United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 18-1099
Issued: December 21, 2018

Case Submitted on the Record

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

JURISDICTION
On May 7, 2018 appellant filed a timely appeal from a May 3, 2018 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 to
consider the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that her lumbar
condition was causally related the accepted January 29, 2018 employment incident.
FACTUAL HISTORY
On February 28, 2018 appellant, then a 45-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 29, 2018 she injured her lower back when she lifted
trays of mail while in the performance of her employment duties. She stopped work on
1

5 U.S.C. § 8101 et seq.

February 28, 2018. C.P., an employing establishment supervisor, controverted the claim as
appellant had worked without apparent difficulty from January 29, 2018 until she reported the
injury.2
In support of her claim, appellant submitted a duty status report (Form CA-17) and urgent
care center report dated February 28, 2018, both signed by a physician assistant.
By development letter dated March 28, 2018, OWCP advised appellant of the type of
medical and factual evidence needed to establish her claim, including a detailed description of the
February 28, 2018 employment incident, and a narrative report from her physician explaining how
and why that event would cause the claimed back condition. It notified her that physician assistants
were not considered physicians under FECA. OWCP afforded appellant 30 days to submit the
necessary evidence.
Appellant provided statements in which she described the sudden onset of left-sided low
back pain with radiation into the left buttock when she lifted three trays of mail while at work on
January 29, 2018. She noted that she had delayed filing her claim as she hoped that her symptoms
would abate without treatment. As over-the-counter medications were ineffective in reducing her
pain symptoms, appellant sought treatment at an urgent care clinic on February 9, 2018.3
In a February 9, 2018 discharge note from an emergency department, Dr. Justin A. Rapoff,
an osteopathic physician, related appellant’s diagnosis as left-sided low back pain with left-sided
sciatica.
OWCP also received an urgent care report dated February 9, 2018 signed by Daniel
Zwilling, a physician assistant, with discharge instructions.
In a report dated February 12, 2018, Dr. Faquir Muhammud, an attending Board-certified
internist, held appellant off work from February 9 to 18, 2018. He returned appellant to work
effective February 19, 2018.
In a report dated March 1, 2018, Dr. Chris Beuer, an attending physician Board-certified
in anesthesiology and pain management, noted treating appellant from February 19 to
March 4, 2018. He restricted appellant from “heavy lifting, repetitive bending, twisting, or
walking due to lumbar disc injury for 30 days.”
Appellant also provided an urgent care report dated March 14, 2018 signed by Andrew
Wahle, a physician assistant; a March 28, 2018 report signed by Tiffany Meinert, a physician
assistant; and an April 10, 2018 report by Philip Dudak, a nurse practitioner.
By decision dated May 3, 2018, OWCP denied appellant’s traumatic injury claim. It found
that the incident occurred as alleged, but denied the claim as the medical evidence of record was
2

In a letter dated March 26, 2016, D.B., an employment establishment official, contended that appellant may not
have injured herself at work.
3
Appellant also submitted a witness statement dated April 4, 2018 from D.T., a coworker, who asserted that he
witnessed appellant informing a supervisor of her injury on January 29, 2018.

2

insufficient to establish that the diagnosed medical condition was causally related to the accepted
January 29, 2018 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP must determine whether fact of injury has been established. First, an employee has the
burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.7 Second, the
employee must submit medical evidence to establish that the employment incident caused a
personal injury.
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.8 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 employee.9
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her lumbar
condition was causally related to the accepted January 29, 2018 employment incident.

4

Supra note 2.

5

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

6

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

7

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

8

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

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

10

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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Appellant was initially seen by Dr. Rapoff on February 9, 2018 who diagnosed left-sided
sciatica; however, he offered no history of injury or opinion regarding the cause of this condition.
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value regarding the issue of causal relationship.11
Dr. Muhammud provided a work absence slip dated February 12, 2018 holding appellant
off from work from February 9 to 18, 2018 for an unspecified condition. He did not address causal
relationship. To establish personal injury the medical evidence of record must document a
diagnosed condition and must explain how that condition is causally related to the accepted
employment incident. Lacking a firm diagnosis and rationalized medical opinion regarding causal
relationship, Dr. Muhammud’s report is of limited probative value.12
In a report dated March 1, 2018, Dr. Beuer diagnosed a lumbar disc injury and provided
work restrictions. He did not, however, provide a firm diagnosis and a rationalized medical
opinion, based upon a history of injury, explaining how the diagnosed condition was caused by
the accepted January 29, 2018 employment incident. Dr. Beuer’s report was therefore of limited
probative value.13
Appellant also submitted reports from Mr. Zwilling, Mr. Wahle, and Ms. Meinert,
physician assistants, and Mr. Dudak, a nurse practitioner. The Board has held that medical reports
signed solely by a physician assistant or nurse practitioner are of no probative value as a physician
assistant or nurse practitioner is not considered a physician as defined under FECA and therefore
is not competent to provide a medical opinion.14
In a letter dated March 28, 2018, OWCP requested that appellant submit a comprehensive
report from her treating physician which included a reasoned explanation as to how the accepted
work incident had caused her claimed injury. An award of compensation may not be based on
surmise, conjecture, speculation, or on the employee’s own belief of causal relation.15 Appellant’s
honest belief that the accepted January 29, 2018 employment incident caused an injury, however
sincerely held, does not constitute medical evidence sufficient to establish causal relationship.16

11

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

12

See D.S., Docket No. 18-0061 (issued May 29, 2018).

13

See R.K., Docket No. 17-0599 (issued June 23, 2017).

14

See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA). S.J., Docket No. 17-0783, n.2 (issued
April 9, 2018) (nurse practitioners are not considered physicians under FECA).
15

G.N., supra note 8; D.D., 57 ECAB 734 (2006).

16

G.N., supra note 8. See J.S., Docket No. 17-0967 (issued August 23, 2017).

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Because appellant has not submitted reasoned medical evidence explaining how the
diagnosed medical condition was caused by the accepted January 29, 2018 employment incident,
she has not met her burden of proof.17
On appeal, appellant asserts that the medical evidence of record is sufficient to meet her
burden of proof to establish causal relationship. As noted above, OWCP properly denied
appellant’s traumatic injury claim as her physicians’ reports contained insufficient medical
reasoning to establish that the accepted employment incident caused the claimed injury.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her lumbar
condition was causally related the accepted January 29, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 21, 2018
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
17
G.N., supra note 8, Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne
Avila, 57 ECAB 642 (2006).

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

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

Docket No. 19-0164
Issued: November 13, 2019

Case Submitted on the Record

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

JURISDICTION
On October 31, 2018 appellant filed a timely appeal from a May 31, 2018 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 his burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On September 10, 2014 appellant, then a 47-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that he sustained emotional conditions, including post-traumatic stress
disorder, anxiety disorder, and depressive disorder, due to various incidents and conditions at his

1

5 U.S.C. § 8101 et seq.

workplace.2 He maintained that his condition was caused by an incident that was not handled
properly by management. Appellant stopped work on June 14, 2014.
In a development letter dated September 23, 2014, OWCP requested that appellant submit
additional factual and medical evidence in support of his emotional condition claim. It afforded
him 30 days to submit the requested evidence.
In response, appellant submitted statements prepared in October 2014 in which he alleged
that he sustained stress because a coworker, L.C., falsely accused him on June 11, 2010 of having
placed poison or some other harmful substance in her drink. He claimed that he was performing
his regular work duties when L.C. made the false accusation. Appellant maintained that she
attempted to have him arrested and later confessed that she had made a false accusation. He
asserted that management did not properly investigate the June 11, 2010 incident and failed to
properly discipline L.C., resulting in L.C. returning to the same work unit where he worked in
2013.3
Appellant submitted a statement he prepared on July 7, 2010, as well as July 7, 2010
statements from coworkers, which contained similar content. The statements indicated that there
was no support for L.C.’s assertion that a harmful substance had been placed in her drink at work.
Appellant also submitted medical evidence in support of his claim, including reports of
Dr. Yazmin Fuentes, a Board-certified psychiatrist.
In a September 23, 2014 letter, an employing establishment official challenged appellant’s
emotional condition claim and argued that there was “[n]o fact of injury or causal relationship
established medically.”
In a development letter dated February 4, 2015, OWCP requested that the employing
establishment respond to appellant’s assertions. It afforded the employing establishment 30 days
to reply. In February 27, 2015 statements, V.G. and D.B., superiors of appellant, asserted that the
June 11, 2010 incident was adequately investigated, that all disciplinary actions relating to it were
appropriately carried out, and that appellant’s transfer requests were properly handled. Both V.G.
and D.B. acknowledged that L.C. had claimed that someone tampered with her drink at work.
V.G. indicated that a union official had advised that L.C. accused appellant of placing something
in her drink.
By decision dated March 19, 2015, OWCP denied appellant’s emotional condition claim.
It determined that he had not submitted sufficient evidence to establish a compensable employment
factor. OWCP found that appellant had not provided sufficient details and corroborating evidence
regarding his allegations.
On April 7, 2015 appellant requested a review of the written record with a representative
of OWCP’s Branch of Hearings and Review. He provided a statement, which was similar to those
previously considered, and provided additional medical evidence.

2

Appellant also claimed an elevated cholesterol condition due to stress from work.

3

Appellant asserted that management mishandled his requests to be transferred away from the work unit.

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By decision dated September 25, 2015, OWCP’s hearing representative affirmed the
March 19, 2015 decision. She determined that appellant had not established a compensable
employment factor.
On September 20, 2016 appellant, through his then-counsel, requested reconsideration of
the September 25, 2015 decision. He submitted additional medical reports and statements from
family members, which described the June 11, 2010 incident and the impact it had on him as well
as noting management’s response. By decision dated December 6, 2016, OWCP denied
modification of the September 25, 2015 decision.
On November 27, 2017 appellant, through his then-counsel, again requested
reconsideration of the December 6, 2016 decision. In a November 21, 2017 brief, counsel argued
that the June 11, 2010 incident, and the employing establishment’s mishandling of it, constituted
compensable employment factors. Appellant submitted an August 29, 2016 report in which
Dr. Natalie A. Krah, a Board-certified psychiatrist, discussed his emotional condition.
By decision dated May 31, 2018, OWCP denied modification of the December 6, 2016
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty, as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To establish an emotional condition in the performance of duty, a claimant must submit:
(1) factual evidence identifying an employment factor or incident alleged to have caused or
contributed to his or her claimed emotional condition; (2) medical evidence establishing that he or
she has a diagnosed emotional or psychiatric disorder; and (3) rationalized medical opinion
evidence establishing that the accepted compensable employment factors are causally related to
the diagnosed emotional condition.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an illness
has some connection with the employment, but nevertheless does not come within the concept or
4

Supra note 1.

5

A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

6

20 C.F.R. § 10.115(e); M.K., Docket No. 18-1623 (issued April 10, 2019); see T.O., Docket No. 18-1012 (issued
October 29, 2018); see Michael E. Smith, 50 ECAB 313 (1999).
7
See S.K., Docket No. 18-1648 (issued March 14, 2019); M.C., Docket No. 14-1456 (issued December 24, 2014);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).

3

coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to his or her regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of FECA.8 On the other hand, the disability
is not covered where it results from such factors as an employee’s fear of a reduction-in-force or
his or her frustration from not being permitted to work in a particular environment, or to hold a
particular position.9
A claimant has the burden of establishing by the weight of the reliable, probative, and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.10 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed, and a rationalized medical opinion
relating the claimed condition to compensable employment factors.11
In cases involving emotional conditions, the Board has held that, when working conditions
are alleged as factors in causing a condition or disability, OWCP, as part of its adjudicatory
function, must make findings of fact regarding which working conditions are deemed compensable
factors of employment and are to be considered by a physician when providing an opinion on
causal relationship, and which working conditions are not deemed factors of employment and may
not be considered.12 If a claimant does implicate a factor of employment, OWCP should then
determine whether the evidence of record substantiates that factor. When the matter asserted is a
compensable factor of employment and the evidence of record establishes the truth of the matter
asserted, it must base its decision on an analysis of the medical evidence.13
ANALYSIS
The Board finds that the case is not in posture for decision.
Appellant alleged that he sustained an emotional condition due to various incidents and
conditions at work. OWCP denied his claim finding that he had not established compensable
employment factors. Therefore, the Board must initially review whether these alleged incidents
and conditions are covered employment factors under the terms of FECA. The Board notes that
appellant claimed that, while he was performing his regular duties, L.C., a coworker, falsely
accused him of placing a hazardous substance in her drink on June 11, 2010 and he asserted that,
therefore, he had established a compensable employment factor under the principles of Lillian

8

Lillian Cutler, 28 ECAB 125 (1976).

9

A.E., Docket No. 18-1587 (issued March 13, 2019); Gregorio E. Conde, 52 ECAB 410 (2001).

10

B.S., Docket No. 19-0378 (issued July 10, 2019); Pamela R. Rice, 38 ECAB 838, 841 (1987).

11

P.B., Docket No. 17-1912 (issued December 28, 2018); Effie O. Morris, 44 ECAB 470, 473-74 (1993).

12

See O.G., Docket No. 18-0359 (issued August 7, 2019); Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13

Id.

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Cutler.14 Appellant also claimed that management committed error and abuse with respect to
various administrative/personnel matters.
Appellant has made a number of statements regarding the June 11, 2010 incident and
asserted that it is a compensable employment factor because the incident occurred while he was
performing his regular duties at work. The employing establishment has acknowledged that L.C.
had in fact made a false accusation on June 11, 2010, but the case record remains vague with
respect the precise nature of the accusation and the circumstances under which it was made. The
employing establishment indicated that the June 11 2010 incident was investigated, but it did not
provide a detailed discussion of the investigation, which would clarify the nature of the incident.
Given the limited evidence from the employing establishment in the case record regarding the
nature of the June 11, 2010 incident, the Board is not currently able to make a reasoned
determination regarding whether the incident is sufficiently related to appellant’s regular or
specially assigned duties to constitute a compensable employment factor.
With respect to administrative or personnel matters, appellant claimed that management
mishandled the investigation of the June 11, 2010 incident and had not properly disciplined L.C.
with respect to the false accusation made against him on June 11, 2010. He also claimed that
management improperly allowed L.C. to return to work in his work unit. The Board has held that
administrative and personnel matters, although generally related to the employee’s employment,
are administrative functions of the employer rather than the regular or specially-assigned work
duties of the employee and are not covered under FECA.15 However, the Board has also held that,
where the evidence establishes error or abuse on the part of the employing establishment in what
would otherwise be an administrative matter, coverage will be afforded.16 In determining whether
the employing establishment has erred or acted abusively, the Board will examine the factual
evidence of record to determine whether the employing establishment acted reasonably.17
The Board finds that appellant has not submitted sufficient evidence to establish the abovenoted claims about administrative/personnel matters. There is no indication that he filed a
grievance with the employing establishment regarding these matters or otherwise obtained a final
determination from an administrative body showing that the employing establishment committed
error or abuse. Although appellant expressed dissatisfaction with the actions of superiors, the
Board has held that mere dislike or disagreement with certain supervisory actions will not be
compensable absent error or abuse on the part of the supervisor.18 Appellant did not substantiate
error or abuse committed by the employing establishment in the above-noted matters and,
therefore, he has not established a compensable employment factor with respect to administrative
or personnel matters.

14

See Lillian Cutler, supra note 8.

15

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen,
41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 556 (1991).
16

S.K., Docket No. 18-1648 (issued March 14, 2019); William H. Fortner, 49 ECAB 324 (1998).

17

J.W., Docket No. 17-0999 (issued September 4, 2018); Ruth S. Johnson, 46 ECAB 237 (1994).

18

T.C., Docket No. 16-0755 (issued December 13, 2016).

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Under FECA, although it is the burden of an employee to establish his or her claim, OWCP
also has a responsibility in the development of the factual evidence, particularly when such
evidence is of the character normally obtained from the employing establishment or other
government source.19
On remand in order to ensure a comprehensive and well-reasoned consideration of
appellant’s emotional condition claim, OWCP should request that the employing establishment
provide additional evidence regarding the specific nature of June 11, 2010 incident. After carrying
out such development, it shall issue a de novo decision regarding appellant’s emotional condition
claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 31, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded for further action consistent with
this decision of the Board.
Issued: November 13, 2019
Washington, DC

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

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

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

19

Willie A. Dean, 40 ECAB 1208, 1212 (1989); Willie James Clark, 39 ECAB 1311, 1318-19 (1988).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

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

Docket No. 13-1021
Issued: August 26, 2013

Case Submitted on the Record

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

JURISDICTION
On March 26, 2013 appellant filed a timely appeal from a February 25, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied his traumatic
injury claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on January 3, 2013.
FACTUAL HISTORY
On January 7, 2013 appellant, then a 25-year-old rural carrier, filed a traumatic injury
claim alleging that on January 3, 2013 he sustained an injury to his back or tail bone when he
tried to pull a large box to get to parcels and fell backwards. The employing establishment
1

5 U.S.C. § 8101 et seq.

controverted his claim alleging that the incident did not occur in the performance of duty because
he was working outside his regular craft without permission.
On January 17, 2013 OWCP advised appellant that the evidence submitted was
insufficient to establish his claim and requested additional evidence.
On January 22, 2013 appellant responded to OWCP’s development letter. He stated that
it was common practice for rural carriers to perform the duties of a postal clerk if the clerks
asked for help. Appellant explained that rural carriers could not deliver parcels until the clerks
sorted them. He noted that at the time of the January 3, 2013 incident he was tipping tall boxes
over so that clerks could sort the parcels for the rural carriers. Appellant reported that he
experienced severe back pain and could not get up. He stated that he was first examined on
January 8, 2013.
In various reports dated from January 8 to 24, 2013, a nurse practitioner noted that
appellant was examined for a workers’ compensation injury. She described that on January 3,
2013 appellant was pulling on the top of a box to pull it over when he fell to the ground and
experienced pain in his back and tail bone. Upon initial examination, the nurse practitioner
observed decreased range of motion with flexion. No vertebral spine tenderness, paraspinal
tenderness, joint tenderness or muscle spasms were noted. Straight leg raise testing was mild to
90 degrees bilaterally. The nurse practitioner diagnosed back pain. In reports dated January 18
and 24, 2013 she noted an unremarkable examination. Straight leg raise testing was negative
bilaterally.
In various return to work and duty status reports dated January 8 and 14, 2013 the nurse
practitioner authorized appellant to return to work with restrictions. In a January 24, 2013 return
to work note, appellant was authorized to return to full duty.
In a January 24, 2013 attending physician’s report, Dr. Brenda K. Woods, a Boardcertified family practitioner, and a nurse practitioner related that on January 3, 2013 appellant
pulled a box at work and fell backward onto his back. Examination revealed decreased range of
motion and mild pain with straight leg raise testing. Dr. Woods reported that an x-ray revealed
mild scoliosis, but was otherwise unremarkable. She diagnosed back pain and checked a box
marked “yes” that appellant’s condition was caused or aggravated by the employment activity.
Dr. Woods noted that he worked light duty from January 8 to 24, 2013 and was able to resume
regular duty.
Appellant resubmitted the January 8, 14 and 24, 2013 return to work notes with the
addition of Dr. Woods’ signature.
In a decision dated February 25, 2013, OWCP denied appellant’s claim on the grounds of
insufficient medical evidence. It accepted that the January 3, 2013 incident occurred as alleged
but denied the claim finding that the medical evidence did not establish that he sustained a
diagnosed condition as a result of the accepted condition.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether “fact of injury” has been established.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
evidence, generally only in the form of probative medical evidence, to establish that the
employment incident caused a personal injury.7 An employee may establish that the
employment incident occurred as alleged but fail to show that his or her disability or condition
relates to the employment incident.8
Whether an employee sustained an injury in the performance of duty requires the
submission of rationalized medical opinion evidence.9 The opinion of the physician must be
based on a complete factual and medical background of the employee, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.10 The weight of the medical evidence is determined by its reliability, its probative
value, its convincing quality, the care of analysis manifested and the medical rationale expressed
in support of the physician’s opinion.11

2

Id. at §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007);Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

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

7

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

8

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

9

See J.Z., 58 ECAB 529 (2007); Paul E. Thams, 56 ECAB 503 (2005).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

11

James Mack, 43 ECAB 321 (1991).

3

ANALYSIS
Appellant alleges that on January 3, 2013 he experienced back pain when he tried to tip
over a large box and fell on his back. OWCP accepted that the January 3, 2013 incident occurred
as alleged but found that the medical evidence was insufficient to establish that he sustained any
diagnosed condition causally related to the accepted incident. The Board finds that appellant
failed to meet his burden of proof to provide sufficient medical evidence demonstrating that he
sustained a diagnosed back condition as a result of the January 3, 2013 employment incident.
Appellant submitted a January 24, 2013 attending physician’s report cosigned by
Dr. Woods who related his complaints of back pain. Dr. Woods noted that on January 3, 2013
appellant pulled a box at work and fell backward onto his back. Upon examination, she observed
decreased range of motion and mild pain with straight leg raise testing. Dr. Woods diagnosed
back pain and checked a box marked “yes” that appellant’s condition was caused or aggravated
by the employment activity. Although she accurately described the January 3, 2013 work
incident, the Board notes that she does not provide any diagnosis of a back condition other than
back pain. It is well established that pain is a description of a symptom and not considered a
compensable medical diagnosis.12 Dr. Woods also failed to explain how appellant’s back pain
was causally related to the January 3, 2013 employment incident. She merely checked a box
marked “yes”that the condition was caused by the employment activity. The Board has held that
when a physician’s opinion on causal relationship consists only of checking “yes” to a form
question, without explanation or rationale, that opinion is of diminished probative value and is
insufficient to establish a claim.13 Accordingly, Dr. Woods’ opinion is insufficient to establish
causal relationship.
Appellant also submitted various notes from a nurse practitioner who stated that appellant
experienced back pain on January 3, 2013 when he fell to the ground after pulling on a box. The
Board has held, however, that a nurse practitioner is not a physician as defined under FECA.14
These reports, therefore, are of no probative medical value.15
As noted above, appellant has the burden of proof to establish that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.16 As the record does not contain sufficient causal medical evidence to establish that he
sustained a diagnosed back condition as a result of the January 3, 2013 employment incident, he
has not met his burden of proof in this case.

12

B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 8, 2008).

13

D.D., 57 ECAB 734, 738 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

14

Section 8102(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. 5 U.S.C. § 8101(2); Roy L. Humphrey, 57 ECAB 238 (2005).
15

E.H., Docket No. 08-1862 (issued July 8, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

16

Supra note 4.

4

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained any diagnosed condition
causally related to the January 3, 2013 employment incident.
ORDER
IT IS HEREBY ORDERED THATthe February 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 26, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Biloxi, MI, Employer
__________________________________________

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

Docket No. 18-0150
Issued: January 21, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 26, 2017 appellant filed a timely appeal from a September 15, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish a thoracic injury
causally related to the accepted July 14, 2017 employment incident.
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the September 15, 2017 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 evidence for the first time on appeal. Id.

FACTUAL HISTORY
On July 28, 2017 appellant, then a 54-year-old advanced medical support assistant, filed a
traumatic injury claim (Form CA-1) alleging that on July 14, 2017 she suffered a seizure causing
her to fall out of her chair onto the floor injuring her back while in the performance of duty. The
employing establishment controverted her claim and indicated that her disability was not caused
by a traumatic injury and was not work related. Rather, it asserted that appellant had a nonworkrelated seizure. Appellant stopped work on July 15, 2017.
In a development letter dated August 2, 2017, OWCP advised appellant of the type of
evidence needed to establish her claim, particularly requesting that she submit a physician’s
reasoned opinion addressing causal relationship. It requested that she respond to an attached
questionnaire to substantiate the factual allegations of her claim. OWCP afforded appellant
30 days to respond.
In a report dated July 15, 2018, Dr. Fares Hujier, a Board-certified internist, noted his
examination of appellant following a seizure with subsequent back pain. Appellant reported that
while sitting at work she had a seizure which lasted for 30 seconds and then fell from her chair.
She did not remember the details of the seizure episode, but was informed of what occurred by
her colleagues. Appellant noted that after the seizure she experienced confusion, severe back
pain between the shoulders, a headache, and fatigue. Dr. Hujier noted that her history was
significant for hypertension, hypothyroidism, depression, osteoarthritis, hypoglycemia, and posttraumatic stress disorder (PTSD). He noted a computerized tomography (CT) scan of the head
revealed no intracranial hemorrhage, no mass effect, or herniation. A CT scan of the chest with
contrast revealed moderate-to-severe compression fracture of an upper thoracic vertebral body at
T4 of indeterminate age resulting in mild-to-moderate spinal canal narrowing. Dr. Hujier
diagnosed new onset seizure, generalized seizure with loss of consciousness with postical
confusion, arrhythmia with a history of palpitation, compression fracture of T4 with spinal canal
narrowing, hypertension, hypothyroidism, and depression.
Appellant also submitted a discharge summary for the hospital admission relating to her
treatment from July 15 to 18, 2017. In these notes Dr. Hujier noted a principal diagnosis of new
onset of seizure and secondary diagnoses of arterial hypertension, depression, gastroesophageal
reflux disease, PTSD, hypoglycemia, compression fracture of T4, and hypothyroidism. He noted
that appellant was referred from the employing establishment medical center after a witnessed
seizure on the afternoon of July 14, 2017. Appellant reported back pain between the shoulders.
On presentation she was alert, was oriented without neurological signs, and had back pain.
Appellant’s history was significant for multipsychiatric medications and a high dose of pain
medication. Dr. Hujier discharged her in stable condition and permitted physical activity as
tolerated.
On July 18, 2017 appellant was seen in consultation by Dr. Tina L. Jackson, a Boardcertified psychiatrist, and Dr. Mark A. Haygood, an osteopath specializing in psychiatry, after a
witnessed seizure at work. Drs. Jackson and Haygood noted that appellant had no prior seizure
history. They diagnosed an associated compression fracture of appellant’s upper thoracic spine
and noted that she had a history of PTSD, depression, and borderline personality disorder and
that she was on multiple psychiatric medications. Appellant reported being psychiatrically stable

2

for the past two years, but had experienced baseline auditory hallucinations. Drs. Jackson and
Haygood noted findings on mental status examination and ruled out substance-induced psychotic
disorder, but again noted PTSD by history, unspecified depressive disorder by history, and
borderline personality disorder by history.
A July 17, 2017 electroencephalogram (EEG) report revealed generalized background
slowing consistent with nonspecific global brain dysfunction. A July 18, 2017 magnetic
resonance imaging (MRI) scan of the brain revealed mild nonspecific white matter disease.
In a statement dated August 13, 2017, appellant indicated that on July 14, 2017 she was
sitting at her computer desk and had a seizure which caused her to fall out of her chair to the
floor where she sustained a compressed fracture of the thoracic spine at T4. She did not
remember having a seizure. Immediately, after the fall she experienced pain in the middle of her
back and shoulder blades and confusion as to what occurred. Appellant advised that she has not
experienced any other injury and had no history of fainting or seizures. She noted the diagnostic
studies including an EEG, laboratory findings, and MRI scans which were normal. Appellant
was discharged with a back brace. She reported experiencing excruciating pain, numbness in her
left arm, hand, and leg, and indicated that she could no longer perform activities of daily living.
In an August 17, 2017 note Dr. Anthony M. Martino, a Board-certified neurosurgeon,
noted that appellant could return to work on August 31, 2017 with a back brace.
On August 29, 2017 the employing establishment controverted appellant’s claim noting
that she had not established that her seizure was causally related to her employment nor had she
submitted medical documentation supporting total disability.
Appellant submitted a statement from B.N., a coworker, who noted that on July 14, 2017
appellant was at her computer working and, at 5:25 p.m., she heard appellant holler and push her
chair back against the wall. B.N. indicated that the nurses and one of the physicians came to
assist appellant and she slid from her chair. Appellant received support from the attending
nurses.
By decision dated September 15, 2017, OWCP denied appellant’s claim finding that the
medical evidence of record was insufficient to establish that she sustained an injury or medical
condition causally related to the accepted July 14, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation period of FECA,4 that an injury was sustained while in the performance of duty, as
3

Id.

4
See R.B., Docket No. 18-1327 (issued December 31, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41
ECAB 153 (1989).

3

alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Fact of
injury consists of two components, which must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred.7 The second component is whether the employment
incident caused a personal injury.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.9 Causal relationship is a medical issue,
and the medical evidence required to establish causal relationship is rationalized medical
evidence.10 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 employee.11 Neither the mere fact that a
disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a thoracic
injury causally related to the accepted July 14, 2017 employment incident.
Appellant was treated by Dr. Hujier from July 15 to 18, 2017 for a seizure with
subsequent back pain. Dr. Hujier noted physical examination findings the history of injury
following a seizure and fall at work. He diagnosed new onset seizure, generalized seizure with
5

Y.K., Docket No. 18-0806 (issued December 19, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr.,
40 ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

7

R.E., Docket No. 17-0547 (issued November 13, 2018); Elaine Pendleton, 40 ECAB 1143 (1989).

8

D.C., Docket No. 18-1664 (issued April 1, 2019); John J. Carlone, 41 ECAB 354 (1989).

9
J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 465 (2005).
10

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

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

12

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

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loss of consciousness with postical confusion, arrhythmia with a history of palpitation with
hypertension, compression fracture of T4 with spinal canal narrowing, hypertension,
hypothyroidism, and depression. Similarly, in a discharge summary, Dr. Hujier noted a principal
diagnosis of new onset of seizure and secondary diagnoses of arterial hypertension, depression,
gastroesophageal reflux disease, PTSD, hypoglycemia, compression fracture of T4, and
hypothyroidism. In his reports he did not provide an opinion as to whether there was causal
relationship between these diagnosed conditions and the accepted employment incident. The
Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition is of no probative value on the issue of causal relationship.13 These
reports, therefore, are insufficient to establish appellant’s claim.
On July 18, 2017 appellant was seen in consultation by Drs. Jackson and Haygood after a
witnessed seizure at work. They diagnosed an associated compression fracture of her upper
thoracic spine. Appellant was noted to have essentially normal findings on mental status
examination and diagnosed PTSD by history, unspecified depressive disorder by history, and
borderline personality disorder by history. The July 18, 2017 report by Drs. Jackson and
Haygood report is insufficient to establish the claim as the physicians did not specifically address
whether appellant’s employment activities had caused or aggravated the diagnosed fracture of
the thoracic spine. As such, their report is of no probative value on the issue of whether
appellant sustained a thoracic injury causally related to the accepted July 14, 2017 employment
incident.14
Appellant submitted an August 17, 2017 note from Dr. Martino, who noted that appellant
could return to work on August 31, 2017 with a back brace. Dr. Martino’s note is insufficient to
establish the claim as he also failed to provide an opinion on the issue of causal relationship.15
The record also contains a July 17, 2017 EEG report and a July 18, 2017 brain MRI scan
report, as well as CT scan reports. These diagnostic testing reports lack probative value, on the
issue of causal relationship, as they do not address whether the employment incident caused a
diagnosed condition.16 Thus, this evidence is insufficient to meet appellant’s burden of proof.
As appellant has not provided a rationalized medical opinion which supports that her
diagnosed thoracic spine injury is causally related to her accepted July 14, 2017 employment
incident, the Board finds that she has not met her burden of proof to establish her claim.
On appeal appellant asserts that her traumatic injury claim was improperly denied and
that she submitted sufficient evidence to establish a work-related fracture of her thoracic spine
causally related to having a seizure at work. As found above, the medical evidence submitted
does not establish that she has a diagnosed medical condition that is causally related to her
13

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

14

Id.

15

Id.

16
See C.S., Docket No. 18-1633 (issued December 30, 2019); J.M., Docket No. 17-1688 (issued
December 13, 2018).

5

accepted employment incident. Appellant has not submitted a physician’s report which
sufficiently describes how the incident at work on July 14, 2017 caused or aggravated her
diagnosed thoracic fracture of her spine at T4.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a thoracic
injury causally related to the accepted July 14, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 21, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Arlington, VA, Employer
__________________________________________

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

Docket Nos. 10-63 & 10-1685
Issued: September 21, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 7, 2009 appellant filed a timely appeal from a May 27, 2009 merit decision
of the Office of Workers’ Compensation Programs denying her claim for compensation. On
October 26, 2009 she filed a timely appeal from a June 8, 2009 merit decision terminating her
compensation and authorization for medical benefits and a September 3, 2009 nonmerit decision
denying her request for reconsideration. Pursuant to 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 the Office properly adjudicated the issue of appellant’s
entitlement to compensation from November 29 to December 19, 2008; (2) whether the Office
properly terminated her compensation effective June 8, 2009 on the grounds that she had no
further disability due to her accepted employment injury; (3) whether the Office properly
terminated authorization for medical treatment; and (4) whether the Office properly denied
appellant’s request for reconsideration under section 8128.

FACTUAL HISTORY
On August 17, 2008 appellant, then a 46-year-old part-time flexible carrier, injured her
back on the right side when she slipped while walking down steep stairs. She stopped work on
August 15, 2008. The Office accepted the claim for a sprain of the back in the right lumbar
region. It paid appellant compensation for total disability based on her submissions of claims for
compensation from October 3 to November 22, 2008.
On November 12, 2008 the employing establishment offered appellant a modified parttime city carrier position four hours a day lifting no more than eight pounds intermittently. On
November 19, 2008 the Office advised her that it determined the position of part-time flexible
city carrier was suitable. It provided appellant 30 days to accept the position or explain her
refusal.
In a report dated November 19, 2008, Dr. Natalie Vassall, a Board-certified internist,
found that appellant could perform light-duty work lifting no more than eight pounds
intermittently in a four-hour period.
On November 22, 2008 appellant accepted the limited-duty position and noted that it
appeared to be in accordance with her work limitations. She stated, “I plan on taking it to my 30
days in which I should return to work on December 22, 2008. I need to know exactly what my
duties would entail and to insure me that It would not go pass my limitations of no lifting of 8lbs
(maximum) over an intermittent period of 4 hours.”
Appellant filed claims for compensation (Forms CA-7) requesting compensation for
disability from November 22 to December 19, 2008.
On December 8, 2008 the employing establishment again offered appellant the modified
part-time flexible city carrier position lifting no more than eight pounds intermittently. In an
e-mail message dated December 10, 2008, the employer related that she had accepted the offer
but refused to return to work until December 22, 2008.
In a report dated December 15, 2008, Dr. Vassall discussed appellant’s work injury when
she fell down steps delivering mail. She referred appellant for physical therapy and stated:
“During her evaluation and treatment for this work[-]related injury, [appellant]
was restricted in her carry capacity at work-as to not exacerbate her back pain.
Her restrictions included no lifting anything more than one pound (maximum)
over an intermittent period of no more than four hours. Basically, [appellant]
should not be carrying/delivering mail during her period of rehabilitation.”
Appellant returned to limited-duty employment on December 27, 2008 working four
hours a day. The Office paid wage-loss compensation for four hours a day beginning
December 27, 2008.
By letter dated December 22, 2008, the Office requested that appellant explain why she
did not return to work after she accepted the limited-duty position on November 22, 2008.

2

By decision dated January 30, 2009, the Office denied appellant’s claim for
compensation from November 29 to December 19, 2008.1 It noted that she had accepted a
limited-duty position but did not return to work even though her physician found that she could
work four hours a day. The Office found that an employee who refused suitable work under 5
U.S.C. § 8106(c)(2) was not entitled to compensation and concluded that the evidence failed to
show that appellant was disabled from November 29 to December 19, 2008.
On February 24, 2008 appellant requested reconsideration of the January 30, 2009
decision.
In a report dated March 5, 2009, Dr. Robert Franklin Draper, Jr., a Board-certified
orthopedic surgeon and Office referral physician, diagnosed lumbosacral strain with
osteoarthritis of the L4-5 facet joints, degenerative disc disease at L5-S1 and Grade 1
spondylosis at L4-5. He opined that appellant’s lumbar strain had resolved and that her
continued symptoms resulted from her preexisting conditions. Dr. Draper found that she could
perform limited-duty work but that she was not at maximum medical improvement. Appellant
required lifting restrictions until approximately April 15, 2009, when she would reach maximum
medical improvement.
In a report dated March 12, 2009, Dr. Vassal discussed her treatment of appellant for
radiating low back pain after a fall at work. She reiterated that appellant required continued
work restrictions.
On March 18, 2009 the Office referred appellant to Dr. Robert Collins, a Board-certified
orthopedic surgeon, for an impartial medical examination. On April 24, 2009 Dr. Collins
discussed her history of injury and noted that she currently worked four hours a day with
restrictions. He listed findings on examination of no loss of sensation or reflex in the legs and
straight leg raising without pain. Dr. Collins noted that appellant’s “main complaint at this time
is low back pain with minimal findings. She does have degenerative changes in her back which
are a preexisting problem as noted on the [magnetic resonance imaging] (MRI) [scan] from the
osteoarthritis of the facet joints and degenerative disc disease.” He diagnosed lumbar strain with
preexisting lumbar spine changes unrelated to her work injury. Dr. Collins stated:
“[Appellant] has had an adequate course of physical therapy and treatment for this
and should be able to return to work on a full-time basis. She is now [nine]
months post lumbar strain with no other injuries. [Appellant] did have preexisting
degenerative changes which are still present but her lumbar strain is now
resolved. She is at maximum medical improvement as far as her injury is
concerned. [Appellant] should be able to return to full duty at this time to her
work as a mail carrier. She is not disabled at this time from her lumbar strain.
The lumbar strain has resolved. [Appellant] had adequate treatment for this. She
does have underlying degenerative changes but this should not prevent her from
returning to her preinjury job. There are no current findings as far as any

1

In another decision dated January 30, 2009, the Office determined that appellant was not entitled to augmented
compensation based on having custody of her nieces and nephews.

3

contusions or bruises are concerned. [Appellant] has now had sufficient time for
this lumbar strain to resolve and she can return to work to regular duty at this
time.”
On May 4, 2009 the Office notified appellant of its proposed termination of her
compensation and authorization for medical benefits. On May 23, 2009 appellant informed the
Office that she disagreed with the proposed termination because she continued to have
restrictions due to her work injury. She maintained that Dr. Draper and Dr. Collins did not
perform physical examinations.
By decision dated May 27, 2009, the Office denied modification of its January 30, 2009
decision. It noted that appellant had not submitted any evidence to establish that the job offered
by the employing establishment was not suitable and available within her restrictions.
In a decision dated June 8, 2009, the Office finalized the termination of appellant’s
compensation and authorization for medical treatment effective June 8, 2009 on the grounds that
the weight of the medical evidence established that she had no further employment-related
disability or condition requiring further medical treatment.
On July 21, 2009 appellant requested reconsideration. She submitted a July 20, 2009
report from Dr. Vassall diagnosing an exacerbation of chronic low back pain and indicating that
the residuals of appellant’s work injury had not resolved. Dr. Vassall listed work restrictions and
found that she could work four hours a day.
In a form report dated July 21, 2009, a physician diagnosed chronic low back pain and
found that appellant was totally disabled from July to October 2008.2 He noted that she
experienced chronic low back pain after a fall in August 2008 and found that she could work
with restrictions.
In a medical clearance form dated July 21, 2009, Dr. Vassal opined that appellant could
work four hours a day with restrictions.
By decision dated September 3, 2009, the Office denied appellant’s request for
reconsideration under section 8128 on the grounds that the evidence submitted was irrelevant
and insufficient to warrant reopening her case for further review of the merits.
On appeal, appellant argues that she continues to have problems due to her work injury.
She contends that Dr. Draper and Dr. Collins did not perform a complete evaluation. Appellant
related that she was unable to perform her work duties. She additionally argues that she was
unable to work from November 29 to December 19, 2008 and that the job offered by the
employing establishment was not within her restrictions.

2

The name of the physician is not legible.

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LEGAL PRECEDENT -- ISSUE 1
The term disability as used in the Federal Employees’ Compensation Act3 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.4 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.5 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.6 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
The Board finds that the Office improperly adjudicated appellant’s claim for
compensation for the period November 29 to December 19, 2008. The Office found that she was
not entitled to compensation during that period because she did not go back to work even though
the employing establishment offered her part-time employment within her restrictions. It cited
section 8106(c)(2) of the Act, relevant to terminating compensation for claimants who refuse or
neglect an offer of suitable employment. The Board notes that the process for terminating
compensation for failure to accept suitable work is a discrete process and is governed by specific
rules and regulations.8 The Office did not follow its procedures to terminate appellant’s
compensation under section 8106(c) and thus improperly cited the provision in denying her
claim for compensation from November 29 to December 19, 2008.
The Office further determined that the evidence did not establish that appellant was
disabled from the part-time work during the period in question. At the time it had paid her
compensation from October 3 to November 22, 2008 based on her submission of CA-7 forms.
Office regulations provide that compensation for wage loss due to disability is available for any
period during which an employees’ work-related medical condition prevents him or her from
3

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

4

Paul E. Thams, 56 ECAB 503 (2005).

5

Id.

6

Id.

7

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

8

See Maggie Moore, 42 ECAB 484 (1991); reaff’d on recon., 43 ECAB 818 (1992) (holding that when the Office
makes a preliminary determination of suitability and extends the employee 30-day period either to accept or to give
reasons for not accepting, the Office must consider any reasons given before it can make a final determination on the
issue of suitability. Should the Office find the reasons unacceptable, it may finalize its preliminary determination of
suitability, but it may not invoke the penalty provision of section 8106(c) without first affording the employee the
opportunity to accept or refuse the offer of suitable work with notice of the penalty provision).

5

earning the wages earned before the work-related injury.9 The disability may be partial or
total.10 The Office denied appellant’s claim after finding that the medical evidence did not show
that she was unable to perform part-time employment for the period in question. It, however, did
not determine whether the medical evidence established that she was partially disabled due to her
employment injury. Accordingly, the Board will remand the case for the Office to properly
adjudicate appellant’s claim for compensation from November 29 to December 19, 2008.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.11 The Office’s burden of proof in terminating compensation includes the necessity
of furnishing rationalized medical opinion evidence based on a proper factual and medical
background.12
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.13 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.14 In situations where 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.15
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained right lumbar sprain due to an August 7, 2008
work injury. It paid compensation for total disability from October 3 to November 22, 2008.
Appellant returned to part-time work on December 27, 2008. The Office paid her wage-loss
compensation for four hours a day beginning that date.

9

Judith A. Cardiddo, 55 ECAB 348 (2004).

10

Hubert Jones, Jr., 57 ECAB 467 (2006).

11

J.M., 58 ECAB 478 (2007); Gloria J. Godfrey, 52 ECAB 486 (2001).

12

T.P., 58 ECAB 524 (2007); Gewin C. Hawkins, 52 ECAB 242 (2001).

13

5 U.S.C. § 8123(a).

14

20 C.F.R. § 10.321.

15

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

6

The Office determined that a conflict arose between Dr. Vassall, appellant’s attending
physician, and Dr. Draper, an Office referral physician, regarding whether she had continuing
residuals and disability due to her accepted work injury. Where 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.16
The Board finds that the opinion of Dr. Collins, a Board-certified orthopedic surgeon selected to
resolve the conflict in opinion, is well rationalized and based on a proper factual and medical
history. Dr. Collins accurately summarized the relevant medical evidence, provided detailed
findings on examination and reached conclusions about appellant’s condition which comported
with his findings.17 In a report dated April 24, 2009, he reviewed the medical evidence of
record, including the results of diagnostic studies. On examination, Dr. Collins found no loss of
sensation in the legs or pain with straight leg raising. He found that appellant’s accepted
condition of lumbar strain had resolved and that she could resume her usual employment.
Dr. Collins provided rationale for his opinion by noting that she had minimal findings on
examination without any evidence of contusions or bruises. He determined that appellant had a
preexisting degenerative lumbar condition by MRI scan study unrelated to her work injury. As
Dr. Collins’ report is detailed, well rationalized and based on a proper factual background, his
opinion is entitled to the special weight accorded an impartial medical examiner.18 The Office
thus met its burden of proof to terminate appellant’s compensation benefits for the accepted
condition of right lumbar sprain.
On appeal, appellant argued that she requires work restrictions due to her employment
injury. She further questioned the thoroughness of the evaluations by Dr. Draper and
Dr. Collins. As noted, however, Dr. Collins opinion is entitled to the special weight represented
the impartial medical examiner and establishes that appellant has no further disability due to her
accepted work injury.
LEGAL PRECEDENT -- ISSUE 3
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.19 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.20

16

Id.

17

Manuel Gill, 52 ECAB 282 (2001).

18

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

19

Kathryn E. Demarsh, 56 ECAB 677 (2005); Pamela K. Guesford, 53 ECAB 727 (2002).

20

Id.

7

ANALYSIS -- ISSUE 3
The Office met its burden of proof to terminate authorization for medical benefits
through the opinion of Dr. Collins, the impartial medical examiner, who found that appellant had
no residuals of her accepted condition. Dr. Collins explained that, based on his physical
examination and the diagnostic studies, she had no further findings of lumbar strain and opined
that she had received sufficient medical treatment. As his opinion is detailed and well
rationalized, it is entitled to the special weight accorded an impartial medical examiner and
establishes that appellant has no further residuals of her accepted employment injury.21
LEGAL PRECEDENT -- ISSUE 4
To require the Office to reopen a case for merit review under section 8128(a) of the
Act, the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.23 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.24 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review on the merits.25
22

The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.26 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.27 While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.28
ANALYSIS -- ISSUE 4
On July 21, 2009 appellant requested reconsideration of the Office’s June 8, 2009
decision terminating her compensation and authorization for medical benefits. In support of her
21

See Darlene R. Kennedy, supra note 18.

22

5 U.S.C. §§ 8101-8193. Section 8128(a) of the Act provides that “[t]he Secretary of Labor may review an
award for or against payment of compensation at any time on her own motion or on application.”
23

20 C.F.R. § 10.606(b)(2).

24

Id. at § 10.607(a).

25

Id. at § 10.608(b).

26

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

27

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

28

Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

8

request for reconsideration, she submitted a July 20, 2009 report from Dr. Vassall, who
diagnosed an exacerbation of chronic low back pain and found that she had continued residuals
of the need for work restrictions due to her accepted employment injury. In a medical clearance
form dated July 21, 2009, Dr. Vassall opined that appellant could work four hours a day with
restrictions. Her reports, however, are substantially similar to her prior reports considered by the
Office. Evidence which is cumulative in nature is insufficient to warrant reopening the case for
merit review.29
In a form report dated July 21, 2009, a physician diagnosed chronic low back pain
exacerbated by lifting over 25 pounds and found that appellant was totally disabled from July to
October 2009. He noted that she experienced chronic low back pain after a fall in August 2008
and found that she could work with restrictions. The physician did not directly relate appellant’s
need for work restrictions to her accepted work injury and thus his report has little relevance to
the issue at hand.
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a relevant legal argument not previously considered by the Office or submit new
and relevant evidence not previously considered. As she did not meet any of the necessary
regulatory requirements, she is not entitled to further merit review.30
CONCLUSION
The Board finds that the Office improperly adjudicated the issue of appellant’s
entitlement to compensation from November 29 to December 19, 2008. The Board further finds
that the Office properly terminated her compensation and authorization for medical treatment
effective June 8, 2009 on the grounds that she had no further disability or condition due to her
accepted employment injury. The Board finds that the Office properly denied appellant’s request
for reconsideration under section 8128.

29

F.R., 58 ECAB 607 (2007); Patricia Aiken, 57 ECAB 441 (2006).

30

Appellant submitted new evidence on appeal. The Board has no jurisdiction to review new evidence on appeal;
see 20 C.F.R. § 501.2(c).

9

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 3 and June 8, 2009 are affirmed. The decision dated
May 27, 2009 is set aside and the case is remanded for further proceedings consistent with this
decision of the Board.
Issued: September 21, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plano, TX, Employer
__________________________________________

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

Docket No. 15-1411
Issued: October 5, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 16, 2015 appellant filed a timely appeal from a February 11, 2015 nonmerit
decision and a December 30, 2014 merit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.2
ISSUES
The issues are whether: (1) appellant met her burden of proof to establish a traumatic
injury in the performance of duty; and (2) whether OWCP properly denied appellant’s request
for reconsideration without a merit review of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted new medical evidence on appeal. The Board is precluded from considering the new
evidence as it was not before OWCP at the time of its decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 29, 2014 appellant, then a 60-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 10, 20133 she injured her right index finger while
casing mail. Specifically, she noted hitting her finger on an iron case, full of mail. Appellant
stopped work on September 9, 2013 and returned to work in a limited capacity on
September 11, 2013. The employing establishment advised that appellant had been released to
full duty on July 6, 2013, after recovering from a prior right index finger injury.
In a November 12, 2014 letter, OWCP notified appellant of the deficiencies in her claim.
It advised her to submit a physician’s opinion, supported by a medical explanation, as to how the
reported work incident caused a diagnosed condition. OWCP did not receive a response.
In a December 30, 2014 decision, OWCP denied appellant’s claim finding that she failed
to submit medical evidence establishing a diagnosed condition in connection with the workrelated incident.
On January 29, 2015 appellant requested reconsideration. In an accompanying
January 29, 2015 statement, she explained that she was placing mail into a wire case on
September 10, 2013 and hit her right index finger twice. Appellant reported swelling and a
popping sensation in her right index finger. She also indicated that a medical specialist advised
her against further mail casing.
In a February 11, 2015 decision, OWCP denied appellant’s request for reconsideration
finding that the evidence was insufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.5 The employee must also
establish that he or she sustained an injury in the performance of duty as alleged and that his or
her disability for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
3

The employing establishment indicated in a separate portion of the form that the claimed injury occurred on
September 9, 2013.
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

R.C., 59 ECAB 427 (2008).

6

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

incident at the time, place, and in the manner alleged. Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is evidence which includes a physician’s 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, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.8
ANALYSIS -- ISSUE 1
There is no dispute that appellant was casing mail. However, the Board finds that
appellant has not submitted medical evidence to establish that a diagnosed right index finger
condition was caused or aggravated by the employment incident.
In a November 12, 2014 letter, OWCP advised appellant of the type of medical evidence
needed to establish her claim. Appellant failed to provide the requested documentation. The
record, therefore, does not contain any medical opinion explaining how the employment incident
caused or contributed to a diagnosed medical condition. As appellant failed to submit any
medical evidence, she did not meet her burden of proof to establish her claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA, its
regulations provide 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.9 Where the request for reconsideration fails to meet at least one of these
standards, OWCP will deny the application for reconsideration without reopening the case for
review of the merits.10

7

T.H., 59 ECAB 388 (2008).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

20 C.F.R. § 10.606(b)(3); see J.M., Docket No. 09-218 (issued July 24, 2009).

10

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

3

ANALYSIS -- ISSUE 2
OWCP had denied appellant’s traumatic injury claim, finding that there had been no
medical evidence to establish a medical condition causally related to her federal employment.
Appellant requested reconsideration on January 29, 2015 and submitted a statement in support of
her request. On February 11, 2015 OWCP denied her reconsideration request without a merit
review.
The Board finds that OWCP properly denied appellant’s reconsideration request.
Appellant’s January 29, 2015 statement describing how her injury occurred does not advance a
relevant legal argument not previously considered, or show that OWCP erroneously applied or
interpreted a specific point of law. The underlying issue in this case, whether the claimed right
index finger injury is causally related to the September 10, 2013 work incident, is medical in
nature. Although the January 29, 2015 statement by appellant is new to the record, it is not
relevant to the underlying issue which is medical in nature and calls for a rationalized medical
opinion.11 No other evidence accompanied the reconsideration request.
Consequently, appellant did not meet any of the three criteria for reopening a claim for a
merit review.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a traumatic
injury in the performance of duty. The Board further finds that OWCP properly denied her
request for reconsideration without a merit review of her claim pursuant to 5 U.S.C. § 8128(a).

11

C.N., Docket No. 08-1569 (issued December 9, 2008) (evidence that does not address the particular issue
involved does not constitute a basis for reopening a case).

4

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2015 and December 30, 2014
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 5, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Riverdale, GA, Employer
__________________________________________

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

Docket No. 09-1284
Issued: January 22, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 20, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 7, 2009 regarding an overpayment of
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over
the April 7, 2009 merit decision.
ISSUES
The issues are: (1) whether the Office properly determined that an overpayment of
$2,627.61 was created; and (2) whether the Office properly denied waiver of the overpayment.
FACTUAL HISTORY
On August 18, 2007 appellant, then a 50-year-old letter carrier, filed an occupational
disease or illness claim (Form CA-2) alleging that he sustained planter fasciitis as a result of his
federal employment.
The Office accepted the claim for aggravated bilateral plantar
fibromatosis/fasciitis. Appellant’s pay rate as of the date of injury was $49,908.00 per year, or
$959.78 per week. Appellant received compensation for wage loss for intermittent dates.

Appellant stopped working on May 20, 2008 following foot surgery. Appellant began
receiving compensation payments commencing May 20, 2008 with a pay rate for compensation
purposes of $1,149.88 per week.
An employing establishment based on appellant’s pay rate of $59,794.00 annually as of
the date of recurrence reported that as of January 2008 appellant’s pay rate was $50,794.00 per
year, and as of May 20, 2008 his pay rate was $51,252.00 per year, or $985.62 weekly. The
employing establishment confirmed that, while the May 28, 2008 CA-7 appeared to report a pay
rate of $59,794.00 for January 2008, the correct figure was $50,794.00.1
By letter dated November 20, 2008, the Office advised appellant of a preliminary
determination that an overpayment of $2,627.61 was created from May 20 to October 19, 2008.
It explained that an incorrect pay rate was used in paying wage-loss compensation. According to
the Office appellant received $17,896.70 in compensation for the period, but should have
received $15,269.09.
Appellant submitted an overpayment recovery questionnaire dated December 2, 2008
providing information regarding income and expenses. On March 10, 2009 a telephone hearing
was held regarding the overpayment. Appellant reported $9,550.00 in monthly income but was
provided additional time to provide information on expenses.
On April 2, 2009 the record indicates the Office received additional financial
information. Appellant submitted copies of bills, bank statements and an OWCP-20 data sheet
with additional expenses listed.
By decision dated April 7, 2009, the Office finalized its determination that an
overpayment of $2,627.61 was created. It denied waiver of the overpayment, finding that
appellant did not need substantially all of his monthly income to meet ordinary and necessary
living expenses. In notes receipt of an OWCP-20 on December 8, 2008 and that a March 10,
2009 telephone hearing was held.
LEGAL PRECEDENT -- ISSUE 1
When an employee has worked in the employment in which he was employed at the time
of his injury during substantially the whole year immediately preceding the injury and the
employment was in a position for which there was a fixed annual rate of pay, the average annual
earnings are the annual rate of pay.2 Under 5 U.S.C. § 8101(2), “monthly pay” means the
monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly
pay at the time compensable disability recurs, if the recurrence begins more than six months after
the injured employee resumes regular full-time employment with the United States, whichever is
greater.…”3
1

The employing establishment explained the placement of the comma made the 50 appear to be 59.

2

5 U.S.C. § 8114(d).

3

See also 20 C.F.R. § 10.5(s), which defines “pay rate for compensation purposes” as the employees pay as
determined under 5 U.S.C. § 8114 at the time established under the requirements of 5 U.S.C. § 8101(2).

2

ANALYSIS -- ISSUE 1
The Office paid appellant compensation from May 20 to October 19, 2008 using a
weekly pay rate for compensation purposes of $1,149.88. This was based on information in a
May 28, 2008 CA-7 that appeared to establish appellant’s annual rate of pay as of January 2008
was $59,794.00, or $1,149.88 per week. The employing establishment indicated that the actual
salary as of May 20, 2008, the date of a recurrence of disability, was $51,252.00, or $985.62 per
week.
Pursuant to 5 U.S.C. § 8101(2) and 20 C.F.R. § 10.5(s), the pay rate for compensation
purposes is determined at the time of the recurrence of disability on May 20, 2008. Since
appellant was paid compensation based on a weekly pay rate for compensation purposes of
$1,149.88, rather than $985.62, an overpayment of compensation was created. The Office
determined that appellant’s net compensation for the period May 20 to October 19, 2008 was
$17,896.70, but he should have received $15,269.09 in net compensation based on a correct pay
rate of $985.62. There is no contrary evidence of record. Therefore the Board finds an
overpayment of $2,627.61 was created.
LEGAL PRECEDENT -- ISSUE 2
The waiver or refusal to waive an overpayment of compensation by the Office is a matter
that rests within the Office’s discretion pursuant to statutory guidelines.4 These statutory
guidelines are found in section 8129(b) of the Act which states: “Adjustment or recovery [of an
overpayment] by the United States may not be made when incorrect payment has been made to
an individual who is without fault and when adjustment or recovery would defeat the purpose of
[the Act] or would be against equity and good conscience.”5 Since the Office found appellant to
be without fault in the creation of the overpayment, then, in accordance with section 8129(b), the
Office may only recover the overpayment if it determined that recovery of the overpayment
would neither defeat the purpose of the Act nor be against equity and good conscience.
Section 10.436 of the implementing regulations6 provide that recovery of an overpayment
will defeat the purpose of the Act if recovery would cause hardship to a currently or formerly
entitled beneficiary because: (a) the beneficiary from whom the Office seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current
ordinary and necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified
amount as determined [by the Office] from data furnished by the Bureau of Labor Statistics.7 An
individual is deemed to need substantially all of his or her income to meet current ordinary and
4

Robert Atchison, 41 ECAB 83 (1989).

5

See 5 U.S.C. § 8129(b); Carroll R. Davis, 46 ECAB 361 (1994).

6

20 C.F.R. § 10.436 (1999).

7

An individual’s assets must exceed a resource base 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. This base includes all of the
individual’s assets not exempt from recoupment; see Federal (FECA) Procedure Manual, Part 6 -- Debt
Management, Initial Overpayment Actions, Chapter 6.200.6 (October 2004).

3

necessary living expenses if monthly income does not exceed monthly expenses by more than
$50.00.8
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.9
ANALYSIS -- ISSUE 2
The Office made a finding that appellant did not need substantially all of his income to
meet ordinary and necessary living expenses. There are no specific findings in the April 7, 2009
decision regarding appellant’s income and expenses, and it does not appear that the Office
considered all the evidence of record. In any case, appellant did submit additional relevant
evidence on April 2, 2009, prior to the April 7, 2009 final decision. There is no indication that
the Office reviewed this evidence, as the April 7, 2009 decision refers only to the prior OWCP20 and the March 10, 2009 hearing. The Office did not discuss the evidence submitted on
April 2, 2009 nor make a finding as to the specific income and expenses attributable to appellant
in this case. The Act provides that the Office shall determine and make findings of fact in
making an award for or against payment of compensation after considering the claim presented
by the employee and after completing such investigation as the Office considers necessary with
respect to the claim.10 Since the Board’s jurisdiction of a case is limited to reviewing the
evidence which was before the Office at the time of its final decision, it is necessary that the
Office review all evidence submitted by a claimant and received by the Office prior to issuance
of its final decision.11
The case will be remanded to the Office for proper consideration of the waiver issue
based on all the relevant evidence of record. After such further development as the Office deems
necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the evidence supports a finding that an overpayment of 2,627.61 was
created. The case is remanded on the issue of waiver for consideration of all the relevant
evidence of record.

8

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

9

20 C.F.R. § 10.437 (1999).

10

William A. Couch, 41 ECAB 548 (1990).

11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 7, 2009 is affirmed with respect to fact and amount of the
overpayment, and set aside and remanded for further action on the issue of waiver.
Issued: January 22, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5