United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Charleston, WV,
Employer
__________________________________________

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

Docket No. 17-0223
Issued: July 7, 2017

Case Submitted on the Record

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

JURISDICTION
On November 28, 2016 appellant filed a timely appeal from an October 31, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability commencing August 17, 2016 causally related to the August 20, 2014 accepted
employment injury.
On appeal appellant contends that she attempted to return to work, but was unable to
perform her assigned work duties.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 21, 2014 appellant, then a 36-year-old laborer-maintenance mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on August 20, 2014 she was struck in the
nose/face area by a lever of a manual battery hoist. She stopped work on August 20, 2014 and
returned to full-time, light-duty work on September 28, 2014. OWCP accepted appellant’s claim
for contusions of the face, scalp, and neck, sprain of neck, sprain of right shoulder and upper
arm, and sprain of the lumbar region of the back. Preexisting or concurrent medical conditions
included left ankle sprain, right knee subluxation, multilevel thoracic spondylosis, multilevel
lumbar degenerative disc disease and facet atrophy, bilateral sacroiliac degenerative joint
disease, posterior cervical disc herniation at C5-6, multilevel cervical neural foraminal stenosis,
and acromioclavicular joint arthritis.
Appellant stopped work again on November 18, 2014. On December 1, 2014 she filed a
recurrence of disability claim (Form CA-2a) alleging a recurrence of her August 20, 2014 injury
commencing November 18, 2014.
On December 22, 2014 OWCP received a December 17, 2014 report from appellant’s
treating physician, Dr. H.S. Ramesh, Board-certified in pain medicine. Dr. Ramesh related that
appellant’s nose, neck and right shoulder pain, as well as her right upper extremity numbness,
had increased since her last visit due to “flare up.” He also related that her back pain had
decreased. Dr. Ramesh requested authorization for cervical and lumbar facet joint injections.
He recommended that appellant return to work on December 18, 2014 performing light,
modified duties.
A statement of accepted facts (SOAF) dated January 22, 2015 noted that appellant had
not returned to work after her alleged November 18, 2014 recurrence of disability.2
OWCP referred appellant to Dr. Paul Bachwitt, a Board-certified orthopedic surgeon to
determine appellant’s disability status. In a report dated March 3, 2015, Dr. Bachwitt noted
appellant’s history of injury and history of medical treatment. He also provided extensive
examination findings. Dr. Bachwitt diagnosed cervical sprain/strain, right shoulder sprain/strain
with a supraspinatus tear, and a lumbar sprain/strain, all related to appellant’s August 20, 2014
employment injury. He concluded that appellant had not reached maximum medical
improvement and should be allowed to see an orthopedic surgeon for her right shoulder
condition. Dr. Bachwitt also concluded that she could perform light-duty work until she saw an
orthopedic surgeon.
On July 22, 2015 appellant underwent the following approved procedures: (1) right
shoulder arthroscopy with subacromial decompression; (2) bursectomy; and (3) limited intraarticular debridement of partial thickness rotator cuff tear.
In an October 23, 2015 work capacity evaluation, Dr. John Pierson, appellant’s treating
Board-certified orthopedic surgeon, indicated that appellant was unable to perform her job duties
2

By decision dated October 5, 2016, OWCP accepted appellant’s claim for a recurrence of disability effective
November 18, 2014. It apologized that a formal decision had not been previously rendered.

2

until December 3, 2015 due to an incomplete rotator cuff tear or rupture and impingement
syndrome.
On November 6, 2015 OWCP referred appellant to Dr. Saghir R. Mir, a Board-certified
orthopedic surgeon, for a second opinion regarding appellant’s disability status. In his
November 23, 2015 report, Dr. Mir diagnosed cervical strain with mild disc protrusion at C5-6
level; and postoperative rotator cuff debridement and subacromial decompression. He opined
that there was a direct causation between her symptoms and the work-related injury of
August 20, 2014. Dr. Mir noted that appellant still had residuals from her injury, but was
capable of modified work, with no lifting or pushing over 20 pounds. He also noted that she
should not perform over the shoulder activity for more than one hour. Dr. Mir indicated that
appellant would be able to resume full-duty work on January 2, 2016. He opined that appellant
had reached maximum medical improvement, but should be allowed to finish her physical
therapy. Dr. Mir noted that she did have some functional or psychological overlay as well.
In a January 13, 2016 report, Dr. Pierson diagnosed impingement syndrome of the right
shoulder and incomplete rotator cuff tear or rupture of right shoulder (not specified as traumatic).
He recommended that she continue physical therapy and he noted that appellant had been given a
right shoulder corticosteroid injection. Dr. Pierson noted that appellant was not yet at maximum
medical improvement. He indicated that she could return to some sort of light-duty work, but
that appellant was not able to return to full duty with her right upper extremity at that time.
Dr. Pierson indicated in a work capacity evaluation that appellant could not perform reaching,
pushing, pulling, lifting, squatting, or kneeling. He also noted that she could not perform
repetitive movements with her wrists and elbows.
By letter dated February 22, 2016, OWCP referred appellant to Dr. A.E. Landis, a Boardcertified orthopedic surgeon, for an impartial medical examination. It noted that there was a
conflict between the second opinion physician and appellant’s treating physicians as to whether
appellant had disabling residuals from the accepted August 20, 2014 injury. OWCP directed
Dr. Landis to assess appellant’s need for further medical treatment as well as her disability
status/work restrictions from the August 20, 2014 injury.
In a March 22, 2016 report, Dr. Landis stated that, based on his review of appellant’s
history of injury and the medical records available for review, appellant had sustained a facial
contusion and mild concussion, which had resolved without the need for any further treatment.
He indicated that her subjective complaints were in excess of the objective findings, which are
primarily the result of underlying degenerative arthritic changes in the cervical spine and lumbar
spine. Dr. Landis opined that appellant had reached maximum medical improvement from her
injury. He stated that the only treatment that appellant required was ongoing use of nonsteroidal
anti-inflammatory medication and mild analgesics. Dr. Landis noted that appellant might benefit
from a corticosteroid injection. He opined that she could return to full modified duty at the
employing establishment and he would rate her physical demand level (PDL), based on his
examination, at a light level and noted that her capacity might improve in the future to medium
PDL. In a March 28, 2016 work capacity evaluation, Dr. Landis indicated that appellant was
limited to one to two hours of sitting, walking, standing, reaching, twisting, bending and
stooping. He also limited her to pushing, pulling, and lifting 5 to 10 pounds with her right upper
extremity.

3

The employing establishment offered appellant a limited-duty assignment as a modified
laborer/custodian effective June 17, 2016. The duties of the position were listed as “manual
letter cases.” The position required appellant to work four hours a day. The physical
requirements of the modified assignment were: intermittent sitting and walking, standing up to
two hours per day, intermittent reaching above shoulder, twisting, bending/stooping, and
lifting/pushing/pulling up to 10 pounds with right side.
By letter dated June 14, 2016, OWCP informed appellant that the duties and physical
requirements of the offered position were in accordance with her medical limitations as set forth
by the impartial medical examiner. It provided her 30 days to accept the position without
penalty or provide a written explanation of her reasons for failing to accept the position. On
August 4, 2016 OWCP informed appellant that it had received notice that she continued to refuse
to accept or report to the offered position, that the reasons provided for refusing to accept the
position were not valid, and that the employing establishment advised that the position remained
available to her. It afforded her 15 additional days to report to the position and advised her that,
if she did not accept and report to the position during the allotted period, her entitlement to wageloss and schedule award benefits would be terminated.
On August 13, 2016 appellant returned to work part-time limited-duty and on August 16,
2016 she officially accepted the suitable work position.
Appellant was seen on August 20, 2016 at the Urgent Care Center for cervical and
lumbar pain following an injury while on the job. Dr. Daniel Smith, a physician Board-certified
in family medicine, indicated in handwritten notes that appellant stated that she missed work for
the past three days due to pain in her neck, back, and right shoulder, and that this pain was in the
same areas as before and was aggravated by work. He excused appellant from work from
August 18 to 21, 2016 due to pain. In an August 21, 2016 work capacity evaluation,
Dr. Michael H. Chancey indicated that appellant could work sedentary duty for four hours a day,
with limitations of pushing, pulling, and lifting 10 pounds.
In an August 22, 2016 memorandum, an employing establishment human resource
manager, stated that appellant returned to work for part of the day on August 13, 2016, worked a
few days for approximately one and one-half hours each, called in for a couple of days, and went
to the doctor on August 20 and 21, 2016. She indicated that it was her opinion that appellant
could still perform the limited-duty job offer as long as she did not walk more than one hour.
By letter dated August 29, 2016, appellant stated that, due to fear of losing income and
health insurance for herself and her son, she attempted to work a modified-duty assignment.
However, after attempting to perform this work, she could not continue. Appellant alleged that
in order to perform this work, she was required to twist and lift at the waist practically the entire
time, and was also required to lean and reach slightly below her waist and to a full stretch above
her shoulder. She stated that she underwent surgery on July 22, 2015 and was unable to do the
twisting and reaching, so she was constantly standing up, bending down, and stepping in the
direction she needed to twist, bend or reach. Appellant also submitted a copy of a letter she
wrote to the human resources manager contending that the position was not within her doctor’s
restrictions. She alleged that, after two hours of trying to perform her modified job, she was in
so much pain that she should not stand or sit straight.

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On September 8, 2016 appellant filed a recurrence of disability claim (Form CA-2a)
alleging a recurrence commencing August 17, 2016 due to the accepted August 20, 2014 injury.
She indicated that the amount of pain drastically increased with her work, and the longer she
worked, the more she was in pain and the less the pain medication helped. Appellant contended
that after working she would be incapacitated for the next one to two days. She alleged that the
way she was required to sit and stand at work would immediately aggravate her injury to her
back, along with the repetitive movements of twisting, turning, reaching, carrying, and looking
up and down.
By letter dated September 9, 2016, OWCP indicated that appellant must submit further
information in support of her recurrence claim. It afforded her 30 days to submit this
information.
By decision dated October 31, 2016, OWCP denied appellant’s claim for a recurrence of
disability commencing August 17, 2016. It determined that the evidence of record was
insufficient to establish the basis of her recurrence claim.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness. It can also mean an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.3
When an employee who is disabled from the job he or she held when injured on account
of employment-related residuals returns to a limited-duty position or the medical evidence of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform such limited-duty work.4 To show a
change in the degree of the work-related injury or condition, the claimant must submit
rationalized medical evidence documenting such change and explaining how or why the accepted
injury or condition disabled the claimant from work on and after the date of the alleged
recurrence of disability.5
OWCP procedures recognize that, if an alleged recurrence occurs less than 90 days after
a return to light or full duty, the claimant is not required to produce the same evidence as for a
3

J.F., 58 ECAB 124 (2006). A recurrence of disability does not apply when a light-duty assignment is
withdrawn for reasons of misconduct, nonperformance of job duties, or other downsizing. 20 C.F.R. § 10.5(x). See
also Richard A. Neidert, 57 ECAB 474 (2006).
4

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
5

James H. Botts, 50 ECAB 265 (1999).

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recurrence claimed long after apparent recovery and return to work. Therefore, in cases where
recurring disability for work is claimed within 90 days or less from the first return to duty, the
focus is on disability rather than causal relationship.6 The attending physician should describe
the duties which the employee cannot perform and the demonstrated objective medical findings
that form the basis for the renewed disability for work.7
ANALYSIS
OWCP accepted that appellant sustained a contusion of the face, scalp, and neck, sprain
of the neck, sprain of right shoulder and upper arm, and sprain of the lumbar region of the back
causally related to the August 20, 2014 employment accident. On July 22, 2015 appellant
underwent a right shoulder arthroscopy and subacromial decompression, bursectomy, and limited
intra-articular debridement of partial thickness rotator cuff tear.
Appellant’s treating physicians included Dr. Pierson, who noted in an October 23, 2015
work capacity evaluation that appellant was unable to perform all job duties until December 3,
2015 due to an incomplete rotator cuff tear or rupture and impingement syndrome. OWCP
referred appellant to a second opinion physician, Dr. Mir, who noted in a November 23, 2015
report that appellant was capable of light-duty work. In a January 13, 2016 report, Dr. Pierson
also indicated that appellant as able to perform light-duty work, but with greater restrictions than
those set by Dr. Mir. OWCP referred appellant to Dr. Landis for an impartial medical
examination. Dr. Landis, in his March 22, 2016 report, indicated that appellant could return to
full modified-duty work at the employing establishment. Dr. Landis placed limitations on
appellant of one to two hours of sitting, walking, standing, reaching, twisting, bending, and
stooping. He indicated that appellant could push, pull, and lift from 5 to 10 pounds.
The employing establishment made a job offer to appellant for a modified assignment
effective June 17, 2016. The position was crafted to be within the restrictions set by Dr. Landis
and required intermittent sitting and walking, standing up to two hours a day, intermittent
reaching above the shoulder, twisting, bending, and stooping up to two hours a day, and
intermittent lifting/pushing/pulling up to 10 pounds with right upper extremity. OWCP
determined that the duties of the position were within the restrictions as set forth by the impartial
medical examiner, and provided appellant with proper notice to accept the position.
Appellant returned to limited-duty work on August 13, 2016. She worked several of
hours a day for several days, but stopped work completely on or about August 17, 2016.
Appellant alleged a recurrence of disability, commencing August 17, 2016. She indicated that
the amount of her pain increased dramatically with her work duties.
The Board finds that there is no credible evidence of record, which substantiates that
appellant experienced a change in the nature and extent of the light-duty requirements or was

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5(a) (June 2013). See also
J.S., Docket No. 16-0922 (issued September 22, 2016).
7

B.E., Docket No. 16-1480 (issued March22, 2017).

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required to perform duties which exceeded the medical restrictions set by the impartial medical
examiner.8
In support of her recurrence claim, appellant submitted medical notes from an urgent care
center. Dr. Smith excused appellant from work from August 18 to 21, 2016 due to pain.
However, he did not provide a rationalized medical opinion describing the duties she could not
perform, supported by demonstrated objective findings.9 In an August 21, 2016 work capacity
evaluation, Dr. Chancey indicated that appellant could work, but limited her to one hour of
walking and four hours of sitting, repetitive movements with her wrists and elbows, and
pushing/pulling/lifting limited to 10 pounds. He indicated that appellant could perform
sedentary work. As Dr. Chancey’s opinion supports that appellant could perform sedentary work
within the restrictions of the modified-duty assignment, his report does not support a recurrence
of disability.
The Board therefore also finds that appellant has not submitted objective evidence which
demonstrates that she was unable to perform her light-duty work after August 13, 2016.10
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 recurrence
of disability commencing August 17, 2016 causally related to the August 20, 2014 accepted
employment injury.

8

Supra note 3.

9

Supra note 7.

10

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 31, 2016 is affirmed.
Issued: July 7, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 17-0431
Issued: June 26, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 19, 2016 appellant filed a timely appeal from a November 1, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish lower back, right
hip, and right leg conditions causally related to an accepted March 2, 2016 employment incident.
FACTUAL HISTORY
On March 25, 2016 appellant, a 51-year-old letter carrier, filed a traumatic injury claim
(Form CA-1), alleging that she sustained an injury to her lower back, right hip, and right leg on

1

5 U.S.C. § 8101 et seq.

March 2, 2016 as a result of stepping down on her right leg while delivering mail. She did not
stop work.
In support of her claim, appellant submitted a duty status report (Form CA-17) from an
unidentifiable healthcare provider who diagnosed lumbar strain due to a March 2, 2016 injury.
In an April 5, 2016 development letter, OWCP advised appellant of the deficiencies of her
claim and afforded her 30 days to submit additional evidence and respond to its inquiries.
In a March 29, 2016 report, Dr. Ashley L. Park, a Board-certified physiatrist, diagnosed
escalating pain in the low back, as well as referred pain into the right hip and anterior thigh,
secondary to possible lumbar segmental disc injury. He reported that appellant had persistent
complaints of low back discomfort since falling into a ditch in 2014, secondary to possible L5
degenerative disc. Dr. Park asserted that appellant’s low back pain came on after falling in a ditch
in 2014 and she stated that her pain never completely went away. He found that more recently
over the past few weeks, she was experiencing discomfort in her right hip and anterior thigh.
Appellant indicated that her leg pain was more severe than her low back pain. She was awakened
at night by her symptoms and had pain most when she was sitting during the day.
On April 26, 2016 Dr. Park advised that appellant continued to have pain in her low back
and referred pain into her right hip and anterior thigh. Appellant also had numbness, particularly
when sitting and lying down at night. Dr. Park found moderate disc space narrowing at L5-S1 by
plain films of the lumbar spine dated March 25, 2016.
By decision dated May 5, 2016, OWCP denied the claim, finding that although she had
established that the March 2, 2016 incident occurred at the time, place, and in the manner alleged,
and that a medical condition had been diagnosed, the medical evidence of record was insufficient
to establish that appellant sustained an injury in the performance of duty.
On May 18, 2016 appellant requested reconsideration and submitted a narrative statement
dated May 16, 2016 indicating that on or about September 2014 she was delivering mail when her
right foot and leg fell into an extremely deep hole in the ground that was concealed by dead leaves
and grass. The statement continued that on March 2, 2016, while delivering mail, she began
walking down a set of porch stairs when she suddenly felt a sharp pain go down her right leg.
Appellant immediately notified her supervisor of the incident.
In a May 10, 2016 report, Dr. Park indicated that a magnetic resonance imaging (MRI)
scan of the lumbar spine had been performed on May 6, 2016 which revealed a prominent disc
bulge at L5, but no evidence of a disc protrusion. He asserted that on March 2, 2016 appellant
started having increasing pain in her low back, right buttock, and anterior thigh while performing
her usual and customary job duties. Dr. Park opined that given the MRI scan findings one had to
wonder whether or not appellant’s symptoms were due to sacroiliac (SI) joint disorder.
By decision dated July 14, 2016, OWCP denied appellant’s claim, as modified, on the basis
that the evidence established performance of duty, but failed to establish fact of injury.
On August 12, 2016 appellant requested reconsideration and submitted an August 1, 2016
report from Dr. Park who opined that her ongoing pain was directly attributable to an October 27,
2

2014 work injury as her mechanism of injury was frequently associated with injuries to the SI
joint. On September 12, 2016 she submitted a narrative statement reiterating the factual history of
her claim and an August 31, 2016 statement from the employing establishment indicating that she
reported the incident to her supervisor on March 2, 2016.
In a March 4, 2016 report, Dr. Robert Pickering, a Board-certified orthopedic surgeon,
asserted that appellant presented with right hip pain and left elbow pain. On March 14, 2016 he
asserted that appellant had decreasing pain in her hip as well as her back while taking a DosePak,
but her symptoms had recurred. Appellant reported her belief that this was an injury that she
sustained at work a year or two prior. Dr. Pickering diagnosed lateral epicondylitis of left elbow
and lumbar radiculopathy. He noted that appellant’s right hip pain was of unknown etiology,
possible lateral tear or internal impingement versus early arthritis.
On July 12, 2016 Dr. Park reported that appellant continued to receive physical therapy
focusing on the diagnosis of SI joint disorder. On August 15, 2016 he released appellant to regular
duty without restrictions and recommended a right SI joint injection.
By decision dated November 1, 2016, OWCP denied the claim, as modified, finding that
the evidence was sufficient to establish fact of injury, but the medical evidence was insufficient to
establish causal relationship between appellant’s diagnosed conditions and the accepted March 2,
2016 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury3 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence, generally
only in the form of medical evidence, to establish that the employment incident caused a personal

2

Id.

3
OWCP regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
4

See M.L., Docket No. 17-1026 (issued April 20, 2018); see also T.H., 59 ECAB 388 (2008).

3

injury. An employee may establish that the employment incident occurred as alleged, but fail to
show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.6
ANALYSIS
OWCP has accepted that the employment incident of March 2, 2016 occurred at the time,
place, and in the manner alleged. The issue is whether appellant’s lower back, right hip, and right
leg conditions resulted from the March 2, 2016 employment incident. The Board finds that
appellant did not meet her burden of proof to establish a causal relationship between the conditions
for which compensation is claimed and the March 2, 2016 employment incident.
In his March 29, 2016 report, Dr. Park diagnosed escalating pain in the low back, as well
as referred pain into the right hip and anterior thigh, secondary to possible lumbar segmental disc
injury. He reported that appellant had persistent complaints of low back discomfort since falling
into a ditch in 2014, secondary to possible L5 degenerative disc. Dr. Park asserted that appellant’s
low back pain came on after falling in a ditch in 2014 and she stated that her pain never completely
went away. He found moderate disc space narrowing at L5-S1 by plain films of the lumbar spine
dated March 25, 2016 and a prominent disc bulge at L5 on an MRI scan dated May 6, 2016.
Dr. Park asserted that on March 2, 2016 appellant started having increasing pain in her low back,
right buttock, and anterior thigh while performing her usual and customary job duties. He opined
that given the MRI scan findings one had to wonder whether or not appellant’s symptoms were
due to SI joint disorder. On August 1, 2016 Dr. Park opined that appellant’s ongoing pain was
directly attributable to an October 27, 2104 work injury as her mechanism of injury was frequently
associated with injuries to the SI joint. The Board finds that Dr. Park failed to provide sufficient
medical rationale explaining the mechanism of how stepping down on her right leg while
delivering mail at work on March 2, 2016 caused or aggravated appellant’s lower back, right hip,
and right leg conditions. Dr. Park noted that her conditions occurred while she was at work, but
such generalized statements do not establish causal relationship because they merely repeat
appellant’s allegations and are unsupported by adequate medical rationale explaining how her
physical activity at work actually caused or aggravated the diagnosed conditions.7 The need for
rationale is particularly important as the evidence of record indicates that appellant had a

5

Id.

6

Id.

7
See D.J., Docket No. 17-0362 (issued April 13, 2018); see also K.W., Docket No. 10-0098 (issued
September 10, 2010).

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preexisting lower back condition.8 Dr. Park’s opinion was based, in part, on temporal correlation.
However, the Board has held that 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.9 Dr. Park did not
otherwise sufficiently explain the reasons why diagnostic testing and examination findings led him
to conclude that the March 2, 2016 incident at work caused or contributed to the diagnosed
conditions. Moreover, OWCP has not accepted an October 27, 2014 work incident in this case.
Thus, the Board finds that the reports from Dr. Park are insufficient to establish that appellant
sustained an employment-related injury.
In his reports, Dr. Pickering diagnosed lateral epicondylitis of left elbow and lumbar
radiculopathy and indicated that appellant reported her belief that this was an injury that she
sustained at work a year or two prior. The Board has held that medical evidence that does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.10 Thus, appellant has not met her burden of proof with this
evidence.
Appellant submitted a duty status report (Form CA-17) in support of her claim. However,
this report is from a healthcare provider whose identity cannot be discerned from the record.
Because it cannot be determined whether this report is from a physician as defined in 5 U.S.C.
§ 8101(2), it does not constitute competent medical evidence.11
The Board finds that appellant has not submitted rationalized medical evidence sufficient
to establish that she sustained an injury causally related to the March 2, 2016 employment incident
and failed to meet her burden of proof to establish a claim for compensation.
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.

8

See P.H., Docket No. 16-0654 (issued July 21, 2016); S.R., Docket No. 16-0657 (issued July 13, 2016).

9

See M.B., Docket No. 17-0688 (issued March 15, 2018); see also E.J., Docket No. 09-1481 (issued
February 19, 2010).
10
See W.H., Docket No., 18-0004 (issued May 3, 2018); see also C.B., Docket No. 09-2027 (issued May 12, 2010);
S.E., Docket No. 08-2214 (issued May 6, 2009).
11

See K.O., Docket No. 17-1280 (issued November 21, 2017); see also R.M., 59 ECAB 690, 693 (2008). See C.B.,
Docket No. 09-2027 (issued May 12, 2010) (a medical report may not be considered as probative medical evidence if
there is no indication that the person completing the report qualifies as a physician as defined in 5 U.S.C. § 8101(2) and
reports lacking proper identification do not constitute probative medical evidence).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish lower back,
right hip, and right leg conditions causally related to the accepted March 2, 2016 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the November 1, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 26, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, AK, Employer
__________________________________________

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

Docket No. 11-2008
Issued: May 7, 2012

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 September 1, 2011 appellant filed a timely appeal from a March 10, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to justify termination of appellant’s
wage-loss compensation for his accepted injury effective August 30, 2010.
FACTUAL HISTORY
On January 22, 1988 appellant, then a 39-year-old warehouse worker, was injured when a
section of track that he was restacking collapsed and struck his ankle. OWCP accepted the claim
for right ankle contusion, right leg abrasion, right astragalus fracture closed and a nonunion
1

5 U.S.C. §§ 8101-8193.

fracture. Appellant returned to work on January 25, 1988 and stopped on May 6, 1988.2 It
authorized surgery which was performed on June 23, 1992 and May 3, 1994.
Appellant was treated by Dr. Glen E. Feeback, a podiatrist, from July 1988 to June 20,
1990 for a work-related right ankle injury. Dr. Feeback diagnosed fracture of the posterior
aspect of the talus right foot or fracture of os trigonum right foot and tarsal tunnel syndrome of
the right foot. He noted that an x-ray of the right foot revealed a fracture of an os trigonum or
possible fracture of the posterior aspect of the talus. Dr. Feeback recommended surgery and
opined that appellant was totally disabled. Appellant was also treated by Dr. Michael Moore, a
Board-certified orthopedist, from October 25, 1988 to December 30, 1991 for a right thumb
injury. Dr. James J. Naples, a podiatrist, began treating appellant in 1992. On June 23, 1992 he
performed an excision of os trigonum on the right and diagnosed fractured os trigonum right. On
May 3, 1994 Dr. Naples performed an arthroscopic debridement with removal of cartilage from
the talar dome and tibial plafond and diagnosed capsulitis/synovitis of the right ankle. On
February 28, 1995 he noted treating appellant’s right ankle injury since March 10, 1992.
Dr. Naples opined that appellant developed a left knee injury as a result of favoring his right foot
due to ankle pain. On April 29, 1996 he opined that appellant’s sciatic nerve damage, back, leg
and left knee pain were due to his abnormal gait that stemmed from his January 22, 1988 work
injury and prevented him from performing sedentary work.3
Appellant continued to be treated by Dr. Naples, who, in reports dated September 17,
2004 to February 27, 2007, diagnosed degenerative joint disease, peroneal tendinitis, chronic
ankle limitus and peripheral neuropathy. Dr. Naples advised that appellant reached maximum
medical improvement. On March 19, 2008 he diagnosed degenerative joint disease due to
trauma in the right ankle, peroneal tendinitis, chronic ankle limitus and peripheral neuropathy.
Dr. Naples noted that appellant experienced joint crepitation, swelling and guarding on range of
motion. He opined that appellant was totally and permanently disabled due to the January 22,
1988 injury.
OWCP referred appellant to Dr. Robert Holladay, IV, a Board-certified orthopedist, for a
second opinion. In an April 10, 2008 report, Dr. Holladay indicated that he reviewed the records
provided and examined appellant. He noted that examination of both knees revealed normal
range of motion, no valgus, or varus angulation, no swelling, no medial or lateral joint line
tenderness and no patella femoral crepitation. With regard to the ankles, Dr. Holladay noted that
tender points on the right ankle, a three-centimeter scar, limited range of motion with no
ligamentous instability, strength of the lower extremities was 4/5 bilaterally, normal sensory
examination of the lower extremities, normal reflexes and straight leg raises were negative
bilaterally. He diagnosed contusion of the right ankle post two surgeries. Dr. Holladay noted
that on clinical examination there was an absence of significant findings around the right ankle.
He indicated that some of the medical records implied a medial malleolar fracture and others a
2

The matter was previously before the Board. In a decision dated May 2, 1991, the Board affirmed a
December 12, 1989 OWCP hearing representative’s decision which denied appellant’s claim for continuation of
pay. Docket No. 91-226 (issued May 2, 1991).
3

On January 8, 1996 OWCP found that appellant’s neurotic disorder was not caused or aggravated by his work
injury.

2

fracture of the os trigonus. Dr. Holladay opined that even if appellant sustained a fracture to this
area it was difficult to understand on an anatomical and physiological basis the degree of
incapacity perceived by appellant. He advised that appellant self-limited his physical activities
and appeared to have unrelated medical conditions that affected his overall health and ability to
ambulate. Dr. Holladay advised that appellant would be unable to perform his usual job based
on his general health condition but not based on the injury to his right ankle. He advised that
appellant required no aggressive medical management with regards to the right ankle condition.
In a duty status report, Dr. Holladay noted that appellant could return to work part time, four
hours per day with restrictions.
OWCP found that a medical conflict existed between Dr. Naples, for appellant, and
Dr. Holladay, the referral physician, who determined that appellant’s work-related conditions
had resolved and that his only restrictions were due to nonindustrial conditions.
On July 31, 2008 OWCP referred appellant to a referee physician, Dr. Bernie L.
McCaskill, a Board-certified orthopedist, to resolve the conflict.4 In a September 2, 2008 report,
Dr. McCaskill indicated that he reviewed the records provided to him and examined appellant.
He noted appellant’s history. Dr. McCaskill reviewed appellant’s job requirements, noted the
work injury and reviewed treatment following the injury. He noted that during examination
appellant walked with an inconsistent gait and at times walked with a normal gait.
Dr. McCaskill noted that appellant was able to toe and heel walk on either lower extremity but in
a dramatic fashion which was not physiologic and inconsistent with appellant’s physical findings
on examination. He noted no neurological abnormalities in either lower extremity, normal
strength in all motor groups in both lower extremities and symmetrical and equal infrapatellar
and tendoachilles reflexes. Dr. McCaskill noted no obvious swelling, atrophy or deformity in the
legs, mid-calf or ankles, a well-healed scar on the right ankle, a dramatic limitation of active
right ankle motion inconsistent with ankle motion previously demonstrated and no obvious right
ankle ligamentous laxity. Right ankle x-rays were unremarkable. Dr. McCaskill diagnosed right
ankle pain, chronic, anatomic etiology undetermined (by history). He indicated that appellant
did not have significant abnormal physical or imaging findings referable to his right ankle
complaints and advised that there was significant discrepancy between his examination findings
and appellant’s perceived inability to return to any type of work including sedentary work
because of ongoing right ankle symptoms. Dr. McCaskill found no credible objective evidence
of ongoing injury that would prevent appellant from returning to his preinjury work in relation to
his work-related right ankle injury of January 22, 1988.
On September 16, 2008 OWCP issued a notice of proposed termination of wage-loss
compensation on the grounds that Dr. McCaskill’s report established that the injury-related
condition no longer prevented appellant from returning to his date-of-injury job.
Appellant submitted statements dated September 25 and October 8, 2008 and disputed
the findings of Drs. Holladay and McCaskill noting that neither physician performed a thorough
examination. He asserted that he had residuals of his work injury and was totally disabled. Also
4

OWCP provided a statement of accepted facts dated March 19, 2008 noting that appellant’s claim was accepted
for fracture of the medial malleolus of the right ankle. The statement did not note that he underwent surgeries on the
right ankle.

3

submitted were reports from Dr. Naples, dated May 19, 1992 and April 29, 1996, who opined
that appellant’s sciatic nerve damage, back, leg and left knee pain were due to his abnormal gait
that stemmed from his January 22, 1988 work injury and prevented him from performing
sedentary work. Dr. Naples indicated that appellant’s medical condition progressively worsened
and was directly related to his January 22, 1988 work injury.
In a December 10, 2008 decision, OWCP terminated appellant’s wage-loss compensation
effective that date.
Appellant requested an oral hearing that was held on June 8, 2009. He submitted
operative reports from Dr. Naples dated June 23, 1992 and May 3, 1994, previously of record.
Also submitted were reports from Dr. Wes Hester, a Board-certified family practitioner, from
February 4, 2008 to May 21, 2009, who treated appellant for degenerative joint disease of his left
knee and allergies. Reports from Dr. John E. Hueter, a Board-certified neurologist, dated
August 27, 2008 and May 26, 2009, noted treating appellant for herpetic neuralgia involving his
frontal area and burning in his right foot. Dr. Hueter diagnosed right sural nerve distribution
neuralgic pain, history of cervical disc disease, sciatica and migraine headaches, left meralgia
paresthetica and bilateral carpal tunnel syndrome. He noted altered sensation on the sole of the
right foot, tenderness to light touch of the toes and sensory loss on the lateral aspect of the right
foot. An April 7, 2009 report from Dr. John White, a podiatrist, diagnosed neuropathy and
neuritis of the right foot and leg. Dr. White noted that appellant’s history was significant for
nonunion surgery of the ankle and arthroscopic surgeries of the foot.
In a decision dated August 24, 2009, an OWCP hearing representative reversed the
December 10, 2008 decision. He found that OWCP did not meet its burden to terminate wageloss compensation for the accepted right ankle contusion, abrasion and fracture. The hearing
representative specifically noted that OWCP failed to provide Dr. McCaskill with an accurate
statement of accepted facts, rather, the statement did not correctly identify the accepted
conditions and surgeries. He stated that Dr. McCaskill was not provided with the operative
reports from the two surgeries performed in 1992 and 1994. The hearing representative advised
that these deficiencies prevented Dr. McCaskill from providing a well-informed opinion. OWCP
was instructed to revise the statement of accepted facts and augment the case record with the
operative reports and new reports from Drs. White and Hueter and refer the matter to
Dr. McCaskill for a supplemental report.
OWCP prepared a statement of accepted facts dated April 16, 2010 and noted appellant’s
claim was accepted for fracture of the medial malleolus of the right ankle, contusion of the right
ankle, abrasion of the right ankle, enthesopathy of the os trigonum, right talus fracture and
nonunion fracture. The statement further noted that appellant underwent surgery on June 28,
1988, June 23, 1992 and May 3, 1994.
On April 26, 2010 OWCP requested that Dr. McCaskill provide a supplemental report
and reexamine appellant, if necessary. It provided an updated statement of accepted facts, a list
of questions and additional medical records. In a June 22, 2010 report, Dr. McCaskill noted
evaluating appellant on September 2, 2008 for injuries resulting from the January 22, 1988 work
injury. He advised that there was no need to further examine appellant. Dr. McCaskill reviewed
the additional medical records submitted over the past three years and opined that appellant

4

underwent no significant additional treatment and his condition was unchanged. He noted that
the additional medical records provided no credible basis to change his opinions previously
expressed.
On July 30, 2010 OWCP issued a notice of proposed termination of wage-loss
compensation on the grounds that Dr. McCaskill’s report established that the accepted injury no
longer prevented appellant from performing his date-of-injury job.
By decision dated August 30, 2010, OWCP terminated appellant’s wage-loss
compensation effective the same date. It noted that its decision did not terminate medical
benefits for necessary treatment of the accepted condition.
On September 13, 2010 appellant requested a review of the written record. In statements
dated July 24 and August 24, 2010, he disputed the termination and asserted that Dr. McCaskill’s
evaluation was inadequate as he failed to run any tests and spent five minutes examining him.
Appellant stated that he had residuals of his work injury and was totally disabled. He submitted
reports from Dr. Moore, dated October 25, 1988 to December 30, 1991, who treated him for a
March 29, 1988 right thumb injury. Also submitted was an April 29, 1996 report from
Dr. Naples, previously of record. A July 8, 2010 left knee magnetic resonance imaging scan
showed an extensive tear of the posterior horn of the medial meniscus. On July 16, 2010
appellant was treated by Dr. Douglas E. Thompson, a Board-certified orthopedist, for left knee
pain and popping. Appellant reported having a broken right ankle which caused him to
compensate with his left knee causing the current condition. Dr. Thompson diagnosed left
medial meniscus tear and recommended surgery. In an August 18, 2010 report, Dr. Hueter
treated appellant for a burning sensation involving the right foot and right meralgia paresthetica.
He diagnosed right ankle fracture 1988 with limp, lumbar degenerative disc disease with sciatica,
left knee degenerative arthritis with medial meniscus tear and meralgia paresthetica. Dr. Hueter
noted that appellant’s right ankle injury produced pain, sensory loss and abnormal gait
mechanics which appellant believed caused his lumbar spine degenerative disc disease and
sciatica. Appellant reported favoring his left leg due to his right foot injury which may have
produced the degenerative disease and meniscal tear of the left knee. Dr. Hueter opined that
appellant was totally and permanently disabled. On November 30, 2010 appellant was treated by
Dr. Stacy Warner, a chiropractor, who prepared a work restriction evaluation noting that
appellant reached maximum medical improvement and was totally and permanently disabled.
On March 10, 2011 an OWCP hearing representative affirmed the decision dated
August 30, 2010.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.5 After it has determined that an employee has disability causally

5

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

5

related to his or her federal employment, OWCP may not terminate compensation without
establishing that the disability has ceased or that it is no longer related to the employment.6
ANALYSIS
OWCP accepted appellant’s claim for work-related right ankle contusion, right leg
abrasion, right astragalus fracture closed and a nonunion fracture. It authorized surgery which
was performed on June 23, 1992 and May 3, 1994. OWCP determined that a conflict in medical
opinion existed between appellant’s attending physician, Dr. Naples, a podiatrist, who indicated
that appellant was disabled due to his work-related injuries, and Dr. Holladay, an OWCP referral
physician, who found no disability due to the work-related conditions. Consequently, it referred
appellant to Dr. McCaskill to resolve the conflict.
The Board finds that, under the circumstances of this case, the opinion of Dr. McCaskill
is sufficiently well rationalized and based upon a proper factual background such that it is
entitled to special weight and establishes that disabling residuals of appellant’s work-related
conditions have ceased. Where there exists a conflict of medical opinion and the case is referred
to an impartial specialist for the purpose of resolving the conflict, the opinion of such specialist,
if sufficiently well rationalized and based upon a proper factual background, is entitled to special
weight.7
In his September 2, 2008 report, Dr. McCaskill reviewed appellant’s history, reported
findings and noted that appellant exhibited no objective complaints or findings due to the
accepted conditions. He found no credible objective evidence of ongoing injury due to his work
injury of January 22, 2008 which would prevent appellant from returning to his preinjury
position. Dr. McCaskill explained that, throughout the examination, appellant exhibited
inconsistent behavior. He specifically noted that appellant walked with an inconsistent gait, at
times walking with a normal gait, and he was able to toe and heel walk on either lower extremity
but in a dramatic fashion which was not physiologic and inconsistent with examination findings.
Dr. McCaskill noted that appellant did not have significant abnormal physical or imaging
findings referable to his right ankle complaints and advised that there was significant
discrepancy between this and appellant’s perceived inability to return to any type of work due to
ongoing right ankle symptoms. He noted no abnormal neurological findings in either leg, normal
strength in both legs and symmetrical reflexes. Dr. McCaskill opined that appellant could return
to work subject to restrictions that were not due to the January 22, 1988 work injury but rather
were due nonindustrial conditions. He opined that appellant required no treatment for the workrelated injury. In a June 22, 2010 supplemental report, Dr. McCaskill noted reviewing the
additional medical records submitted over the past three years and opined that appellant’s
condition was unchanged and there was no basis to change his previous opinion.8
6

Mary A. Lowe, 52 ECAB 223 (2001).

7

Solomon Polen, 51 ECAB 341 (2000). See 5 U.S.C. § 8123(a).

8

See Guiseppe Aversa, 55 ECAB 164 (2003) (where OWCP secures an opinion from an impartial medical
specialist for the purpose of resolving a conflict in the medical evidence and the opinion from such specialist
requires clarification or elaboration, OWCP has the responsibility to secure a supplemental report from the specialist
for the purpose of correcting the defect in the original opinion).

6

The Board finds that Dr. McCaskill had full knowledge of the relevant facts and
evaluated the course of appellant’s condition. He is a specialist in the appropriate field. At the
time wage-loss benefits were terminated, Dr. McCaskill clearly opined that appellant had no
work-related reason for disability. His opinion as set forth in his reports of September 2, 2008
and June 22, 2010 are found to be probative evidence and reliable. The Board finds that
Dr. McCaskill’s opinion constitutes the weight of the medical evidence and is sufficient to justify
OWCP’s termination of wage-loss benefits for the accepted conditions.
After Dr. McCaskill’s examination, appellant submitted August 27, 2008 and May 26,
2009 reports from Dr. Hueter who diagnosed right sural nerve distribution neuralgic pain, history
of cervical disc disease, sciatica and migraine headaches, left meralgia paresthetica and bilateral
carpal tunnel syndrome. In an August 18, 2010 report, Dr. Hueter diagnosed right ankle fracture
in 1988 with limp, lumbar degenerative disc disease with sciatica, left knee degenerative arthritis
with medial meniscus tear and meralgia paresthetica and opined that appellant was totally
disabled. He noted that appellant’s right ankle injury produced pain, sensory loss and abnormal
gait mechanics that appellant attributed to his lumbar spine degenerative disease and sciatica.
Although Dr. Hueter supported that appellant’s continuing symptoms were due to the work
injury; his opinion on causal relationship was conclusory without any additional rationale as to
how the accepted conditions caused continuing disability.9 The Board also notes that OWCP did
not accept lumbar spine degenerative disc disease, sciatica, left knee degenerative joint disease
or meniscal tear of the left knee as being work related.10
Other reports from Dr. White dated April 7, 2009 noted appellant’s treatment for right
foot pain. He noted that appellant’s history was significant for nonunion surgery of the ankle
and arthroscopic surgeries of the foot and diagnosed neuropathy and neuritis of the right foot and
leg. Likewise, on July 16, 2010 appellant was treated by Dr. Thompson who diagnosed left
medial meniscus tear and recommended surgery. He reported having a broken right ankle which
caused him to compensate with his left knee causing the current condition. However, none of
Drs. White and Thompson’s reports specifically addressed how any continuing disability was
causally related to the accepted employment injuries of January 22, 1988. As noted above,
OWCP did not accept left medial meniscus tear as work related.
Reports from Dr. Hester in 2008 and 2009 treated appellant for degenerative joint disease
of his left knee and allergies, nonaccepted conditions and did not attribute continuing disability
to the accepted conditions. Reports from Dr. Moore dated October 25, 1988 to December 30,
1991 treated appellant for a right thumb injury. Reports from Dr. Naples from June 23, 1992 to
April 29, 1996, significantly predate the termination of wage-loss compensation. Other medical
reports do not address continuing disability due to the accepted conditions.
On November 30, 2010 appellant was treated by Dr. Warner, a chiropractor, who opined
that appellant was totally and permanently disabled.
9

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

10

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted or approved by OWCP, the claimant
bears the burden of proof to establish that the condition is causally related to the employment injury).

7

In assessing the probative value of chiropractic evidence, the initial question is whether
the chiropractor is a physician as defined under 5 U.S.C. § 8101(2). A chiropractor is not
considered a physician under FECA unless it is established that there is a spinal subluxation as
demonstrated by x-ray to exist.11 Dr. Warner is not a physician as she did not diagnose a spinal
subluxation demonstrated by x-ray. Furthermore, appellant’s accepted conditions involve the
right foot and leg and do not pertain to the spine. The Board has held that a chiropractor may
only qualify as a physician in the diagnosis and treatment of spinal subluxation, his or her
opinion is not considered competent medical evidence in evaluation of other disorders, including
those of the extremities, although these disorders may originate in the spine.12 Thus,
Dr. Warner’s opinion is not considered competent medical evidence under FECA.
Consequently, the medical evidence submitted after Dr. McCaskill’s report is insufficient
to overcome his report or to create another conflict in the medical evidence. The Board finds
that Dr. McCaskill’s opinion constitutes the weight of the medical evidence and is sufficient to
justify OWCP’s termination of wage-loss benefits for appellant’s accepted conditions. Appellant
remains entitled to medical benefits for necessary treatment of his accepted conditions.
On appeal, appellant noted his medical treatment, asserted that he remains disabled and
contended that Dr. McCaskill’s opinion is insufficient. As explained, the weight of the medical
evidence establishes that disability due to the accepted conditions has ceased.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate benefits effective
August 30, 2010.

11

Mary A. Ceglia, 55 ECAB 626 (2004).

12

Pamela K. Guesford, 53 ECAB 726 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 10, 2011 is affirmed.
Issued: May 7, 2012
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P. claiming as widow of R.P., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, Portland, OR, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-866
Issued: August 6, 2007

Case Submitted on the Record

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

JURISDICTION
On February 8, 2007 appellant filed a timely appeal from the October 6, 2006 merit
decision of the Office of Workers’ Compensation Programs’ denying her claim for survivor
benefits and a January 18, 2007 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 employee’s death on April 3, 2003 was causally related
to factors of his federal employment, thus entitling his widow to survivor’s benefits; and
(2) whether the Office properly refused to reopen appellant’s case for further review of the
merits of her claim under 5 U.S.C. § 8128(a). On appeal, appellant’s attorney argued that the
report of Dr. William Stewart, a Board-certified internist and the impartial medical examiner,
required clarification.

FACTUAL HISTORY
This case is before the Board for the second time. In a decision dated August 18, 2006,
the Board set aside the Office’s August 10 and December 30, 2005 decisions denying appellant’s
claim for survivor’s benefits on the grounds that a conflict of medical opinion evidence existed
between Dr. Gordon L. Wolfe, the employee’s treating physician and a Board-certified internist,
and Dr. Weaver, a Board-certified pulmonologist and an Office medical consultant, regarding the
causal relation of the sedentary nature of the employee’s position to the employee’s development
of his various medical conditions, including the development of pulmonary emboli, which
necessitated him being on the blood thinner Coumadin, which had a direct bearing on the
severity of the subarachnoid hemorrhage, which lead to his death.1 The Board directed the
Office to arrange for an independent medical examiner to opine on the issue of causal
relationship. The findings of fact and conclusions of law from the prior decision are hereby
incorporated by reference.
On remand, the Office referred the entire case file, along with a statement of accepted
facts, a memorandum of conflict of medical opinion and a list of questions, to Dr. Stewart. In an
October 2, 2006 report, Dr. Stewart related that he was asked to address the cause of the
employee’s death; whether the employee’s death was caused by, or contributed to, factors of his
employment; and whether there was anything in the medical evidence of file which may indicate
other factors causing the employee’s death. He reviewed the record and opined that the
immediate and direct cause of death was bleeding from an acute subarachnoid hemorrhage and
that Coumadin was a factor aggravating the severity of the hemorrhage. Dr. Stewart opined that
there was no causal relation between the employee’s job conditions as described to either the
presence of metabolic syndrome, vascular disease or the fatal subarachnoid hemorrhage. He
noted that the employee had obesity, hyperlipidemia, hypertension and diabetes, also known as
the metabolic syndrome, at the time of death. Dr. Stewart advised that such medical conditions
were thought to be risk factors for the development of vascular disease and which create a risk of
subarachnoid hemorrhage. He explained that, while it was common for these medical conditions
to exist for years and never result in a subarachnoid hemorrhage, a sedentary or stressful job did
not, by itself, create a sedentary or stressful lifestyle, metabolic syndrome, or subarachnoid
hemorrhage. Dr. Stewart additionally explained that while these medical conditions and job
stress may coexist in an individual at the same time, there was no cause and effect relationship
and their coexistence was not a predictor of subarachnoid hemorrhage. He concluded that from
the available medical evidence of file, there was no medical evidence to indicate that anything
other than a subarachnoid hemorrhage was the cause of death.
By decision dated October 6, 2006, the Office denied the claim on the basis that the
medical evidence failed to demonstrate a causal relationship between the employee’s job
conditions to the vascular disease, metabolic syndrome or the subarachnoid hemorrhage.
Determinative weight was given to the impartial medical report of Dr. Stewart.
On October 17, 2006 appellant, disagreed with the Office’s October 6, 2006 decision and
requested reconsideration. She argued that Dr. Stewart’s answers were of a general nature and
1

Docket No. 06-688 (issued August 18, 2006).

2

addressed only direct causation. Appellant requested that the Office ask Dr. Stewart additional
questions, which she provided, to clarify his report. In a letter dated December 19, 2006, she
argued that the Office had an affirmative duty to seek clarification from the report of an impartial
medical specialist when the report is vague or does not answer the questions with medical
rationale. No additional medical evidence was submitted.
By decision dated January 18, 2007, the Office denied appellant’s request for
reconsideration finding that the evidence submitted in support of the request did not warrant a
merit review.
On appeal, appellant asserts that Dr. Stewart’s answers were of a general nature and
addressed only direct causation. She reiterated her request that a clarification report be obtained
from Dr. Stewart.
LEGAL PRECEDENT -- ISSUE 1
The United States shall pay compensation for the death of an employee resulting from
personal injury sustained while in the performance of duty.2 If death results from an injury
sustained in the performance of duty, the United States shall pay a monthly compensation equal
to 50 percent of the monthly pay of the deceased employee to the widow or widower, if there is
no child.3
An award of compensation in a survivors claim may not be based on surmise, conjecture
or speculation or a claimant’s belief that the employee’s death was caused, precipitated or
aggravated by the employment.4 Additionally, 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 illness has some connection with the employment but
nevertheless does not come within the concept or coverage of workers’ compensation. Where
the medical evidence establishes that the disability results from an employee’s emotional
reaction to his regular or specially assigned employment duties or to a requirement imposed by
the employing establishment, the disability comes within coverage of the Federal Employees’
Compensation Act.5 The same result is reached when the emotional disability resulted from the
employee’s emotional reaction to the nature of his work or his fear and anxiety regarding his
ability to carry out his duties.6 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 frustration from not being
permitted to work in a particular environment or to hold a particular position.7

2

5 U.S.C. § 8102(a).

3

Id. at § 8133(a)(1).

4

Sharon Yonak (Nicholas Yonak), 49 ECAB 250 (1997).

5

5 U.S.C. §§ 8101-8193.

6

Lillian Cutler, 28 ECAB 125, 129 (1976).

7

Lori A. Facey, 55 ECAB 217 (2004); see also Pamela R. Rice, 38 ECAB 838, 841 (1987).

3

A claimant has the burden of proving by the weight of the reliable, probative and
substantial evidence that the employee’s death was causally related to his federal employment.
This burden includes the necessity of furnishing medical opinion evidence of a cause and effect
relationship based on a complete factual and medical background. The opinion of the physician
must be one of reasonable medical certainty and must be supported by medical rationale.8
Section 8123 of the Act 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.9 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.10
ANALYSIS -- ISSUE 1
Pursuant to the Board’s remand instructions in its August 18, 2006 decision, the Office
referred the employee’s case file to an impartial medical examiner, Dr. Stewart, to resolve the
conflict of medical opinion between Dr. Wolfe and Dr. Weaver regarding the causal relationship
of the sedentary nature of the employee’s position to the employee’s various medical conditions
which necessitated him being on the blood thinner Coumadin, which contributed to the fatal
subarachnoid hemorrhage.
In his October 2, 2006 report, Dr. Stewart reviewed the employee’s medical records
along with a statement of accepted facts and opined that there was no causal relation between the
employee’s position to the presence of metabolic syndrome, vascular disease or the fatal
subarachnoid hemorrhage. He explained this conclusion by discounting that a sedentary or
stressful job would create a sedentary or stressful lifestyle or the development of the employee’s
medical conditions. Dr. Stewart explained that the employee had many preexisting conditions
such as obesity, hyperlipidemia and diabetes which were noted risk factors for the development
of vascular disease which creates a risk of subarachnoid hemorrhage. He further explained that,
while the medical conditions the employee had and job stress may coexist, their coexistence was
not a predictor of subarachnoid hemorrhage. Dr. Stewart concluded that there was no basis on
which to link the job conditions to the employee’s medical conditions. The Board finds that the
opinion of Dr. Stewart is entitled to the special weight of the medical evidence because it is well
rationalized and based on a thorough review of the employee’s medical history.
The Office denied the survivor’s claim based on Dr. Stewart’s opinion that there was no
causal relation between the employee’s position to the presence of metabolic syndrome, vascular
disease or the fatal subarachnoid hemorrhage. The Board finds that the Office properly relied on
Dr. Stewart’s opinion, which resolved the conflict of medical opinion between the employee’s
8

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

9

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

10

Barbara J. Warren, 51 ECAB 413 (2000).

4

treating physician and the Office’s medical consultant. As Dr. Stewart’s report constitutes the
special weight of the medical evidence, the Office properly denied the survivor’s claim.
LEGAL PRECEDENT -- ISSUE 2
The Act11 provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee may obtain this relief through a request to the district Office. The request, along with
the supporting statements and evidence, is called the application for reconsideration.12
The application for reconsideration must set forth arguments and contain evidence that
either: (1) shows that the Office erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by the Office; or (3) constitutes
relevant and pertinent new evidence not previously considered by the Office.13
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits.14 Where
the request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.15
ANALYSIS -- ISSUE 2
Appellant did not show that the Office erroneously applied or interpreted a specific point of
law. In her request for reconsideration (and on appeal), appellant argued the Office improperly
relied upon Dr. Stewart’s impartial medical opinion as further clarification regarding causation
was needed and the Office had the affirmative duty to seek clarification of an impartial medical
specialist’s report. While appellant questions the evidentiary weight of Dr. Stewart’s report, the
Office previously considered the matter when it relied upon Dr. Stewart’s report in denying her
survivor claim. Additionally, as noted above, the Board found that Dr. Stewart provided a wellrationalized report addressing the cause of the employee’s death. As Dr. Stewart’s opinion
constitutes the special weight of the medical evidence, there is no need for the Office to seek
clarification of his opinion. Thus, appellant’s argument is insufficient to show that the Office
erroneously applied or interpreted a specific point of law and it also does not advance a relevant
legal argument not previously considered by the Office. Further, appellant did not submit
relevant and pertinent new evidence not previously considered by the Office. The Board finds

11

5 U.S.C. § 8101 et seq.

12

20 C.F.R. § 10.605.

13

20 C.F.R. § 10.606.

14

Donna L. Shahin, 55 ECAB 192 (2003).

15

20 C.F.R. § 10.608.

5

that appellant is not entitled to a review of the merits of her claim based on the above-noted
requirements under section 10.606(b)(2).16
As appellant did not meet any of the necessary regulatory requirements, the Board finds
that the Office properly denied merit review.
CONCLUSION
The Board finds that the Office properly denied the survivor’s claim by according special
weight to the impartial medical report of Dr. Stewart. The Board further finds that the Office
properly denied appellant’s request for a merit review of her claim pursuant to 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 18, 2007 and October 6, 2006 are affirmed.
Issued: August 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

16

20 C.F.R. § 10.606(b)(2).

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Paul, MN, Employer
_________________________________________

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

Docket No. 16-1182
Issued: October 11, 2016

Case Submitted on the Record

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

JURISDICTION
On May 11, 2016 appellant filed a timely appeal from a December 14, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury in
the performance of duty on April 18, 2015.
FACTUAL HISTORY
On May 6, 2015 appellant, then a 65-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging that on April 18, 2015 he sustained an abdominal hernia while loading a
trailer at work. The employing establishment controverted the claim. It noted that the employee
1

5 U.S.C. § 8101 et seq.

was overheard talking to a coworker “that he was doing landscaping around his house including
putting down rocks.” Appellant did not stop work.
By letter dated May 14, 2015, OWCP advised appellant that additional evidence was
required to support his claim. Appellant was advised of the medical and factual evidence needed
and was afforded 30 days to respond to the questions provided in the letter.
OWCP subsequently received several documents dated May 18, 2015 from appellant’s
healthcare provider, which diagnosed an inguinal hernia. These documents were signed by a
nurse practitioner.
By decision dated June 18, 2015, OWCP denied appellant’s claim as he did not submit
any medical evidence containing a medical diagnosis in connection with the injury and or events.
It explained that the evidence in his case was from a nurse or nurse practitioners, neither of
which is considered a qualified physician under FECA.
On July 14, 2015 appellant requested a review of the written record.
Appellant provided an April 27, 2015 report from Dr. Sheila Flynn, Board-certified in
family medicine, who examined appellant and reviewed his medical history. Dr. Flynn’s
diagnoses included an inguinal hernia. She advised that, while it was not painful or limiting, he
would be affected by the work he did, which included “extreme lifting.” Dr. Flynn noted that
appellant would let her know if he wished to proceed with surgery. OWCP also received
additional nurses’ notes and an electrocardiogram.
Appellant provided a June 11, 2015 statement explaining that Dr. Flynn found his hernia
during a routine physical examination. He noted that he was unaware of it until that time.
Appellant explained that “it was impossible to give an exact location or time of the injury
occurrence because I was unaware of the injury.” He indicated that the nature of the injury was
caused by stress or strain. Appellant noted the activities he engaged with at home included:
vacuuming, laundry, cleaning, cooking, and assisting his wife. He explained that his work as a
mail handler included loading and unloading of trailers and moving of containerized mail to
different locations and noted that stress and strain were only a part of his work life. Appellant
also confirmed that he moved rocks at home, but they were river rocks, which weighed less than
an ounce or two each, and he explained that he did this after the discovery of the hernia. He
noted that he was under no limitations with regard to the hernia. Appellant also indicated that his
work was not stressful or strain inducing.
In a letter dated November 12, 2015, Nancy Schmitz, a health and resource manager with
the employing establishment, disputed the claim and reiterated that appellant was overheard
talking to a coworker that he was doing some landscaping around his house, which included
“putting down rocks.” She also noted there were no medicals before May 18, 2015.
By decision dated December 14, 2015, an OWCP hearing representative modified the
denial of the claim to a denial based on lack of medical evidence sufficient to establish a
connection between appellant’s right-sided hernia condition and any work-related lifting activity
from April 18, 2015.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was timely filed within the
applicable time limitation period of FECA2 and that an injury was sustained in the performance
of duty.3 These are the essential elements of each compensation claim, regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.5 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.6
Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. 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
Appellant has alleged that on or around April 18, 2015 he sustained an inguinal hernia
while loading a trailer at work. It is undisputed that appellant loaded trailers at part of his regular
work duties. Therefore, the Board finds that the claimed incident occurred at work as alleged.
However, the medical evidence of record is insufficient to establish that the employment incident
caused an injury, as it contains no reasoned explanation of how the specific employment incident
on or about April 18, 2015 caused or aggravated appellant’s injury.
In an April 27, 2015 report, Dr. Flynn examined appellant and diagnosed an inguinal
hernia. He noted that, while it was not painful or limiting, he would be affected by the work he
2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

Julie B. Hawkins, 38 ECAB 393, 396 (1987).

6

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

7

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

8

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

3

did, which included “extreme lifting.” While Dr. Flynn indicated that lifting could worsen the
condition, he did not offer any opinion as to whether work factors caused or aggravated the
diagnosed hernia. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.9
OWCP received records from a nurse practitioner. Section 8101(2) of FECA10 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 the applicable state law. Reports by nurse practitioners are not considered medical
evidence as nurse practitioners are not considered physicians under FECA.11 These records are
of no probative medical value in establishing appellant’s claim.
Other medical reports submitted by appellant, including diagnostic reports, are
insufficient to establish appellant’s claim as they do not specifically address how any condition
was caused by the April 18, 2015 incident.
Because the medical evidence submitted by appellant does not address how activities at
work caused or aggravated a hernia condition, these reports are of limited probative value and
are insufficient to establish that work factors on or around April 18, 2015 caused or aggravated a
specific injury.
On appeal, appellant argues that his condition could have occurred during work activities
as the nature of his job as a mail handler was the only place that he was engaged in strenuous
work. However, as found above the medical evidence of record is insufficient to establish his
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.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a traumatic
injury in the performance of duty on April 18, 2015.

9

S.E., Docket No. 08-2214 (issued May 6, 2009).

10

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held
that a medical opinion, in general, can only be given by a qualified physician).
11

Sean O’Connell, 56 ECAB 195 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the December 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lincoln, NE, Employer
__________________________________________

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

Docket No. 16-0281
Issued: April 21, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 1, 2015 appellant filed a timely appeal of an October 29, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $757.29 for the period May 12 through 29, 2015 for which he was not at fault; and
(2) whether appellant was eligible for waiver of recovery of the overpayment.
On appeal appellant alleged that the employing establishment refused to pay him the
continuation of pay (COP) compensation on the basis that he was terminated for cause.
Appellant contends that he is entitled to compensation for wage loss from May 12 through
June 22, 2015 as he has not received COP.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 8, 2015 appellant, then a 74-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that he injured his left foot when he tripped on a step while delivering a
parcel that was too big for the mailbox. On June 10, 2015 OWCP accepted his claim for sprain
of the left foot.
The employing establishment submitted a notification of personnel action (PS Form 50)
dated May 21, 2015, which indicated that appellant had been separated from his employment for
not reporting an accident. Appellant’s last day in pay status was May 12, 2015.
Appellant filed a claim for compensation (Form CA-7) requesting wage-loss
compensation from May 12 through 29, 2015. OWCP authorized compensation in the amount of
$757.29 for the period May 12 through 29, 2015. Appellant filed a second Form CA-7
requesting wage-loss compensation from May 30 through June 12 on June 28, 2015. On July 8,
2015 he filed a Form CA-7 for the period June 13 through 26, 2015. OWCP authorized
compensation in the amount of $279.01 for the period June 23 through 26 on July 21, 2015.
In a letter dated July 21, 2015, OWCP informed the employing establishment of its duty
to provide COP for up to 45 days. It asserted that the COP may only be terminated when a
preliminary notice of disciplinary action is issued before the injury and becomes final during the
COP period.2 OWCP notified the employing establishment that the COP period was May 9
through June 22, 2015.
Appellant’s physician released him to return to regular-duty work on July 21, 2015. On
August 6, 2015 OWCP authorized wage-loss compensation for the period June 27 through
July 10, 2015.
In a preliminary determination of overpayment dated September 11, 2015, OWCP
informed appellant that he had been overpaid benefits in the amount of $757.29 because OWCP
paid him wage-loss compensation for the period May 12 through 29, 2015 which was the COP
period. It noted that the COP period ran from May 9 through June 22, 2015 and that the
employing establishment should pay him for this entire period. OWCP found that appellant was
without fault in the creation of the overpayment. It further found that as he was terminated from
employment due to the accepted condition he was entitled to receive wage-loss compensation.
OWCP provided appellant with an overpayment recovery questionnaire as well as his appeal
rights.
By decision dated October 29, 2015, OWCP finalized the overpayment of compensation
in the amount of $757.29 and found that, even though appellant was without fault in the creation
of the overpayment, he was not eligible for waiver of recovery of the overpayment.

2

OWCP provided the employing establishment with a citation to section 10.222(b) of OWCP’s regulations.
20 C.F.R. § 10.222(c).

2

LEGAL PRECEDENT -- ISSUE 1
Section 8129(a) of FECA provides in pertinent part that, when an overpayment has been
made to an individual under this subchapter because of an error of fact or law, adjustment shall
be made under regulations prescribed by the Secretary of Labor by decreasing later payments to
which an individual is entitled.3
Section 8116(a) of FECA provides that an employee who is receiving compensation for
an employment injury may not receive wages for the same time period.4 Section 8118(c) of
FECA provides that compensation for disability does not begin until termination of continuation
of pay or the use of annual or sick leave ends.5
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $757.29. The record reflects that appellant filed a claim for wage loss for the period May 12
through 29, 2015. During this period, he received compensation payments for temporary total
disability from OWCP, but was also entitled to continuation of pay from the employing
establishment. OWCP determined an overpayment existed in the amount of $757.29. Because
appellant is entitled to receive COP from the employing establishment during the period May 12,
through 29, 2015, he was not entitled to disability compensation from OWCP for the same
period. The Board finds that his receipt of wage-loss benefits from OWCP during the COP
period created an overpayment of compensation.6
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless “incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of [FECA] or would be against equity and
good conscience.”7 When a claimant is found to be without fault in the matter of the
overpayment, then, in accordance with section 8129(b), OWCP may only recover the
overpayment if it determined that recovery of the overpayment would neither defeat the purpose
of FECA nor be against equity and good conscience.8
Section 10.438 of OWCP’s regulations provide:
“(a) The individual who received the overpayment is responsible for providing
information about income, expenses and assets as specified by OWCP. This
3

5 U.S.C. § 8129(a).

4

Id. at § 8116(a).

5

Id. at § 8118(c).

6

Y.L., Docket No. 10-364 (issued October 18, 2010).

7

5 U.S.C. § 8129.

8

S.W., Docket No. 15-1178 (issued December 17, 2015).

3

information is needed to determine whether or not recovery of an overpayment
would defeat the purpose of FECA or be against equity and good conscience.
This information will also be used to determine the repayment schedule, if
necessary.
“(b) Failure to submit the requested information within 30 days of the request
shall result in denial of waiver, and no further request for waiver shall be
considered until the requested information is furnished.”9
ANALYSIS -- ISSUE 2
The Board finds that appellant failed to establish waiver of the recovery of the $757.20
overpayment.
Section 10.438 of the regulations state that a claimant who received an overpayment of
compensation is responsible for providing information about income, expenses and assets to
OWCP so that it may determine whether recovery of the overpayment would defeat the purpose
of FECA or be against equity and good conscience.10 Failure to submit the information, which
will also be used to determine a repayment schedule if necessary, within 30 days of a request
from OWCP, will result in a denial of a waiver of recovery of the overpayment and no further
requests for waiver of recovery will be considered until the information is submitted.11
Appellant failed to provide financial information within the allotted period after OWCP’s
preliminary overpayment determination. He did not submit evidence showing that he was
eligible for waiver of recovery of the overpayment because adjustment or recovery would defeat
the purpose of the relevant subchapter of FECA or would be against equity and good conscience.
Therefore, OWCP did not abuse its discretion by refusing to waive recovery of the $757.20
overpayment.
With respect to the recovery of the overpayment, the Board notes its jurisdiction on appeal
is limited to reviewing those cases where OWCP seeks recovery from continuing compensation
benefits under FECA.12 As appellant is no longer receiving wage-loss compensation benefits, the
Board does not have jurisdiction with respect to OWCP’s recovery of the overpayment under the
Debt Collection Act.
On appeal appellant argues that the employing establishment has not provided him with
COP in accordance with OWCP’s directions and that he has therefore not received an overpayment
of compensation. He further argues that he is entitled to additional wage-loss compensation for the
remainder of the COP period. The terms of FECA are specific as to the methods and payment of
compensation. Section 8118(c) of FECA provides that compensation for disability does not
begin until termination of continuation of pay. Appellant’s entitlement to COP did not end until
9

20 C.F.R. § 10.438.

10

Id. at § 10.438(a).

11

Id., Linda Hilton, 52 ECAB 476 (2001).

12

Lewis George, 45 ECAB 144 (1993).

4

June 22, 2015. Unless a claimant’s contentions are in keeping with the scope or intent of FECA,
i.e., unless the statute authorizes payment of the kind demanded, OWCP’s decision must be
affirmed.13 Neither OWCP nor the Board has the authority to enlarge the terms of FECA.14
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $757.29 and that OWCP properly determined that appellant was not eligible for waiver of
recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT October 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 21, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

5 U.S.C. § 8118(c).

14

D.W., Docket No. 10-1967 (issued June 22, 2011); Raymond H. Chandler, 49 ECAB 480 (1998); Alonzo R.
Witherspoon, 43 ECAB 1120 (1992).

5