United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE TREASURY,
U.S. MINT, West Point, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1148
Issued: July 17, 2013

Case Submitted on the Record

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

JURISDICTION
On April 10, 2013 appellant, through her attorney, filed a timely appeal from the
February 14, 2013 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 that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
On September 22, 2011 appellant, then a 45-year-old lead information technology
specialist, filed an occupational disease claim alleging a stress-related emotional condition in the
performance of duty. Regarding the cause of the injury, she stated, “The work environment has
1

5 U.S.C. §§ 8101-8193.

caused mental anguish that has advanced into physical manifestations.” Appellant first became
aware of her claimed condition on April 18, 2011 and realized that it was caused or aggravated
by her employment on September 12, 2011.
In a September 23, 2011 statement, appellant noted that she had documented that she was
exposed to a work environment which had become increasingly hostile. She alleged that she had
been “intimidated emotionally” and “derailed mentally” and was physically unable to function.
Appellant submitted administrative documents regarding positions that she held with the
employing establishment and medical reports concerning the treatment of her claimed condition,
including reports of Dr. Michael Smith, an attending osteopath, and Dr. Paul Schefflein, an
attending Board-certified psychiatrist.
Appellant submitted numerous documents from an Equal Employment Opportunity
(EEO) claim that she filed in April 2011. In this claim, she alleged several instances of
wrongdoing by her employing establishment, including the allegations that, on or about
February 28, 2011, her supervisor, Olawole Olayinka, removed her duties which were associated
with approving time, attendance and leave for the employees in her unit. On or about April 8,
2011, management announced hiring a supervisory information technology specialist (GS-221013) rather than laterally transferring appellant into the position. In June 2011 appellant was
removed from her office space and placed in a smaller space. On August 10, 2011 her
supervisor advised her to stop telecommuting two days a week. On August 26, 2011 appellant
learned that she was not selected for the position of supervisory information technology
specialist. The documents do not provide any indication that a final decision was rendered on
her claim.
In a December 6, 2011 decision, OWCP denied appellant’s claim on the grounds that she
did not establish any compensable work factors. It noted that she did not clearly explain how her
work environment was hostile.
Appellant, through counsel, requested reconsideration of the denial of her emotional
condition claim. In an August 13, 2012 statement, counsel argued that, effective February 2011,
appellant was stripped of certain job duties, including time keeping responsibilities and
responsibility for certifying time. Appellant was stripped of authority over full-time employees,
despite continually being held responsible for their actions. As lead information technology
specialist, she was stripped of any and all of her supervisory duties, without adequate reason or
justification. Counsel argued that appellant was denied a promotion, without reason or
justification, to a GS-13 position as a supervisory information technology specialist. Appellant
was prevented from performing any duties that appeared to be supervisory in nature or that
would otherwise help advance her career professionally, such as certifying and approving leave
time, issuing employee performance appraisals and carrying out purchasing responsibilities.
Counsel argued that she was intentionally subjected to a visually obvious demotion by being
required to move to a work space that was substantially smaller than the one she previously
occupied. He claimed that the employing establishment intentionally breached prior EEO
settlement agreements which permitted her to telework from home.
The employing

2

establishment’s taking away of telework constituted retaliation against appellant for prior EEO
complaints.2
In a November 16, 2012 letter, Julie Barnette, a human resources specialist with the
employing establishment, denied that the employing establishment had committed harassment,
discrimination or wrongdoing with respect to any administrative matters. She stated that
appellant’s position descriptions did not include supervisory duties, so no supervisory duties
were taken away from her. Ms. Barnette noted that appellant was selected to be interviewed with
several other candidates for the position of supervisory information technology specialist, but she
voluntarily removed herself from consideration for the position. She indicated that appellant’s
work space was reconfigured to a smaller size along with those of several coworkers as part of a
larger reconfiguration plan due to limited space; but asserted that appellant was treated in the
same manner as her coworkers. Appellant had been involved in determining the proposed
reconfiguration and actually endorsed it. Ms. Barnette noted that appellant had previously
participated in a teleworking program, but the business needs of the employing establishment
dictated that personnel be onsite.3
In a January 21, 2013 statement, counsel responded to the employing establishment’s
November 16, 2012 letter and contested a number of the statements in the letter. He argued that
appellant’s position descriptions did in fact contain supervisory duties that were improperly
stripped away by Mr. Olayinka. Counsel advised that appellant did not voluntarily remove
herself from consideration for a promotion or approve of the reconfiguration of her work space.
Appellant, through counsel, submitted copies of e-mails from 1998 in which a supervisor
discussed the possibility that appellant’s position description had been “miscoded” with respect
to supervisory duties after the employing establishment underwent an organizational restructure.
In a February 14, 2013 decision, OWCP affirmed its December 6, 2011 denial of
appellant’s emotional condition claim, finding that she still had not established any compensable
work factors.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed

2

Appellant submitted a July 26, 2012 narrative report in which Dr. Jeffrey H. Newton, an attending Boardcertified psychiatrist, posited that she sustained depression due to various work factors, including being wrongly
denied a promotion.
3

A 2004 EEO agreement permitted appellant to work at home two days per week. A 2006 EEO agreement
permitted her to have five floating telework days a year. The employing establishment provided a diagram of
appellant’s reconfigured work space. It showed that she and two coworkers had work cubicles of roughly the same
size.

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by the employment, the disability comes within the coverage of FECA.4 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or his or her frustration from not being permitted to work in a particular environment or
to hold a particular position.5
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.6 However,
the Board has held that, where the evidence establishes error or abuse on the part of the
employing establishment in what would otherwise be an administrative matter, coverage will be
afforded.7 In determining whether the employing establishment has erred or acted abusively, the
Board will examine the factual evidence of record to determine whether the employing
establishment acted reasonably.8
To the extent that disputes and incidents alleged as constituting harassment and
discrimination by supervisors and coworkers are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.9
However, for harassment or discrimination to give rise to a compensable disability under FECA,
there must be evidence that harassment or discrimination did in fact occur. Mere perceptions of
harassment or discrimination are not compensable under FECA.10
An employee has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he or she claims compensation was caused or
adversely affected by employment factors.11 This burden includes the submission of a detailed
description of the employment factors or conditions which he or she believes caused or adversely
affected a condition for which compensation is claimed and a rationalized medical opinion
relating the claimed condition to compensable employment factors.12
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
4

Lillian Cutler, 28 ECAB 125 (1976).

5

Gregorio E. Conde, 52 ECAB 410 (2001).

6

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42
ECAB 556 (1991).
7

William H. Fortner, 49 ECAB 324 (1998).

8

Ruth S. Johnson, 46 ECAB 237 (1994).

9

David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

10

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

11

Pamela R. Rice, 38 ECAB 838, 841 (1987).

12

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

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deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.13 If a claimant does implicate a factor of
employment, OWCP should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.14
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s reasoned opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the compensable
employment factors. The opinion of the physician must be based on a complete and accurate
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.15
ANALYSIS
Appellant alleged that she sustained an emotional condition as a result of several
employment incidents and conditions. OWCP denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must
initially review whether the alleged incidents and conditions of employment are compensable
employment factors under the terms of FECA. The Board notes that appellant’s allegations do
not pertain to her regular or specially assigned duties under Cutler.16 Rather, appellant has
alleged error and abuse in administrative matters and harassment and discrimination on the part
of her supervisors.
Appellant alleged that the employing establishment committed wrongdoing with respect
to various administrative or personnel matters. She claimed that, effective February 2011,
Mr. Olayinka stripped her of certain job duties including time keeping responsibilities and
responsibility for certifying time. As lead information technology specialist, appellant was
stripped of any and all of her supervisory duties, without adequate reason or justification. She
alleged that in August 2011 she was improperly denied a promotion to a GS-13 position as a
supervisory information technology specialist. Appellant was prevented from performing any
duties that appeared to be supervisory in nature. She claimed that in June 2011 her work space
was improperly reduced in size during a reconfiguration and that in August 2011 two EEO
agreements were violated when her ability to participate in a telework program was taken away.

13

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

14

Id.

15

Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

16

See Cutler note 4.

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The Board notes that such administrative and personnel matters, although generally
related to the employee’s employment, are administrative functions of the employing
establishment rather than the regular or specially assigned work duties of the employee and are
not covered under FECA. The Board has held that, where the evidence establishes error or abuse
on the part of the employing establishment in what would otherwise be an administrative matter,
coverage will be afforded.17 Appellant has not submitted sufficient evidence to show that
management committed error or abuse with respect to these matters. She filed an EEO
complaint with respect to several of these matters in April 2012; but the record does not contain
any final decision of her complaint or any other grievance which shows that the employing
establishment committed error or abuse regarding administrative matters. With respect to
appellant’s claim of being improperly stripped of supervisory duties, the employing
establishment indicated that her position descriptions did not include supervisory duties, so no
supervisory duties were actually taken away from her.18 The employing establishment noted that
she was selected to be interviewed with several other candidates for the position of supervisory
information technology specialist, but had voluntarily removed herself from consideration for the
position. Moreover, appellant was treated the same as coworkers when her work space was
reconfigured as part of a plan to conserve office space and she was no longer able to participate
in a teleworking program because the business needs of the employing establishment dictated
that personnel be onsite. She has not submitted sufficient evidence to establish her allegations as
factual. Appellant has not established any work factors with regard to administrative or
personnel matters.
Appellant also alleged that supervisors subjected her to harassment and discrimination by
carrying out the above-described actions. Harassment and discrimination must be proven by
probative evidence and appellant has not submitted such evidence. Appellant did not show error
or abuse in administrative matters, let alone that management’s actions constituted harassment or
discrimination. She claimed that she was being retaliated against for prior EEO filings, but she
did not submit sufficient evidence corroborating her claim.19 Therefore, appellant has not
established a work factor with regard to the claimed harassment and discrimination.
For the foregoing reasons, appellant has not established any compensable employment
factors under FECA and, therefore, has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.20

17

See supra note 8.

18

The record contains copies of e-mails from 1998 in which a supervisor discussed the possibility that appellant’s
position description had been “miscoded” with respect to supervisory duties after the employing establishment
underwent an organizational restructure. These e-mails are vague in nature and do not clearly show wrongdoing by
the employing establishment with regard to this matter.
19

In particular, appellant did not show that her participation in telework was ended as a form of
harassment/discrimination or that her prior EEO agreements were violated.
20

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

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Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2013
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.O., JR., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hickory, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1149
Issued: March 15, 2022

Case Submitted on the Record

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

JURISDICTION
On July 22, 2021 appellant, through counsel, filed a timely appeal from a February 26,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

The Board notes that, following the February 26, 2021 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018; and (2) whether appellant has
met his burden of proof to establish continuing disability or residuals on or after January 24, 2018.
FACTUAL HISTORY
This case has previously been before the Board. 4 The facts and circumstances as set forth
in the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On May 20, 1997 appellant, then a 51-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that he injured his shoulders and left finger due to factors of
his federal employment. OWCP accepted the claim for right shoulder adhesive capsulitis, bilateral
rotator cuff sprain/strain, left brachial neuritis or radiculitis, and left trigger finger. It paid appellant
wage-loss compensation on the supplemental rolls, commencing November 5, 2003, and on the
periodic rolls, commencing July 3, 2011.
Appellant underwent authorized surgeries for left trigger thumb release on February 27,
1997; left ulnar nerve transposition on October 8, 1997; left shoulder arthroscopy and rotator cuff
repair on January 25, 1998; right shoulder arthroscopy on November 5, 2003; right shoulder
examination under anesthesia on May 30, 2004; and repair of a right rotator cuff tear on
September 22, 2010.5
In reports dated August 15, 2016 and June 12, 2017, appellant’s attending physician,
Dr. Stephen Sladicka, a Board-certified orthopedic surgeon, noted his history of injury beginning
on May 19, 1997 and listed the accepted conditions including right shoulder adhesive capsulitis,
right brachial neuritis, radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and
bilateral rotator cuff injuries. He noted that appellant had difficulty lifting with pain in his right
shoulder. Dr. Sladicka also described his date-of-injury position and found that he was
permanently totally disabled due to his accepted conditions.
On July 6, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions to Dr. Joseph Estwanik, a Board-certified orthopedic surgeon,
for a second opinion examination and evaluation.
In a July 28, 2017 report, Dr. Estwanik discussed appellant’s factual and medical history
and reported the findings of his physical examination. He found that his trigger finger symptoms
had resolved, but that he continued to have residual loss of motion of his shoulders. Dr. Estwanik
determined that appellant required no further medical treatment for the accepted conditions. He
opined that he exhibited multiple concurrent non-work-related disabilities. Dr. Estwanik found
that appellant was totally disabled from work.

4

Order Remanding Case, Docket No. 20-0142 (issued September 29, 2020).

5

On August 10, 2000 OWCP granted appellant a schedule award for 25 percent permanent impairment of his left
arm. On January 11, 2005 it granted an additional schedule award for 13 percent permanent impairment of his right
upper extremity.

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On August 10, 2017 OWCP requested a supplemental report from Dr. Estwanik to clarify
his opinion on the issue of appellant’s employment-related residuals and disability.
In an August 23, 2017 supplemental report, Dr. Estwanik opined that appellant’s right
shoulder adhesive capsulitis had resolved, and referred to his prior report. He further opined that
he had excellent internal and external rotation, but his restricted efforts at forward flexion and
abduction supported a finding of full range of motion (ROM) of the right shoulder without
adhesions. Dr. Estwanik determined that appellant had attempted to demonstrate loss of ROM.
He further found that, while appellant was totally disabled from work due to non-employmentrelated conditions, he was capable of full-duty work based only on his accepted employment
injuries.
In a notice dated December 15, 2017, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits because he no longer had residuals or
disability causally related to his accepted employment-related conditions. It found that the weight
of the medical evidence rested with Dr. Estwanik, who found that he had no objective findings to
support further ongoing disability or residuals caused by his employment-related conditions.
OWCP afforded appellant 30 days to submit evidence challenging the proposed terminatio n action.
No response was received.
By decision dated January 24, 2018, OWCP finalized the termination of appellant’s wageloss compensation and medical benefits, effective that date.
On February 7, 2018 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A telephonic hearing was held on
July 10, 2018.
Following the oral hearing, appellant provided additional evidence, including an April 17,
2018 report from Ian Welliver, a physician assistant.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on May 16,
2018, which demonstrated severe hypertrophic AC joint changes, possible tears of the anterior
supraspinatus, and infraspinatus tendons and labrum tears.
In a July 27, 2018 note, Dr. Carey McKain, a Board-certified orthopedic surgeon, found
marked loss of ROM of the shoulders with a positive Speed test bilaterally. He reviewed
diagnostic studies and found deteriorated rotator cuffs on both sides with multiple partial tearings,
significant arthrosis, and severe arthritis with spurs in both acromioclavicular (AC) joints.
By decision dated September 17, 2018, the hearing representative affirmed OWCP’s
January 24, 2018 termination decision.
On August 11, 2015 Dr. Michael P. Bunch, a Board-certified orthopedic surgeon, noted
that appellant’s shoulder pain did not improve with epidural spinal injections.
On April 18, 2019 appellant, through counsel, requested reconsideration. Counsel
provided a series of notes dated September 13, 2017 through May 16, 2018 from nurse
practitioners.

3

In treatment notes dated November 21, 2016 through February 26, 2018, Dr. David L.
Cabral, an internist, noted appellant’s history of repetitive motion injuries to the shoulders and left
elbow at work and resultant surgeries. He reviewed his bilateral shoulder x-rays and found AC
joint osteophytosis. Dr. Cabral also reported left elbow calcific tendinopathy.
In an undated narrative report, Dr. Karyn Weston Rahn, Board-certified in occupational
medicine, noted reviewing appellant’s history of work-related injuries of his bilateral shoulders
and his medical history. She described his job duties and current bilateral shoulder symptoms. On
physical examination Dr. Rahn found that appellant gave full and reasonable effort. She found no
atrophy in appellant’s right shoulder, but tenderness over the AC joint, subacromial region,
supraspinatus and infraspinatus capsule with limited ROM and decreased strength. Dr. Rahn
reported positive Speed’s and active compression test, positive Hawkins, Neer, and infraspinatus
tests. She found that appellant continued to have significant impairments of the left and right
shoulders, which were directly related to his work duties. Dr. Rahn explained using his shoulders
repetitively hundreds of times a day to throw, sort, and carry mail resulted in significant damage
to the bilateral shoulder joints and surrounding tissues including rotator cuff and labral tears. She
found that appellant was totally disabled from work due to his accepted bilateral shoulder
conditions and required bilateral shoulder replacements. Dr. Rahn further explained her
disagreement with Dr. Estwanik’s findings and conclusions regarding appellant’s adhesive
capsulitis.
By decision dated July 2, 2019, OWCP denied modification of its prior decisions.
Appellant appealed to the Board. By order dated September 29, 2020, the Board directed
OWCP to review the additional medical evidence in support of the April 18, 2019 reconsideration
request, including new medical reports dated November 2016 to February 2018 by Dr. Cabral and
issue a de novo decision.6
By decision dated February 26, 2021, OWCP again denied modification of its prior
decisions.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP has accepted a claim and pays compensation, it has the burden of proof to
justify termination or modification of an employee’s benefits.7 The right to medical benefits for
an accepted condition is not limited to the period of entitlement for disability compensation. 8 To
terminate authorization for medical treatment, OWCP must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.9 OWCP’s

6

Id.

7

L.L., Docket No. 18-1426 (issued April 5, 2019); C.C., Docket No. 17-1158 (issued November 20, 2018); I.J., 59
ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541 (1986).
8

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).
9

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

4

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background. 10
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary shall
appoint a third physician (known as a referee physician or impartial medical specialist) who shall
make an examination. 11 For a conflict to arise, the opposing physicians’ opinions must be of
virtually equal weight and rationale. 12 In situations where the case is properly 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.13
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective January 24, 2018.
Dr. Estwanik noted in his July 28 and August 23, 2017 reports that appellant had no
objective signs of right shoulder adhesive capsulitis, left trigger finger, bilateral rotator cuff
sprain/strain, and left brachial neuritis or radiculitis. He concluded that appellant had no disability
or need for further medical treatment due to the accepted employment-related conditions.
Dr. Estwanik further concluded that appellant was totally disabled from work due to
nonemployment-related conditions.
On June 12, 2017 Dr. Sladicka noted appellant’s history of injury on May 19, 1997 and
listed the accepted conditions including right shoulder adhesive capsulitis, right brachial neuritis,
radiculitis, sprain of the left shoulder, upper arm, left trigger finger, and bilateral rotator cuff
injuries and found that he was totally disabled.
As Dr. Estwanik concluded that appellant was able to resume his date-of-injury position
without restrictions and Dr. Sladicka concluded that he remained totally disabled for work, there
is an unresolved conflict in the medical evidence. OWCP should have resolved the conflict of
medical opinion evidence before terminating compensation. 14 As it failed to resolve the conflict
of medical opinion evidence, the Board finds that OWCP did not meet its burden of proof to
terminate appellant’s wage-loss compensation and medical benefits, effective January 24, 2018.

10

See M.C., Docket No. 20-1396 (issued November 22, 2021); R.P., Docket No. 17-1133 (issued January 18, 2018).

11

5 U.S.C. § 8123(a); see E.L., Docket No. 20-0944 (issued August 30, 2021); R.S., Docket No. 10-1704 (issued
May 13, 2011); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).
12

M.C., supra note 10; P.R., Docket No. 18-0022 (issued April 9, 2018).

13

See D.M., Docket No. 18-0746 (issued November 26, 2018); R.H., 59 ECAB 382 (2008); James P. Roberts, 31
ECAB 1010 (1980).
14

M.C., supra note 10; K.L., Docket No. 19-0729 (issued November 6, 2019); P.P., Docket No. 17-0023 (issued
June 4, 2018).

5

CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective January 24, 2018.15
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2021 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 15, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 15-1378
Issued: September 8, 2016

Case Submitted on the Record

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

JURISDICTION
On June 10, 2015 appellant filed a timely appeal from a May 4, 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.2
ISSUES
The issues are: (1) whether appellant received a $987.84 overpayment of compensation;
and (2) whether she was at fault in the creation of the $987.84 overpayment and, therefore,
ineligible for waiver of recovery.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal after OWCP rendered its May 4, 2015
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the Board lacks jurisdiction to review this additional evidence. 20 C.F.R. § 501.2(c)(1).

On appeal, appellant contends that she worked on January 29 and 30, 2015, but that from
January 31 to February 14, 2015 she was told to not report to work until she had completed her
driver training. She relates that she completed her training on February 13, 2015 and was not in
a paid status until February 14, 2015.
FACTUAL HISTORY
On March 8, 2008 appellant, a 40-year-old letter carrier, sustained injury to her right eye
and experienced headaches on March 8, 2008 when she was punched in the jaw by a young man
who walked up to her truck and asked for rubber bands. She filed a claim for traumatic injury
(Form CA-1), which OWCP accepted for a contusion on the right side of her face, scalp, and
neck; exostosis in an unspecified site; articular disc disorder in the temporomandibular joint; and
post-traumatic stress disorder.
By letter dated June 3, 2008, OWCP advised appellant of her receipt of compensation
every 28 days on the periodic rolls effective April 24, 2008 and her responsibility to return to
work in connection with the accepted injury. In an attached Form EN1049, appellant was
advised that she must notify OWCP immediately upon her return to work and, if she worked for
any portion of the period covered by a payment, she must return the payment to OWCP.
The record reflects that appellant received compensation by direct deposit payments.
Appellant was released to return to work and began full-time modified duty on
January 29, 2015.
Total disability compensation payments were continued through
February 7, 2015. However, the record does not contain any payroll information for the period
January 29 through February 7, 2015 setting forth actual earnings for the period of the alleged
overpayment. The record contains correspondence which notes that the claims examiner spoke
with appellant on February 2, 2015 regarding her unsuccessful return to work as the employing
establishment did not, in fact, have a route within her restrictions at that time. The claims
examiner informed appellant to file a wage-loss claim and that if the employing establishment
found work for her to let OWCP know if she is still in receipt of compensation benefits.3
On April 2, 2015 OWCP issued a preliminary determination that an overpayment
occurred in the amount of $987.84 for the period January 29 through February 7, 2015 because
appellant continued to receive disability compensation after her return to work. It explained the
calculation of the overpayment and found that she was at fault in its creation because she was
aware or should have reasonably been aware that there was no entitlement to receive total
disability wage-loss benefits after returning to full-time work. OWCP noted that the attachment
to its June 3, 2008 letter advised appellant that compensation would be paid every 28 days, that
she was responsible to inform OWCP upon return to any work, and that she was to return all
payments received for periods after a return to work. It further noted that, a reasonable amount
of time had passed for her to confirm receipt of the payment. OWCP requested that appellant
complete an enclosed overpayment recovery questionnaire (Form OWCP-20) and submit
supporting financial documents to determine the issue of waiver. Additionally, it notified her
that, within 30 days of the date of the letter, she could request a telephone conference, a final
3

The file does not contain a contemporaneous Form CA-7.

2

decision based on the written evidence, or a prerecoupment hearing if she disagreed with the
decision. Appellant did not respond to the preliminary determination.
By decision dated May 4, 2015, OWCP finalized the fact and amount of the preliminary
overpayment determination, and the finding of fault. It directed recovery of the full amount of
the overpayment within 30 days.
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of his duty.4 Section 8129(a) of FECA provides, in pertinent part, “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.”5
Section 8116 of FECA defines the limitations on the right to receive compensation
benefits. This section of FECA provides that, while an employee is receiving compensation, he
or she may not receive salary, pay or remuneration of any type from the United States, except in
limited circumstances.6 OWCP regulations provide that compensation for wage loss due to
disability is available only for any periods during which an employee’s work-related medical
condition prevents him or her from earning the wages earned before the work-related injury.7 An
employee is not entitled to compensation for total disability after returning to full-time work.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to establish that appellant
received an overpayment of compensation in the amount of $987.84 for the period January 29
through February 7, 2015.
OWCP is required by statute and regulations to make findings of fact.9 It procedures
further specify that a final decision of OWCP must include findings of fact and provide clear
reasoning which allows the claimant to understand the specific defect of her claim and the kind

4

5 U.S.C. § 8102(a).

5

Id. at § 8129(a).

6

Id. at § 8116(a); R.H., Docket No. 09-1981 (issued June 11, 2010).

7

20 C.F.R. § 10.500.

8

M.J., Docket No. 09-469 (issued August 24, 2009).

9

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of fact and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP
shall contain findings of fact and a statement of reasons.

3

of evidence which would tend to overcome it.10 These requirements are supported by Board
precedent.11 The Board finds that OWCP did not follow its procedures when it issued its
preliminary determination of overpayment on April 2, 2015 as the notice does not contain factual
findings supported by citation to evidence of record of appellant’s actual earnings during the
period of alleged overpayment nor does it provide a clearly written explanation of how the
evidence of record supports an overpayment in the amount of $987.84. Rather, OWCP cites only
to a return to work date of January 28, 2015 without actual evidence of earnings from January 29
to February 7, 2015. Such records are important in this case because appellant had
contemporaneously notified OWCP that the employing establishment did not actually have a
suitable position available for her on the date she was scheduled to return to work. This notice
was clearly of record prior to the April 2, 2015 preliminary determination of overpayment. Thus,
the information of record relied on by OWCP is incomplete as to the fact or period of
overpayment. Therefore, the Board finds the evidence of record insufficient to establish that
appellant received an overpayment in the amount of $987.84.
On appeal, appellant contends that she reported to work on January 29 and 30, 2015, but
that she was told that she could not report to work until she had completed her driver training.
She states that she completed her training on February 13, 2015 and was not in a paid status until
February 14, 2015. As noted, OWCP failed to follow its procedures in calculating the alleged
overpayment and did not provide a clear explanation to appellant as to how the overpayment
occurred when the employing establishment did not have suitable work available for her to
perform and she had no actual earnings. The Board will reverse the May 4, 2015 decision
regarding the fact and amount of the overpayment. As OWCP has not established the alleged
overpayment of compensation, the issue of fault is rendered moot.
CONCLUSION
The Board finds that OWCP failed to establish the fact or amount of the overpayment.
OWCP did not comply with its procedures by providing a detailed calculation of the amount of
the overpayment citing to payroll records or any other evidence of record.

10

See R.W., Docket No. 11-1303 (issued January 9, 2012); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Disallowances, Chapter 2.1400.5 (February 2013).
11

See id.; James D. Boller, Jr., 12 ECAB 45, 46 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated and finalized May 4, 2015 is reversed.
Issued: September 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-112
Issued: April 7, 2015

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 October 21, 2014 appellant filed a timely appeal from a July 15, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits for her accepted injury effective November 17, 2013.
FACTUAL HISTORY
On January 29, 2006 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim asserting that her repetitive duties including pushing, pulling, twisting, turning,
lifting, and unloading caused her to develop a stress fracture in her lower back. She became
1

5 U.S.C. §§ 8101-8193.

aware of her condition and its relation to her work on November 1, 2005. OWCP initially denied
appellant’s claim, but on April 23, 2007 accepted temporary aggravation of stress fracture of the
lumbar spine, temporary aggravation of degenerative disc disease and shoulder sprain. Appellant
stopped work on January 10, 2006 and did not return.
Appellant was treated by Dr. William C. Hamilton, a Board-certified orthopedic surgeon,
from January 12, 2006 to November 29, 2012 for low back pain radiating into her legs.
Dr. Hamilton opined that appellant’s delivering mail had caused or aggravated her back
situation. He diagnosed lumbar spondylosis, stress reaction, spondylosis, degenerative disc
disease, and lumbar radiculopathy. Dr. Hamilton noted that appellant had physical therapy and
epidural injections. In a narrative and medical report form dated March 4, 2013, he diagnosed
work-related lumbosacral strain, sprain, radiculopathy, and degenerative joint disease. On
April 9, 2013 Dr. Hamilton noted that appellant could return to work full time with restrictions.
In attending physician’s reports dated March 8 and April 9, 2013, he diagnosed lumbar strain and
lumbar radiculopathy. Dr. Hamilton checked a box “yes” that appellant’s condition was caused
by work activity. He noted that appellant could return to work with restrictions. A September 6,
2011 lumbar magnetic resonance imaging (MRI) scan revealed multilevel degenerative changes
most pronounced at L4-5 where there was mild central canal stenosis, and stenosis of the lateral
recesses bilaterally.
On August 1, 2013 OWCP referred appellant to Dr. Robert A. Smith, a Board-certified
orthopedic surgeon, to determine if the accepted conditions had resolved. In an August 30, 2013
report, Dr. Smith noted that he reviewed the records provided and examined appellant.
Appellant’s gait and station were normal. Back examination revealed no spasm, atrophy, trigger
points, or deformity. Active spinal range of motion was normal without any spasm or rigidity.
Neurological examination was intact and nonfocal without any objective findings of deficit.
Dr. Smith noted that a December 22, 2005 MRI scan of the lumbar spine revealed marrow edema
within both L4 pedicles which was felt to be reactive and a nondisplaced left L5 pedicular
fracture with reactive marrow edema and contralateral right pedicle which was thought to be
subacute or chronic. He compared the December 22, 2005 MRI scan with the July 18, 2006 MRI
scan which showed interval resolution of all marrow edema with no evidence of pseudoarthrosis,
minimal anterolisthesis of the L4, L5 due to degenerative facet arthritis but nothing of a posttraumatic nature since no marrow edema was seen in the study. Dr. Smith further noted that the
September 6, 2011 MRI scan again revealed no marrow edema and no progression of the L4-5
anterolisthesis that was thought to be due to marked facet hypertrophic changes rather than
anything post traumatic. He opined that, according to the analysis of the sequential MRI scan
studies, appellant’s aggravation of the stress fracture and degenerative disc disease had resolved.
Dr. Smith diagnosed temporary aggravation of the stress fracture at L4-5 segment and temporary
aggravation of degenerative disc disease and shoulder sprain. He noted that appellant reported
no complaints of shoulder pain and the condition had resolved without residuals. Dr. Smith
opined that appellant was at maximum medical improvement with regard to the incident as the
July 2006 MRI scan findings and confirmed in September 2011 revealed interval resolution of
marrow edema. He noted that appellant could return to full-time work without restrictions due to
the fact that her accepted conditions had resolved without residual. Dr. Smith noted that
appellant no longer required any type of treatment or testing related to the accepted conditions.

2

In a work capacity evaluation dated August 30, 2013, he noted that appellant was at maximum
medical improvement and could return to work regular duty without restrictions.
On September 16, 2013 OWCP proposed to terminate all wage-loss compensation and
medical benefits finding that Dr. Smith’s August 30, 2013 report established no continuing
residuals of her work-related conditions.
In a statement dated September 26, 2013, appellant, through counsel, disagreed with the
proposed termination. He argued that Dr. Smith had failed to provide medical reasons for his
conclusion that appellant had recovered from her work injury and further failed to determine
whether the disc herniation at L1-2 was work related. Counsel asserted that there was a conflict
of opinion between Dr. Smith and Dr. Hamilton.
In a decision dated October 29, 2013, OWCP terminated appellant’s compensation
benefits effective November 17, 2013.
On November 4, 2013 appellant requested an oral hearing which was held on
April 28, 2014. She submitted an October 23, 2013 report from Dr. Hamilton who noted
appellant’s continued complaints of back pain radiating down her leg. On examination,
appellant could forward bend to her knees with minimal lumbar reversal. Sitting was restricted.
Lower extremity strength and reflexes were symmetrical with no atrophy or weakness.
Appellant was neurovascularly intact. Dr. Hamilton noted that she was not capable of returning
to work in her usual capacity. In an October 30, 2013 work capacity evaluation, he diagnosed
lumbar strain and radiculopathy. Dr. Hamilton noted that appellant could work full time with
restrictions. On April 8, 2014 he noted appellant’s continued complaints of pain in the right
buttock down to her ankle. Appellant had mildly limited lumbar motion, no lower extremity
atrophy or weakness, and reflexes were symmetrical. Dr. Hamilton noted that appellant had lost
105 pounds but her pain persisted and she did not believe she was capable of returning to work
as a carrier because of the standing, walking, and carrying involved. In an April 8, 2014 form
report, he diagnosed lumbar sprain/sprain, radiculopathy, and noted that appellant could not
return to her preinjury job without restrictions. On April 16, 2014 Dr. Marc J. Medway, a Boardcertified neurologist, performed an electromyogram (EMG) which revealed mild severity acute
right L4-5 radiculopathy, mild-to-moderate severity bilateral chronic L4-5 and L5-S1
radiculopathy, no evidence of distal isolated nerve entrapment syndrome, and no evidence of
peripheral neuropathy. He noted evidence of acute and chronic nerve root encroachment.
Appellant also submitted medical evidence previously of record.
In a decision dated July 15, 2014, an OWCP hearing representative affirmed the decision
dated October 29, 2013.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.2 After it has determined that an employee has disability causally
2

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

3

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.3 The
right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability. To terminate authorization for medical treatment, OWCP must establish that a
claimant no longer has residuals of an employment-related condition, which requires further
medical treatment.4
Under FECA, when employment factors cause an aggravation of an underlying condition,
the employee is entitled to compensation for the periods of disability related to the aggravation.
When the aggravation is temporary and leaves no permanent residuals, compensation is not
payable for periods after the aggravation has ceased, even if the employee is medically
disqualified to continue employment because of the effect work factors may have on the
underlying conditions.5
ANALYSIS
OWCP accepted appellant’s claim for temporary aggravation of stress fracture of the
lumbar spine, temporary aggravation of degenerative disc disease, and shoulder sprain. It
referred her for a second opinion evaluation by Dr. Smith to determine the extent of her workrelated condition.
In his August 30, 2013 report, Dr. Smith provided an extensive review of appellant’s
medical history and reported examination findings. He reported no clinical findings of any
residuals or disability causally related to the accepted temporary aggravation of stress fracture of
the lumbar spine, temporary aggravation of degenerative disc disease, and shoulder sprain.
Dr. Smith opined that, according to the analysis of the sequential MRI scan studies, appellant’s
aggravation of the stress fracture and degenerative disc disease resolved. He advised that
appellant was at maximum medical improvement with regard to the work conditions as the MRI
scan findings noted in July 2006 and confirmed in September 2011 showed interval resolution of
all marrow edema. Dr. Smith also noted that appellant had no complaints of shoulder pain. He
opined that appellant could return to full-time work without restrictions as her accepted
conditions had resolved without residual. Dr. Smith noted that appellant no longer required any
type of treatment or testing related to the accepted conditions. In a work capacity evaluation
dated August 30, 2013, he noted that appellant was at maximum medical improvement and could
return to work regular duty without restrictions.
The Board finds that Dr. Smith’s August 30, 2013 report represents the weight of the
medical evidence and that OWCP properly relied on his report in terminating appellant’s wageloss compensation and medical benefits. Dr. Smith’s opinion is based on proper factual and
medical history. He reviewed a statement of accepted facts and appellant’s prior medical
treatment and test results. Dr. Smith also related his comprehensive examination findings in
3

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

4

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

Raymond W. Behrens, 50 ECAB 221 (1999).

4

support of his opinion that the accepted work-related conditions had resolved. He reported no
basis on which to find that appellant had any continuing residuals of her accepted temporary
aggravation of stress fracture of the lumbar spine, temporary aggravation of degenerative disc
disease, and shoulder sprain. There is no contemporaneous medical evidence of equal weight
supporting appellant’s claim for continuing residuals of the accepted condition.
Appellant submitted an October 23, 2013 report from Dr. Hamilton who noted her
continued complaints of back pain radiating down her leg. Dr. Hamilton noted examination
findings and opined that she was not capable of returning to her usual work. On October 30,
2013 he diagnosed lumbar strain and radiculopathy and noted that appellant could work full time
with restrictions. In an April 8, 2014 report, Dr. Hamilton noted her continued symptoms,
despite losing weight, and related that she did not believe she was capable of returning to work
as a carrier because of the standing, walking, and carrying involved. Likewise, in a medical
report form dated April 8, 2014, he diagnosed lumbar sprain/sprain, radiculopathy, and noted
that appellant could not return to her preinjury job without restrictions. Although Dr. Hamilton
supported that appellant had continuing symptoms and was unable to perform regular duties,
none of the reports specifically explain how appellant’s current conditions and continuing partial
disability were causally related to the accepted condition. He did not provide sufficient medical
rationale to explain why particular work duties would cause a continuing temporary aggravation
of stress fracture of the lumbar spine, temporary aggravation of degenerative disc disease and
shoulder sprain.6 The need for rationale is particularly important where degenerative changes
were preexisting. Other reports from Dr. Hamilton are of limited probative value as these reports
do not address how appellant’s work duties caused or aggravated her temporary aggravation of
stress fracture of the lumbar spine, temporary aggravation of degenerative disc disease, and
shoulder sprain.7
Dr. Medway’s April 16, 2014 report is also of limited probative value as this report does
not address whether appellant’s accepted conditions had resolved.8
On appeal, appellant asserted that Dr. Smith’s report was not rationalized and his
examination was cursory and therefore could not carry the weight of the evidence. She asserts
that she continues to have residuals of her accepted work-related conditions and that there was a
conflict of opinion between Dr. Smith and Dr. Hamilton with regard to whether appellant had
residuals of the accepted work-related condition. The Board notes that in his August 30, 2013
report, Dr. Smith found that there were no clinical findings of any residuals or disability causally
related to the accepted temporary aggravation of stress fracture of the lumbar spine, temporary
aggravation of degenerative disc disease, and shoulder sprain. He opined that the accepted
conditions had resolved. Although appellant submitted reports from Dr. Hamilton, these reports

6

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).

7

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause of
an employee’s condition is of diminished probative value on the issue of causal relationship).
8

Id.

5

fail to sufficiently address how any continuing disability was causally related to the accepted
employment conditions.
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 wage-loss
compensation and medical benefits effective October 29, 2013.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 15, 2014 is affirmed.
Issued: April 7, 2015
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
McCLELLAN AIR FORCE BASE, CA,
)
Employer
)
_________________________________________ )
C.R., Appellant

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

Docket No. 09-984
Issued: January 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 9, 2009 appellant filed a timely appeal of a September 23, 2008 decision of the
Office of Workers’ Compensation Programs which denied his request for reconsideration
without conducting a merit review. Because more than one year has elapsed between the most
recent merit decision dated February 28, 2006, and the filing of this appeal, the Board lacks
jurisdiction to review the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On June 26, 1989 appellant, then a 40-year-old sheet metal equipment operator, filed an
occupational disease claim alleging that factors of his federal employment caused his bilateral
carpal tunnel syndrome. He indicated that he first became aware of the injury and its relation to

his work on June 9, 1989. The Office accepted appellant’s claim for bilateral carpal tunnel
syndrome and bilateral thumb carpometacarpal (CMC) joint arthritis. Appellant underwent a left
carpal tunnel release on September 15, 1989, and a right carpal tunnel release on July 12, 1990.
He returned to work in January 1991 and had a left thumb arthrodesis in June 2000.
On September 28, 2000 appellant left federal employment as the employing
establishment base was closed. He had a left thumb arthroplasty on June 9, 2003. On April 6,
2004 the Office referred appellant to vocational rehabilitation. The record reflects that appellant
began a training program in hospitality management; however, he stopped based on the
recommendation of his treating physician, Dr. David Evans, a Board-certified orthopedic
surgeon. In reports dated November 1, 2004, Dr. Evans diagnosed bilateral wrist degenerative
joint disease, noted appellant’s prior surgeries and indicated that appellant could not lift over five
pounds.
On November 22, 2004 the Office referred appellant for a second opinion examination
with Dr. John R. Chu, a Board-certified orthopedic surgeon. In a report dated December 9, 2004,
Dr. Chu advised that appellant reached maximum medical improvement and indicated that
appellant had permanent restrictions, which included a 10-pound lifting restriction.
On November 26, 2004 the Office referred appellant along with a statement of accepted
facts, and the medical record to Dr. Howard Shortley, a Board-certified orthopedic surgeon, for
an impartial medical evaluation to resolve the conflict in opinion between Drs. Chu and Evans
regarding the resolution of appellant’s accepted condition and work restrictions. On
September 15, 2005 Dr. Shortley noted appellant’s history of injury which included a
nonindustrial automobile accident on December 31, 1985. He examined appellant and
determined that his only limitations resulting from the work-related conditions related to his
thumbs. Dr. Shortley advised that there were no residuals of the carpal tunnel syndrome.
Furthermore, he added that he did not believe that the bilateral carpal tunnel syndrome or the
subsequent surgeries caused permanent pain. Dr. Shortley prescribed appellant’s limitations
which included a 10-pound lifting restriction on lifting, pushing or pulling on a repetitive basis
for eight hours a day and to 20 pounds on an occasional basis. He noted that appellant could
easily lift 10 pounds without difficulty. Dr. Shortley indicated that appellant had excellent
strength in his hands. He noted that appellant had restrictions which were not work related.
Dr. Shortley noted restrictions on bending, walking, standing, squatting, kneeling, climbing,
lifting, pushing and pulling as well as prolonged sitting due to the degeneration in appellant’s
lumbar spine. He indicated that conservative treatment of appellant’s osteoarthritis would be
needed but was not work related. Dr. Shortly indicated that appellant had an excellent result
from the arthrodesis of the left first CMC joint, the arthroplasty in the right first CMC joint and
the bilateral carpal tunnel releases.
In a December 1, 2005 report and closure memorandum and November 12, 2005 labor
market survey, the rehabilitation counselor noted that appellant was unable to obtain
employment. He determined that appellant had the capacity to work as a storage facility rental
clerk and that such positions were reasonably available in his commuting area. The
rehabilitation counselor noted the entry pay level for this position.

2

On February 28, 2006 the Office reduced appellant’s compensation for wage loss
effective March 19, 2006. It noted that the medical evidence established that appellant was no
longer totally disabled but rather partially disabled. The Office determined that appellant had the
capacity to earn wages as a storage facility rental clerk at the rate of $296.40 per week.
On September 5, 2006 appellant requested that the Office add a shoulder and ankle
condition to his claim. He submitted a June 26, 2006 report from Dr. Allen Hassan, a Boardcertified family practitioner and treating physician, who indicated that he did not have all the
records that were necessary regarding appellant’s inability to work for the past six years.
However, Dr. Hassan indicated that appellant worked for the Federal Government for 26 years
including a tour of Vietnam. He noted that appellant had chronic degenerative disc disease of
the cervical spine, thoracic spine, lumbosacral spine and bilateral shoulder impingement.
Dr. Hassan stated that he was “not too impressed with a job that puts a man who has given the
best years of his life to the United States to be placed in a position to be a rental clerk in a storage
facility.”
On September 14, 2006 the Office advised appellant that, if he wished to appeal the
February 28, 2006 decision, he must follow his appeal rights. It also advised appellant that his
claim was not accepted for a shoulder condition.
On August 16, 2007 appellant’s representative requested reconsideration. He indicated
that the impartial medical examiner was not properly selected as there were several physicians
listed on the directory of physicians who were much closer to appellant’s residence. Appellant’s
representative also argued that the statement of accepted facts was inaccurate and that
Dr. Shortley’s opinion was not based on all the medical evidence in file.
In an August 31, 2007 decision, the Office denied appellant’s request for reconsideration
finding that it was not timely filed and failed to present clear evidence of error.1
On September 3, 2008 appellant again requested reconsideration. He alleged that the
impartial medical examiner failed to recognize other job-related injuries that he sustained to his
right ankle and right shoulder. Appellant submitted a copy of a retainer agreement and billing
statements from his former representative and several letters related to his “representation” of
appellant. He alleged that his representative did not properly represent him. Appellant also
provided a copy of a complaint related to the allegation and a copy of the prior request for
reconsideration. The Office received a copy of Dr. Evans November 1, 2004 report advising that
appellant could not lift over five pounds and a copy of Dr. Hassan’s June 26, 2006 report.
Appellant also submitted several treatment notes. These included a September 18, 1985 patient
progress record noting an injured right ankle, right shoulder and elbow. In an October 11, 1990
report, appellant related pain in the left shoulder after helping a woman. An August 28, 1991
treatment noted advised that he sustained a whiplash injury with shoulder, neck and back pain.
In treatment notes dated February 16 and 20, 1996 treatment note, appellant complained of right

1

On September 10, 2007 appellant’s representative filed an appeal with the Board. On March 20, 2008 the Board
dismissed the appeal, as neither a person adversely affected by an Office decision or a duly authorized
representative, had filed an appeal. Docket No. 07-2368 (issued March 20, 2008).

3

shoulder and foot pain. A treatment note dated June 5, 1996 reveals that appellant injured his
shoulders, neck and back after pulling out commodes from hospital shelters.
In a September 23, 2008 decision, the Office denied appellant’s request for
reconsideration finding that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”3
The Office’s imposition of a one-year time limitation within which to file an application
for review as part of the requirements for obtaining a merit review does not constitute an abuse
of discretionary authority granted the Office under section 8128(a).4 This section does not
mandate that the Office review a final decision simply upon request by a claimant.
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Thus, section 10.607(a) of the implementing
regulations provides that an application for reconsideration must be sent within one year of the
date of the Office decision for which review is sought.5
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence that does not raise a substantial
question concerning the correctness of the Office’s decision is insufficient to establish clear
2

5 U.S.C. §§ 8101-8193.

3

Id. at § 8128(a).

4

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b).

4

evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by the Office of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of the Office.7 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.8
ANALYSIS
In its September 23, 2008 decision, the Office properly determined that appellant failed
to file a timely application for review. It rendered its last merit decision on February 28, 2006.
Appellant’s September 3, 2008 letter requesting reconsideration was submitted more than one
year after the February 28, 2006 merit decision and was, therefore, untimely. Appellant’s
request did not allege any change in his condition, but alleged that errors were made in the
February 28, 2006 determination of his wage-earning capacity.
In accordance with internal guidelines and with Board precedent, the Office properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening appellant’s case for merit review
under section 8128(a) of the Act, notwithstanding the untimeliness of his application. It
reviewed the evidence submitted by appellant in support of his application for review, but found
that it did not clearly show that the Office’s prior decision was in error.
The Board finds that the evidence submitted by appellant in support of his application for
review does not raise a substantial question as to the correctness of the Office’s decision and is
insufficient to demonstrate clear evidence of error. The critical issue in this case is whether the
Office on February 28, 2006 properly reduced appellant’s compensation for wage loss effective
March 19, 2006 on the grounds that he was no longer totally disabled but partially disabled. The
issue at hand is primarily medical in nature.
On reconsideration, appellant made several arguments. However, they were not
sufficient to establish that the prior decision was erroneous. Appellant’s arguments included that
the report of the impartial medical examiner was not properly selected and that this report was
based on an improper statement of accepted facts. However, other than making allegations, he
did not submit any evidence to support these contentions. Furthermore, appellant alleged that he
had other conditions which were not accepted, which included a right ankle and shoulder
condition. However, he did not submit any medical evidence to support these contentions and he
did not otherwise establish that these contentions raised a substantial question as to the
7

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

8

Id.

5

correctness of the Office’s February 28, 2006 decision. Thus, these arguments are not sufficient
to establish clear evidence of error. Likewise, appellant’s arguments concerning the quality of
his attorney’s representation or lack of credentials are irrelevant to the issue of whether the
Office erred in its February 28, 2006 decision which was decided on the medical evidence of
record.
The Office received a copy of Dr. Evans November 1, 2004 report advising that appellant
could not lift over five pounds and a copy of Dr. Hassan’s June 26, 2006 report. The Board
notes that Dr. Evans was on one side of the conflict, and this report was part of the original
conflict.9 In any event, these reports were previously of record and appellant has not otherwise
explained how they raise a substantial question as to the correctness of the Office’s decision.
Likewise, appellant submitted various other treatment records that predate the Office’s
February 28, 2006 decision. However, these reports are insufficient to establish clear evidence
of error. The Board notes that clear evidence of error is intended to represent a difficult
standard. Evidence such as a detailed, well-rationalized report which, if submitted prior to the
Office’s merit decision might require additional development of the claim, is insufficient to
establish clear evidence of error.10
The Board finds that the evidence is insufficient to shift the weight of the evidence in
favor of appellant’s claim or raise a substantial question that the Office erred in reducing
appellant’s compensation and benefits effective March 19, 2006. Therefore, the Board finds that
appellant has not presented clear evidence of error.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

9

See Jaja K. Asaramo, 55 ECAB 200 (2004) (submitting a report from a physician who was on one side of a
medical conflict that an impartial specialist resolved is generally insufficient to overcome the weight accorded to the
report of the impartial medical examiner or to create a new conflict).
10

See E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the September 23, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.P., Appellant
and
U.S. POSTAL SERVICE, WESTVILLE POST
OFFICE, Westville, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0173
Issued: March 23, 2022

Case Submitted on the Record

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

JURISDICTION
On November 24, 2020 appellant, through counsel, filed a timely appeal from a June 1,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective November 22, 2019, as he no longer had
1

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

5 U.S.C. § 8101 et seq.

disability or residuals causally related to his accepted December 1, 2006 employment injury; and
(2) whether appellant met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
FACTUAL HISTORY
On December 8, 2006 appellant, then a 49-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 1, 2006 he sustained a back injury when two dogs
attacked him from behind and he twisted his back while in the performance of duty. He stopped
work on the date of the claimed injury and returned to limited-duty work several months later.3
OWCP assigned OWCP File No. xxxxxx368 to the claim and accepted it for lumbar sprain and
lumbago.4
Appellant received treatment for his December 1, 2006 employment-related back injury
from several attending physicians, including Dr. David A. Bundens, a Board-certified orthopedic
surgeon, and Dr. Laura E. Ross, an osteopath and Board-certified orthopedic surgeon. X-rays of
appellant’s lumbar spine from December 21, 2006 contained an impression of degenerative
changes of the lumbar discs, predominately at L5-S1. On January 4 and 12, 2010 Dr. Bundens
indicated that appellant was performing his regular duties on a full-time basis with some
complaints of back discomfort. Appellant stopped work on June 19, 2010. In an October 14, 2013
report, Dr. Ross diagnosed lumbar herniation and radiculitis of the right leg.
OWCP engaged in extensive development of the medical evidence between 2013 and 2018,
including referral to three OWCP referral physicians and two impartial medical specialists.5 In a
June 29, 2018 report, Dr. Roy B. Friedenthal, a Board-certified orthopedic surgeon who served as
the second of the two impartial medical specialists, reported the findings of his May 17, 2018
physical examination and determined that appellant did not have any work-related residuals or
disability.6

3

OWCP paid appellant wage-loss compensation on the supplemental rolls for intermittent periods of disability
from work commencing December 11, 2009.
4

Under a separate claim, assigned OWCP File No. xxxxxx201, OWCP previously accepted that appellant sustained
a right wrist strain and right knee tenosynovitis when he pushed a plastic tub on September 29, 2000. Under another
separate claim, assigned OWCP File No. xxxxxx165, it accepted that he sustained a lumbar sprain related to carrying
telephone books on November 28, 2001. Appellant commenced working in a light-duty position on November 29,
2001 and returned to his regular duties on December 19, 2001. After a period of disability related to OWCPauthorized right wrist surgery performed on April 4, 2004 in connection with his claim under OWCP File No.
xxxxxx201, he returned to his regular duties in June 2005.
5

Commencing March 8, 2015, OWCP placed appellant on the periodic rolls and paid him wage-loss compensation
for total disability.
6

OWCP had determined that there was a conflict in the medical opinion evidence between Dr. Ross and
Dr. Andrew Newman, a Board-certified orthopedic surgeon who served as an OWCP referral physician. In a June 1,
2017 report, Dr. Newman determined that appellant’s December 1, 2006 employment injury had resolved. In a July 7,
2017 report, Dr. Ross opined that appellant continued to have residuals of the December 1, 2006 lumbar sprain and
that he was totally disabled.

2

In a July 30, 2018 report, Dr. Ross indicated that appellant’s current diagnosed conditions
that were causally related to the December 1, 2006 employment injury included multilevel lumbar
disc protrusions with herniations at L1-2 and L3-4 and disc bulges at multiple levels with annular
tears at L1-2, L3-4, and L4-5. She indicated that objective findings of the injury still existed,
including spasm in the lumbar spine. Dr. Ross advised that appellant was medically able to return
to work with restrictions of lifting no more than 10 pounds, and working no more than eight hours
at a time. She advised that appellant could sit for five hours in total, and stand for three hours
altogether with breaks.
In a March 6, 2019 notice, OWCP advised appellant that it proposed to terminate his wageloss compensation and medical benefits as he no longer had residuals or disability causally related
to his accepted December 1, 2006 employment injury. It informed appellant that the special weight
of the medical opinion evidence rested with the report of Dr. Friedenthal, the impartial medical
specialist. OWCP afforded appellant 30 days to submit evidence and argument challenging the
proposed action.
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross repeated her prior findings and noted, “[h]is
speciﬁc work-related condition has not resolved.” He indicated that appellant was medically able
to return to work with restrictions of lifting no more than 10 pounds and working no more than 8
hours at a time. Appellant was able to sit for 45 to 60 minutes continuously, stand for
approximately 30 minutes continuously, sit for five hours altogether, and stand for three hours
altogether with breaks. Dr. Ross differed with Dr. Friedenthal’s assessment that appellant merely
sustained a lumbar strain, as this is not what was noted on his magnetic resonance imaging (MRI)
scan of the lumbar spine. She disagreed with Dr. Friedenthal’s assessment that the aggravation of
appellant’s condition ceased when he returned to full-duty work three or four months after
December 1, 2006.
Appellant, through counsel, argued that Dr. Friedenthal’s June 29, 2018 report did not
contain adequate medical rationale in support of its conclusions and that all of the relevant medical
documents were not provided to Dr. Friedenthal for review.
In early-September 2019, OWCP determined that it would not pursue action based on the
Dr. Friedenthal’s opinion, which had been based on a physical examination conducted on
May 17, 2018.
OWCP then referred appellant, along with a statement of accepted facts (SOAF) and series
of questions, for a second opinion examination and evaluation with Dr. Stanley Askin, a Boardcertified orthopedic surgeon. It requested that he provide an opinion regarding whether appellant
continued to have residuals of his accepted December 1, 2006 employment injury.

3

In a September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He noted that appellant showed full
range of motion of his elbows, forearms, wrists, fingers, and thumbs, and that muscle function of
the trapezii, latissimus dorsi, pectoralis major, deltoids, triceps, wrist flexors, and wrist extensors
was intact bilaterally. Appellant reported that, when he moved his right wrist, there was pain in
the radial aspect of his forearm, but not over the wrist joint proper. Dr. Askin reported that the
Finkelstein’s test for de Quervain’s tendinitis and testing for the intersection syndrome were
negative for the respective conditions. He indicated that appellant reported pain in the radial aspect
of his right forearm, but that this was “a subjective report without objective manifestation.”
Straight-leg raising was negative to 90 degrees while seated and appellant’s low back muscles
relaxed appropriately on alternate leg stance from which it is concluded that there was no present
muscle spasm. Dr. Askin noted that appellant offered 80 degrees of forward flexion and 10 degrees
of side-bending to each side, which was quite reasonable for a 62-year-old person. Examination
of appellant’s knees revealed full range of motion and normal ligamentous function. Dr. Askin
opined that appellant ceased to have residuals of the accepted lumbar sprain and lumbago
conditions sustained on December 1, 2006, noting that he had no objective findings other than the
fact that he examined as a rather typical 62-year-old man. He indicated, “[appellant] does not have
any concurrent nonwork-related disability, apart from the fact that when a person is 62 years of
age he is not as physically capable as when he was 20 years of age, but that is a biologically
imposed consequence of senescence.” Dr. Askin advised that there was nothing identifiably
objective that would preclude appellant’s resumption of his employment activities.
By decision dated November 22, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective that date, as he no longer had residuals or disability
causally related to his accepted December 1, 2006 employment injury. It found that the weight of
the medical evidence rested with the opinion of Dr. Askin.
On December 2, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
Appellant submitted a December 9, 2019 duty status report (Form CA-17) from Dr. Scott
Fried, a Board-certified orthopedic surgeon, who diagnosed right wrist sprain/tenosynovitis and
recommended work restrictions. In a December 9, 2019 work capacity evaluation report (Form
OWCP-5c), he also recommended work restrictions. Appellant also submitted a functional
capacity evaluation (FCE) report, signed by Dr. Fried on December 6, 2019, which showed that
appellant could lift or carry up to 10 pounds.
During the hearing held on April 6, 2020, counsel argued that the weight of the medical
opinion evidence rested with the opinion of Dr. Ross who found continuing employment-related
residuals and disability.
By decision dated June 1, 2020, OWCP’s hearing representative affirmed the
November 22, 2019 decision.

4

LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.7 After it has determined that, an employee
has disability causally 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. 8 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation. 10 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.11
ANALYSIS -- ISSUE 1
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019.
The weight of the medical evidence is represented by the thorough, well-rationalized
opinion of Dr. Askin, the OWCP referral physician. The September 27, 2019 report of Dr. Askin
establishes that appellant had no residuals or disability due to his accepted December 1, 2006
employment injury after November 23, 2019.
In his September 27, 2019 report, Dr. Askin discussed appellant’s factual and medical
history and reported the findings of his physical examination. He opined that appellant ceased to
have residuals of the accepted lumbar sprain and lumbago conditions sustained on December 1,
2006, noting that he had no objective findings other than the fact that he examined as a rather
typical 62-year-old man. Dr. Askin indicated, “[appellant] does not have any concurrent nonworkrelated disability, apart from the fact that when a person is 62 years of age he is not as physically
capable as when he was 20 years of age, but that is a biologically imposed consequence of
senescence.” He advised that there was nothing identifiably objective that would preclude
appellant’s resumption of his employment activities.
The Board has reviewed the opinion of Dr. Askin and finds that it has reliability, probative
value and convincing quality with respect to its conclusions regarding the relevant issue of
7

D.G., Docket No. 19-1259 (issued January 29, 2020); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).
8

See R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989); Charles E.
Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37 ECAB 541 (1986).
9

M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58
ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005). Furman G. Peake, 41 ECAB 361, 364 (1990).
11

See A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

5

continuing residuals/disability related to the December 1, 2006 employment injury. Dr. Askin
provided a thorough factual and medical history and accurately summarized the relevant medical
evidence. He provided medical rationale for his opinion by explaining that appellant had no
objective findings of the accepted lumbar sprain and lumbago.12
Appellant submitted a March 25, 2019 report from Dr. Ross who noted that appellant still
had bilateral spasms in his lumbar spine and indicated that his current work status was “out of
work.” In an April 4, 2019 report, Dr. Ross provided further discussion of her treatment of
appellant’s back condition. She diagnosed status post lumbar spine sprain and strain, multilevel
lumbar disc protrusions with herniations at L1-2 and L3-4; disc bulges at multiple levels with
annular tears at L1-2, L3-4, and L4-5; and right knee internal derangement with mild
chondromalacia patella and joint effusion. Dr. Ross indicated that appellant sustained these
injuries due to the December 1, 2006 work-related incident and found that he still had ﬁndings
including spasm in the lumbar spine. She recommended work restrictions and noted, “[h]is
speciﬁc work-related condition has not resolved.”
The Board finds, however, that Dr. Ross’ reports are of limited probative value with respect
to OWCP’s termination action because it has not been accepted that appellant sustained her abovedetailed diagnosed conditions in connection with the December 1, 2006 employment injury.
Dr. Ross has not otherwise explained, with medical rationale, how such injuries were sustained by
appellant on December 1, 2006. The Board has held that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale explaining how a given
medical condition/level of disability has an employment-related cause.13 Therefore, these reports
are insufficient to support appellant’s claim that OWCP improperly terminated compensation.
As the evidence of record is insufficient to overcome the weight accorded to Dr. Askin, the
Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
LEGAL PRECEDENT -- ISSUE 2
When OWCP properly terminates compensation benefits, the burden shifts to appellant to
establish continuing residuals or disability after that date, causally related to the accepted
employment injury. 14 To establish causal relationship between the condition as well as any
attendant disability claimed and the employment injury, an employee must submit rationalized

12

See W.C., Docket No. 18-1386 (issued January 22, 2019); D.W., Docket No. 18-0123 (issued October 4, 2018);
Melvina Jackson, 38 ECAB 443 (1987) (regarding the importance, when assessing medical evidence, of such factors
as a physician’s knowledge of the facts and medical history, and the care of analysis manifested and the medical
rationale expressed in support of the physician’s opinion).
13

See T.T., Docket No. 18-1054 (issued April 8, 2020); Y.D., Docket No. 16-1896 (issued February 10, 2017).

14

See S.M., Docket No. 18-0673 (issued January 25, 2019); C.S., Docket No. 18-0952 (issued October 23, 2018);
Manuel Gill, 52 ECAB 282 (2001).

6

medical evidence based on a complete medical and factual background, supporting such causal
relationship.15
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish continuing
disability or residuals causally related to his accepted December 1, 2006 employment injury after
November 22, 2019.
After OWCP’s November 22, 2019 decision terminating appellant’s compensation
effective the same date, appellant submitted additional medical evidence , which he felt showed
that he was entitled to compensation after November 22, 2019 due to residuals of his December 1,
2006 employment injury. Given that the Board has found that OWCP properly relied on the
opinion of the OWCP referral physician, Dr. Askin, in terminating appellant’s compensation
effective November 22, 2019, the burden shifts to appellant to establish that he is entitled to
compensation after that date.
Appellant submitted a December 9, 2019 duty status report from Dr. Fried who diagnosed
right wrist sprain/tenosynovitis and recommended work restrictions. In a December 9, 2019 work
capacity evaluation report, Dr. Fried also recommended work restrictions. Appellant also
submitted an FCE report, signed by Dr. Fried on December 6, 2019, which showed that appellant
could lift or carry up to 10 pounds. The Board has reviewed the additional evidence submitted by
appellant and finds that it is not of sufficient probative value to establish that he had
residuals/disability related to his December 1, 2006 employment injury after November 22, 2019.
As noted above, it has not been accepted that appellant sustained a wrist injury on December 1,
2006 and none of these reports contains an opinion that appellant had residuals/disability due to
the accepted lumbar sprain or lumbago conditions. The Board has held that medical evidence that
does not offer an opinion regarding work-related residuals or disability is of no probative value on
the issue of causal relationship.16
As appellant has not submitted any rationalized medical evidence establishing tha t he had
employment-related disability or residuals after November 22, 2019, causally related to the
accepted December 1, 2006 employment injury, he has not met his burden of proof.
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 appellant’s wage-loss
compensation benefits and medical benefits, effective November 22, 2019. The Board further

15

Id.

16

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

7

finds that appellant has not met his burden of proof to establish continuing disability or residuals
causally related to his accepted December 1, 2006 employment injury after November 22, 2019.
ORDER
IT IS HEREBY ORDERED THAT the June 1, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8