United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.N., claiming as the widower of P.N., Appellant
and
U.S. POSTAL SERVICE, LORENZO POST
OFFICE, Lorenzo, TX, Employer
__________________________________________

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Appearances:
Joseph E. Allman, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-2059
Issued: May 11, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 12, 2011 appellant, through his attorney, filed a timely appeal of a
March 16, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
finding an overpayment of compensation, denying waiver of recovery of the overpayment and
directing repayment. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that appellant received an
overpayment in the amount of $357,733.95 from July 5, 1986 through February 13, 2010
because he remarried; and (2) whether OWCP properly denied waiver of recovery of the
overpayment.
On appeal, counsel contends that appellant is entitled to waiver as recovery of the
overpayment would defeat the purpose of FECA and be against equity and good conscience. He
1

5 U.S.C. § 8101 et seq.

contended that appellant was never advised that he would no longer receive survivor’s benefits if
he remarried before the age of 60; rather OWCP advised him that he would receive survivor’s
benefits for the rest of his life. Counsel stated that appellant would suffer financial hardship in
repaying the overpayment.
FACTUAL HISTORY
On February 22, 1985 OWCP accepted appellant’s claim for survivor’s benefits, finding
that the death of the employee, his wife, on September 19, 1984 was work related.2 It paid him
survivor’s benefits beginning September 20, 1984. On July 5, 1986 appellant then 51 years old,
remarried.
By letter dated March 1, 2010, OWCP issued a preliminary determination that appellant
received an overpayment of compensation in the amount of $357,733.95 for the period July 5,
1986 to February 13, 2010, because he remarried on July 5, 1986. An overpayment worksheet
and computer printouts established that he was paid survivor’s benefits of $32.80 on July 5, 1986
and $407,821.79 from July 6, 1986 through February 13, 2010, totaling $407,854.50, less
$22,044.00, the lump-sum payment he should have received on July 5, 1986 and credits for
retained health benefits of $23.16 on July 5, 1986 and $28,053.48 from July 6, 1986 through
February 13, 2010, resulting in a $357,733.95 overpayment. Appellant was found without fault
in creating the overpayment. OWCP requested that he complete the enclosed overpayment
recovery questionnaire (Form OWCP-20) and submit supporting financial documents. It notified
appellant that, within 30 days of the date of the letter, he could request a telephone conference, a
final decision based on the written evidence or a prerecoupment hearing.
By letter dated March 30, 2010, received by OWCP on April 2, 2010, appellant requested
waiver of recovery of the overpayment on the grounds that it would defeat the purpose of FECA
and be against equity and good conscience under 20 C.F.R. § 10.437. He also requested a
telephone conference regarding the overpayment.
In an April 2, 2010 decision, OWCP finalized the preliminary overpayment decision,
finding that appellant received an overpayment in compensation in the amount of $357,733.95.
While appellant was not at fault, he was not entitled to waiver of the overpayment. He was
instructed to repay the overpayment in the amount of $1,000.00 per month.
On April 28, 2010 appellant, through his attorney, requested an oral hearing.
By letter dated May 21, 2010, OWCP advised counsel that the April 2, 2010 decision was
not subject to the hearing provision of 5 U.S.C. § 8124(b). It advised him of the right to appeal
to the Board if he disagreed with that decision.
In a June 18, 2010 letter, appellant stated that he had agreed to a lesser amount of
compensation in order to continue receiving it for the remainder of his life. His receipt of
2

On September 19, 1984 the employee, then a 46-year-old rural carrier, sustained a broken neck as a result of a
motor vehicle accident while delivering mail on her route. She was transported to a hospital where she died of her
injury.

2

compensation for 24 years after he remarried reinforced his belief that he was entitled to receive
such compensation. Appellant stated that he first advised OWCP about his remarriage in 1988.
He again requested an oral hearing. Appellant also requested waiver of the overpayment on the
grounds that he relied on misleading and incorrect information from OWCP and was financially
unable to repay the funds.
By letter dated July 8, 2010, appellant, through his attorney, requested reconsideration of
the April 2, 2010 decision. He completed the OWCP-20 form on July 7, 2010 and indicated that
he no longer had the incorrectly paid checks or payments. Appellant listed a 31-year-old son as a
dependent. He reported monthly income of $1,733.30 in social security benefits, $6,984.16 in
take-home earnings and $300.00 in recreational vehicle space rental, totaling $9,017.46.
Appellant had $200.00 cash on hand, $715.00 in a checking account, $6,000.00 in a savings
account and $12,000.00 value of other personal property and funds, totaling $18,915.00. He
listed monthly expenses which included $1,332.34 for rent or mortgage, $500.00 for food,
$300.00 for clothing, $1,264.00 for utilities, $2,000.00 for other expenses, $1,500.00 for credit
cards, $1,560.83 for life, health and long-term care insurance and $1,288.93 for a mortgage on a
1995 Winnebago motor home worth $90,000.00, totaling $9,746.10.
In an affidavit dated July 8, 2010, appellant stated that he reported his remarriage to
OWCP each year since it took place and assumed that he was entitled to continue receiving
survivor’s benefits. This was consistent with advice given to him by OWCP representatives who
stated at the time he was granted the benefits, that he would continue to receive them for the rest
of his life. Beginning in 1997, appellant supported his son who was trying to start a music
career. He gave him an average of $2,000.00 a month based on his reliance on his monthly
survivor’s benefits. Appellant contended that he was unable to repay the overpayment due to his
deteriorating health, which prevented him from obtaining employment. In addition, he could not
sell his house or motor home because they were worth less than the purchase prices and
remodeling costs.
In a July 23, 2010 decision, OWCP set aside the April 2, 2010 decision to schedule a
telephone conference as requested by appellant regarding the overpayment. Following an
August 12, 2010 telephone conference, appellant submitted financial records.
By letter dated November 24, 2010, OWCP requested that appellant submit verification
of spousal income, savings account statements and explanations regarding “DDA” deposits from
his bank account, why his son was listed as a dependent and the $12,000.00 value for his
personal property.
In a November 30, 2010 letter, appellant’s attorney stated that for several years appellant
financially supported his son who was unable to support himself as a musical performer. The
$12,000.00 personal property value was for jewelry and foreign currency. Counsel noted that
appellant had undergone surgery to remove cancerous tumors from his kidneys and thyroid and
that he probably would not be able to return to either part-time or full-time work. As a result,
appellant’s income would be less than previously reported. He contended that appellant should
not be required to repay the overpayment as he was not at fault in creating it. Additional
financial records were submitted, which included bank statements which indicated that “DDA”
payments represented his hospital checks.

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In a March 16, 2011 decision, OWCP found that appellant was without fault in the
creation of the overpayment he received in the amount of $357,733.95 for the period July 5,
1986 through February 13, 2010. It denied waiver of the recovery of the overpayment, finding
that he failed to submit sufficient evidence to establish that repayment of the overpayment would
defeat the purpose of FECA or be against equity and good conscience. Appellant was ordered to
repay the overpayment in the amount of $1,000.00 a month.
LEGAL PRECEDENT -- ISSUE 1
OWCP procedures state that:
“Widows and Widowers. If the spouse has remarried, the claims examiner will
need to determine her or his age at the time of remarriage. A widow or widower
over age 60 (prior to May 29, 1990) or over age 55 (May 29, 1990 or later) is
entitled to continue receiving monthly benefits. If the surviving spouse is
younger, the claims examiner must initiate action to terminate benefits and pay
the 24-month lump sum.”3
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $357,733.95 for the period July 5, 1986 through
February 13, 2010. The record establishes that OWCP paid him survivor’s benefits following
the September 19, 1984 employment-related death of the employee, his wife. Appellant
remarried on July 5, 1986 at the age of 51 years old, but received survivor’s benefits through
February 13, 2010. OWCP’s procedures provide that a surviving spouse younger than 55 years
old, who remarries, is not entitled to continuing monthly benefits. Instead, the surviving spouse
is paid a 24-month lump sum.4 Computer print-outs and overpayment worksheets of record
support that appellant received compensation in the amount of $32.80 on July 5, 1986 and
$407,821.79 from July 6, 1986 through February 13, 2010, totaling $407,854.50. The
$22,044.00 lump-sum payment he should have received during the stated period due to his
remarriage on July 5, 1986 and credits for retained health benefits of $23.16 on July 5, 1986 and
$28,053.48 from July 6, 1986 through February 13, 2010 were subtracted from the $407,854.50
payment to determine the $357,733.95 amount of the overpayment. The Board finds, therefore,
that appellant received an overpayment in compensation in that amount.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment.5

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Death Claims, Chapter 2.700.17(c) (August 1994).

4

Id.

5

20 C.F.R. § 10.433(a).

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If OWCP finds that the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of
FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.6
Recovery will defeat the purpose of FECA if both: (a) the individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first
$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from
recoupment as a necessary emergency resource. If an individual has current income or assets in
excess of the allowable amount, a reasonable repayment schedule can be established over a
reasonable, specified period of time. It is the individual’s burden to submit evidence to show
that recovery of the overpayment would cause the degree of financial hardship sufficient to
justify waiver.7 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.8
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt.9 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes his position for the worse.10
ANALYSIS -- ISSUE 2
As OWCP found appellant without fault in the creation of the overpayment of
compensation, waiver must be considered and repayment is still required unless adjustment or
recovery of the overpayment would defeat the purpose of FECA or be against equity and good
conscience.11
Appellant furnished OWCP with an overpayment questionnaire on July 7, 2010 and
submitted supporting financial information following the telephone conference held on
August 12, 2010. He reported monthly income of $9,017.46 and monthly expenses of $9,746.10.
6

Id. at § 10.434. See 5 U.S.C. § 8129(b).

7

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (June 2009). See Miguel A. Muniz, 54 ECAB 217 (2002); 20 C.F.R. §§ 10.436, 10.437.
8

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

9

20 C.F.R. § 10.437(a).

10

Id. at § 10.437(b).

11

Id. at §§ 10.436, 10.437.

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Regarding appellant’s $2,000.00 a month payments to his 31-year-old son to help him pursue a
music career, the Board finds that this is excluded from his monthly expenses because his son
does not qualify as a dependent under FECA. A child is considered a dependent if he or she is
under 18 years of age or over 18 but unmarried and incapable of self-support because of a
physical or mental disability.12 It also includes an unmarried full-time student under 23 years of
age who has not completed four years of education beyond high school.13 Appellant’s 31-yearold son is over the age of 23 but there is no evidence that he is unmarried and incapable of selfsupport because of a physical or mental disability. As his son does not qualify for dependent
status, this $2,000.00 monthly payment in support of his son’s music career is not considered an
ordinary and necessary living expense. The Board finds, therefore, that the $2,000.00 payment is
excluded from appellant’s monthly expenses, resulting in monthly expenses of $7,746.10. As
the record establishes that his monthly income exceeds his monthly expenses by $1,271.36, he is
not entitled to waiver as he does not need substantially all of his income to meet current ordinary
and necessary expenses.
Additionally, the evidence does not demonstrate that recovery of the overpayment would
be against equity and good conscience because, in reliance on the overpaid compensation,
appellant relinquished a valuable right or changed his position for the worse. Appellant argued
that he would not have given his son $2,000.00 a month if he had known that he was not entitled
to continue to receive survivor’s benefits for the rest of his life following his remarriage on
July 5, 1986. As found above, his son is not a dependent as defined under FECA and its
implementing regulations. The Board finds, therefore, that appellant’s argument is not relevant.
Appellant further argued that he first advised OWCP about his remarriage in 1986 when
it first took place and every year thereafter and that it misinformed him that he would continue to
receive compensation for his lifetime. His contentions largely go to the issue of fault, which was
not found by OWCP. The Board has held that, although OWCP may have been at fault in
making an overpayment, this fact alone does not relieve the overpaid individual or any other
individual from whom OWCP seeks to recover the overpayment from liability for repayment.14
Further, even if appellant detrimentally relied on erroneous information, such reliance does not
give rise to equitable estoppel against OWCP or entitle him to a monetary benefit otherwise not
permitted under FECA or implementing federal regulations.15 The Board finds that he has not
established that recovery of the overpayment would be against equity and good conscience since
there is no evidence of record from which to conclude that he relied on his incorrectly calculated
compensation payments to relinquish a valuable right or change his position for the worse.

12

5 U.S.C. §§ 8110(a)(1) and 8101(17); id. at § 10.405; see also Leon J. Mormann, 51 ECAB 680 (2000).

13

Id. at § 10.405(a).

14

Earl D. Long, 50 ECAB 464, 472 (1999).

15

See Robert P. Mitchell, 52 ECAB 116 (2000); Norman W. Hanson, 45 ECAB 430 (1994).

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Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, the Board finds that he has failed
to show that OWCP abused its discretion by refusing to waive the $357,733.95 overpayment.16
On appeal, counsel contended that appellant is entitled to waiver as recovery of the
overpayment would defeat the purpose of FECA and be against equity and good conscience. He
stated that appellant was never advised that he would no longer receive survivor’s benefits if he
remarried before the age of 60. Counsel further stated that OWCP advised him that he would
receive survivor’s benefits for the rest of his life. Lastly, he stated that appellant would suffer
financial hardship in repaying the overpayment. As noted, appellant did not demonstrate
detrimental reliance or that recovery would cause financial hardship. OWCP properly found that
recovery of the overpayment would not defeat the purpose of FECA or be against equity and
good conscience. The Board finds, therefore, that it properly found that waiver of the recovery
of the overpayment was not warranted.
CONCLUSION
The Board finds that OWCP properly found that appellant received an overpayment in
the amount of $357,733.95 from July 5, 1986 through February 13, 2010. The Board further
finds that OWCP properly denied waiver of recovery of the overpayment.

16

As recovery from continuing compensation benefits under FECA is not involved in this case, the Board has no
jurisdiction over the amount OWCP determined that appellant should repay each month. Terry A. Keister, 56 ECAB
559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the March 16, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 11, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHAL SERVICE,
Orlando, FL, Employer
__________________________________________

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

Docket No. 18-1536
Issued: June 24, 2019

Case Submitted on the Record

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

JURISDICTION
On August 8, 2018 appellant, through counsel, filed a timely appeal from a July 12, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that, following the July 12, 2018 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish degenerative disc
disease of the lumbar spine and osteoarthritis of the right knee consequential to the accepted
June 25, 2012 employment incident.
FACTUAL HISTORY
On June 25, 2012 appellant, then a 47-year-old federal air marshal, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a left knee injury that day as a result of kneeling
down to shoot at a firing range while in the performance of duty. He explained that as he was
kneeling down to shoot, his left knee hit the pavement and he felt it “pop.” Afterward appellant
felt sore. On the reverse side of the claim form, appellant’s supervisor indicated that appellant was
injured in the performance of duty and that he did not stop work.
In an August 23, 2012 letter, OWCP indicated that when appellant’s claim was first
received it appeared to be a minor injury that resulted in minimal or no lost time from work and,
based on these criteria and because the employing establishment did not controvert continuation
of pay (COP) or challenge the case, payment of a limited amount of medical expenses was
administratively approved. It explained that it had reopened the claim for formal adjudication of
the merits because appellant had not returned to full-duty work. OWCP accepted the claim for
acute left knee contusion. It later expanded the acceptance of the claim to include aggravation of
degenerative arthritis, medial compartment, left knee, and small bowel obstruction. OWCP
authorized a left primary total knee arthroplasty, which occurred on March 27, 2013, and a
laparoscopic lysis of intestinal adhesion and intermediate wound closure of the small bowel, which
occurred on April 3, 2013. Appellant was placed on the periodic compensation rolls, effective
April 7, 2013.
OWCP subsequently referred appellant to a number of second opinion evaluations to
determine the nature and extent of his employment-related conditions.
In a second opinion report dated July 11, 2017, Dr. Jeffrey T. O’Brien, a Board-certified
orthopedic surgeon, noted that appellant complained of pain in his back and his right knee, but
opined that his degenerative disc disease in his low back and osteoarthritis in his right knee were
not related to the accepted employment incident. He found that appellant demonstrated
degenerative disc disease in his low back based on a magnetic resonance imaging (MRI) scan
report included in the record. Dr. O’Brien also found that a physical examination and diagnostics
studies revealed osteoarthritis in appellant’s right knee. He, however, opined that both of these
conditions were not related to the June 25, 2012 work injury. Dr. O’Brien opined that appellant’s
accepted left knee conditions had resolved, but he was unable to return to full-duty work because
he was unable to squat, kneel, run, or push. He advised that appellant required further treatment
of his back and right knee, specifically that a replacement was likely necessary, but reiterated that
these conditions were not causally related to his accepted employment injury.
On November 6, 2017 appellant submitted statements dated October 23 and November 6,
2017 claiming that he sustained a consequential back injury during his physical therapy in
June 2013 and a consequential right knee injury due to the need to place most of his weight on his
right knee joint due to the pain of his left knee joint and in an attempt to protect his left knee.

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In support of his claim, appellant submitted physical therapy notes dated November 10, 14,
16, 22, 27, and 30, 2017.
Appellant also submitted reports dated October 9 and November 30, 2017 from
Dr. Mark A. Seldes, a Board-certified family practitioner, who diagnosed degenerative disc
disease of the lumbar spine, bilateral radiculopathy of the lower extremities, status postoperative
left total knee replacement, internal derangement of the right knee joint, degenerative arthritis of
the right knee joint, and degenerative medial meniscus of the right knee joint. Dr. Seldes opined
that appellant’s right knee condition was “a consequential injury to his left knee joint.”
In development letters dated December 4, 2017, OWCP advised appellant that it had
received his request for consequential injuries to his lumbar spine and right knee in connection
with the accepted June 25, 2012 employment injury. It advised him of the deficiencies of his claim
and afforded him 30 days to submit additional evidence and respond to its inquiries. OWCP noted
that appellant’s physician should specifically address how these conditions were causally related
to his work-related injury.
In response, appellant submitted a December 11, 2017 x-ray of the right knee which
demonstrated osteoarthrosis.
Appellant further submitted a December 11, 2017 report from Dr. Seldes who diagnosed
partial thickness tear of the proximal anterior cruciate ligament (ACL) of the right knee joint, right
knee joint effusion, and chondromalacia of the medial tibiofemoral joint of the right knee joint.
Dr. Seldes reported that appellant had “a preexisting injury to his right knee joint from a motor
vehicle accident in 1994.” He indicated that appellant had recovered well from that accident
without the need for treatment, surgery, or physical therapy. Dr. Seldes opined that after
appellant’s June 25, 2012 work injury, he attempted to work as much as he could on the injured
left knee while relying on his right knee for significant support for approximately one year. During
that time, he indicated that appellant’s right knee bore the brunt of a lot of the weight due to the
ongoing pain from the left knee joint. Appellant’s right knee joint would then have to bear the
brunt of most of the weight and transfer weight when going from sitting to standing, when climbing
up and down stairs, attempting to run or perform any physical training at work, as well as climbing
in and out of his vehicle and twisting for which he would use his right knee which would cause
pressure on his meniscus. Dr. Seldes concluded that given appellant’s preexisting injury from a
1994 motor vehicle accident, which had appeared to have healed, appellant suffered an aggravation
of the preexisting injury to his right knee. He also noted that during this same time appellant’s
weight had significantly increased due to a more sedentary lifestyle and a lack of exercise.
Dr. Seldes noted that appellant became morbidly obese which further aggravated the stress on both
his left and right knee joints, to the point where he had to have a left total knee replacement on
March 27, 2013, less than one year after the June 25, 2012 injury. He related that, while
undergoing physical therapy for his left knee joint, appellant’s right knee joint began to cause him
more significant pain. Dr. Seldes opined that this was understandable because after his left knee
surgery, appellant had to solely use his right knee joint for “any significant balance.” He found
that review of the right knee MRI scan on January 10, 2014, the impression said degenerative
extrusion of the medial meniscus without clear evidence for meniscal tear and degenerative
articular cartilage loss without osteochondral injury with intact cruciate ligaments at that time.
Dr. Seldes related that appellant continued to have knee joint effusion on the right side due to his
overreliance and need to use the right knee joint due to the pain and continued weakness on the
left side. He further indicated that a newer MRI scan dated December 11, 2017 continued to show
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arthrosis with marginal spurring and tibial spiking and low grade chondromalacia at the medial
tibiofemoral joint. He opined that there appeared to be an injury to the medial meniscus and the
posterior horn as well as a newer injury of a partial thickness tear of the proximal ACL. Dr. Seldes
concluded that appellant’s right knee osteoarthritis was a consequential injury to his accepted left
knee conditions.
By decision dated December 28, 2017, OWCP denied appellant’s claim for consequential
injuries, finding that the medical evidence of record failed to establish a causal relationship
between appellant’s diagnosed degenerative disc disease of the lumbar spine and osteoarthrosis of
the right knee and the accepted June 25, 2012 employment incident. It found that Dr. O’Brien’s
July 11, 2017 second opinion report represented the weight of the medical evidence.
On January 4, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant subsequently submitted physical therapy reports dated January 4 through
June 1, 2018.
In reports dated January 16 and April 17, 2018, Dr. Seldes reiterated his medical diagnoses
and opinions. He reviewed Dr. O’Brien’s July 11, 2017 second opinion report and opined that
Dr. O’Brien provided “no medical explanation regarding his opinion” as to why appellant’s lumbar
spine and right knee conditions were not causally related to the accepted employment injury.
A telephonic hearing was held before an OWCP hearing representative on May 30, 2018.
Appellant provided testimony and the hearing representative held the case record open for 30 days
for the submission of additional evidence.
In response, appellant submitted physical therapy reports dated June 4 through
July 6, 2018.
Appellant also submitted a July 11, 2013 report from Dr. Alessandro L. Acosta-Fajardo, a
family practitioner, who diagnosed backache and thoracic or lumbosacral neuritis or radiculitis.
Dr. Acosta-Farjardo also noted that appellant “seem[ed] to have lumbar radiculopathy.”
In a June 6, 2018 report, Dr. Seldes continued to opine that appellant’s right knee condition
was a consequential injury from the original injury to his left knee due to the transfer of weight.
By decision dated July 12, 2018, OWCP’s hearing representative affirmed the
December 28, 2017 decision, finding that the medical evidence of record was insufficient to
establish causal relationship between appellant’s consequential injuries and the accepted June 25,
2012 employment injury.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that flows
from the injury is deemed to arise out of the employment, unless it is the result of an independent,

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intervening cause attributable to the employee’s own intentional conduct.4 The basic rule is that a
subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.5 With respect
to consequential injuries, the Board has held that, where an injury is sustained as a consequence
of an impairment residual to an employment injury, the new or second injury, even though
nonemployment related, is deemed, because of the chain of causation to arise out of and in the
course of employment and is compensable.6
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, explaining causal relationship. Rationalized medical
evidence is an opinion of reasonable medical certainty supported by sound medical rationale
explaining the nature of the relationship of the diagnosed condition and the specific employment
factors or employment injury.7
Section 8123(a) of FECA provides, in pertinent part: “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.”8 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.9
Where a 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 on a proper
factual background, must be given special weight.10
ANALYSIS
The Board finds that this case is not in posture for decision.
The record reflects an unresolved conflict of the medical opinion evidence between
Dr. O’Brien, the second opinion examiner, and Dr. Seldes, appellant’s treating physician,
regarding whether appellant’s diagnosed degenerative disc disease and osteoarthritis in his right
knee were consequential to the accepted June 25, 2012 employment injury.

4

Albert F. Ranieri, 55 ECAB 598 (2004); Clement Jay After Buffalo, 45 ECAB 707 (1994); John R. Knox, 42
ECAB 193 (1990).
5

S.M., 58 ECAB 166 (2006); Debra L. Dillworth, 57 ECAB 516 (2006); Carlos A. Marrero, 50 ECAB 117 (1998).

6

R.V., Docket No. 18-0552 (issued November 5, 2018); L.S., Docket No. 08-1270 (issued July 2, 2009); Kathy A.
Kelley, 55 ECAB 206 (2004).
7

J.B., Docket No. 14-1474 (issued March 13, 2015).

8

5 U.S.C. § 8123(a).

9

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

10

V.K., Docket No. 18-1005 (issued February 1, 2019).

5

In a report dated July 11, 2017, OWCP’s second opinion examiner, Dr. O’Brien, found that
appellant presented with pain in his back and his right knee, but opined that appellant’s diagnosed
degenerative disc disease in his low back and osteoarthritis in his right knee were not causally
related to the accepted work-related injury. Dr. O’Brien found that appellant’s accepted left knee
conditions had resolved, but he was unable to return to full-duty work because he was unable to
squat, kneel, run, or push.
In a December 11, 2017 report, appellant’s attending physician, Dr. Seldes, noted that after
appellant’s June 25, 2012 work injury, he attempted to work as much as he could on the injured
left knee while relying on his right knee for significant support for approximately one year. He
further explained that appellant’s right knee bore the brunt of the weight due to the ongoing pain
from the left knee joint and that given appellant’s preexisting injury from a 1994 motor vehicle
accident, which had appeared to have healed, this aggravated the preexisting injury to his right
knee.
As the reports of Drs. Seldes and O’Brien are of equal weight and rationale, the Board finds
that they necessitate referral to an impartial medical specialist for resolution of the conflict in
medical opinion.11
For these reasons, the issue of whether appellant’s degenerative disc disease of the lumbar
spine and osteoarthritis of the right knee conditions are consequential to the accepted June 25,
2012 employment injury is unresolved at this time. Under section 8123(a) of FECA, OWCP must
resolve this conflict by referring appellant, together with the medical record and a statement of
accepted facts, to an impartial medical specialist.12 After this and such other development as
OWCP deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

11

Supra notes 8 and 9.

12

See D.P., Docket No. 10-0121 (issued July 23, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further development consistent
with this decision of the Board.
Issued: June 24, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL MEDICAL CENTER,
Lexington, KY, Employer
__________________________________________

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Docket No. 14-991
Issued: September 15, 2014

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

Case Submitted on the Record

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

JURISDICTION
On March 25, 2014 appellant filed a timely appeal from an October 4, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). The most recent merit
decision of record is dated June 18, 2013. There is no merit decision within 180 days of
March 25, 2014, the date appellant filed his appeal with the Board. Therefore, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2
ISSUE
The issue
5 U.S.C.§ 8128(a).
1
2

is

whether

OWCP

properly

denied

reconsideration

pursuant

to

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence accompanying his request for appeal. However, the Board may not
consider new evidence for the first time on appeal that was not before OWCP at the time it issued the final decision
in the case. 20 C.F.R. § 501.2(c).

On appeal, appellant asserts that workplace security videotapes would verify that he was
injured in the performance of duty. He contends that, following the injury, he promptly reported
to a hospital emergency room as ordered.
FACTUAL HISTORY
On May 6, 2013 appellant, then a 27-year-old corrections officer, filed a traumatic injury
claim (Form CA-1) claiming that earlier that day, he sustained right upper extremity and back
pain when a prisoner who he was escorting collapsed into his arms.
In a May 13, 2013 letter, OWCP advised appellant of the additional evidence needed to
establish his claim, including factual information corroborating the claimed incident and a
medical report supporting that the incident caused an injury. Appellant was afforded 30 days to
submit such evidence. However, no additional evidence was received by OWCP prior to
June 18, 2013.
By decision dated June 18, 2013, OWCP denied appellant’s claim on the grounds that
fact of injury was not established. It accepted that the May 13, 2013 incident occurred at the
time, place and in the manner alleged. OWCP further found, however, that as appellant did not
submit any medical evidence supporting causal relationship, he did not establish that he
sustained an injury as claimed.
In a September 23, 2013 letter, appellant requested reconsideration. He did not submit
additional evidence or argument.
By decision dated October 4, 2013, OWCP denied reconsideration as appellant’s
September 23, 2013 reconsideration did not raise substantive legal questions or include new and
relevant evidence. It was therefore insufficient to warrant a merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show that OWCP erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by OWCP; or (3) constitute
relevant and pertinent new evidence not previously considered by OWCP.4 Section 10.608(b)
provides that when an application for review of the merits of a claim does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits.5

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b). See also D.E.., 59 ECAB 438 (2008).

2

In support of a request for reconsideration, a claimant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.6 The claimant need
only submit relevant, pertinent evidence not previously considered by OWCP.7 When reviewing
an OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(2) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant claimed that he sustained right upper extremity and back injuries when he
caught a collapsing prisoner. OWCP denied the claim, by decision dated June 18, 2013, as
appellant had submitted no medical evidence establishing an injury. Appellant requested
reconsideration by September 23, 2013 letter, but did not present a legal argument or submit
additional evidence. OWCP denied reconsideration by October 4, 2013 decision, finding that
appellant’s letter did not warrant a merit review as it did not raise substantive legal questions or
include new, relevant evidence.
A claimant may be entitled to a merit review by submitting new and relevant evidence;
however, appellant did not do so in this case. The only document submitted pursuant to his
September 23, 2013 letter requesting reconsideration was the letter itself, which did not present
any legal argument. Appellant did not provide additional evidence.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted
a specific point of law, advance a relevant legal argument not previously considered by OWCP,
or constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal, appellant asserts that security videotapes would verify that he was injured in
the performance of duty. He contends that he promptly reported to a hospital emergency room
as ordered. These arguments pertain to the merits of the claim. As explained above, the Board
does not have jurisdiction over the merits of the case on the present appeal.
CONCLUSION
The Board finds that OWCP properly denied reconsideration.

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

8

Annette Louise, 54 ECAB 783 (2003).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 4, 2013 is affirmed.
Issued: September 15, 2014
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, MITCHELL POST
OFFICE, Mitchell, SD, Employer
__________________________________________

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Appearances:
Larissa Ann Parde, for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0908
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On May 26, 2021 appellant, through his representative, filed a timely appeal from a
March 24, 2021 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right hip condition
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On July 11, 2018 appellant, then a 57-year-old city letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained right hip osteoarthritis as a result of factors
of his federal employment including standing, walking, lifting, twisting, and turning. He noted
that he first became aware of his claimed condition and that it was cause d or aggravated by his
federal employment on May 9, 2018. Appellant did not stop work.
In a development letter dated July 17, 2018, OWCP advised appellant of the deficiencies
of the claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and afforded him 30 days for the submission of additional evidence.
An x-ray of appellant’s right hip obtained on May 9, 2018 demonstrated advancement of
severe degenerative joint disease with bone-on-bone acetabular osteophytes.
In a note dated June 18, 2018, Dr. Chris Krouse, an osteopath Board-certified in orthopedic
surgery, diagnosed severe degenerative change of the right hip. He recommended a total hip
arthroplasty. Dr. Krouse noted that appellant had a long-standing history of extensive use of the
right hip as a result of his federal employment, including factors such as ambulation, lifting of mail
tubs, pushing/pulling, and bending/twisting. He opined within a reasonable degree of certainty
that appellant’s right hip degenerative change was beyond a reasonable doubt directly related to
appellant’s occupation and 35 years of federal service.
By decision dated October 9, 2018, OWCP denied appellant’s claim as the medical
evidence of record was insufficient to establish a causal relationship between the diagnosed
conditions and factors of his federal employment.
OWCP continued to receive medical evidence. In a report dated September 5, 2013,
Dr. John Swisher, an osteopath Board-certified in sports medicine, examined appellant for
complaints of right hip and leg pain. He diagnosed right low back pain with right lower extremity
pain resembling potential radiculopathy, right lateral hip pain, either secondary to radiculopathy
or trochanteric syndrome, right proximal hamstring pain consistent with probable tendinosis,
intermittent right knee pain with evidence of degenerative joint disease , and right groin/deep
gluteal pain with femoral acetabular impingement. In a report dated September 25, 2013,
Dr. Swisher diagnosed localized osteoarthritis of the pelvis, lumbosacral spondylosis, and
trochanteric bursitis.
An x-ray of appellant’s right hip obtained on September 5, 2013 demonstrated moderate
narrowing involving the superior hip joint space with osteophytes off the superior and inferior
aspects of the acetabulum and inferior aspect of the femoral head. A magnetic resonance imaging
scan of the hip and pelvis obtained on September 6, 2013 demonstrated degenerative changes

2

including flattening of the inferior articular surface of the femoral head, osteophyte formation, and
moderate narrowing medially.
On April 11, 2014 appellant underwent right hip arthroscopic labral repair, arthroscopic
acetabuloplasty and arthroscopic femoral neck osteochondroplasty.
In a report dated September 17, 2014, Dr. Swisher examined appellant for complaints of
progressively more painful right hip. He diagnosed right greater trochanteric syndrome and
administered an injection.
In a report dated February 8, 2016, Dr. Krouse examined appellant for complaints of right
hip pain. He diagnosed right hip pain, likely bursitis versus degenerative change. Dr. Krouse
administrated an injection.
On July 20, 2016 Dr. Krouse examined appellant for right hip and left knee pain. On
physical examination of the right hip, he observed a positive grind test. Dr. Krouse diagnosed left
knee and right hip degenerative joint disease. He administered an injection.
Dr. Krouse reported on May 9, 2018 that he had examined appellant for severe right hip
pain, interfering with walking and sleeping. On physical examination, he observed a severely
antalgic gait with positive grind testing and minimal internal/external rotation. Dr. Krouse
diagnosed bone-on-bone degenerative joint disease of the right hip and recommended right hip
arthroplasty.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and opined that, after reviewing appellant’s work duties, his diagnosis was beyond a
reasonable doubt directly related to appellant’s occupation of over 35 years. He explained that the
amount of ambulation and positional changes appellant performed were the direct cause of
aggravation and acceleration of cartilage wear of the right hip, leading to advanced osteoarthritis
necessitating total hip arthroplasty.
OWCP received a note from Dr. Krouse dated July 5, 2018, which was substantially similar
to his note of June 18, 2018.
In a letter dated January 16, 2019, Dr. Krouse diagnosed degenerative joint disease. He
noted that appellant’s overall degenerative decline, based on physical examination and
radiographic findings, continued to progress despite conservative treatment. Dr. Krouse reviewed
appellant’s employment duties and opined that they had contributed to acceleration of appellant’s
degenerative joint disease.
On June 7, 2019 appellant requested reconsideration of the October 9, 2018 decision.
By decision dated August 27, 2019, OWCP denied modification.
In a letter dated January 29, 2020, Dr. Krouse stated that he had reviewed all medical
documentation and agreed with his previous narrative.
On March 10, 2020 appellant requested reconsideration.

3

By decision dated May 5, 2020, OWCP denied modification.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and his medical findings on examination. Dr. Krouse further explained
that working for 39 years and averaging many miles of walking in various terrains with repetitive
movement, up and down stairs, on uneven ground, in and out of mail trucks, twisting, and changing
directions would contribute to appellant’s osteoarthritis findings. He opined within a reasonable
medical certainty that appellant’s repetitive walking and duties of appellant’s federal employment
over the past 39 years was a contributing factor to his medical findings of hip osteoarthritis.
Dr. Krouse further opined that appellant’s work duties had aggravated his diagnosed appellant’s
osteoarthritis, that it was beyond a reasonable double that years of repetitive movement and
excessive loading/movements were well beyond a normal course of natural aging to the joints. He
opined that it was his medical judgment that this process was a contributing factor to acceleration
of hip osteoarthritis.
On December 29, 2020 appellant requested reconsideration.
By decision dated March 24, 2021, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed with in the applicable
time limitation of FECA, that an injury 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 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.
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence o f the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or co ndition for which

3

Id.

4

C.K., Docket No. 19-1549 (issued June 30, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); Elaine
Pendleton, 40 ECAB 1143 (1989).

4

compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the identified employment factors.5
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 6 The opinion of the physician must be based on a complete factual
and medical background, 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. 7
ANALYSIS
The Board finds that this case is not in posture for decision.
In a note dated May 23, 2018, Dr. Krouse diagnosed right hip advanced degenerative
change and after reviewing appellant’s work duties, opined that his diagnosis was directly related
to appellant’s occupation of over 35 years. He explained that the amount of ambulation and
positional changes were the direct cause of aggravation and acceleration of cartilage wear of the
right hip, leading to advanced osteoarthritis necessitating total hip arthroplasty.
In a letter dated October 28, 2020, Dr. Krouse explained that, as stated previously, it
appeared that appellant’s degenerative changes had been exacerbated by appellant’s work duties,
which included ambulating for long distances and on uneven surfaces, climbing stairs, carrying a
weighted satchel, and entering/exiting his work vehicle several times per day while delivering mail
for over 39 years. He opined that the duties of appellant’s employment, including an excessive
amount of walking, was likely a contributing factor to appellant’s arthritis. Dr. Krouse explained
that appellant was on his feet for upwards of 10 hours per day for five to six days per week and
that appellant’s duties would contribute to progressive degenerative changes to the hip joint, which
over time would be viewed as degenerative arthritis. He opined that there was a causal relationship
between appellant’s duties and medical findings on examination. Dr. Krouse further explained
that appellant’s work for 39 years, averaging many miles of walking in various terrains with
repetitive movement, up and down stairs, on uneven ground, in and out of m ail trucks, twisting,
and changing directions would contribute to appellant’s osteoarthritis findings. He further opined
that appellant’s work duties had aggravated his diagnosed his osteoarthritis, as years of repetitive
movement and excessive loading/movements were well beyond a normal course of natural aging
to the joints. Dr. Krouse opined that it was his medical judgment that this process was a
contributing factor to acceleration of hip osteoarthritis.
The Board finds that, taken together, Dr. Krouse’s reports are sufficient to require further
development of the medical evidence. Dr. Krouse provided a comprehensive understanding of the

5

L.D., Docket No. 19-1301 (issued January 29, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
6

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
7

D.J., Docket No. 19-1301 (issued January 29, 2020).

5

medical record and case history. He provided explanation as to how appellant’s work duties
resulted in his diagnosed right hip condition.
The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt. Rather, the evidence
required is only that necessary to convince the adjudicator that the conclusion drawn is rational,
sound, and logical. 8 Dr. Krouse’s reports, while insufficient to meet appellant’s burden of proof
to establish his claim, raise an uncontroverted inference between his diagnosed right hip condition
and the accepted factors of appellant’s federal employment. Accordingly, his medical opinion is
sufficiently to require further development of appellant’s claim.9
It is well established that, proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.10 OWCP has an obligation to see that justice is
done.11
On remand, OWCP shall refer appellant to a physician in the appropriate field of medicine,
along with the case record and a statement of accepted facts, for an examination and a rationalized
medical opinion as to whether the accepted employment factors either caused or aggravated h is
diagnosed right hip conditions. 12 If the second opinion physician disagrees with the opinion of
Dr. Krouse, he or she must provide a fully-rationalized explanation explaining why the accepted
employment factors were insufficient to have caused or aggravated appellant’s right hip condition.
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

8

B.H., Docket No. 20-0734 (issued November 13, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases
cited therein.
9

D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019); C.M., Docket
No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
10

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
11

See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19, 2010);
John J. Carlone, 41 ECAB 354 (1989).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
C.C., Docket No. 19-1631 (issued February 12, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 4, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION
MEDICAL CENTER, Hines, IL, Employer
__________________________________________

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

Docket No. 12-246
Issued: April 11, 2011

Case Submitted on the Record

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

JURISDICTION
On November 14, 2011 appellant filed a timely appeal from a September 28, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
schedule award. 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 the case.2
ISSUE
The issue is whether appellant established that she has a compensable permanent
impairment entitling her to a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the September 28, 2011 OWCP decision, appellant submitted
new evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at the time
it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together with a
formal written request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606.

FACTUAL HISTORY
On October 1, 2009 appellant, then a 41-year-old health technician, filed a claim for
traumatic injury, alleging that she sustained injury due to her work duties on
September 18, 2009. She explained that she injured her back when she bent over to pick up a
fallen object.
By report dated October 28, 2009, Dr. Robert Fink, a Board-certified orthopedic surgeon,
diagnosed herniated lumbar disc at L5-S1 and disc bulge at L3-4. He stated that appellant’s
diagnoses were causally related to the alleged work incident.
On November 12, 2009 OWCP accepted appellant’s claim for displacement of lumbar
intervertebral disc without myelopathy.
Appellant underwent a series of epidural steroid injections as of January 15, 2010,
performed by Dr. Adeel Ahmad, a Board-certified physician in physical medicine and
rehabilitation. She underwent authorized lumbar laminectomy, microdiscectomy L4-5 on
June 15, 2010, performed by Dr. Geoffrey Dixon, a Board-certified neurosurgeon.
On January 21, 2011 Dr. Ahmed reported that appellant continued to have low back pain
with right lower limb pain and occasional parasthesias into the right foot. OWCP again
authorized a series of epidural injections.
Appellant filed a claim for schedule award on August 9, 2011.
On August 24, 2011 OWCP requested that appellant’s treating physician, Dr. Ahmad
evaluate appellant’s impairment according to the American Medical Association, Guides to the
Evaluation of Permanent Impairment the sixth edition of the A.M.A., Guides. Dr. Ahmad
submitted a medical report dated September 22, 2011 to OWCP. He listed the diagnoses of
thoracic or lumbosacral neuritis or radiculitis, degeneration of lumbar or lumbosacral
intervertebral disc, paresthesias and S/P lumbar spine operation. Dr. Ahmad recommended that
appellant return to sedentary work for four hours a day.
Appellant also submitted an attending physician’s report dated September 22, 2011,
signed by Dr. Ahmad, which diagnosed lumbosacral neuritis. The report indicated that her
period of partial disability was still to be determined.
By decision dated September 28, 2011, OWCP denied appellant’s claim for schedule
award.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations4 set
forth the number of weeks of compensation payable to employees sustaining permanent
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

2

impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
Not all medical conditions accepted by OWCP result in permanent impairment to a
scheduled member.7 It is the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of an employment injury.8
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.9 Neither FECA nor the implementing regulations authorize the
payment of a schedule award for the permanent loss of use of the back or spine.10 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.11
The A.M.A., Guides explain that impairment should not be considered permanent until
the clinical findings indicate that the medical condition is static and well stabilized. It is
understood that an individual’s condition is dynamic. Maximum medical improvement refers to
a date from which further recovery or deterioration is not anticipated, although over time there
may be some expected change. Once impairment has reached maximum medical improvement,
a permanent impairment rating may be performed.12
ANALYSIS
Appellant sought a schedule award pursuant to 5 U.S.C. § 8107 for her accepted
employment injury of lumbar disc displacement. The Board finds that she has not submitted
sufficient medical evidence to establish that she sustained permanent impairment to a scheduled
5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

H.P., Docket No. 11-894 (issued November 9, 2011); Thomas P. Lavin, 57 ECAB 353 (2006).

8

H.P., supra note 7; Tammy L. Meehan, 53 ECAB 229 (2001).

9

C.E., Docket No. 11-637 (issued October 14, 2011); William Edwin Muir, 27 ECAB 579 (1976).

10

FECA specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

11

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

12

A.M.A., Guides 19; Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

3

member of the body resulting from the accepted employment injury. Nor does the medical
evidence of record establish that she is at maximum medical improvement.
As noted, FECA does not allow payment of a schedule award for permanent impairment
of the lumbar spine. However, a schedule award may be payable for permanent impairment of a
lower extremity, if the cause of the permanent impairment is an accepted injury to the lumbar
spine. In support of her claim for schedule award, appellant submitted reports from Dr. Ahmad.
Although OWCP properly advised him to do so, Dr. Ahmad did not provide any evaluation of
lower extremity impairment pursuant to the A.M.A., Guides.
Before a schedule award can be granted pursuant to the A.M.A., Guides, a description of
appellant’s impairment must be obtained from her physician. The description must be in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations.13 Dr. Ahmad provided a
diagnosis of appellant’s condition as well as his opinion regarding of the cause of the condition,
but he did not provide an impairment rating as requested.
The Board further notes that on September 22, 2011 Dr. Ahmad notes that appellant’s
period of partial disability was still to be determined. This statement suggests that appellant has
not yet reached maximum medical improvement. As noted, permanent impairment should only
be evaluated after she has reached maximum medical improvement. It is appellant’s burden to
establish entitlement to a schedule award, and she did not meet her burden in this case.
Appellant may request a schedule award in the future based on medical evidence showing
that she has reached maximum medical improvement and has a permanent impairment to a
scheduled member or function of the body.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award under 5 U.S.C. § 8107
as the medical evidence does not establish an employment-related permanent impairment to a
scheduled member or function of the body.

13

See D.N., 59 ECAB 576 (2008).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2011 is affirmed.
Issued: April 11, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lapeer, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-1697
Issued: January 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 31, 2012 appellant, through her attorney, filed a timely appeal from February 24
and July 17, 2012 merit decisions of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation benefits effective February 24, 2012 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries.
On appeal, appellant’s counsel contends that OWCP’s decision was contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on March 22, 2008 appellant, then a 41-year-old rural mail carrier,
sustained a lower back injury when she lifted trays of mail while loading her vehicle. Appellant
stopped work and returned to limited duty. Her claim was accepted for thoracic and lumbar
strains. Appellant stopped work on September 22, 2009 and received disability compensation.
On June 22, 2011 OWCP referred appellant, together with a statement of accepted facts
and the medical record, to Dr. Emmanuel Obianwu, a Board-certified orthopedic surgeon, for a
second-opinion examination to determine the extent of her continuing employment-related
residuals and disability. In a July 11, 2011 report, Dr. Obianwu noted appellant’s complaints of
low back pain and muscle spasms in the mid-thoracic area that radiated to the front and down the
right lower extremity. He reviewed the statement of accepted facts and her medical records and
provided an accurate history of injury. Upon examination, Dr. Obianwu observed minimal
tenderness down the midline from the top of the thoracic spine to the tailbone and mild
discomfort with deep palpation. He did not find any sensory changes in the lower extremities or
tightness of the muscles of the cervical, lumbar or thoracic spine. Extension of appellant’s
thoracolumbar spine was 15 degrees. Lateral bending to the right was 10 degrees and to the left
was 15 degrees. Appellant had full range of motion in the neck. Deep tendon reflexes were
equal bilaterally and straight leg raising test was negative bilaterally.
Dr. Obianwu reviewed appellant’s diagnostic reports and noted that they revealed mild
degenerative changes in the spine and minimal central disc bulge at T10-11. He diagnosed
chronic mid and lower back pain, mild bulging disc, resolved soft tissue injuries of the thoracic
and lumbar spine and resolved thoracic and lumbar strains. Regarding appellant’s accepted
injuries for thoracic and lumbar strains, Dr. Obianwu stated that his examination findings did not
support that she suffered from active residuals of either strain.2 He determined that the
diagnostic reports revealed degenerative changes of the thoracic spine and bulging discs, but
explained that they were not caused by a specific accident or incident. Dr. Obianwu opined that
the March 22, 2008 work injury did not cause or contribute to appellant’s degenerative changes
and concluded that she did not have any active residuals of the March 22, 2008 employment
injury. He reported that she was able to return to work and found no indication for continued
treatment.
In reports dated July 22 to November 1, 2011, Dr. Robert Bouvier, an internist, noted
appellant’s complaints of cervical and mid thoracic pain for several years and decreased range of
motion. Upon examination, he observed trigger points along the low back and tenderness in the
mid thoracic spine. Dr. Bouvier diagnosed radiculopathy, herniated disc and mild-to-moderate
degenerative changes. He explained that the degenerative changes worsened after the March 22,
2008 work-related injury and that the disc herniation and thoracic radiculopathy occurred after
the March 22, 2008 employment incident. Dr. Bouvier reported that the previous impartial
medical examiner, physicians and physical therapists agreed with his assessment. He reviewed
Dr. Obianwu’s report and disagreed with his findings. Dr. Bouvier noted that Dr. Obianwu
2

Dr. Obianwu noted that appellant did not have tightness of the muscles in her lumbar or thoracic spine, any
asymmetry of the lumbar or thoracic spine and no swelling.

2

contradicted himself because he denied the existence of appellant’s musculoskeletal problems
but also stated that they were degenerative in nature.
OWCP determined that there was a conflict in medical opinion between Dr. Obianwu and
Dr. Bouvier as to whether appellant had any continuing residuals or disability due to her
accepted employment injuries. On October 20, 2011 it referred appellant, together with a
statement of accepted facts and the medical record, to Dr. Zachary Endress, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In an October 31, 2011 report, Dr. Endress provided an accurate history of injury and
noted appellant’s complaints of pain about the T10-11 area, numbness and pain from the lower
back area down to the foot and some numbness in her hand and right forearm. He reviewed her
history and found that a June 29, 2009 magnetic resonance imaging (MRI) scan report
demonstrated diffuse disc osteophyte complex but no disc herniation or spinal canal stenosis. An
MRI scan of the thoracic spine revealed minor disc bulging and a small left foraminal herniated
disc.
Upon examination, Dr. Endress observed full range of motion in the cervical spine
including lateral rotation, lateral flexion, forward flexion and extension. He found that
appellant’s thoracic spine appeared normal with no list or paraspinous muscle spasm on
inspection or palpation. Dr. Endress also reported that there was no deformity such as gibbus
formation or scoliosis in the thoracolumbar spine. Straight leg raising and Patrick’s test were
negative bilaterally. Dr. Endress opined that appellant had fully recovered from her injury and
found that there were no objective physical findings to explain her continuing complaints of
pain. He reported that she could return to her normal work activities without restriction.
In a November 5, 2011 work capacity evaluation, Dr. Endress found that appellant was
able to work 8 hours a day with two 15 minute breaks.
On November 28, 2011 OWCP issued a notice of proposed termination of appellant’s
disability compensation and medical benefits based on Dr. Endress’ October 31, 2011 medical
report. Appellant was advised that she had 30 days to submit additional relevant evidence or
argument if she disagreed with the proposed action.
In reports dated December 2, 6 and 20, 2011, Dr. Bouvier noted appellant’s complaints of
mid thoracic and cervical pain for years with mid back pain being the worse. He reported
decreased range of motion, radicular leg pain down the right leg and stabbing back and midthoracic pain. Dr. Bouvier stated that appellant’s low cervical and upper thoracic conditions
were getting worse as time went by. He conducted an examination and diagnosed chronic pain
syndrome, herniated disc spine, osteophyte complex, mild-to-moderate degenerative changes of
the lumbar spine and radiculopathy. Dr. Bouvier opined that appellant’s musculoskeletal issues
would not improve to the point where she could work. He stated that she was at maximum
potential and may benefit from work hardening. Dr. Bouvier disagreed with Dr. Endress’s
findings and with OWCP for finding that their physicians were right in their assessment.
In a December 29, 2011 MRI scan report, Dr. William C. Melton, a Board-certified
diagnostic radiologist, observed mild loss in disc height and mild right neuroforaminal narrowing

3

at the C5-6 and normal vertebral body height in appellant’s lumbar spine. He also found right
paracentral C5-6 extruded, right C6-7 paracentral disc protrusion without cord effacement and
neuroforaminal narrowing. Regarding her thoracic spine, Dr. Melton observed minor disc
bulging at the T3-4 and T10-11. He diagnosed tiny left T7-8 foraminal disc protrusion without
exiting nerve root impingement, minor disc bulging and facet degenerative changes.
In a February 8, 2012 report, Dr. Henry Hagenstein, a neurologist, provided an accurate
history of injury and noted appellant’s complaints of constant back pain, with the most severe
pain in the mid-thoracic region. He related that she initially thought she had a lumbar sprain but
further diagnostic studies revealed a herniated disc. Dr. Hagenstein reviewed appellant’s
medical records and conducted an examination. Her musculoskeletal examination was positive
for back pain, limb pain and myalgias. Range of motion of the neck in flexion, extension,
rotation and lateral flexion was normal for her age. Dr. Hagenstein diagnosed lumbar disc
herniation, chronic low back pain, neck pain, right arm pain and disc herniation.
In a February 13, 2012 electromyography (EMG) examination, Dr. Hagenstein stated that
the study was considered normal. He reported that the disc herniation did not result in an overt
axonal injury to the cervical nerve root and there was no evidence for a peripheral nerve
entrapment such as a carpal or cubital tunnel syndrome.
In a decision dated February 24, 2012, OWCP finalized the termination of appellant’s
compensation benefits effective February 24, 2012. It found that Dr. Endress’s October 31, 2011
report represented the weight of the medical evidence in establishing that her accepted conditions
had ceased and that she no longer had any residuals or disability causally related to her accepted
employment injuries.
On February 27, 2012 appellant, through counsel, requested a telephone hearing, which
was held on May 15, 2012. Counsel contended that OWCP was being absolutely dismissive of
appellant’s physician who reported that she was still symptomatic from the March 22, 2008
work-related injury. Appellant testified that she had not worked for anyone other than the
employing establishment and that she did not suffer any traumatic injury other than the
March 22, 2008 employment injury. She related that she continued to suffer from back pain that
came from the mid back to the front and radiated down the right side of her leg, arms and lower
back.
In a February 22, 2012 EMG report, Dr. Hagenstein observed that several muscles on the
right side that had L4-5 as a common nerve root revealed positive sharp waves and fibrillation
potentials although recruitment and interference appeared normal. A nerve conduction study
revealed normal motor and sensory nerves. Dr. Hagenstein stated that the study was considered
abnormal and noted findings compatible with mid L4-5 radiculopathy. He also resubmitted his
February 8, 2012 report.
In February 21 and 28, 2012 reports, Dr. Bouvier noted appellant’s complaints of mid
thoracic and cervical pain that was unchanged for years and worsening low cervical and upper
thoracic pain. He observed decreased range of motion in the same areas, radicular leg pain down
the right leg and stabbing back and mid-thoracic pain. Dr. Bouvier repeated his diagnoses of
chronic pain syndrome, radiculopathy of LS spine and thoracic spine, herniated disc and mild-to-

4

moderate degenerative changes. He stated that OWCP’s lawyer stated that appellant could go
back to work, but he disagreed because it would make her conditions worse.
Appellant also resubmitted several diagnostic reports.
By decision dated July 17, 2012, OWCP’s hearing representative affirmed the
February 24, 2012 termination decision finding that the medical evidence established that
appellant’s accepted conditions had ceased and that she no longer had any residuals or disability
causally related to her accepted employment injuries.
LEGAL PRECEDENT
Pursuant to FECA, once OWCP accepts a claim and pays compensation, it has the burden
of justifying termination or modification of an employee’s benefits.3 OWCP may not terminate
compensation without establishing that the disability had ceased or that it was no longer related
to the employment.4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5 The right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability
compensation.6 To terminate authorization for medical treatment, OWCP must establish that
appellant no longer has residuals of an employment-related condition, which require further
medical treatment.7
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.8 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.9 When there exists 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

3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
7

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002); A.P., Docket No. 08-1822
(issued August 5, 2009).
8

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
9

20 C.F.R. § 10.321.

5

opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.10
ANALYSIS
OWCP accepted that on March 22, 2008 appellant sustained thoracic and lumbar strains
in the performance of duty. She was on and off work but has not returned since
September 22, 2009. Appellant received disability compensation. In a decision dated
February 24, 2012, OWCP terminated her compensation benefits based on the report of the
impartial medical examiner, Dr. Endress. The Board finds that it properly terminated appellant’s
compensation benefits effective February 24, 2012 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries.
OWCP had found that a conflict in medical opinion existed between appellant’s attending
physician, Dr. Bouvier, who determined that appellant continued to suffer residuals from her
work-related injuries, and Dr. Obianwu, an OWCP referral physician, who found that appellant
was no longer disabled due to her work-related injuries. It referred appellant to Dr. Endress to
resolve the conflict. In his October 31, 2011 report, Dr. Endress provided an accurate history of
injury and reviewed appellant’s medical records. He noted that a June 29, 2009 MRI scan report
demonstrated diffuse disc osteophyte complex but no disc herniation or spinal canal stenosis.
Upon examination, Dr. Endress observed full range of motion in the cervical spine including
lateral rotation, lateral flexion, forward flexion and extension. He found that appellant’s thoracic
spine appeared normal with no list or paraspinous muscle spasm on inspection or palpation.
Dr. Endress also reported that there was no deformity such as gibbus formation or scoliosis in the
thoracolumbar spine. Straight leg raising and Patrick’s test were negative bilaterally.
Dr. Endress opined that appellant had fully recovered from her injury and found that there were
no objective physical findings to explain her continuing complaints of pain. He concluded that
she could return to her normal work activities without restriction.
The Board finds that Dr. Endress’ October 31, 2011 report is sufficiently detailed and
well reasoned to constitute the weight of the medical opinion evidence. 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.11 Dr. Endress reviewed appellant’s history and accurately described the
March 22, 2008 employment injury. He conducted an examination and found that the physical
findings did not establish that she continued to suffer residuals or disability from her
work-related injuries. The Board finds that Dr. Endress’ opinion represents the special weight of
medical opinion evidence. Accordingly, Dr. Endress’ opinion constitutes the special weight of
evidence and is sufficient to justify OWCP’s termination of wage-loss and compensation benefits
for the accepted conditions.

10

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

11

Supra note 10.

6

The Board further finds that the medical evidence submitted after Dr. Endress’
independent medical evaluation report was insufficient to overcome the weight of this report or
to create another conflict in medical evidence. Appellant submitted various reports by
Dr. Bouvier stating that she continued to suffer symptoms from her March 22, 2008 work-related
injuries and was unable to work. Because Dr. Bouvier was on one side of the conflict which
Dr. Endress’ resolved the additional reports are insufficient to overcome the weight accorded
Dr. Endress’ report as the impartial medical examiner or to create a new conflict.12
Appellant also submitted reports by Dr. Hagenstein, who reviewed her history and noted
that diagnostic studies revealed a herniated disc. Upon examination, Dr. Hagenstein observed
that her musculoskeletal was positive for back pain, limb pain and myalgias. He diagnosed
lumbar disc herniation, chronic low back pain, neck pain, right arm pain and disc herniation.
The Board finds, however, that Dr. Hagenstein’s report is of limited probative value as he offers
no opinion on the cause of appellant’s lumbar disc herniation nor does he relate her disc
herniation or other back conditions to the March 22, 2008 work-related injury.13 Similarly, the
diagnostic reports of Dr. Melton are also of limited probative value as he provides no opinion on
whether appellant’s back conditions are causally related to her March 22, 2008 injuries. Thus,
these reports are insufficient to overcome the special weight afforded to Dr. Endress’s impartial
medical examination report. The Board finds that Dr. Endress’s opinion continues to constitute
the special weight of medical opinion and supports OWCP’s decision to terminate appellant’s
wage-loss and compensation benefits. There is no other medical evidence contemporaneous
with the termination of appellant’s benefits which supports that she has any continuing residuals
or disability related to her accepted work-related injuries.
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 OWCP met its burden of proof to terminate appellant’s
compensation and medical benefits effective February 24, 2012.

12

Dorothy Sidwell, 41 ECAB 857 (1990).

13

R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59 ECAB 271 (2007).

7

ORDER
IT IS HEREBY ORDERED THAT the July 17 and February 24, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 29, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
)
)
J.J., Appellant
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS HEALTH ADMINISTRATION,
)
Orlando, FL, Employer
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 15-1621
Issued: January 8, 2016

Case Submitted on the Record

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

JURISDICTION
On July 21, 2015 appellant filed a timely appeal of a February 9, 2015 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to factors of her federal employment.
FACTUAL HISTORY
On December 17, 2014 appellant, then a 31-year-old administrative support assistant,
filed an occupational disease claim (Form CA-2) alleging that her carpal tunnel condition was
due to her employment. She noted that, in her position, she used the computer for extended
periods of time typing and responding to e-mails. Appellant alleged that her claimed conditions
began on June 16, 2014. She did not stop work.
1

5 U.S.C. § 8101 et seq.

By letter dated December 29, 2014, OWCP advised appellant that additional evidence
was needed to establish her claim. Appellant was requested to provide a physician’s opinion
supported by a medical explanation as to how the work factors caused the claimed conditions.
In a January 5, 2015 e-mail, Michael Ostrow, a chief logistics officer, confirmed that
appellant was engaged in an administrative position and that she was required to spend the
majority of her time on the computer typing almost “exclusively each day.” He noted that
appellant spent between two and six hours typing daily. OWCP also received a January 5, 2015
ergonomic assessment worksheet, a position description, and a report.
In a January 7, 2015 statement, appellant explained that during an eight-hour day she
spent six to seven hours on the computer responding to e-mails and other data entry. She noted
that she had a 30-minute lunch and two 15-minute breaks. Appellant had worked in the position
since October 14, 2008 and contended that she did not engage in any physical activities or
hobbies outside her federal duties.
In a January 7, 2015 report, Dr. Lawrence S. Halperin, a Board-certified orthopedic hand
surgeon, noted appellant’s history of injury and treatment. He explained that appellant had
significant dorsal right wrist pain, which had been present for years and was slowly worsening,
with minimal symptoms on the left. Dr. Halperin related that appellant denied trauma,
constitutional symptoms, or a history of rheumatoid arthritis. He also related that appellant
believed she had carpal tunnel syndrome and questioned whether it was work related, as her
position involved heavy typing. Dr. Halperin examined appellant and determined that
radiographs of both wrists, including carpal tunnel views, were unremarkable. He diagnosed
bilateral wrist pain, worse on the right than the left. Dr. Halperin advised that appellant had wrist
pain for years that was slowly worsening and was central on the carpus. He requested a
magnetic resonance imaging (MRI) scan of the right wrist to rule out Kienbock’s disease.
Appellant also provided a January 8, 2015 MRI scan of the right wrist without contrast,
read by Dr. James Y. Wu, a Board-certified diagnostic radiologist. Dr. Wu reported findings to
include multiloculated ganglion-like cystic change along the palmar margin of the distal radial
metaphysics.
By decision dated February 9, 2015, OWCP denied appellant’s claim. It found that the
medical evidence of record failed to establish that the diagnosed medical conditions were related
to the claimed work factors or events.
LEGAL PRECEDENT
An employee seeking benefits under FECA 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability and/or specific condition for which compensation is claimed are causally related

2

to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. 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. 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.4
ANALYSIS
The evidence supports that appellant engaged in repetitive activities at work such as
typing on the computer. However, appellant submitted insufficient medical evidence to establish
that she has a wrist or hand condition caused or aggravated by these activities or any other
specific factors of her federal employment.
Appellant submitted a January 7, 2015 report from Dr. Halperin, who determined that she
had significant dorsal right wrist pain, which was present for years and slowly worsening, with
minimal symptoms on the left. Dr. Halperin related that appellant believed she had carpal tunnel
and questioned if it was work related as her position involved heavy typing. Upon examination
and review of x-rays of both wrists, including carpal tunnel views, he diagnosed only bilateral
wrist pain, worse on the right than the left. Although appellant suggested her wrist condition was
work related, Dr. Halperin did not diagnose a physical condition. He merely noted appellant’s
suggestion of carpal tunnel syndrome but diagnosed only bilateral wrist pain. The Board has
held that pain is a symptom not a compensable diagnosis.5
Similarly, reports of diagnostic testing are insufficient to establish the claim as these
reports do not address how employment factors contributed to a diagnosed medical condition.

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

3

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

4

Id.

5

Robert Broome, 55 ECAB 339, 342 (2004).

3

The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.6
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.7 Causal relationship must be substantiated by reasoned medical
opinion evidence, which is appellant’s responsibility to submit.
As there is no reasoned medical evidence explaining how appellant’s employment duties
caused or aggravated a diagnosed medical condition, appellant has not met her burden of proof to
establish a medical condition causally related to factors of her employment.
Appellant may submit evidence or argument with a written request for reconsideration
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 an injury
causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
6

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

7

Id.

4