.
By decision dated December 19, 2011, OWCP’s hearing representative affirmed the
July 6, 2011 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.5 An injured employee who is either unable to return to
3

The Dictionary of Occupational Titles describes an information clerk’s duties as: provides travel information
for arrivals, stops and destinations of schedules buses or trains; describes routes, services and accommodations
available; furnishes patrons with timetables and travel literature; computes and quotes rates for trips, group tours and
special discounts using rate tables. It has a light strength level with frequent physical demands of reaching, handling
and near acuity, with a general educational development level of education. The rehabilitation counselor stated that
the occupation was unskilled and from 2006 to 2016, a 13 percent increase was projected, based on data provided by
the Pennsylvania Department of Labor and Industry and the U.S. Department of Labor.
4

The workers’ compensation coordinator indicated that she had found multiple job listings for information clerk
in the Philadelphia area and, following review of ACS, OWCP bill processing portal, disagreed with appellant’s
testimony that she visited her physician every two months.
5

James M. Frasher, 53 ECAB 794 (2002).

3

the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.6
Section 8115 of FECA and OWCP regulations provide that wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his wage-earning capacity. If the actual earnings do not fairly and reasonably represent
wage-earning capacity or the employee has no actual earnings, his or her wage-earning capacity
is determined with due regard to the nature of his or her injury, the degree of physical
impairment, his or her usual employment, his or her age, his or her qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect his or her wage-earning capacity in his disabled condition.7
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which OWCP relies must provide a detailed description of the condition.8
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.9
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles (DOT) or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.10 Finally, application of the principles set forth in Albert C. Shadrick, as codified in
section 10.403 of OWCP’s regulations, will result in the percentage of the employee’s loss of
wage-earning capacity.11
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, OWCP must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
6

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

7

5 U.S.C. § 8115; 20 C.F.R. § 10.520 (2011); John D. Jackson, id.

8

William H. Woods, 51 ECAB 619 (2000).

9

John D. Jackson, supra note 6.

10

Supra note 7.

11

The formula for determining loss of wage-earning capacity was developed in the Albert C. Shadrick decision, 5
ECAB 376 (1953), and is codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s wage-earning capacity in
terms of percentage by dividing the employee’s earnings by the current pay rate for the date-of-injury job. See J.C.,
58 ECAB 700 (2007).

4

perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.12
ANALYSIS
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
on July 31, 2011 based on her capacity to earn wages in the constructed position of information
clerk.
The medical evidence, as characterized by the December 9 and 30, 2008 reports provided
by Dr. Stark, OWCP’s referral physician, established that appellant was no longer totally
disabled. OWCP referred her for vocational rehabilitation in May 2009. Because appellant was
unable to secure employment, the vocational rehabilitation counselor identified two positions,
cashier 2 and information clerk, that she felt fit appellant’s capabilities. OWCP determined that
she had the capacity to earn wages as an information clerk.
In his December 30, 2008 report, Dr. Stark indicated that appellant could return to fulltime work with no use of the right shoulder. He did not limit the use of her right and left hands
and arms. The position description for information clerk found in the Department of Labor’s
Dictionary of Occupational Titles describes the duties of the information clerk position as:
provides travel information for arrivals, stops and destinations of schedules buses or trains;
describes routes, services and accommodations available; furnishes patrons with timetables and
travel literature; computes and quotes rates for trips, group tours and special discounts using rate
tables. It has a light strength level with frequent physical demands of reaching, handling and
near acuity, with a general educational development level of education.13 The vocational
rehabilitation counselor advised that the position was reasonably available in the local labor
market with an entry-level weekly wage of $526.00.
Following OWCP’s reduction of benefits based on the constructed position, appellant
requested a hearing and submitted additional reports from Dr. Marchetto who indicated that
appellant could work eight hours a day with restrictions of no overhead lifting; one hour of
reaching above the shoulder; one to four hours of pushing, pulling and lifting, with a lifting
restriction of 10 to 20 pounds.
The Board finds that OWCP considered the proper factors, such as availability of suitable
employment and appellant’s physical limitations, usual employment, age and employment
qualifications, in determining that the position of information clerk represented her wage-earning
capacity.14 The evidence of record establishes that she had the requisite physical ability, skill
and experience to perform the position and that such a position was reasonably available within
the general labor market of her commuting area. OWCP therefore properly determined that the
12

John D. Jackson, supra note 6.

13

Supra note 3.

14

James M. Frasher, supra note 5.

5

position of information clerk reflected appellant’s wage-earning capacity and using the Shadrick
formula,15 properly reduced her compensation effective July 31, 2011.16
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden to justify reduction of appellant’s wage-loss
compensation on the grounds that she had the capacity to earn wages in the constructed position
of information clerk.
ORDER
IT IS HEREBY ORDERED THAT the December 19, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 13, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

15

Supra note 11.

16

James Smith, 53 ECAB 188 (2001).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Rahway, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1079
Issued: March 24, 2011

Case Submitted on the Record

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

JURISDICTION
On March 10, 2010 appellant, through his attorney, filed a timely appeal from a
January 19, 2010 schedule award decision of the Office of Workers’ Compensation Programs.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has more than three percent impairment to his right leg.
On appeal appellant, through his attorney, contends that the Office erred in applying the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (6th ed. 2009) (A.M.A., Guides). His attorney contends that the fifth edition of the
A.M.A., Guides should have been utilized.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 19, 2002 appellant, then a 27-year-old carrier, sustained injury to his right
knee, while stopping a truck that rolled away with its emergency brake on. On October 22, 2002
the Office accepted his claim for right knee sprain. It paid medical and wage-loss benefits. On
November 19, 2002 appellant underwent an arthroscopy with repair of a medial meniscus tear.
On July 6, 2004 he underwent a partial anterior horn medial meniscectomy and partial
synovectomy.
On March 17, 2009 appellant’s attorney requested a schedule award for the right leg. In a
February 4, 2009 report, Dr. Arthur Becan, an orthopedic surgeon, diagnosed: (1) tear of right
medial meniscus, confirmed on magnetic resonance imaging; (2) status post repair of torn right
medial meniscus, November 19, 2002; (3) right saphenous mononeuropathy, confirmed in
electromyogram/nerve conduction velocity studies; (4) recurrent tear of right medial meniscus;
(5) status post right medial meniscectomy, July 6, 2004; and (6) post-traumatic chrondromalacia
right patella. Applying the fifth edition of the A.M.A., Guides, Dr. Becan found that appellant
had a 15 percent impairment of the right leg.2
In a report dated April 26, 2009, an Office medical adviser agreed with Dr. Becan that
appellant had 15 percent impairment pursuant to the fifth edition of the A.M.A., Guides.
By letter dated December 23, 2009, the Office informed appellant that, effective May 1,
2009, the sixth edition of the A.M.A., Guides was applicable for determining permanent
impairment and request that he obtains such evaluation from his physician. In a February 4,
2009 medical report, Dr. Becan advised that appellant had three percent impairment of the right
lower extremity under the sixth edition of the A.M.A., Guides. He noted subjective factors such
as complaint of right knee pain and stiffness on a daily basis. There was swelling in the right
knee with episodes of locking and instability. Dr. Becan noted that appellant has restrictions in
his activities of daily living. He noted several arthroscopic portal scars and mild effusion, with
peripatellar tenderness and tenderness along the medial patellar facet. Dr. Becan found crepitus
produced on compression of the patellofemoral joint and medial joint line tenderness. He
advised that appellant was Class I for the right knee medial meniscectomy using Table 16-3 at
page 509 of the A.M.A., Guides which indicated two percent impairment. Dr. Becan applied the
grade modifiers described in Table 16-5 with analysis provided in Table 16-6 through Table 16-8
and the net adjustment formula.3 He noted a modifier of one for functional history (GMFH)
based on a lower extremity activity scale (LEAS) of 34 percent; a modifier of two based on
physical examination (observed and palpatory) (GMPE); and a modifier of two for clinical
studies (GMCS). Dr. Becan then applied the grade modifiers and determined that appellant was
entitled to a net adjustment of two. He rated appellant’s impairment to the right lower extremity
as three percent.
2

Dr. Becan noted that appellant had a Grade IV/V right motor strength deficit quadriceps of 12 percent pursuant
to the fifth edition of the A.M.A., Guides 532, Table 17-8. He further found that appellant had pain-related
impairment of three percent pursuant to the A.M.A., Guides 574, Figure 18-1. Dr. Becan noted that this equaled a
total impairment of the right lower extremity in the amount of 15 percent.
3

A.M.A., Guides 515-21.

2

The Office referred appellant’s case to the Office medical adviser. In a December 30,
2009 report, an Office medical adviser found that Dr. Becan properly applied the A.M.A.,
Guides.
By decision dated January 19, 2010, the Office granted a schedule award for three
percent impairment of the right leg.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing federal 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,
the Act does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, the Office has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions
after February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculated schedule
awards.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate
schedule awards.8
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on functional history (GMFH), physical
examination (GMPE) and clinical studies (GMCS).9 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).10
ANALYSIS
The Board finds that the Office properly applied the sixth edition of the A.M.A., Guides
to determine the extent of appellant’s impairment. Effective May 1, 2009 the Office applied the
sixth edition of the A.M.A., Guides to calculate awards.11 Appellant contends that the fifth
edition of the A.M.A., Guides should have been used as he requested a schedule award on
March 17, 2009 and had reached maximum medical improvement by February 4, 2009. As

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

8

FECA Bulletin No. 09-03 (issued March 15, 2009); see also id. at Chapter 3.700 (January 2010).

9

A.M.A., Guides at 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

10

Id. at 521.

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit
1 (January 2010).

3

noted in Harry D. Butler,12 Congress delegated authority to the Director of the Office regarding
the specific methods by which permanent impairment is rated.13 Pursuant to this authority, the
Director has adopt the A.M.A., Guides as a uniform standard applicable to all claimants and the
Board has concurred in such adoption. On March 15, 2009 the Director advised that, as of
May 1, 2009, all schedule award decisions should reflect use of the sixth edition of the A.M.A.,
Guides.14 The Board finds that the Office properly applied the sixth edition of the A.M.A.,
Guides in determining appellant’s schedule award. The applicable date of the sixth edition of the
A.M.A., Guides is as of the decision reached. It is not determined by the date a claim is filed or
the date of maximum medical impairment as contended on appeal.
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis and then adjusted by grade modifiers according to the above-noted
formula. Dr. Becan determined that appellant was Class 1 for the right knee medial
meniscectomy pursuant to Table 16-3 on page 509 of the A.M.A., Guides, which was two
percent impairment. He properly applied the grade modifiers of one for functional history based
on LEAS of 34 percent, a modifier of two based on physical examination and a modifier of two
for clinical studies. Dr. Becan applied the applicable formula to determine that appellant had a
net adjustment of two.15 He next properly calculated appellant’s impairment to his right lower
extremity by using the net adjustment of two to determine that appellant had an impairment of
three percent of his right lower extremity.16
The record does not contain any medical evidence that establishes greater impairment in
accordance with the sixth edition of the A.M.A., Guides. The Board finds that appellant has not
established more than three percent impairment to his right leg.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
more than three percent impairment to his right leg.

12

43 ECAB 859 (1992).

13

Id. at 866 (1992).

14

See supra note 8.

15

GMFH - CDX (1-1=0). GMPE-CDX (2-1=1). GMCS-CDX (2-1=1). Adding zero plus one plus one yielded a
net adjustment of two.
16

A.M.A., Guides 509, Table 16-3; pp. 515-30, Table 16-5, Table 16-8.

4

ORDER
IT IS HEREBY ORDERED THAT the January 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 24, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
U.S. POSTAL SERVICE, METRO NORTH
POST OFFICE, Teteboro, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1134
Issued: August 25, 2015

Case Submitted on the Record

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

JURISDICTION
On April 23, 2015 appellant filed a timely appeal of a January 9, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Because more than 180 days
elapsed between the most recent merit decision, dated March 7, 2014, and the filing of this
appeal, on April 23, 2015, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of appellant’s
claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1

Following OWCP’s January 9, 2015 decision, appellant submitted additional evidence. As OWCP has not
reviewed this evidence, the Board may not consider it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 10, 2013 appellant, then a 51-year-old clerk, filed an occupational disease
claim alleging that he developed severe anxiety, chest pains, and trouble sleeping due to the
harassing actions of his supervisor.
Appellant submitted a note from Dr. Robert A. Rizzo, an internist, diagnosing stress.
Dr. Rizzo stated that appellant was totally disabled from August 1 through September 9, 2013.
Dr. Gamal E. Gad, a Board-certified psychiatrist, found that appellant was totally disabled from
June 12 to September 8, 2013 due to work-related anxiety and depression.
Appellant had previously received a letter of warning on June 20, 2013 for failure to
follow instructions and creating a hostile work environment.
On September 12, 2013 OWCP requested that appellant provide additional factual
evidence in support of his emotional condition claim. Appellant responded to OWCP’s specific
questions and submitted a narrative statement describing the interactions with his supervisor on
specific dates from May 6 through June 11, 2013 and his disagreement with these events. He
alleged that on May 6, 2013 his supervisor criticized the accuracy on his machine, but did not
confront his machine partner. On May 7, 2013 appellant received documentation that his
machine accuracy was appropriate and that the criticism was due to another employee’s
inaccuracy. He alleged that on May 8, 2013 his supervisor “yelled and screamed” at him
regarding his technique of processing the mail. Appellant asserted that he had followed the
protocol provided and that his machine was defective. He alleges he was conversing with a
friend at work on May 15, 2013 and his supervisor directed him to return to work. Appellant
alleged that other employees were allowed to talk without reprimand. On May 29, 2013 his
supervisor directed him to take his machine out of program. Appellant declined to do so and
alleged that this instruction was a deliberate attempt to lower his speed rating. He stated that his
supervisor provided a coworker with coffee on May 31, 2013, but criticized appellant for reading
a newspaper while working. Appellant stated that his supervisor scheduled a meeting through a
note rather than verbally which appellant felt was unprofessional. On June 8, 2013 his
supervisor directed him to run more mail. Appellant alleged that a coworker should have been
directed to do that and he refused to follow his supervisor’s order. The second-level supervisor
came to appellant’s station and appellant explained the situation. Appellant’s supervisor
allegedly continued to yell and scream. Appellant went to the second-level supervisor who
instructed him to go home and informed appellant’s immediate supervisor that appellant should
be placed on a different machine. The second-level supervisor presented his version of events
and the second-level supervisor then directed appellant to return to his machine. Appellant’s
immediate supervisor approached him on June 11, 2013 and informed him that he was being
moved. Appellant filed a grievance through the union. He also submitted additional medical
evidence from Drs. Gad and Rizzo.
By decision dated March 7, 2014, OWCP denied appellant’s emotional condition claim
finding that he had not established a compensable factor of employment. It found that he
attributed his emotional condition to actions of his supervisor which related to administrative
functions. OWCP found that appellant had not submitted the necessary supportive evidence to
establish that his supervisor erred or acted abusively in these administrative functions including

2

discipline or directions about how to perform his work. It further found that he had not provided
the necessary factual evidence to substantiate his allegations of discrimination or harassment
through the listed actions of his supervisor.
Appellant requested a review of the written record from OWCP’s Branch of Hearings and
Review through a form dated April 7, 2014, postmarked April 17, 2014, and received by OWCP
on April 21, 2014. In a decision dated May 21, 2014, OWCP’s Branch of Hearings and Review
denied appellant’s request as untimely. It further found that the issue in his claim could be
addressed through the reconsideration process.
Appellant requested reconsideration through a form dated December 28, 2014 and
received by OWCP on January 5, 2015. He submitted a report from Dr. Gad dated
September 17, 2013 stating that appellant was under his care for work-related anxiety and
depression. Appellant also submitted reports from Dr. Rizzo dated August 1, 2013 and April 7,
2014 diagnosing panic disorder with agoraphobia.
By decision dated January 9, 2015, OWCP declined to reopen appellant’s claim for
consideration of the merits finding that he had not submitted relevant new evidence.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.3
Section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provide that a claimant may
obtain review of the merits of the claim by submitting in writing an application for
reconsideration which sets forth arguments or evidence and shows that OWCP erroneously
applied or interpreted a specific point of law; or advances a relevant legal argument not
previously considered by OWCP; or constitutes relevant and pertinent new evidence not
previously considered by OWCP.4 Section 10.608(b) of OWCP’s regulations provides that when
a request for reconsideration is timely, but does meet at least one of these three requirements,
OWCP will deny the application for review without reopening the case for a review on the
merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.6

3

5 U.S.C. §§ 8101-8193, 8128(a).

4

20 C.F.R. § 10.606.

5

Id. at § 10.608.

6

M.E. 58 ECAB 694 (2007).

3

ANALYSIS
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits on January 9, 2015.
Appellant timely requested reconsideration of the March 7, 2013 decision denying his
claim for an emotional condition. However, he neither argued that OWCP erroneously applied
or interpreted a specific point of law, nor did he advance a relevant legal argument not
previously considered by OWCP. In support of his reconsideration request, appellant submitted
additional medical evidence including a report from Dr. Gad dated September 17, 2013 and
reports from Dr. Rizzo dated August 1, 2013 and April 7, 2014. Where a claimant has not
established any compensable employment factors, the Board need not consider the medical
evidence of record.7 These medical reports are irrelevant to the basis for which OWCP denied
appellant’s emotional condition claim. OWCP denied appellant’s claim finding that he had
failed to attribute his emotional condition to compensable factors of employment as he did not
submit the necessary factual evidence to establish harassment, discrimination, or error and abuse
in administrative functions. The additional medical evidence does not address the lack of
supportive factual evidence and is insufficient to require OWCP to reopen appellant’s claim for
consideration of the merits.
As appellant failed to meet any of the criteria, the Board finds that OWCP properly
declined to reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that OWCP properly declined to reopen appellant’s claim for
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).

7

A.K., 58 ECAB 119 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT January 9, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 25, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Jose, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-0687
Issued: June 19, 2015

Case Submitted on the Record

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

JURISDICTION
On February 10, 2015 appellant, through counsel, filed a timely appeal from a January 9,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a back condition
causally related to factors of her federal employment.
On appeal counsel contends that OWCP failed to properly consider the medical evidence.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board. Appellant, a 55-year-old transportation
security officer, filed an occupational disease claim (Form CA-2) alleging that she sustained a
back strain as a result of lifting heavy bags in the performance of duty. In a decision dated
December 4, 2013, the Board affirmed OWCP’s May 28, 2013 decision, finding that appellant
had not met her burden of proof to establish a back condition in the performance of duty causally
related to factors of her federal employment.2 The facts of the case, as set forth in the prior
decision, are incorporated by reference.
On October 9, 2014 appellant, through counsel, requested reconsideration and submitted
a July 30, 2009 report from Dr. Misty Navarro, a Board-certified emergency medicine physician,
who diagnosed low back strain secondary to a work-related injury. Dr. Navarro indicated that
appellant injured her back at work on July 30, 2009 and when she lifted luggage it caused more
pain to her back, which radiated down to her foot and up into her shoulder on the right side.
A July 30, 2009 x-ray of the lumbar spine showed mild scoliosis and multilevel lumbar
spondylosis which appeared to be most advanced at L4-5.
In a January 26, 2011 report, Dr. Joanna Oppenheim, a Board-certified family
practitioner, indicated that appellant lifted luggage at work and sustained an employment-related
injury two years ago. She diagnosed menometrorrhagia resulting in low hemoglobin, shoulder
pain suspect due to bursitis, and lumbago long-standing with acute re-injury. On September 23,
2014 Dr. Oppenheim reiterated appellant’s medical history. In a September 29, 2014 report, she
diagnosed low back strain secondary to work-related injury due to picking up a heavy bag at
work.
On April 11, 2011 Dr. Kathleen Tonti-Horne, a family medicine specialist, diagnosed
back pain and indicated that the pain in appellant’s lower lumbar spine radiated to the left and
right foot. Appellant stated that her pain precipitated from lifting checked bags at work two
years ago and was aggravated by twisting movements and long days at work.
In a November 26, 2013 report, Dr. Christopher Carver, a Board-certified neurosurgeon,
diagnosed lumbar stenosis with bilateral lower extremity radiculopathy, L4-5 discopathy with
axial back pain, and hypertension. He indicated that appellant presented with severe low back
pain and bilateral leg pain with weakness and numbness present for a number of years.
Dr. Carver performed surgery on appellant’s back that same day. On December 3, 2013 he
discharged appellant, indicating that she underwent uncomplicated decompression, stabilization,
and fusion for instability and stenosis at L4-5 and had follow-up x-rays on November 30, 2013,
which looked good.
By decision dated January 9, 2015, OWCP denied modification of its prior decision.

2

Docket No. 13-1643 (issued December 4, 2013).

2

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, and that an injury4 was sustained in the performance of duty. These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in a claim for an
occupational disease claim, an employee must submit the following: (1) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; (2) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence. The opinion of the physician must
be based on a complete factual and medical background of the employee, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish her claim that
federal employment factors caused or aggravated her back condition. Appellant identified
factors of employment she believed caused the condition, including lifting luggage at work.
OWCP accepted the alleged factors of employment. However, in order to establish a claim that
she sustained an employment-related injury, she must also submit rationalized medical evidence
which explains how her medical condition was caused or aggravated by the implicated
employment factors.8

3

5 U.S.C. § 8101 et seq.

4

OWCP regulations define an occupational disease or illness as a condition produced by the work environment
over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
5

See O.W., Docket No. 09-2110 (issued April 22, 2010); Ellen L. Noble, 55 ECAB 530 (2004).

6

See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

See O.W., supra note 5.

8

See A.C., Docket No. 08-1453 (issued November 18, 2008); Donald W. Wenzel, 56 ECAB 390 (2005); Leslie C.
Moore, 52 ECAB 132 (2000).

3

In her reports, Dr. Oppenheim indicated that appellant lifted luggage at work and
sustained an employment-related injury two years ago. She diagnosed menometrorrhagia
resulting in low hemoglobin, shoulder pain suspect due to bursitis, and lumbago long-standing
with acute reinjury. On September 29, 2014 Dr. Oppenheim diagnosed low back strain
secondary to work-related injury due to picking up a heavy bag at work. She failed, however, to
provide a rationalized opinion explaining how factors of appellant’s federal employment, such as
lifting luggage at work, caused or aggravated her back condition. Dr. Oppenheim noted that
appellant’s condition occurred while she was at work, but such generalized statements do not
establish causal relationship. They merely repeat appellant’s allegations and are unsupported by
adequate medical rationale to explain how the physical activity at work actually caused or
aggravated the diagnosed conditions.9
On July 30, 2009 Dr. Navarro diagnosed low back strain secondary to a work-related
injury. She indicated that appellant injured her back at work on July 30, 2009 and when she
lifted luggage it caused more pain to her back, which radiated down to her foot and up into her
shoulder on the right side. The Board has held that the mere fact that appellant’s symptoms arise
during a period of employment or produce symptoms revelatory of an underlying condition does
not establish a causal relationship between appellant’s condition and her employment factors.10
Dr. Navarro failed to provide a rationalized opinion explaining how factors of appellant’s federal
employment, such as lifting luggage at work, caused or aggravated her back condition.
In his reports, Dr. Carver diagnosed lumbar stenosis with bilateral lower extremity
radiculopathy and L4-5 discopathy with axial back pain. He performed back surgery on
November 26, 2013 and indicated that appellant had presented with severe low back pain and
bilateral leg pain with weakness and numbness present for a number of years. The Board has
held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.11
On April 11, 2011 Dr. Tonti-Horne diagnosed back pain and indicated that the pain in
appellant’s lower lumbar spine radiated to the left and right foot. The Board finds that Dr. TontiHorne’s diagnosis of back pain with radiating bilateral foot pain is a description of a symptom
rather than a clear diagnosis of the medical condition.12
In support of her claim, appellant submitted diagnostic testing, including a July 30, 2009
x-ray of the lumbar spine. These documents do not constitute competent medical evidence as
they do not contain rationale by a physician relating appellant’s disability to her employment.13
9

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

10

See Richard B. Cissel, 32 ECAB 1910, 1917 (1981); William Nimitz, Jr., 30 ECAB 567, 570 (1979).

11

See C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

The Board has consistently held that pain is a symptom, rather than a compensable medical diagnosis. See P.S.,
Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).
13

See 5 U.S.C. § 8101(2). Section 8101(2) of FECA provides as follows: “(2) ‘physician’ includes surgeons,
podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the
scope of their practice as defined by State law.” See also Paul Foster, 56 ECAB 208, 212 n.12 (2004); Joseph N.
Fassi, 42 ECAB 677 (1991); Barbara J. Williams, 40 ECAB 649 (1989).

4

As appellant has not submitted any rationalized medical evidence to support her
allegation that she sustained an injury causally related to the accepted employment factors, she
failed to meet her burden of proof to establish a claim.
On appeal, counsel contends that OWCP failed to properly consider the medical
evidence. Based on the findings and reasons stated above, the Board finds counsel’s argument
unsubstantiated.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 (a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back
condition causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 19, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Blaine, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0775
Issued: July 25, 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 February 24, 2017 appellant, through counsel, filed a timely appeal from a January 24,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

OWCP received additional evidence after it issued its January 24, 2017 decision. The Board’s review is limited
to the evidence that was before OWCP at the time of its final decision. Therefore, the Board lacks jurisdiction to
review this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s
entitlement to medical benefits, effective March 7, 2016, as she no longer had residuals causally
related to her accepted February 22, 2012 employment injury; (2) whether appellant met her
burden of proof to establish continuing residuals after March 7, 2016.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts of the case as presented in the
prior appeal are incorporated herein by reference. The relevant facts are as follows.
On February 23, 2012 appellant, then a 49-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 22, 2012 she injured her back when she crawled into
an over-the-road (OTR) cage to retrieve a package. She stopped work on February 24, 2012.
OWCP assigned the claim File No. xxxxxx003 and accepted the claim for closed dislocation of
thoracic and lumbar vertebra and lumbar sprain. Appellant accepted a modified job on March 5,
2012 and worked full time with restrictions. OWCP paid compensation benefits for wage loss
during dates of medical treatment or when modified work was unavailable.5
Dr. Frederick Gunningham, Board-certified in family medicine, examined appellant on
December 10, 2013, three days after her December 7, 2013 employment injury. He noted that
appellant’s lumbar strain had improved and that she had no new neurological deficits, but
continued to have bilateral sciatica. Dr. Gunningham indicated that the magnetic resonance
imaging (MRI) scans of the lower spine had repeatedly shown mild/nonsurgical degenerative
changes.
On December 15, 2013 appellant was treated at the emergency room for back pain. X-rays
showed no acute finding, but degenerative changes were noted with no changes from March 2013.
In a December 19, 2013 report, Dr. Gunningham diagnosed bilateral sciatica, which had
deteriorated, and took her off work.
In a January 7, 2014 report, Dr. Gunningham diagnosed new conditions of left shoulder
strain and right foot strain. He indicated that appellant’s lumbar strain had deteriorated and opined
4

Docket No. 16-0173 (issued September 1, 2016).

5

Under OWCP File No. xxxxxx699, date of injury of November 13, 2012, appellant reported that she had injured
her left knee, both arms, both shoulders, and her upper back when she fell off a wet porch while delivering a package.
OWCP denied the claim on May 2, 2013 and denied modification on July 21, 2014. Appellant filed an appeal with
the Board on August 19, 2014. By decision dated February 9, 2015, the Board modified OWCP’s July 21, 2014
decision to reflect that the November 13, 2012 incident had occurred at the time, place, and in the manner alleged, but
denied the claim as she had not established that she had sustained an injury on November 13, 2012 in the performance
of duty. Under OWCP File No. xxxxxx49l, appellant claimed that she had injured her back on December 7, 2013
when she fell while delivering a package. She stopped work on December 14, 2013 and has not returned. OWCP
accepted the claim for resolved lumbar sprain and resolved contusions of multiple sites, but found that those conditions
had resolved 10 to 12 weeks post injury. File Nos. xxxxxx699 and xxxxxx491 have been administratively combined
with the present case, File No. xxxxxx003, with File No. xxxxxx003 serving as the master file.

2

that the December 7, 2013 employment injury had aggravated her original injury of File No.
xxxxxx003. On January 27, 2014 Dr. Gunningham reported that appellant’s chronic pain
syndrome was evolving into failed back syndrome. He continued to treat her for chronic pain.
In a February 27, 2014 report, Dr. Robert Billow, a Board-certified physiatrist, noted the
history of appellant’s February 22, 2012 work injury. He provided an impression of low back
pain, gait instability, and neck pain, but stated the etiology of appellant’s symptoms could not be
identified.
In a July 11, 2014 report, Dr. Heather Tick, a family practitioner, noted the history of the
February 22, 2012 work injury and the November 2012 trip and fall. She noted that at one point
appellant was diagnosed with fibromyalgia. An impression of chronic pain due to injury was
provided.6
OWCP referred appellant for a second opinion orthopedic evaluation. In a November 8,
2014 report, Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon and OWCP referral
physician, noted appellant’s December 7, 2013 history of injury and reviewed the medical record.
He opined, taking her report of the injury on a factual basis, that the December 7, 2013 work injury
resulted in lumbar sprain/strain and multiple contusions which had resolved. Dr. Curcin noted that
the emergency room records from December 15, 2013 made no mention of the reported trauma.
He found that there were no objective findings of the effects of the work injuries and opined that
appellant was not restricted from work based on her work injuries.
In a January 8, 2015 report, Dr. Gunningham indicated that appellant was injured on the
job and had chronic low back pain, fibromyalgia, and depression. He noted that her failed back
syndrome was well described and did not require a severe initial injury.
In a March 3, 2015 letter, OWCP requested that Dr. Gunningham clarify some of the
discrepancies contained in his reports.
In a response of March 14, 2015, Dr. Gunningham noted that the December 7, 2013 fall
was not mentioned in his December 10, 2013 report because appellant had not mentioned it to him.
He noted that she went to the emergency room on December 15, 2013 and reported the injury. On
December 19, 2013 appellant had reported to Dr. Gunningham that she had collapsed at work on
December 7, 2013. Dr. Gunningham noted that he was unable to detect injuries from the
December 7, 2013 injury on examination due to her fibromyalgia. He opined that appellant’s

6

On September 25, 2014 appellant filed a claim wage-loss compensation (Form CA-7) for the period May 28 to
October 31, 2014. OWCP denied the claim by decision dated December 17, 2014. On December 23, 2014 appellant
requested a hearing before an OWCP hearing representative. By decision dated September 3, 2015, an OWCP hearing
representative affirmed the denial of wage-loss benefits from May 28 to October 31, 2014. On November 9, 2015
appellant filed an appeal with the Board. By decision dated September 1, 2016, the Board affirmed the September 3,
2015 OWCP decision of a hearing representative that appellant had not met her burden of proof to establish total
disability from work during the period May 28 to October 31, 2014 causally related to her February 22, 2012
employment injury. See supra note 4.

3

condition had progressed from a simple lumbar strain to fibromyalgia. Dr. Gunningham also
opined that she had residuals of her work injuries because of her chronic pain.7
OWCP later received several additional reports from Dr. Gunningham dated October 13
and December 15, 2014, and March 24, 2015, which diagnosed a fibromyalgia condition and
chronic pain syndrome.
OWCP referred appellant for a second opinion examination to determine if there were any
residuals present from her February 22, 2012 work injury. In an April 21, 2015 report, Dr. William
Dinenberg, a Board-certified orthopedic surgeon, discussed appellant’s history, the medical
records, the statement of accepted facts, and presented examination findings. He opined that her
lumbar sprain had resolved within 6 to 12 weeks. Although there were objective findings of
preexisting degenerative disc disease and facet disease, Dr. Dinenberg opined that there was no
aggravation by the employment injury. He opined that the residuals presented on examination
were not causally related to the February 22, 2012 work injury, but were most likely due to her
fibromyalgia. However, Dr. Dinenberg indicated that fibromyalgia was outside of his medical
expertise. He advised that appellant had reached maximum medical improvement (MMI) for the
conditions accepted in her claim. Dr. Dinenberg also opined that no further medical treatment was
necessary from an orthopedic standpoint for appellant’s February 22, 2012 employment injury.
As Dr. Dinenberg indicated that fibromyalgia was outside of his medical expertise, OWCP
referred appellant’s medical file to its medical adviser Dr. L.J. Weaver to determine if the
diagnosed condition of fibromyalgia was caused or contributed to by appellant’s employment
injury. In a May 12, 2015 report, OWCP’s medical adviser noted the history of appellant’s work
injuries and reviewed the medical reports of record, including diagnostic testing. He noted that
appellant’s symptom patterns were atypical and nonphysiologic and could not be explained by the
objective finings. The medical adviser opined that, based on the mechanism of injury and the now
resolved lumbar sprain, it was highly unlikely that the accepted conditions resulted in fibromyalgia
or chronic pain syndrome.
In a July 17, 2015 report, Dr. Gunningham noted that appellant’s fibromyalgia and chronic
pain syndrome had improved. He opined that the lumbar strain was the initial trigger for her
development of the chronic pain syndrome. Dr. Gunningham noted that there were no objective
tests available to prove or refute this triggering. He continued to report appellant’s back pain.
OWCP advised appellant on January 27, 2016 of its proposed termination of her
entitlement to medical benefits as she had no longer had residuals of her accepted work-related
7
On March 25, 2015 appellant filed a claim for wage-loss compensation (Form CA-7) commencing
December 13, 2014. By decision dated May 18, 2015, OWCP found that appellant failed to meet her burden of proof
to establish total disability commencing December 13, 2014 causally related to her February 22, 2012 employment
injury. It found that the medical evidence of record did not establish that she was disabled as a result of her accepted
work-related medical conditions and that she had an intervening work injury on December 7, 2013. On May 27, 2015
appellant requested a hearing before an OWCP hearing representative. By decision dated March 30, 2016, an OWCP
hearing representative affirmed the denial of appellant’s claim for wage-loss compensation commencing
December 13, 2014. On November 9, 2015 appellant appealed to the Board and the appeal was assigned Docket No.
16-1199. However, as of the filing of this appeal, the Board had not issued a decision in Docket No. 16-1199. On
March 8, 2017 the Board issued its decision in Docket No. 16-1199.

4

medical conditions. It afforded appellant 30 days to submit medical evidence or argument
supporting refuting the proposed termination.
In a February 15, 2016 report, Dr. Gunningham noted that appellant’s lumbar strain and
chronic pain syndrome were unchanged. He indicated that he had treated many patients with
chronic pain syndrome whose initial injuries were seemingly minor, and that he believed that this
was what happened to appellant. Dr. Gunningham noted that she saw Dr. Tick on July 11, 2014,
who had diagnosed her chronic pain syndrome as resulting from the industrial injuries. He noted
that there were no available objective tests to prove the origins of a chronic pain syndrome.
Dr. Gunningham reiterated that there was a relevant connection between appellant’s ongoing
clinical issues and the accepted injuries and requested a chronic pain specialist be consulted.
By decision dated March 7, 2016, OWCP terminated appellant’s entitlement to medical
benefits, effective that date. It found that the weight of the medical evidence, as represented by
Dr. Dineberg and the medical advisor, established that she had no continuing residuals of her
accepted medical conditions.
On March 14, 2016 counsel requested a telephonic hearing before an OWCP hearing
representative, which was held on November 17, 2016.
In a July 19, 2016 letter and during the hearing, counsel requested that the claim be
expanded to include multiple back conditions. This included lumbar back pain with radiculopathy,
chronic anterior wedging at T6 with chronic depression deformity, multilevel degenerative disc
disease of the lumbar spine, L4-5 bilateral degenerative facet disease with minimal anterior
subluxations, diffused disc bulging, and L5-S1 bilateral facet arthropathy with mild disc bulging.
Counsel indicated that appellant’s problem was not fibromyalgia, but other degenerative multilevel
injuries to the thoracic and lumbosacral spine. Appellant testified as to her symptoms and her
quality of life.
A May 16, 2016 MRI scan report of the thoracic spine noted chronic anterior wedging with
chronic compression deformity at T6, a minimal central disc bulge without significant canal or
neural foraminal stenosis at T6-7, a minimal right paracentral disc bulge without significant canal
or neural foraminal narrowing at T7-8, and a right paracentral disc protrusion at T8-9.
A May 16, 2016 MRI scan report of the lumbar spine noted multilevel degenerative disease
of the lumbar spine, mild disc bulging with mild bilateral facet arthropathy at L3-4, bilateral
degenerative facet disease with minimal anterior subluxation and diffuse disc bulging at L4-5, and
bilateral facet arthropathy with mild disc bulging at L5-S1.
In a May 17, 2016 report, Dr. Martin W. Platt, a Board-certified family practitioner, noted
that appellant suffered with left-sided pain and numbness. He reviewed thoracic and lumbar spine
MRI scans and noted that there was an old compression fracture at T6 and severe foraminal
stenosis at T8-9. Dr. Platt assessed chronic bilateral thoracic back pain, and lumbar back pain with
radiculopathy affecting the left lower extremity.
By decision dated January 24, 2017, OWCP’s hearing representative affirmed the March 7,
2016 decision. She noted that appellant’s physicians either did not address causal relationship or
failed to provide supporting rationale or explanation for their opinions.
5

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays wage-loss compensation or medical benefits, it has
the burden of proof to justify modification or termination of these benefits. The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.8 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition which require further
medical treatment.9
OWCP’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.10
For conditions not accepted by OWCP as being employment related, it is the employee’s
burden to provide rationalized medical evidence sufficient to establish causal relationship, not
OWCP’s burden to disprove such relationship.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP met its burden of proof to terminate appellant’s entitlement to
medical benefits, effective March 7, 2016 due to her accepted February 22, 2012 employment
injuries.
OWCP accepted that appellant sustained thoracic and lumbar subluxations, and lumbar
sprain due to her February 22, 2012 employment injury. It relied on the April 21, 2015 report of
the second opinion physician, Dr. Dinenberg, and the May 12, 2015 report of its medical adviser,
Dr. Weaver, to terminate her medical benefits.
In an April 21, 2015 report, Dr. Dinenberg reviewed appellant’s history and noted the
February 22, 2012 and December 7, 2013 employment injuries. He noted her current complaints
and provided physical examination findings. Dr. Dinenberg based his opinion on a proper factual
and medical history derived from the SOAF and appellant’s medical records.12 He found that the
lumbar sprain resolved within 6 to 12 weeks and, based on OWCP’s definitions, there was no
aggravation of her preexisting lumbar facet and degenerative disc disease. Dr. Dinenberg
concluded that appellant had reached MMI for her employment injuries. He opined that the
residuals presented on examination were not causally related to the February 22, 2012 work injury,
but were most likely due to her fibromyalgia. However, Dr. Dinenberg indicated that fibromyalgia
was outside of his medical expertise. Because he provided a well-rationalized opinion based on
medical evidence of record regarding appellant’s residuals, the Board finds that OWCP properly
8

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

9

Id.

10

Gewin C. Hawkins, 52 ECAB 242 (2001).

11

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
12

See N.P., Docket No. 15-1580 (issued September 1, 2016); see also Melvina Jackson, 38 ECAB 443 (1987).

6

relied on his report in terminating her medical benefits for the February 22, 2012 employment
injury.13
As fibromyalgia was outside of Dr. Dinenberg’s medical expertise, OWCP referred
appellant’s medical file to its medical adviser to determine if a relationship existed between the
accepted conditions and the diagnosed fibromyalgia. In a May 12, 2015 report, OWCP’s medical
adviser noted the history of appellant’s work injuries and reviewed the medical reports of record,
including diagnostic testing. He noted that appellant’s symptom patterns were atypical and
nonphysiologic and could not be explained by the objective finings. The medical adviser opined
that, based on the mechanism of injury and the now resolved lumbar sprain, it was highly unlikely
that the accepted conditions resulted in fibromyalgia or chronic pain syndrome.
OWCP’s medical adviser based his opinion on a proper factual and medical history and
reviewed the medical record, including Dr. Dinenberg’s report.14 The medical adviser provided a
well-rationalized opinion, based on medical evidence of record, the mechanism of injury, and the
now resolved lumbar sprain, that it was highly unlikely that the accepted conditions resulted in
fibromyalgia or chronic pain syndrome.15 Consequently, the medical adviser’s opinion represents
the weight of the evidence and establishes that the conditions of fibromyalgia or chronic pain
syndrome are not causally related to the accepted employment injury.
The medical evidence appellant submitted prior to the termination is insufficient to cause
a conflict of medical opinion with either Dr. Dinenberg or the medical adviser.
In his February 27, 2014 report, Dr. Billow provided an impression of low back pain, gait
instability, and neck pain. However he noted that he could not identify the etiology of appellant’s
symptoms. In her July 1, 2014 report, Dr. Tick diagnosed chronic pain due to injury without
providing an opinion on causal relationship. She also failed to mention the December 7, 2013
work injury. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.16 Thus,
Dr. Tick’s opinion is of limited probative value. OWCP referred appellant to Dr. Curcin for a
second opinion evaluation regarding the status of appellant’s December 7, 2013 injury. Dr. Curcin
did not specifically address appellant’s February 22, 2012 injury, but he did opine that there were
no objective findings remaining from appellant’s employment injuries.
Throughout the course of appellant’s treatment, Dr. Gunningham indicated that appellant’s
lumbar strain had gotten worse. However, he provided no rationale as to how or why the accepted
lumbar conditions had deteriorated.17 Dr. Gunningham indicated that the failed back syndrome
13

See L.S., Docket No. 09-1508 (issued May 6, 2010). See also Cleopatra McDougal-Saddler, 47 ECAB
480 (1996).
14

See supra note 10.

15

See supra note 11.

16

See G.B., Docket No. 15-1138 (issued July 13, 2016); A.D., 58 ECAB 149 (2006).

17

Solomon Polen, 51 ECAB 341 (2000).

7

was well documented. He also noted that failed back syndrome did not require a severe initial
injury, which he believed what had happened in appellant’s case. However, Dr. Gunningham did
not identify any clinical findings to support the condition or discuss examination reports to support
his opinion that this condition was causally related to appellant’s accepted condition. It is
appellant’s burden of proof to establish that newly diagnosed conditions are employment related.
Once established as employment related, appellant would have to show she had residuals of the
condition.18 Dr. Gunningham’s reports are of limited probative value as they did not present the
necessary objective findings to substantiate the diagnosis and rationalized medical opinion to
establish causal relationship.19
Dr. Gunningham also did not provide a well-rationalized opinion regarding the cause of
appellant’s fibromyalgia and chronic pain syndrome. In his March 24, 2015 letter, he noted that
her fibromyalgia played a role in his inability to record appellant’s injury history or make
observations. However, Dr. Gunningham offered no explanation as to how the fibromyalgia
developed as a result of the accepted employment injuries. In his February 15, 2016 report, he
indicated that appellant had chronic pain syndrome and the origin could not be determined using
objective tests. Dr. Gunningham indicated that Dr. Tick had diagnosed her chronic pain syndrome
as resulting from appellant’s employment injuries. However, he inaccurately characterized
Dr. Tick’s July 11, 2014 report. As noted, while Dr. Tick had noted that appellant had been
diagnosed with fibromyalgia, she failed to offer an opinion as to the cause of the fibromyalgia or
whether it was causally related to the work injuries. Thus, Dr. Gunningham has not provided a
rationalized medical opinion relating appellant’s fibromyalgia or chronic pain syndrome to her
accepted injuries.20
The Board therefore finds that OWCP met its burden of proof to terminate appellant’s
entitlement to medical benefits for her accepted February 22, 2012 injury, effective March 7, 2016.
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s medical benefits, the burden
shifted to her to establish that she had residuals causally related to her accepted injury.21
Once OWCP properly terminates appellant’s compensation benefits, the burden shifts to
appellant to establish that he or she has continuing residuals after that date related to his or her
accepted injury.22 To establish causal relationship between any residuals claimed and the
employment injury, an employee must submit rationalized medical evidence based on a complete
medical and factual background, supporting such causal relationship.23 Causal relationship is a
18

See E.R., Docket No. 08-1530 (issued March 6, 2009).

19

Id.

20

A.W., Docket No. 16-0780 (issued October 11, 2016); see Del K. Rykert, 40 ECAB 284, 295-96 (1988).

21

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

22

Manuel Gill, id.

23

Id.

8

medical issue and the medical evidence required to establish a causal relationship is rationalized
medical evidence.24
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish that she had
residuals of her accepted February 22, 2012 employment injury after March 7, 2016.
Following the termination of her medical benefits, appellant submitted May 16, 2016 MRI
scan reports of the thoracic and lumbar spine, which diagnosed several conditions. However, these
diagnostic reports do not establish causal relationship. The Board has found that medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.25 Therefore, these diagnostic reports fail to
establish causal relationship and fail to establish appellant’s request for expansion of the claim.
While Dr. Platt, in his May 17, 2016 report, diagnosed chronic bilateral thoracic back pain,
lumbar back pain with radiculopathy affecting appellant’s left lower extremity, he did not attribute
the diagnosed conditions to the accepted employment injury or otherwise address causation. Thus,
his opinion in the May 17, 2016 report is of little probative value to establish residuals of
appellant’s February 22, 2012 employment injury.26
On appeal counsel simply argues that OWCP’s decision is contrary to fact and law. As
discussed, none of the medical evidence appellant submitted contained findings that appellant had
residuals of her accepted employment injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s
entitlement to medical benefits, effective March 7, 2016, as she no longer had residuals of her
accepted February 22, 2012 employment injuries. The Board also finds that appellant has not
established that she had continuing residuals of her February 22, 2012 injury after March 7, 2016.

24

C.W., Docket No. 12-1211 (issued November 15, 2012); Darlene R. Kennedy, 57 ECAB 414 (2006).

25

R.E., Docket No. 10-0679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

26

See J.L., Docket No. 15-1802 (issued August 15, 2016).

9

ORDER
IT IS HEREBY ORDERED THAT the January 24, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
G.V. (SONNY) MONTGOMERY VETERANS
ADMINISTRATION MEDICAL CENTER,
Jackson, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 10-1316
Issued: December 16, 2010

Case Submitted on the Record

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

JURISDICTION
On April 10, 2010 appellant filed a timely appeal from an April 1, 2010 decision of the
Office of Workers’ Compensation Programs that found an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether appellant received an overpayment in compensation in the
amount of $926.39; and (2) whether the Office properly denied waiver of the overpayment.
On appeal appellant asserts that the income figures used to determine waiver were
incorrect because her husband would not begin receiving social security benefits until
May 26, 2010.

FACTUAL HISTORY
On May 21, 2009 appellant, then a 58-year-old licensed practical nurse, sustained an
employment-related right shoulder rotator cuff tear while assisting a paralyzed patient. She
continued to work at modified duty until December 3, 2009, when Dr. William B. Geissler, a
Board-certified orthopedic surgeon, performed arthroscopic debridement and decompression of a
partial rotator cuff tear on the right. Appellant was placed on the periodic compensation rolls.
She returned to modified duty on February 2, 2010. Appellant received wage-loss compensation
through February 13, 2010.1
By letter dated March 1, 2010, the Office issued a preliminary determination that
appellant received an overpayment in compensation in the amount of $926.39 because she
received wage-loss compensation after her return to work. It explained the calculation of the
overpayment and found her not at fault in its creation. Appellant was provided an overpayment
action request form and an overpayment questionnaire. An overpayment worksheet indicates
that she received net compensation of $2,161.58 for the period January 17 to February 13, 2010
when she should have received $1,235.19 from January 17 to February 1, 2010. Appellant
received credits for health benefits and basic and optional life insurance, yielding an
overpayment in compensation of $926.39.
Appellant submitted the overpayment questionnaire on March 4, 2010, listing income of
$3,200.00 and expenses of $3,218.24. She stated that she supported a granddaughter, grandson
and great-granddaughter. A telephone conference was held on April 1, 2010. The memorandum
of conference noted that appellant’s monthly income was $3,200.00, and her husband’s monthly
income was $982.00, for a total monthly income of $4,182.00. The monthly expenses were
reduced by $160.00 for child care for grandchildren, which were disallowed, yielding monthly
expenses of $3,058.24 and a residual income of $1,123.76. The claims examiner advised
appellant that a decision would be issued after a review of the conference.
On April 1, 2010 the Office finalized the overpayment decision. It found that appellant
was not at fault in the creation of the overpayment but that she was not entitled to waiver as her
residual income was $1,123.76. Appellant did not meet the criteria necessary to waive the
overpayment and was directed to repay at the rate of $200.00 per month.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act2 provides that the United
States shall pay compensation as specified by this subchapter for the disability or death of an
employee resulting from personal injury sustained while in the performance of her duty.3 Office

1

Appellant received a periodic rolls payment for the period January 17 through February 13, 2010.

2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8102(a).

2

procedures provide that an overpayment in compensation is created when a claimant returns to
work and continues to receive compensation.4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment in compensation in the amount
of $926.39. The record supports that she returned to work on February 2, 2010 and received
wage-loss compensation thereafter. A periodic rolls payment for the period January 17 through
February 13, 2010 was made in the amount of $2,161.58. As noted, the Act and implementing
regulations of the Office provide that a claimant may not receive wage-loss compensation
concurrently with a federal salary.5 Appellant received compensation of $2,161.58 but was
entitled to $1,235.19 yielding an overpayment in compensation of $926.39 for the period in
question.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment in compensation shall be recovered
by the Office unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.”6 Section 10.438 of Office regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by the Office. This information is needed to determine whether or not
recovery on an overpayment would defeat the purpose of the Act or be against equity and good
conscience.7 Failure to submit the requested information within 30 days of the request shall
result in denial of waiver.8
ANALYSIS -- ISSUE 2
As the Office found appellant without fault in the creation of the overpayment in
compensation, waiver must be considered, and repayment is still required unless adjustment or

4

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.2(a) (September 1994).
5

5 U.S.C. § 8116(a); 20 C.F.R. § 10.500.

6

Id. at § 8129.

7

Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom the Office 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 the
Office) from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. 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. Id. at § 10.437.
8

20 C.F.R. § 10.438.

3

recovery of the overpayment would defeat the purpose of the Act or be against equity and good
conscience.9
Appellant furnished the Office with an overpayment questionnaire on March 4, 2010 that
listed income of $3,200.00 and expenses of $3,218.24. At a prerecoupment telephone
conference held on April 1, 2010, appellant updated the financial information, stating that her
husband’s income was $982.00 per month, or a total monthly income of $4,182.00. The claims
examiner informed appellant that the monthly expenses would be reduced by $160.00, as
expenses for child care for grandchildren was not an ordinary and necessary monthly expense,
leaving total monthly expenses of $3,058.24.
Office procedures provide that an individual is deemed to need substantially all of his or
her current income to meet current ordinary and necessary living expenses if monthly income
does not exceed monthly expenses by more than $50.00. In this case, including the income of
both appellant and her husband, the difference between current income and household living
expenses is $1,123.76. Appellant asserted on appeal that her husband’s income should not be
included because his social security benefit did not begin until May 26, 2010. Deducting the
allowable monthly expenses of $3,058.24 from appellant’s income of $3,200.00 leaves a
difference of $141.76. The Board finds that, as appellant’s monthly income exceeded her
reasonable monthly expenses by $141.76, she is not entitled to waiver as she does not need
substantially all of her income to meet current ordinary and necessary expenses.10
The Board finds that the Office properly determined that recovery of the overpayment
would not cause financial hardship to appellant or defeat the purpose of the Act. Appellant made
no argument that she gave up a valuable right or changed her position for the worse in reliance
on the overpaid compensation. The Office properly determined that recovery would not be
against equity and good conscience in denying waiver of the overpayment.
With respect to recovery of the overpayment in compensation, the Board’s jurisdiction is
limited to reviewing those cases where the Office seeks recovery from continuing compensation
benefits under the Act.11 As appellant is no longer receiving wage-loss compensation, the Board
does not have jurisdiction with respect to the recovery of the overpayment under the Debt
Collection Act.12
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $926.39 and that the Office properly denied
waiver of the overpayment.

9

20 C.F.R. §§ 10.436, 10.437.

10

See R.M., 60 ECAB ___ (Docket No. 07-1066, issued February 6, 2009).

11

Cheryl Thomas, 55 ECAB 610 (2004).

12

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the April 1, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: December 16, 2010
Washington, DC

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

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

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

5