United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SURFACE WARFARE CENTER,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-140
Issued: April 11, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 19, 2006 appellant filed a timely appeal from the November 7, 2005 and
May 3, 2006 decisions of the Office of Workers’ Compensation Programs that denied
modification of a prior Office decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he developed
an occupational disease in the performance of duty.
FACTUAL HISTORY
On June 6, 2002 appellant, then a 54-year-old sheet metal mechanic, filed an
occupational disease claim stating that he developed bilateral carpal tunnel syndrome and
bilateral shoulder and elbow conditions in the performance of duty. He stated that he believed
his conditions were caused by the repetitive nature of his job duties. Appellant first related his

condition to his employment on August 30, 1993. He stopped work on January 15, 20021 and
returned to work for one day, on January 3, 2003, before retiring from federal employment.
By decision dated September 30, 2002, the Office denied appellant’s claim on the
grounds that it was untimely filed. Appellant requested an oral hearing on October 10, 2002.
In support of his hearing request, appellant submitted various medical reports. In an
August 30, 1993 report, Dr. Daniel J. Ragone, a Board-certified physiatrist, stated that an
electromyogram (EMG) revealed results consistent with carpal tunnel syndrome and “chronic
irritation of the right median and radial nerves at the wrist and forearm.” A March 30, 1992
report from Dr. Mark T. DiMarcangelo, an osteopath, stated that left shoulder x-rays yielded
findings “consistent with calcific tendinitis and/or bursitis.” Appellant also submitted an
April 15, 1993 x-ray report from Dr. James J. Jacoby, a Board-certified radiologist, diagnosing
severe calcific bursitis of the right shoulder.
Also submitted were numerous reports from Dr. Robert M. Dalsey, a Board-certified
orthopedic surgeon, whose reports, from July 11 to August 22, 2001, generally discussed
appellant’s injuries, not related to the present appeal, including a severe hand contusion appellant
sustained on June 29, 2001 and a second-degree burn appellant sustained on his hand. Also
submitted were several reports from him concerning appellant’s lateral epicondylitis. Dr. Dalsey
issued a May 3, 1993 report noting his findings upon conducting an x-ray examination of
appellant’s shoulders.
He diagnosed a small calcific density, hooked acromion and
acromioclavicular (AC) joint arthritis in appellant’s left shoulder. Upon examination of
appellant’s right shoulder, Dr. Dalsey diagnosed tendinitis, hooked acromion and AC joint
arthritis. In a May 3, 1993 report, following x-ray testing of appellant’s elbow, he diagnosed
lateral epicondylitis and mild arthritic changes. In a December 13, 1993 report, Dr. Dalsey
stated that appellant’s calcific tendinitis had resolved but that he had persistent lateral
epicondylitis and problems with his right elbow, which appellant related “directly to his job
responsibilities with heavy labor and repetitive tasks consistent with his physical findings.” On
January 10, 1994 he noted that appellant was being treated for lateral epicondylitis and calcific
tendinitis in his shoulder and recommended light duty.
By decision dated June 18, 2003, the hearing representative reversed the Office’s prior
decision finding that appellant’s claim was timely filed. The hearing representative directed the
Office to address whether appellant had established causal relationship between employment
factors and his claimed condition.
By letter dated July 14, 2003, the Office requested that appellant submit medical
evidence addressing causal relationship between his diagnosed conditions and employment
factors.
By decision dated September 15, 2003, the Office denied appellant’s claim on the
grounds that the medical evidence was insufficient to establish a causal relationship between
appellant’s diagnosed condition and employment factors.
1

The employing establishment stated that appellant stopped work after sustaining a back injury, which was the
subject of a different claim, File No. 032005101.

2

On September 17, 2003 appellant requested an oral hearing. On March 22, 2004 he
changed his hearing request to a request for review of the written record.
By decision dated July 7, 2004, the hearing representative affirmed the denial of
appellant’s claim on the grounds that the medical evidence was insufficient to establish causal
relationship.
On November 17, 2004 appellant requested reconsideration. In support of his
reconsideration request, he submitted a May 20, 2004 report from Dr. Thomas P. McMahon, a
Board-certified internist, who indicated that there were multiple causes of appellant’s
“musculoskeletal problems,” stating that “it was clearly on my mind that this problem was
somewhat work related since I have a comment in my history that his job is physical at times and
that he is obligated to swing a sledgehammer.” Dr. McMahon noted:
“There were numerous comments about him having difficulty coping with the
physical demands of his work. In my notes of August 8, 2001, I also commented
that he is beginning to develop degenerative joint disease. I recall having some
conversations with him that he had the combination of degenerative osteoarthritis
and a job that could be hard and physical.”
Dr. McMahon opined that repetitive motion stress caused wear and tear on appellant’s tendons.
As evidence of this, he advised that a “right shoulder x-ray done on April 15, 1993 was read as
severe calcific bursitis of the right shoulder. This is best regarded as a condition caused by
repetitive motion rather than any specific injury.” Dr. McMahon also noted that appellant had
since taken a private-sector job as a security guard, where he had sustained a “severe injury.” He
concluded:
“It is my opinion within a reasonable degree of medical certainty that [appellant]
at the end of his career at the [employing establishment] was disabled for all but
rather sedentary employment such as he acquired when he obtained a job as a
security guard. This disability was caused by the combination of degenerative
osteoarthritis and years of hard labor in addition to several specific injuries.”
By decision dated January 24, 2005, the Office denied modification of its prior decision.
On February 25, 2005 appellant requested reconsideration. He submitted a February 16,
2005 report from Dr. McMahon, reiterating his opinion that appellant’s conditions, including
degenerative joint disease of the hands, carpal tunnel syndrome, calcific bursitis of the right
shoulder and degenerative disc disease of the lumbar spine, were aggravated by his employment.
Dr. McMahon opined “within a reasonable degree of medical certainty that several of
[appellant’s] important medical problems have been aggravated by his employment at the
shipyard.”

3

By decision dated November 7, 2005, the Office denied modification of its prior decision.
On January 31, 2006 appellant requested reconsideration and submitted a statement in support of
his claim.2
By decision dated May 3, 2006, the Office denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disabilities and/or specific
conditions for which compensation is claimed are causally related to the employment injury.4
These are the essential elements of each and every compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.5
An occupational disease or injury is one caused by specified employment factors
occurring over a longer period than a single shift or workday.6 The test for determining whether
appellant sustained a compensable occupational disease or injury is three-pronged. To establish
the factual elements of the claim, appellant must submit: “(1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.”7
The medical evidence required to establish causal relationship generally is rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors.8 The
opinion of the physician must be based on a complete factual and medical background of the

2

Appellant also indicated that he was submitting a November 9, 2005 EMG report. This report is not of record.

3

5 U.S.C. §§ 8101-8193.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

D.D., 57 ECAB ___ (Docket No. 06-1315, issued September 14, 2006).

7

Michael R. Shaffer, 55 ECAB 386, 389 (2004), citing Lourdes Harris, 45 ECAB 545 (1994); Victor J.
Woodhams, supra note 5.
8

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

4

claimant9 and must be one of reasonable medical certainty10 explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the claimant.11
ANALYSIS
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty. The record reflects that appellant
has certain shoulder and elbow conditions and that his job at the employing establishment
involved lifting and moving heavy objects and machinery and operating forklifts. However, the
medical evidence is insufficient to establish that appellant’s diagnosed conditions are causally
related to his employment factors.
In his May 20, 2004 report, Dr. McMahon addressed causal relationship. Specifically, he
stated that appellant was required to swing a sledgehammer and perform other hard and physical
duties. Dr. McMahon also noted that, at least one of appellant’s diagnosed conditions, calcific
bursitis, was generally regarded as a repetitive stress condition. However, he did not provide
specific job activities, other than swinging a sledgehammer, and did not explain the medical
reasons by which specific employment factors would have caused or aggravated the diagnosed
conditions. Thus, although Dr. McMahon opined that appellant’s condition was related to
repetitive stress, he did not provide sufficient explanation or rationale to support his position.
His statement that calcific bursitis is a repetitive stress condition was a statement of general
application, rather than specific to appellant’s particular situation, and thus is of limited
probative value.12 Moreover, the Board has held that a physician’s opinion carries little
probative value when it is not supported by detailed medical rationale.13 Likewise,
Dr. McMahon’s February 16, 2005 report is also insufficient to establish causal relationship.
Although Dr. McMahon states that it is his opinion “within a reasonable degree of medical
certainty” that appellant’s conditions are job related, he provides no explanation or rationale to
support his position. For example, he did not identify any specific employment factors and
present sound medical rationale for his conclusion that appellant’s condition was causally related
to his employment. As such, Dr. McMahon’s February 16, 2005 opinion is conclusory in nature

9

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

10

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

11

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

12

The Board has held that a medical opinion is of limited probative value when it relies upon statements of
general application and is not addressed to the particular circumstances of the case at hand. Melvina Jackson,
38 ECAB 443 (1988); see also Herbert Finhandler, 16 ECAB 180 (1964); Eloise L. Berry, 25 ECAB 61 (1973);
Ceferino L. Gonzales, 32 ECAB 1591 (1981).
13

See, e.g., Victor J. Woodhams, supra note 5; Steven S. Saleh, 55 ECAB 169, 172 (2003). The Board has held
that a medical opinion not fortified by medical rationale is of little probative value. Caroline Thomas, 51 ECAB
451, 456 n.10 (2000); Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

5

and thus is of diminished probative value.14 Accordingly, the Board finds that Dr. McMahon’s
February 16, 2005 report is insufficient to meet appellant’s burden of proof.
The only other medical evidence submitted by appellant was diagnostic test results from
the 1990s and reports from Dr. Dalsey. However, these reports did not contain a physician’s
specific opinion regarding whether any diagnosed condition was caused or aggravated by
specific employment conditions. Dr. Dalsey’s December 13, 1993 report advised that appellant
felt that his lateral epicondylitis was work related. However, this is of limited probative value as
he did not provide his own opinion on causal relationship.15
For these reasons, the medical evidence is insufficient to establish that appellant’s
medical condition was caused or aggravated by conditions of his federal employment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
developed an occupational disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 3, 2006 and November 7, 2005 are affirmed.
Issued: April 11, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

14

See Melvina Jackson, supra note 12.

15

Cf. Laurie S. Swanson 53 ECAB 517 (2002) (a physician’s report is insufficient to establish a basis for the
payment of compensation where the physician’s statements regarding a claimant’s ability to work consist primarily
of a repetition of the claimant’s complaints).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Louisville, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-536
Issued: December 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 30, 2010 appellant, through her attorney, filed a timely appeal from a
November 10, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for an employment-related injury. 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 that her right hip
condition is causally related to a November 17, 2009 employment incident.
On appeal appellant’s attorney contends that the November 10, 2010 OWCP decision is
contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 17, 2010 appellant, then a 44-year-old clerk, filed a notice of traumatic
injury (Form CA-1) alleging that on November 17, 2009 she sustained a right hip injury after
tripping over a raised carpet while in the performance of duty.
In a letter dated February 19, 2010, the employing establishment indicated that
appellant’s injury was not reported on a Form CA-1 within 30 days and she never filed an
accident report for any injury regarding her hip or leg.
By letter dated March 5, 2010, OWCP notified appellant that the evidence submitted was
insufficient to support her claim and requested additional factual and medical information. It
allotted her 30 days to submit additional evidence and respond to its inquiries.
On March 5, 2010 the employing establishment controverted appellant’s claim. On
March 22, 2010 appellant responded. In a March 24, 2010 statement, the employing
establishment reiterated that her injury was not employment related. On March 25, 2010 it
submitted a number of witness statements indicating that appellant was injured while working in
her garden at home.
In a March 18, 2010 narrative statement, appellant indicated that she was not aware that
she had to give written notice. She stated that she was working alone and had no witnesses to
her injury. Appellant indicated that she had similar disability or symptoms before the injury on
June 8 and November 5, 2009. She left work both days and sought medical treatment.
By decision dated April 9, 2010, OWCP denied appellant’s claim on the basis that the
factual and medical evidence submitted was insufficient to establish fact of injury. It found that
the evidence she submitted was not sufficient to establish that the November 17, 2009
employment incident occurred as alleged and that there was no medical evidence that provided a
diagnosis which could be connected to the claimed event.
On April 15, 2010 appellant, through her attorney, requested an oral hearing and
submitted additional evidence.
In a December 21, 2009 medical report, Dr. Jeffrey B. Selby, a Board-certified
orthopedic surgeon, diagnosed right hip labral tear and possible right femoral hernia. He
reported a history that appellant was in her garden when her right foot got caught in mud and, as
she turned to walk away, her foot got stuck and her hip turned, resulting in pain in the anterior
hip area. Dr. Selby stated that it was fairly minor pain at the time, however, it intensified over
the next few days when she tried to return to work as a postal clerk.
In a January 4, 2010 medical report, Dr. John E. Merryman, III, a Board-certified general
surgeon, indicated that upon examination of the right groin in both the standing and supine
positions he felt no mass or bulge or impulse even with Valsalva and no tenderness. He
indicated that it was a normal examination with no signs of hernia.

2

In a January 11, 2010 medical report, Dr. Selby indicated that appellant was status post
evaluation for right hip labral surgery. He also wrote appellant a work excuse note dated
January 11, 2010.
In a January 19, 2010 surgical report, Dr. Selby performed right hip diagnostic
arthroscopy with labral debridement and femoral acetabular chondroplasty. He indicated that the
preoperative diagnosis was right hip pain and the postoperative diagnosis was right hip femoral
acetabular chondromalacia with posterior labral degenerative tear.
In a January 29, 2010 progress report, Dr. Selby advised that appellant had no pain with
log-rolling of her hip and had full pain-free range of motion after surgery. Bill Adkisson, a
physician’s assistant, wrote appellant a work excuse note dated January 29, 2010 for the next
four weeks.
Appellant submitted a physical therapy note dated February 2, 2010.
In a March 1, 2010 medical report, Dr. Selby indicated that appellant had mild pain with
internal rotation of the hip. Appellant had hip flexion to 120 degrees, external rotation to 45
degrees and internal rotation to 30 degrees. Dr. Selby restricted appellant from heavy lifting and
twisting at work for six weeks.
In a March 26, 2010 medical report by Mr. Adkisson, appellant reported a significant
amount of pain. Upon clinical examination, she had no pain with log-rolling of her hip, had no
calf tenderness and her Homan’s test was negative. Appellant walked with a limp without any
ambulatory aids. Mr. Adkisson opined that infection was not a source of her pain and
recommended two weeks of physical therapy before slowly starting it again.
In an April 4, 2010 attending physician’s report, Dr. Selby indicated that appellant’s date
of injury was June 8, 2009. He diagnosed right acetabular chondromalacia with labral tear.
Dr. Selby opined that the condition was caused or aggravated by the employment incident.
On July 22, 2010 a telephonic hearing was held before an OWCP hearing representative.
Appellant testified that on November 17, 2009 her right hip was already injured as a result of two
previous incidents. She was using a cane and crutches and had a note from her physicians to
remain off work. Appellant testified that she was not working limited duty as her supervisor
informed her that the employing establishment did not give limited or light-duty assignments.
She had a disability certificate starting on November 6, 2009 for three weeks and she should not
have been at work but the employer was shorthanded and they asked her to work in a different
position, which would be working the window and sitting on a stool. Appellant agreed to try it
and worked on November 16 and 17, 2009. She testified that she was working alone and had a
customer who required the use of a computer. Appellant paged for help and no one came and the
lines kept getting longer so she got off of the stool and then tripped and fell on a raised piece of
carpet. The hearing representative granted appellant’s request to hold the case open for 30 days
for submission of additional medical evidence.
In an August 11, 2010 letter, the employing establishment provided a statement which
refuted appellant’s alleged injury and how it occurred. In an August 10, 2010 statement,
appellant’s supervisor noted that she never asked appellant to work a light-duty assignment. She
3

explained that under a local union contract there were no light-duty assignments in their office.
Appellant’s supervisor was told that appellant wanted to return to work until her physicians
could decide what treatment and possible surgery she may require. She reported that another
clerk was working the window with appellant and told her that appellant did not fall.
Appellant’s supervisor also stated that she never once heard the pager which is a loud speaker.
She explained that she never saw appellant sitting on the floor, but did see her leaning back
against the wall. When appellant’s supervisor asked appellant why she was not using her cane or
crutches like her physician told her to, appellant responded, “I don’t know.”
In a September 20, 2010 narrative statement, appellant indicated that she began
experiencing groin pain in early summer 2009. She stated that the other window clerk told her
supervisor that he did not see her fall because she was working the window alone when she fell
which she claimed could be proven by checking clock rings and other transactions.
By decision dated November 10, 2010, OWCP’s hearing representative affirmed the
April 9, 2010 decision on the grounds that, due to inconsistencies in the factual presentation in
the medical history, appellant’s nonemployment-related injury and her ability to continue
working after receiving emergency treatment, she failed to establish fact of injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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, that an injury3 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at
the time, place and in the manner alleged. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.5
2

5 U.S.C. §§ 8101-8193.

3

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
4

T.H., 59 ECAB 388 (2008).
1143 (1989).
5

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

4

Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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.6
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that on
November 17, 2009 she sustained a right hip injury after tripping over a raised carpet while in
the performance of duty. As noted, the first element of fact of injury requires that she submit
evidence establishing that an incident occurred at the time, place and in the manner alleged. In
narrative statements dated March 18 and September 20, 2010, appellant reported that she was
working at the window alone when the injury occurred. However, the Board finds that there are
such inconsistencies in the evidence to cast doubt upon the validity of her claim.
In a December 21, 2009 report, Dr. Selby obtained a history that appellant was in her
garden when her right foot got caught in mud and as she turned to walk away her foot got stuck
and her hip turned, resulting in pain in the anterior hip area. He performed right hip surgery on
January 19, 2010 and never revised this history. On March 25, 2010 the employing
establishment submitted witness statements advising that appellant was injured while working in
her garden at home. On April 4, 2010 Dr. Selby indicated that her date of injury was
June 8, 2009 but did not further explain. In an August 10, 2010 statement, appellant’s supervisor
reported that another clerk was working the window with appellant when the alleged incident
occurred and reported that appellant did not fall. In a September 20, 2010 narrative statement,
appellant indicated that she began experiencing groin pain in early summer 2009. The
supervisor’s statement, Dr. Selby’s reports and appellant’s own statements are inconsistent with
the surrounding facts and circumstances.7 Appellant has not reconciled these contradictions in
the record.
Moreover, appellant did not file a claim until February 17, 2010, some three months after
the November 17, 2009 incident, which constitutes late notification of injury. In a letter dated
February 19, 2010, the employing establishment indicated that appellant never filed an accident
report for any injury regarding her hip or leg.
The evidence submitted contains such inconsistencies as to cast doubt on the validity of
appellant’s claim. Accordingly, the Board finds that she has not met her burden of proof in

6

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

7

Cf. S.A., Docket No. 10-1786 (issued May 4, 2011) (where the Board found that appellant established that the
incident occurred as alleged, as there were no inconsistent statements from appellant or other evidence refuting the
occurrence of the alleged incident).

5

establishing that she experienced an employment-related incident at the time, place and in the
manner alleged.8
On appeal appellant’s attorney contends that the November 10, 2010 OWCP decision is
contrary to fact and law. For the reasons stated above, the Board finds the attorney’s argument is
not substantiated.
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 submitted sufficient evidence to establish that she
sustained a right hip condition in the performance of duty on November 17, 2009, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the November 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

8

Given that appellant did not establish an employment incident, further consideration of the medical evidence is
unnecessary. See Bonnie A. Contreras, 57 ECAB 364, 368 n.10 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF JUSTICE, ALCOHOL,
TOBACCO, FIREARMS & EXPLOSIVES,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-2078
Issued: April 26, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On August 12, 2009 appellant filed a timely appeal from a May 11, 2009 merit decision
denying his traumatic injury claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether on March 26, 2009 appellant sustained an injury in the performance
of duty.

FACTUAL HISTORY
On March 31, 2009 appellant, a 44-year-old group supervisor, filed a traumatic injury
claim (Form CA-1) for injuries he sustained on March 26, 2009 when his government-assigned
vehicle was struck by a landscaping truck as he was on his way to work.1
Appellant submitted no evidence supporting his claim and by letter dated April 3, 2009,
the Office notified him that the evidence of record was insufficient to support his claim. The
Office advised him that he needed to submit evidence supporting his claim and provided
examples of the type of evidence required.
Appellant submitted no additional evidence supporting his claim and by decision dated
May 11, 2009, the Office denied the claim, finding that although the evidence of record
established the employment incident occurred as alleged it did not establish that this incident
caused a medically-diagnosed injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,3
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.4 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.5 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
1

Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on
appeal which was not before the Office at the time it issued the final decision in the case. 20 C.F.R. § 501.2(c). See
J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision).
2

5 U.S.C. §§ 8101-8193.

3

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
4

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
5

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

2

incident at the time, place and in the manner alleged.7 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.8
ANALYSIS
The Office accepted that the March 26, 2009 incident occurred as alleged. Appellant
submitted no medical evidence supporting his claim, and therefore the Board finds he has not
satisfied his burden of proof to establish he sustained an injury in the performance of duty on
March 26, 2009.
Appellant failed to meet his burden of proof to establish a prima facie claim for
compensation. Although he submitted a statement which identified the factor of employment
that he believed caused his condition, he failed to submit any medical evidence in support of his
claim. The Office informed appellant of the need to submit a physician’s opinion which
explained how the claimed condition was related to the implicated employment factor.
Appellant failed to submit any medical evidence in support of his claim.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.10 The Office notified appellant that he had not submitted sufficient
evidence supporting his claim and advised him concerning the type of evidence required.
Appellant did not submit sufficient evidence supporting his claim and, consequently, has not
satisfied his burden of proof to establish that he sustained an injury in the performance of duty on
March 26, 2009.
CONCLUSION
The Board finds appellant has not satisfied his burden of proof to establish that he
sustained an injury in the performance of duty on March 26, 2009.

7

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

8

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
9

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

10

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

3

ORDER
IT IS HEREBY ORDERED THAT May 11, 2009 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 26, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE,
INDEPENDENCE NATIONAL HISTORICAL
PARK, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-1076
Issued: July 5, 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 April 11, 2012 appellant, through her attorney, filed a timely appeal from
December 19, 2011 and February 22, 2012 Office of Workers’ Compensation Programs’
(OWCP) decisions. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she has a
ratable impairment; (2) whether appellant received an overpayment in compensation in the
amount of $15,943.48; and (3) whether OWCP properly denied waiver of the overpayment.
On appeal appellant’s attorney asserts that the physician selected by OWCP to perform
the impartial evaluation was not properly selected and, at the least, OWCP should request a
1

5 U.S.C. §§ 8101-8193.

clarifying opinion from the physician regarding his conclusions because he did not reference the
A.M.A., Guides and did not provide a sufficient explanation for his conclusions. The attorney
further asserted that OWCP erred in basing the overpayment determination on the referee
physician’s opinion.
FACTUAL HISTORY
On July 26, 2001 appellant, then a 49-year-old clerk, sustained a herniated lumbar disc
when she fell down steps at work. The claim was adjudicated by OWCP under file number
xxxxxx108. On December 5, 2002 appellant suffered a second traumatic injury, accepted for
cervical and lumbar sprains with cervical and lumbar radiculitis and herniated discs at C3-4 and
C4-5. The 2002 claim was adjudicated under file number xxxxxx179, and the files were
combined in March 2005. On December 11, 2006 OWCP accepted that she sustained a
recurrence of disability on July 11, 2004. On June 16, 2008 it accepted adjustment disorder with
depression. In an April 9, 2009 decision regarding both claims, OWCP terminated appellant’s
wage-loss compensation and medical benefits, effective April 12, 2009. The termination was
affirmed by an OWCP hearing representative on October 15, 2009.
On March 11, 2010 appellant filed a schedule award claim and submitted a December 1,
2009 report in which Dr. David Weiss, an osteopath, advised that, in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),2 appellant had a right upper extremity impairment of 1
percent, a left upper extremity impairment of 18 percent, a right lower extremity impairment of
11 percent, and a left lower extremity impairment of 9 percent. In a March 23, 2010 report,
Dr. Morley Slutsky, Board-certified in occupational medicine and an OWCP medical adviser,
indicated that appellant had a four percent impairment of each lower extremity. On April 23,
2010 he advised that appellant had a three percent impairment of the right upper extremity.
On June 28, 2010 appellant was granted a schedule award for a four percent impairment
of the right lower extremity and a four percent impairment on the left. On October 20, 2010 she
was granted a schedule award for a three percent impairment of the right upper extremity.
In a January 6, 2011 decision, an OWCP hearing representative found that a conflict in
medical evidence had been created between the opinions of Dr. Weiss and OWCP’s medical
adviser, and remanded the case to OWCP for an impairment evaluation regarding appellant’s
impairments. In February 2011 OWCP referred appellant to Dr. Scott A. Rushton, a Boardcertified orthopedic surgeon, who was specifically asked to utilize the sixth edition of the
A.M.A., Guides and state whether appellant had a ratable permanent impairment of the upper
and/or lower extremities causally related to the July 26, 2001 and December 5, 2002 employment
injuries.
In a March 17, 2011 report, Dr. Rushton noted his review of the statement of accepted
facts and medical record and history of both employment injuries. He described appellant’s
current complaint of low back, neck, right lower extremity and bilateral arm, hand and finger
pain. Dr. Rushton indicated that appellant no longer received treatment for medical conditions.
2

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

2

He noted that, at the time of his physical examination, appellant was wearing a walking boot on
her left foot due to a recent ankle fracture, and he was unable to do motor strength or range of
motion testing of the left lower extremity. Physical examination of the cervical and lumbar spine
demonstrated no tenderness. Upper extremity examination demonstrated 2+ reflexes at the
biceps, triceps, and brachioradialis bilaterally and no evidence of a Spurling’s maneuver
bilaterally with negative Tinel’s test negative at the cubital tunnel, carpal tunnel and Guyon’s
canal. Right lower extremity examination demonstrated 5/5 strength testing in all groups. There
was no evidence of nerve root tension in the seated position at 30 and 90 degrees leg elevation
both actively and passively bilaterally. Examination of the left lower extremity was limited
because of the walking boot. Dr. Rushton indicated that appellant had no evidence of
impairment in the upper or lower extremities due to either the 2001 or the 2005 employment
injury, based on his review of the medical record and imaging studies, which supported agedependent degenerative disease in the cervical and lumbar spine. He advised that he found no
evidence to support an aggravation or aggravating event to lead to the progression of the
degenerative disc disease, other than expected with age and degeneration.
In a May 31, 2011 report, Dr. Christopher R. Brigham, Board-certified in family and
occupational medicine and an OWCP medical adviser, advised that he agreed with Dr. Rushton’s
method of evaluation and application of the A.M.A., Guides. OWCP’s medical adviser reported
that appellant was injured on July 26, 2001, and that the accepted injuries were lumbar sprain
and lumbar disc herniation. He indicated that maximum medical improvement was reached on
July 11, 2005, one year after the last recurrence. Regarding appellant’s impairment rating,
Dr. Brigham advised that Dr. Rushton’s conclusion that appellant had a zero percent impairment
of the lower extremities was correct because there were no sensory or motor deficits in the lower
extremities that would result in a ratable impairment. Dr. Brigham did not specifically discuss
Dr. Rushton’s findings and conclusions regarding the upper extremities.
By decision dated June 7, 2011 OWCP found that appellant had not established that she
was entitled to a schedule award, based on the opinion of Dr. Rushton, as reviewed by
Dr. Brigham. On December 19, 2011 an OWCP hearing representative affirmed the June 7,
2011 decision.
In a February 22, 2012 decision, OWCP found that an overpayment of compensation in
the amount of $15,943.48 had been created because appellant was erroneously paid schedule
awards. Appellant was found without fault and was not granted waiver because her household
income exceeded her allowable expenses. Repayment was set at $500.00 each month.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,3 and its implementing federal regulations,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

3

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition will be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for lower extremity impairments the evaluator
identifies 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 Under Chapter 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.12 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.14 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in

5

Id. at § 10.404(a).

6

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

7

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

8

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

Id. at 494-531.

10

Id. at 521.

11

Id. at 23-28.

12

Pamela J. Darling, 49 ECAB 286 (1998).

13

Thomas J. Engelhart, 50 ECAB 319 (1999).

14

Rozella L. Skinner, 37 ECAB 398 (1986).

4

section 3.700 of its procedures which memorializes proposed tables outlined in The Guides
Newsletter, July-August 2009.15
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.16 The implementing regulation
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.17 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.18
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision because a conflict remains
regarding the degree of appellant’s permanent impairment.
Appellant’s argument on appeal that the physician who provided the impartial evaluation
for OWCP was improperly selected under the Physicians Directory System (PDS) is without
merit.19 The record in this case includes a February 15, 2011 MEO23 iFECS report which states
that the employee’s referee appointment was scheduled with Dr. Rushton. The record also
contains a report of telephone call made to schedule the appointment with Dr. Rushton and one
screen shot that indicates that Dr. Herbert Stein was bypassed because the case file was too big.
Thus, the selection in this case was supported by the ME023 report identifying Dr. Rushton, and
contains a screen shot documenting the reason Dr. Stein was bypassed. In the case K.S., the
Board noted that such documentation was sufficient to establish that OWCP met its obligation to

15

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 7.

16

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

17

20 C.F.R. § 10.321.

18

V.G., 59 ECAB 635 (2008).

19

At the time that Dr. Rushton was selected, OWCP procedures provided that the selection of impartial medical
specialists was made through a strict rotational system using appropriate medical directories. The procedures state
that the PDS should be used for this purpose whenever possible. The PDS was a set of stand-alone software
programs designed to support the scheduling of second opinion and impartial medical examinations. The PDS
database of physicians was obtained from the American Board of Medical Specialties whose records contained the
names of physicians who are Board-certified in certain specialties. Federal (FECA) Procedure Manual, Part 3 -Medical, Medical Examinations, Chapter 3.500.4b and 3.500.7 (May 2003). OWCP subsequently implemented its
iFECS-based Medical Management Application (MMA) system. Id. at Chapter 3.500.5 (July 2011). This
application contains the names of physicians who are Board-certified in over 30 medical specialties for use as
referees within appropriate geographical areas.

5

properly select an impartial referee physician.20 The Board finds that Dr. Rushton was properly
selected as a referee physician in this case.
Nonetheless, the Board finds this case is not in posture for decision. Dr. Rushton was
unable to examine appellant’s left lower extremity due to the ankle fracture. Therefore, he could
not thoroughly evaluate appellant’s left lower extremity to determine if she had a ratable
impairment. As such, Dr. Rushton’s report is incomplete. Moreover, the referee physician did
not indicate that he performed complete sensory testing, such as pinprick, on the upper or lower
extremities and did not mention application of the A.M.A., Guides in his report. OWCP’s
medical adviser, Dr. Brigham, only discussed one employment injury, the 2001 injury when
appellant sustained an employment-related herniated lumbar disc. Dr. Brigham did not discuss
the 2002 injury, accepted for cervical and lumbar sprain with radiculitis. He stated that he
agreed with Dr. Rushton’s method of evaluation and application of the A.M.A., Guides, whereas,
as noted above, Dr. Rushton did not mention the A.M.A., Guides in his report. Furthermore, Dr.
Brigham stated that there were no sensory or motor deficits in the lower extremities that would
result in a ratable impairment. Dr. Rushton did not discuss sensory findings. Dr. Brigham
merely concluded that Dr. Rushton’s finding that appellant had a zero percent lower extremity
impairment was correct.21
When OWCP secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from such specialist requires
clarification or elaboration, it has the responsibility to secure a supplemental report from the
specialist for the purpose of correcting the defect in the original opinion. It did not do so in this
case. On remand, OWCP should request Dr. Rushton to provide a rating for the upper and lower
extremities, in accordance with the A.M.A., Guides. If Dr. Rushton is unwilling or unable to
clarify and elaborate on his opinion, the case should be referred to another appropriate impartial
medical specialist.22 Accordingly, the Board will remand the case to OWCP. Following this
and any other development deemed necessary, OWCP shall issue an appropriate decision.
In view of the Board’s disposition of the schedule award issue, it is premature to address
the issue of whether appellant received an overpayment of compensation.
CONCLUSION
The Board finds this case is not in posture for decision.

20

Docket No. 12-184 (issued September 11, 2012).

21

Section 10.502 of OWCP regulations and OWCP procedures provide that when OWCP directs an employee to
undergo a referee examination to resolve a conflict, it is to rely on the opinion of the medical referee in determining
the issue. 20 C.F.R. § 10.502; Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating
Medical Evidence, Chapter 2.810.7(g) (April 1993). To properly resolve the conflict of medical opinion in this case,
it is the impartial medical specialist who should provide a reasoned opinion as to the extent of permanent
impairment. An OWCP medical adviser may review the opinion, but the resolution of the conflict is the
responsibility of the impartial specialist. V.G., 59 ECAB 635 (2008).
22

See Phillip H. Conte, 56 ECAB 213 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2012 and December 19, 2011
decisions of Office of Workers’ Compensation Programs are set aside and the case is remanded
to OWCP for proceedings consistent with this opinion of the Board.
Issued: July 5, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE
CROWNPOINT MEDICAL CENTER,
Crownpoint, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 19-0606
Issued: November 21, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 22, 2019 appellant filed a timely appeal from a January 10, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $31,966.52, for which she was not at fault, as she
concurrently received Social Security Administration (SSA) age-related benefits while receiving
1

5 U.S.C. § 8101 et seq.

2
The Board notes that following the January 10, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FECA wage-loss benefits for the periods August 2 to 17, 2006, October 16, 2006 to July 7, 2007,
and September 27, 2009 to November 10, 2018; (2) whether OWCP properly denied waiver of
recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $997.34 from appellant’s continuing compensation payments every 28
days.
FACTUAL HISTORY
On August 3, 2006 appellant then a 66-year-old registered nurse, filed a traumatic injury
claim (Form CA-1) alleging that on June 27, 2006 she injured her right knee when walking while
in the performance of duty.
OWCP accepted the claim for sprain of the right knee, lateral collateral ligament, and tear
of medial meniscus of knee, current, right. Appellant stopped work on July 25, 2006. She filed a
claim for compensation (Form CA-7) for leave without pay for the period August 2 to 17, 2016.
OWCP paid appellant wage-loss compensation benefits on the supplemental rolls for this claimed
period. Appellant filed a second Form CA-7 for leave without pay commencing October 16, 2016.
OWCP again paid her wage-loss compensation on the supplemental rolls on October 16, 2016 and
then on the periodic rolls, effective December 24, 2016.
In a memorandum dated July 11, 2007, OWCP related that appellant had received SSA
Federal Employees Retirement System (FERS) benefits. It explained that it was required to deduct
from FECA benefits the amount of SSA retirement benefits attributable to federal service. OWCP
advised that appellant was in receipt of $1,636.10 per month from SSA and that she would be
entitled to receive $1,453.30 if her “[f]ederal service was not included.” It noted that the difference
between the two amounts was $182.80, the amount that was attributable to her federal service, and
that this was also the amount that would be deducted from appellant’s FECA benefits.
By decision dated September 22, 2009, OWCP informed appellant that her wage-loss
compensation benefits would be reduced effective, September 27, 2009, as the constructed
position of Director, nursing services represented her wage-earning capacity. A wage-earning
capacity form (CA Form 816) determined appellant’s new compensation rate; however, the SSA
offset was not included in the calculation.
In a form dated November 7, 2018, the SSA advised OWCP that appellant had concurrently
received FECA benefits and SSA FERS retirement benefits for periods June 2006 to
December 2017. It provided the amount that she received in retirement benefits, including the
amount earned to FERS and the hypothetical amount that she would have received without FERS.
Including FERS, the SSA indicated: appellant was entitled to a monthly payment of $1,583.90,
effective June 2006; $1,636.10, effective December 2006; $1,673.70, effective January 2007;
$1,712.20, effective December 2007; $1,811.50, effective December 2008, January 2009, and
December 2010; $1,876.70, effective December 2011; $1,908.50, effective December 2012;
$1,937.10, effective December 2013; $1,970.00, effective December 2014 and December 2015;
$1,975.80, effective December 2016; and $2,015.30 effective December 2017.
Without FERS, appellant was entitled to a monthly payment of $1,386.40 effective
June 2006, $1,432.10 effective December 2006 and January 2007, $1,465.00 effective
December 2007, $1,549.90 effective December 2008, $1,552.60 effective January and
December 2009, and December 2010, $1,608.50 effective December 2011, $1,635.80 effective
2

December 2012, $1,660.30 effective December 2013, $1,668.50 effective December 2014 and
December 2015, $1,693.50 effective December 2016, and $1,727.30 effective December 2017.
In a preliminary determination dated December 4, 2018, OWCP notified appellant that she
had received an overpayment of compensation in the amount of $31,966.52 because it had failed
to reduce her wage-loss compensation benefits for the periods August 2 to 17, 2006, October 16,
2006 to July 7, 2007, and September 27, 2009 to November 10, 2018 to offset her SSA retirement
benefits, which were a prohibited dual benefit. It calculated the overpayment amount by
determining the difference between her SSA amount with and without FERS for each period and
adding this amount to find a total overpayment of $31,966.52.
OWCP further advised appellant of its preliminary determination that she was without fault
in the creation of the overpayment and requested that she complete an overpayment recovery
questionnaire (Form OWCP-20). It informed her that for consideration of waiver of recovery of
the overpayment and a reasonable method for recovery, she must provide a completed Form
OWCP-20 and attach supporting financial documentation. Additionally, OWCP notified appellant
that, within 30 days of the date of the letter, she could request a telephone conference, a final
decision based on the written evidence, or a prerecoupment hearing.
On December 18, 2018 appellant requested a decision based on the written evidence
regarding waiver of recovery of the overpayment. She completed the Form OWCP-20. However,
appellant did not submit supporting financial documentation. She requested waiver of recovery of
the overpayment and indicated, “If there was an overpayment, and I saw none, I depend on OWCP
to sent correct amount to my bank, or notify me of change.” Appellant also indicated that she was
“unable to pay anything back for something that she was not responsible for.” She listed her
income as: SSA benefits of $1,854.00 and OWCP benefits of $4,256.00. Appellant indicated that
her expenses included: rent, $3,860.00; food, $3,860.00; clothing, $100.00; utilities, $200.00; and
miscellaneous, $50.00 to $150.00. She indicated that her assets included: checking, $581.24 and
savings, $50,787.77.
By decision dated January 10, 2019, OWCP found that appellant had received an
overpayment of compensation in the amount of $31,966.52 for the periods August 2 to 17, 2006,
October 16, 2006 to July 7, 2007, and September 27, 2009 to November 10, 2018, because her
compensation payments were not offset by the portion of her SSA age-related benefits that were
attributable to her federal service. It determined that she was without fault in the creation of the
overpayment and denied waiver of recovery of the overpayment. OWCP explained that appellant
did not submit any financial documentation to support her reported income, expenses, and
resources. It found that it would recover the overpayment by deducting $997.34 every 28 days
from appellant’s continuing wage-loss compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA3 provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his or her duty.4 Section 8116 limits the right of an employee to receive
3

Id.

4

5 U.S.C. § 8102(a).

3

compensation. While an employee is receiving compensation, he or she may not receive salary,
pay, or remuneration of any type from the United States.5
Section 10.421(d) of OWCP’s implementing regulations requires that OWCP reduce the
amount of compensation by the amount of any SSA age-related benefits that are attributable to
federal service of the employee.6 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA benefits because the portion of the SSA benefit earned
as a federal employee is part of the FERS retirement package, and the receipt of FECA benefits
and federal retirement concurrently is a prohibited dual benefit.7
Section 404.310 of SSA regulations provides that entitlement to SSA compensation begins
at 62 years.8 Section 404.409 of SSA regulations provides that, for individuals born from 1943 to
1954, full retirement age is 66 years.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
in the amount of $31,966.52 as she concurrently received SSA age-related benefits while receiving
FECA wage-loss benefits for the period August 2 to 17, 2006, October 16, 2006 to July 7, 2007,
and September 27, 2009 to November 10, 2018.
As noted, a claimant cannot receive concurrent FECA compensation for wage-loss and
SSA retirement benefits attributable to federal service for the same period.10 The information
provided by SSA accurately indicated that appellant had received age-related SSA benefits that
were attributable to her federal service from August 2, 2006 and continuing. Thus, the record
establishes that appellant received an overpayment of FECA wage-loss compensation.11
To determine the amount of the overpayment, the portion of the SSA benefits that were
attributable to federal service must be calculated. OWCP received documentation from SSA with
respect to the specific amount of age-based SSA retirement benefits that were attributable to
federal service. The Board also finds that OWCP properly determined the amount of the
overpayment. OWCP received documentation from SSA with respect to the specific amount of
age-related SSA retirement benefits that were attributable to federal service. OWCP properly
explained that no deduction for SSA age-based benefits had been recorded for the periods appellant
received FECA wage-loss benefits: August 2 to 17, 2006; October 16, 2006 to July 7, 2007; and
September 27, 2009 to November 10, 2018. Therefore an overpayment was created during these
5

Id. at § 8116.

6

20 C.F.R. § 10.421(d); see S.M., Docket No. 17-1802 (issued August 20, 2018).

7

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

8

20 C.F.R. § 404.310.

9

Id. at § 404.409.

10

FECA Bulletin No. 97-09 (February 3, 1997); see also N.B., Docket No. 18-0795 (issued January 4, 2019); A.C.,
Docket No. 18-1550 (issued February 21, 2019).
11

Id.

4

periods. However, OWCP had offset appellant’s SSA benefits during the period July 8, 2007 to
September 26, 2009. It provided its calculations of the amount that it should have offset for each
relevant period based on the SSA worksheet. No contrary evidence was provided.
The Board has reviewed OWCP’s calculations and finds that it properly determined that
appellant received prohibited dual benefits totaling $31,966.52, thus creating an overpayment of
compensation in that amount, for the periods August 2 to 17, 2006, October 16, 2006 to July 7,
2007, and September 27, 2009 to November 10, 2018.12
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment in compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
good conscience.”13 Section 10.438 of OWCP’s regulations provides that the individual who
received the overpayment is responsible for providing information about income, expenses, and
assets as specified by OWCP. This information is needed to determine whether or not recovery of
an overpayment would defeat the purpose of FECA or be against equity and good conscience.
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.14
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied waiver of recovery of the $31,966.52
overpayment.
The fact that OWCP may have been negligent in the creation of the overpayment does not
entitle appellant to waiver of the overpayment.15 As OWCP found appellant without fault in the
creation of the overpayment, waiver must be considered, and repayment is still required unless
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.16 Appellant, however, did not provide the requisite financial documentation to
OWCP.17
In its preliminary determination dated December 4, 2018, OWCP clearly explained the
importance of providing the completed overpayment recovery questionnaire (Form OWCP-20)
and supporting financial documentation. It advised appellant that it would deny waiver of recovery
if she failed to furnish the requested financial information within 30 days. While appellant
submitted a completed overpayment recovery questionnaire, she did not provide any financial
documentation supporting her income and expenses. As a result, OWCP did not have the
12

See L.L., Docket No. 18-1103 (issued March 5, 2019).

13

5 U.S.C. § 8129.

14

20 C.F.R. § 10.438.

15

R.B., Docket No. 15-0808 (issued October 26, 2015).

16

5 U.S.C. § 8129.

17

20 C.F.R. § 10.438.

5

necessary financial information to determine if recovery of the overpayment would defeat the
purpose of FECA or if recovery would be against equity and good conscience. OWCP was,
therefore, required to deny waiver of the overpayment.18
LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provides in pertinent part: When an overpayment
has been made to an individual who is entitled to further payments, the individual shall refund to
OWCP the amount of the overpayment as soon as the error is discovered or his or her attention is
called to the same. If no refund is made, OWCP shall decrease later payments of compensation,
taking into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual, and any other relevant factors, so as to minimize any hardship.19
ANALYSIS -- ISSUE 3
The Board finds that OWCP properly required recovery of the overpayment by deducting
$997.34 every 28 days from appellant’s continuing compensation payments.
OWCP provided appellant an overpayment recovery questionnaire (Form OWCP-20) with
the December 4, 2018 preliminary determination. Appellant completed the overpayment recovery
questionnaire, but did not provide any financial information to support her income and expenses
prior to the final January 10, 2019 overpayment decision. The overpaid individual is responsible
for providing information about income, expenses, and assets as specified by OWCP.20 When an
individual fails to provide requested financial information, OWCP should follow minimum
collection guidelines designed to collect the debt promptly and in full.21 As appellant did not
submit the financial documentation to OWCP as requested, the Board finds that there is no
evidence of record to establish that OWCP erred in directing recovery of the $31,966.52
overpayment at the rate of $997.34 every 28 days.22
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $31,966.52, for which she was without fault, as she concurrently
received SSA age-related benefits while receiving FECA benefits, for the periods August 2 to 17,
2006, October 16, 2006 to July 7, 2007, and September 27, 2009 to November 10, 2018, that
OWCP properly denied waiver of recovery of the overpayment, and that it properly required

18

Supra note 14.

19

20 C.F.R. § 10.441(a); see A.S., Docket No. 19-0171 (issued June 12, 2019); see Donald R. Schueler, 39 ECAB
1056, 1062 (1988).
20

20 C.F.R. § 10.438.

21

See A.S., Docket No. 19-0171 (issued June 12, 2019); Frederick Arters, 53 ECAB 397 (2002); Federal (FECA)
Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.500.2 (September 2018).
22

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

6

recovery by deducting $997.34 every 28 days from appellant’s continuing compensation
payments.
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 21, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MICHAEL E. DeBAKEY VETERANS AFFAIRS
MEDICAL CENTER, Houston, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1888
Issued: February 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 27, 2014 appellant filed an appeal from an August 13, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish total disability for the
period September 27 through November 6, 2010, due to her accepted employment injury.
On appeal appellant requests that her case be reopened so that she can get appropriate
medical treatment for the January 28, 2008 employment injury. She noted that on March 4, 2011
an OWCP medical adviser indicated that total knee replacement surgery was appropriate for her
accepted condition.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 28, 2008 appellant, then a 56-year-old temporary medical technician, injured
her right knee when she fell as she stepped off an elevator at work. She began modified duty.
Appellant’s temporary appointment was terminated effective February 15, 2008, based on
unacceptable performance.2 She also works a second job as a part-time laboratory assistant at St.
Joseph Medical Center (SJMC) a private-sector employer. On March 11, 2008 OWCP accepted
that appellant sustained a right knee contusion on January 28, 2008. The claim was later
expanded to include tear of the right medial meniscus, right chondromalacia patella, and right
localized primary osteoarthritis of the lower leg.
On September 23, 2010 appellant filed a recurrence claim, alleging a recurrence of her
work injury beginning September 16, 2010. On September 28, 2010 she filed a Form CA-7,
claim for compensation for the period September 27 through November 6, 2010. Appellant
stated that at the time of the claimed recurrence she was working at SJMC and her condition had
worsened due to too much walking and standing. The employing establishment controverted the
claim noting that appellant sustained a new injury at her current employment in the private-sector
at SJMC. Appellant also filed a CA-7 claim for compensation for the period September 27 to
November 6, 2010.
On January 7, 2009 Dr. Andrew K. Lee, a Board-certified orthopedic surgeon, performed
authorized arthroscopic partial medial meniscectomy on the right knee. He submitted reports
describing appellant’s follow-up care, also noting that she had a prior history of reflex
sympathetic dystrophy (RSD). On August 24, 2010 Dr. Lee noted appellant’s complaint of right
knee pain of one month’s duration and her feeling of a loose body in the knee. He advised that
on physical examination of the knee there was no edema or effusion and some stiffness and
grinding with tenderness over the medial and lateral joint line. Right knee x-ray findings
included a possible calcified loose body. Dr. Lee diagnosed medial meniscus tear, osteoarthritis,
and loose body in the right knee, status post arthroscopic surgery. He indicated that a magnetic
resonance imaging (MRI) scan study was warranted due to mechanical symptoms, but appellant
could not have one because she had a spinal implant. Dr. Lee recommended right knee
arthroscopic surgery to remove the loose body.
In an August 30, 2010 report, Dr. Melvyn Harrington, a Board-certified orthopedist,
noted the history of injury, appellant’s medical and surgical history, and her complaint of
progressively worsening right knee pain. Appellant walked with a moderate limp. The right
knee was ligamentously stable with negative Steinmann, spring and McMurray’s tests. Patellar
grind and shrug were mildly positive.
X-rays showed severe degenerative changes.
Dr. Harrington diagnosed osteoarthritis and pes anserine bursitis of the right knee. He
recommended physical therapy and noted that appellant would likely require a total knee
replacement. Dr. Harrington advised that appellant could perform light duty with no excessive
walking or standing and should avoid squatting, stooping, kneeling, bending, twisting, or heavy
lifting.
2

The termination letter indicated that she demonstrated difficulties in performing the full range of duties required
for a phlebotomist in the areas of timeliness and productivity of blood draws.

2

In a September 16, 2010 treatment note, Dr. Harrington noted appellant’s report that her
present employer SJMC would not comply with her restrictions and, as a result, her pain was
increasing. He indicated that her examination was unchanged, diagnosed symptomatic knee
arthritis with possible loose body, and indicated that her restrictions remained the same.
Dr. Harrington advised that appellant remain off work until November 6, 2010 while attending
physical therapy.
The employing establishment noted that appellant was removed from federal service for
unacceptable performance in carrying out her job duties and that prior to her removal she had
returned to full duty with no restrictions. It maintained that since she stated in her recurrence
claim that she walked too much in her job at SJMC she should file a claim under state workers’
compensation rules. Appellant had been employed by SJMC since March 7, 2005.
On an attending physician’s report dated September 27, 2010, Dr. Harrington noted that
appellant fell at work on January 28, 2008 and advised that she had severe degenerative joint
disease in her right knee. He diagnosed post-traumatic osteoarthritis of the right knee,
permanently worsened by a work-related fall on January 28, 2008, and indicated that appellant
would like to proceed with total knee replacement surgery.
By decision dated January 14, 2011, OWCP denied a recurrence of disability on
September 16, 2010 as the medical evidence failed to establish that her current condition was
causally related to the January 28, 2008 employment injury.
On December 16, 2010 Dr. Harrington noted appellant’s medical history and worsening
symptoms. He again recommended a total knee replacement. In a March 4, 2011 report,
Dr. Ronald Blum, an OWCP medical adviser Board-certified in orthopedic surgery, noted
reviewing the medical record. He indicated that the diagnosis of aggravation of localized
osteoarthritis of the right lower leg was work related. Dr. Blum advised that the recommended
surgical procedure was within the realm of accepted medical practice and the necessity for the
procedure was related to the accepted employment injury.
In a March 10, 2011 decision, OWCP again denied appellant’s claim for a recurrence of
total disability beginning September 16, 2010. On April 8, 2011 appellant requested a hearing.
She submitted Texas workers’ compensation forms dated August 30 and September 16, 2010 in
which Dr. Harrington advised that appellant could not work. Appellant also resubmitted
Dr. Lee’s August 24, 2010 report.
On June 7, 2011 an OWCP hearing representative vacated the March 10, 2011 decision
and remanded the case for further development of the record.
Appellant thereafter submitted treatment notes from Dr. Harrington in which he reiterated
his diagnoses and continued to recommend total knee replacement surgery. The employing
establishment provided a position description for medical technician in hematology. The
physical requirements included standing and walking for four to six hours, bending, twisting, and
pushing and pulling for one to two hours.
In November 2011 appellant was referred to Dr. James E. Butler, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In a December 5, 2011 report, Dr. Butler
3

noted the history of injury, appellant’s treatment history, her complaint of right knee, leg and
foot pain and weakness, and her report that she was working regular duty. Physical examination
findings included mild knee effusion on the right with negative right knee valgus, varus,
Lachman stress tests, negative McMurray’s and posterior drawer tests, and a mild crepitation
test. Right knee range of motion was decreased with full effort. Sensation testing was normal
bilaterally, and strength testing was 5/5 except that leg flexors and extensors were 4/5 on the
right. Dr. Butler noted that appellant used no assistive devices. He diagnosed osteoarthritis of
the right knee in time line from January 28, 2008, noting that it was found at surgery in 2009 and
had progressed. Dr. Butler advised that appellant had been disabled since 2008 and
recommended total knee replacement.
OWCP requested that Dr. Butler explain why, when appellant was released to full duty
on February 5, 2008, the arthritis found in the 2009 surgery was causally related to the
January 28, 2008 employment injury. It referred to the statement of accepted facts, and informed
Dr. Butler that appellant had been working in private employment continuously since the
January 28, 2008 employment injury. Dr. Butler was asked whether her current condition was
related to that job and whether she was disabled beginning September 2010 due to the
January 2008 employment injury.
In a January 9, 2012 response, Dr. Butler indicated that appellant’s knee arthritis
preexisted the January 2008 employment injury, and that it was noted by Dr. Lee at the time of
the 2009 surgery. He stated that the arthritis was not caused by the employment injury, noting
that in the Texas workers’ compensation system, arthritis was not covered, just the meniscus
tear, and therefore his position was that the workers’ compensation issue was resolved after the
2009 surgery.
In a February 24, 2012 decision, OWCP denied appellant’s claim that she sustained a
recurrence of disability on September 16, 2010. Appellant, through her attorney, timely
requested a hearing and submitted a March 8, 2012 treatment note in which Dr. Harrington
reiterated his findings and recommendations. Appellant was not present at the hearing, held on
June 12, 2012. The hearing representative instructed her attorney to provide a list of jobs
appellant had held since the January 28, 2008 employment injury, including any periods of
unemployment, an explanation of the diagnosed RSD noted by Dr. Lee, all medical records
regarding her right knee prior to the January 28, 2008 employment injury, and a list of any
additional workers’ compensation claims and accidents.
In a June 18, 2012 statement, appellant described her employment history. She indicated
that she had RSD in both arms for which she had a workers’ compensation claim against
Continental Airlines where she worked as a customer service representative from 1997 to 1998.
She indicated that the Texas Rehabilitation Commission paid for her to be trained as a
phlebotomist, and that she did not work from 1998 to 2002 and then began working at both
SJMC and the employing establishment as a phlebotomist and also received social security
disability compensation. Appellant stated that she continued working at SJMC, as a
phlebotomist and doing sedentary computer work. She indicated that she had additional right
knee claims including a workers’ compensation claim against Park and Fly, where she was
employed in the 1980s, when she fell down steps and had right knee surgery. Appellant stated
that she could not obtain medical records regarding this injury because the hospital had gone out

4

of business. She indicated that she was also in a motor vehicle accident in 2000 in which she
injured her right knee and had arthroscopic surgery on October 14, 2002, and that in 2010 she
fell at SJMC and bruised her left knee. Appellant described her work at the employing
establishment, stating that she stood and walked all day working both in the laboratory and on
the hospital floor where she drew blood from patients and pushed a heavy cart.
On an operative report dated October 14, 2002, Dr. Mark W. Maffet, Board-certified in
orthopedic surgery, provided a preoperative diagnosis of right knee medial meniscus tear; right
knee grade II-III chondromalacia, medial femoral condyle; and grade II-III chondromalacia,
trochlea and patella, 20 percent. Examination under anesthesia and diagnostic arthroscopy with
partial medial meniscectomy and chondroplasties of the right knee were performed. Surgical
inspection demonstrated the listed preoperative diagnoses. In an undated statement received by
OWCP on July 26, 2012, SJMC indicated that appellant had been working there from March 7,
2005 to the present, part time, as a laboratory assistant.
By decision dated August 3, 2012, an OWCP hearing representative remanded the case to
OWCP to obtain a supplemental report from Dr. Butler. He noted that right knee osteoarthritis
had been accepted. The hearing representative found Dr. Butler’s opinion insufficient and
remanded the case to provide Dr. Butler with copies of the 2002 and 2009 surgical reports and to
ask him to clarify whether appellant’s right knee osteoarthritis was causally related to one or
both surgeries, and to give medical rationale for his opinion.
In reports dated March 8 and June 4, 2012, Dr. Harrington noted that appellant’s physical
examination was unchanged. He injected her right knee on both visits and continued to
recommend total knee replacement surgery.
On September 27, 2012 OWCP forwarded copies of the 2002 and 2009 surgical
procedures to Dr. Butler and asked him to clarify whether appellant’s right knee osteoarthritis
was causally related to one or both surgeries and provide rationale for his opinion. In an
October 16, 2012 response, Dr. Butler indicated that appellant’s right knee osteoarthritis was not
causally related to either of the surgeries and was not causally related to the employment injury,
because Dr. Maffet, who performed the 2002 surgery, indicated that the osteoarthritis was
present under his inspection.
By decision dated April 2, 2013, OWCP denied appellant’s claim for total disability for
the period September 27 to November 6, 2010. It found that the weight of the medical evidence
rested with Dr. Butler who opined that appellant’s right knee arthritis was already present at the
time of the 2002 surgery. Appellant’s attorney timely requested a hearing and submitted a
June 20, 2013 note in which Dr. Harrington indicated that appellant had reached maximum
medical improvement and could need additional future treatment.
At the hearing, held on August 19, 2013, appellant’s attorney argued that the 2008 injury
and 2009 surgery made her osteoarthritis worse and that Dr. Butler’s report was not reliable. He
maintained that Dr. Harrington’s opinion supported appellant’s claim. Appellant testified that
Dr. Harrington took her off work for the claimed period because he wanted her to have physical
therapy, injections, and to stay off her knee. She stated that she currently worked a desk job at
SJMC.

5

In a November 29, 2013 decision, an OWCP hearing representative affirmed OWCP’s
denial of appellant’s claim for total disability compensation for the period September 27 to
November 6, 2010 as there was no rationalized medical evidence to establish that the claimed
period of disability was related to her federal employment.
On April 14, 2014 appellant requested reconsideration and submitted evidence previously
of record. In a merit decision dated August 13, 2014, OWCP denied modification of its
November 29, 2013 decision, finding the medical evidence submitted insufficient to establish
that she was totally disabled for the claimed period.
LEGAL PRECEDENT
Under FECA, the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.3 Disability is
thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in FECA.4 The test of “disability”
under FECA is whether an employment-related impairment prevents the employee from engaging
in the kind of work he or she was doing when injured.5 Whether a particular injury causes an
employee to be disabled for work and the duration of that disability, are medical issues that must
be proved by a preponderance of the reliable, probative and substantial medical evidence.6
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.7 Causal relationship is a medical issue. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

5

Corlisia Sims, 46 ECAB 963 (1995).

6

Tammy L. Medley, 55 ECAB 182 (2003).

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

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

6

ANALYSIS
The accepted conditions in this case are a contusion of the right knee, tear of the right
medial meniscus, right chondromalacia patella, and right localized primary osteoarthritis of the
lower leg, caused by a January 28, 2008 fall at work.
The Board finds that appellant did not meet her burden of proof to establish entitlement
to disability compensation for the period September 27 through November 6, 2010 because she
did not submit sufficient medical evidence explaining that the claimed disability was due to the
accepted injury. Appellant’s employment at employing establishment was terminated for cause
on February 15, 2008. After that time she worked part time at SJMC until she stopped work and
claimed compensation beginning on September 27, 2010.
In his August 24, 2010 report, Dr. Lee did not discuss appellant’s ability to work. His
report is, therefore, insufficient to establish that she was totally disabled for the period claimed.
The Board also finds the reports of Dr. Harrington, who submitted a number of reports
beginning on August 30, 2010, insufficient to establish entitlement to disability compensation.
Although Dr. Harrington related appellant’s diagnosed right knee osteoarthritis to the January 28,
2008 employment injury, he also indicated that her right knee pain had recently worsened and
indicated that she reported that SJMC would not comply with his physical restrictions. He
recommended that she remain off work for the period September 27 to November 6, 2010 and
undergo physical therapy. When a physician’s statements regarding an employee’s ability to
work consist only of repetition of the employee’s complaints that he or she hurt too much to
work, without objective findings of disability being shown, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.9
Dr. Harrington merely indicated that appellant’s right knee hurt while performing her job duties
at SJMC and she should be off work to attend physical therapy. He did not express specific
knowledge of her federal service job duties or explain the mechanics as to how the January 28,
2008 fall caused her current right knee condition other than to note that she had right knee
degenerative joint disease and osteoarthritis that had worsened over time. Moreover, the facts in
this case indicate that appellant has a significant nonemployment-related preexisting history
concerning her right knee, including a fall in the 1980s for which she had right knee surgery, a
motor vehicle accident in 2000 for which she had right knee surgery, and a 2010 fall at SJMC.
Dr. Harrington did not discuss these additional injuries in his report. The issue of whether a
claimant’s disability is related to an accepted condition is a medical question which must be
established by a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disability is causally related to employment factors and supports that
conclusion with sound medical reasoning.10 The Board has long held that medical conclusions
unsupported by rationale are of diminished probative value and insufficient to establish causal

9

G.T., 59 ECAB 447 (2008).

10

Sandra Pruitt, 57 ECAB 126 (2005).

7

relationship.11 Dr. Harrington’s reports are therefore insufficient to establish that appellant was
totally disabled for the claimed period.
Dr. Butler, an OWCP referral physician, submitted reports dated December 5, 2011,
January 9, and October 16, 2012. While he initially indicated that appellant’s current right knee
condition was a continuation of the arthritis found in the 2009 surgery and indicated that she was
disabled from 2008, upon being asked to further explain his opinion, he advised on January 9,
2012 that appellant’s arthritis was not caused by the January 28, 2010 employment injury. Upon
Dr. Butler’s review of the 2002 and 2009 surgical report, he opined on October 16, 2012 that
appellant’s right knee osteoarthritis was not causally related to either surgery. He noted that in
the 2002 surgery Dr. Maffet described the arthritis as preexisting at that time. The Board,
however, notes that primary osteoarthritis of the right leg has been accepted in this case, but by
her own admission appellant admitted that her condition had worsened due to walking too much
at her job at SJMC.
Without a detailed medical report describing how and why appellant was disabled from
September 27 to November 6, 2010 due to the January 28, 2008 employment injury, she has not
met her burden of proof to establish entitlement to disability compensation for that period.12
As there is no rationalized medical evidence establishing total disability for the period
September 27 through November 6, 2010 related to her accepted work conditions, appellant
failed to establish entitlement to wage-loss compensation for that period.
Regarding appellant’s argument on appeal that she wants her case reopened so that she
can get appropriate medical treatment, the Board does not have jurisdiction over that issue. The
merit issue in this case is whether appellant established entitlement to disability compensation
for the period September 27 through November 6, 2010. The Board’s jurisdiction is limited to
reviewing final decisions of OWCP.13
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to disability compensation for the period September 27 through November 6, 2010.

11

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

12

See W.S., Docket No. 14-1022 (issued July 1, 2014).

13

20 C.F.R. § 501.2(c); see J.B., Docket No. 09-2191 (issued May 14, 2010).

8

ORDER
IT IS HEREBY ORDERED THAT the August 13, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

9