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

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Appearances:
Thomas C. Verhulst, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1012
Issued: December 14, 2009

Case Submitted on the Record

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

JURISDICTION
On March 6, 2009 appellant filed a timely appeal from the July 17, 2008 and February 2,
2009 merit decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an injury in the performance of duty on
August 3, 2005.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated May 20, 2008, the
Board found that a conflict in the medical evidence existed between appellant’s physician,
Dr. Ehab Suleiman, an internist and an Office medical adviser.1 The conflict arose over the issue
of whether appellant’s work on August 3, 2005 in hot and humid conditions contributed to a
diagnosed medical condition. The Office was directed to select a referee physician to resolve the
1

Docket No. 07-2387 (issued May 20, 2008).

conflict pursuant to 5 U.S.C. § 8123(a). The history of the case is contained in the Board’s prior
decision and is incorporated herein by reference.
The Office referred appellant to Dr. Karl Vanderkooi, a Board-certified internist. It
prepared 14 “questions for physician” to Dr. Vanderkooi. The initial two questions requested
that Dr. Vanderkooi list appellant’s preexisting conditions and medications. The Office then
stated, “Heat strokes normally occur in extreme heat, high humidity or vigorous exertion under
the sun. On the day of the incident, [appellant] had worked only one hour in an air-conditioned
office. Would working for only an hour in an air-conditioned office normally lead to heat
stroke?” In addition, the Office advised Dr. Vanderkooi that appellant “suffers from multiple
conditions and takes a wide variety of medications including diuretics (lasix), calcium channel
blockers and the antidepressant -- nortriptyline. Would such drugs and other drugs such as
lisonopril, toprol XL and levaquin cause increased sweating and dehydration which could lead to
a drop in blood pressure?” The Office also noted that appellant was reported to have poor sleep
quality with sleep apnea and inquired whether sleep deprivation decreases the rate of sweating
and thus increases the temperature of the body. Additional specific questions were posed based
on hospital records showing such medical conditions as urinary tract infection, congestive heart
failure, an obese abdomen, elevated blood glucose. The final question asked Dr. Vanderkooi to
“provide your detailed reasoned opinion on the diagnosis and etiology of [appellant’s] condition
on [August 4, 2005].”
In a report dated June 19, 2008, Dr. Vanderkooi stated that he reviewed the available
medical evidence. He answered the specific questions posed. With respect to the final question,
Dr. Vanderkooi indicated that he did not believe appellant had a heat stroke, but he could have a
different condition call heat exhaustion.
By decision dated July 17, 2008, the Office denied the claim for compensation, finding
Dr. Vanderkooi represented the weight of the medical evidence. Appellant requested
reconsideration and submitted an October 17, 2008 report from Dr. Suleiman who reiterated his
opinion that appellant had an employment-related injury.
In a decision dated February 2, 2009, the Office denied modification of the prior
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing that he or she sustained an injury while in the performance of duty.3 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally
“fact of injury” consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
2

5 U.S.C. §§ 8101-8193.

3

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

2

employment incident caused a personal injury, and generally this can be established only by
medical evidence.4
ANALYSIS
To resolve the conflict in the medical evidence, the Office selected Dr. Vanderkooi as a
referee physician. It is well established that a physician serving as a referee must be wholly free
to make a completely independent judgment on the issue presented.5 The Board will carefully
examine the facts of a case to determine if the Office sought a particular medical opinion through
inquiries which may be characterized as leading questions.6
A “leading question” is one which suggests or implies an answer to the question posed.7
As explained in Brenda C. McQuiston, “While the Board has generally deferred to the discretion
delegated to the Director of the Office in conducting physical examinations under
[5 U.S.C. §] 8123, it is a manifest abuse of such discretion when questions are posed of a
medical examiner which influences his or her answers to the Office. When such questions are
posed, material prejudice to the employee’s claim results.”
The Board finds that the questions posed to the referee physician were leading questions.
The issue was whether there was an injury causally related to appellant’s work on
August 3, 2005. Under such circumstances, the Office should have provided the relevant factual
and medical evidence and requested a rationalized medical opinion on the issue presented.
Instead it posed 14 questions, of which only the last question was presented in a neutral manner.
The remaining questions were clearly an attempt to influence the physician as they focused
exclusively on preexisting conditions and medications. The Office required Dr. Vanderkooi to
list the conditions and medications, and then, based on its own evaluation of the medical
evidence, identified conditions and medications and required a specific response from the referee
physician.
The question regarding heat strokes was both leading and inaccurate. The Office offered
its own medical conclusion as to when heat strokes normally occur. Moreover, appellant’s claim
was not based on being in air conditioning at work on August 4, 2005 it was based on outdoor
work exposure on August 3, 2005.
The leading questions posed to Dr. Vanderkooi compromised his medical evaluation and
his report cannot resolve the conflict in the medical evidence. When leading questions are
posed, the resulting medical report must be excluded from the record.8 The case will be
4

See John J. Carlone, 41 ECAB 354, 357 (1989).

5

See Raymond J. Brown, 52 ECAB 192 (2001).

6

Brenda C. McQuiston, 54 ECAB 816 (2003).

7

Carl D. Johnson, 46 ECAB 804, 809 (1995).

8

Brenda C. McQuiston, supra note 6; Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical
Examinations, Chapter 3.500.6(d) (September 1995).

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remanded to the Office to select another referee physician and properly resolve the conflict.
After such further development as the Office deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds the Office did not resolve the conflict in the medical evidence as the
report of the referee was improperly obtained using leading questions.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 2, 2009 and July 17, 2008 are set aside and the case
remanded for further action consistent with this decision of the Board.
Issued: December 14, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________

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

Docket No. 15-498
Issued: June 16, 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 January 8, 2015 appellant, through counsel, filed a timely appeal from the
September 24, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s
compensation benefits effective February 12, 2014 as he had no residuals of the accepted
conditions.
FACTUAL HISTORY
On November 2, 2010 appellant, then a 26-year-old mail handler, filed a claim (Form
CA-2a) alleging that on November 1, 2010 she sustained a recurrence of disability attributable to
1

5 U.S.C. § 8101 et seq.

her February 9, 2010 injury which had been accepted for right shoulder sprain and impingement,
right upper back/scapular strain, thoracic strain, and subluxations of T5-7. She stopped work on
November 2, 2010. OWCP developed this as a claim for a new injury and accepted the new
claim for brachial neuritis or radiculitis and other affections of the shoulder region not elsewhere
classified.2 It began paying wage-loss compensation on November 1, 2010.
In a December 7, 2010 report, Dr. Edward Novik, Board-certified in pain medicine and
anesthesiology, advised that appellant initially injured her neck on February 9, 2010 while lifting
a heavy box. Appellant eventually recovered and returned to work in April 2010, but the pain
had returned in November 2010 and she needed additional treatment. A magnetic resonance
imaging (MRI) scan of the cervical spine showed moderate bulging at C3-4, C4-5 impressing on
the anterior thecal sac. Dr. Novik assessed cervical radiculopathy and cervical facet syndrome.
He continued submitting reports noting appellant’s status.
On January 2, 2013 OWCP requested that appellant provide a medical report addressing
her current status and an opinion as to whether her accepted conditions remained present and
active. In a January 24, 2013 report, Dr. Novik advised that appellant complained of neck and
mid-back pain. He noted that she was injured at work on November 1, 2010. Dr. Novik further
noted that appellant was being treated with injections and physical therapy. On physical
examination he advised that she had decreased range of motion in the cervical spine with pain on
extension and lateral rotation to the right. Dr. Novik also noted muscle spasm and tenderness
along the right paraspinal muscles in the projection of the right facet joints and significant
tenderness in the mid-back area in the thoracic spine that radiated to the right scapula. He
assessed cervical facet syndrome, thoracic radiculopathy, and herniated thoracic disc. Dr. Novik
noted appellant’s future treatment plan and advised that she was unable to return to work because
she could not stand for more than a few hours at a time. In a January 24, 2013 attending
physician’s report, he diagnosed cervical/thoracic radiculopathy and herniated discs. Dr. Novik
advised that appellant was totally disabled and checked a box “yes” that her condition was
employment related.
On March 21, 2013 OWCP referred appellant, together with the medical record and a
statement of accepted facts to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a
second opinion regarding appellant’s status and whether she had residuals of her accepted
conditions. In his April 4, 2013 report, Dr. Lakin advised that appellant was employed as a mail
handler with the employing establishment. He noted that she injured her right shoulder and neck
on November 1, 2010 and that she had a work-related injury on February 9, 2010 where she was
diagnosed with a right shoulder sprain. Dr. Lakin further noted that appellant complained of
occasional pain with turning the neck which radiated down to the right shoulder and thoracic
spine, pain with prolonged positions such as sitting and standing, and occasional pain to the right
shoulder with overhead activities.
On physical examination Dr. Lakin noted that the cervical spine was nontender with full
active range of motion in all planes tested with 60 degrees of extension, 50 degrees of flexion,
and 80 degrees of lateral rotation left and right. Examination of the thoracic spine revealed that
2

The claim pertaining to the February 9, 2010 injury is not presently before the Board.

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it was nontender, appellant was able to forward flex six inches from fingertips to toes, and there
was a negative straight leg raise in the sitting and supine positions. Motor examination of the
arms and legs was normal. Right shoulder examination revealed that it was nontender, negative
impingement, negative drop arm test, negative anterior apprehension, and full and symmetric
range of motion to the left with 180 degrees forward flexion, 175 degrees abduction, and 92
degrees internal and external rotation. Strength was normal.
Dr. Lakin noted that the November 4, 2010 MRI scan of the cervical spine revealed
bulging at C3-4 and C4-5 and a May 25, 2011 MRI scan of the thoracic spine revealed central
herniation of T5 to T6. He opined that appellant’s accepted conditions were resolved and that
there were no objective findings on examination. Dr. Lakin further opined that she was not
disabled from work and that she could return to work full time without restrictions. He advised
that appellant had no other current diagnoses. Dr. Lakin noted that her examination was
essentially unremarkable and that there was no need for further treatment of the accepted
conditions. In an April 4, 2013 work capacity evaluation form, he advised that appellant was
capable of performing her usual job.
By letter dated January 7, 2014, OWCP advised appellant that it proposed a termination
of wage-loss and medical compensation benefits. It advised that the weight of the evidence was
represented by Dr. Lakin, who found that there were no residuals of her accepted conditions and
that she was no longer disabled from work.
In a January 16, 2014 statement, counsel for appellant argued that there was a conflict in
the medical evidence because the attending physician maintained that she still had residuals of
the work injury. He also argued that Dr. Lakin failed to provide medical reasoning, his answers
were short with no medical basis, he did not discuss her positive imaging results, and that there
was no evidence that he was familiar with the requirements of her position. In a February 7,
2014 attending physician’s report, Dr. Novik restated appellant’s diagnoses and advised that she
was totally disabled. He checked a box “yes” to indicate that her condition was work related.
An accompanying February 7, 2014 work capacity evaluation advised that appellant was unable
to work.
By decision dated February 12, 2014, OWCP terminated appellant’s wage-loss and
medical benefits effective February 12, 2014. It found that the weight of medical opinion was
represented by Dr. Lakin.
By letter dated February 20, 2014, counsel for appellant requested an oral hearing. Later
on June 10, 2014 he requested a change from an oral argument to a review of the written record.
In a March 20, 2014 report, Dr. Novik reiterated the history of appellant’s injury and
treatment history. He noted that initially appellant was experiencing neck pain that radiated
down to her right shoulder. Dr. Novik advised that currently appellant was under his care for
thoracic and cervical spine conditions. On physical examination he found significantly
decreased range of motion in the cervical spine with positive Spurling’s sign on the left,
diminished right motor function, diminished deep tendon reflexes in the right upper extremity,
and significant muscle spasm and tenderness along the cervical paraspinal muscles. Dr. Novik
noted that an MRI scan of the cervical spine revealed moderate disc bulging at C3-4 and C4-5.

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He assessed cervical radiculopathy and cervical facet syndrome. Dr. Novik opined that appellant
sustained an aggravation of her cervical complaints, thoracic herniated discs, and cervical and
thoracic subluxation as a result of the November 1, 2010 work injury. He stated that appellant’s
injuries caused permanent changes to the discs and joints. Also submitted were February 6 and
May 15, 2014 treatment reports, in which Dr. Novik noted appellant’s status and restated
diagnoses.
By decision dated September 24, 2014, an OWCP hearing representative affirmed the
termination of appellant’s wage-loss and medical benefits.
On appeal counsel maintained that there was a conflict in the medical record.
LEGAL PRECEDENT
Once OWCP has accepted a claim, it has the burden of justifying termination or
modification of compensation benefits,3 which includes furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4 Having determined that an
employee has a disability causally related to his or her federal employment, it may not terminate
compensation without establishing that the disability ceased or was no longer related to the
employment.5 The right to medical benefits for an accepted condition, on the other hand, is not
limited to the period of entitlement to disability compensation. To terminate authorization for
medical treatment, OWCP must establish that an employee no longer has residuals of an
employment-related condition, which would require further medical treatment.6
ANALYSIS
OWCP accepted appellant’s claim for brachial neuritis or radiculitis and other affections
of the shoulder region not elsewhere classified. Appellant received wage-loss compensation and
medical benefits based on the accepted conditions. In 2013, OWCP referred her to Dr. Lakin for
a second opinion regarding the status of her accepted conditions.
In his March 21, 2013 report, Dr. Lakin set forth the history of appellant’s accepted
conditions, reviewed the medical treatment records related to her conditions and reviewed the
statement of accepted facts. He noted her history and reported detailed findings on examination.
While appellant reported occasional pain with turning her neck and with prolonged positions,
Dr. Lakin did not note any positive findings on examination. He indicated that the examination
was normal including motor examination as well as all examined ranges of motion. Based on
this, Dr. Lakin determined that accepted conditions had totally resolved because there were no
objective findings on examination. He noted the accepted conditions but advised that there were
no objective findings on these conditions on his evaluation. Dr. Lakin further opined that
3

I.J., 59 ECAB 408 (2008); Fermin G. Olascoaga, 13 ECAB 102, 104 (1961).

4

D.C., Docket No. 09-1070 (issued November 12, 2009); Larry Warner, 43 ECAB 1027 (1992).

5

I.J., supra note 3.

6

L.G., Docket No. 09-1692 (issued August 11, 2010); Furman G. Peake, 41 ECAB 361, 364 (1990).

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appellant was not disabled from work and that she could return to work full time without
restrictions. He found no basis on which to attribute any continuing condition or disability to her
employment.
Appellant provided reports from Dr. Novik. These included a January 24, 2013, report in
which Dr. Novik advised that appellant complained of neck and mid-back pain. Dr. Novik noted
that appellant had decreased range of motion in the cervical spine with pain on extension and
lateral rotation to the right. He also noted muscle spasm and tenderness along the right
paraspinal muscles and significant mid-back tenderness that radiated to the right scapula.
Dr. Novik assessed cervical facet syndrome, thoracic radiculopathy, and herniated thoracic disc.
He advised that appellant was unable to return to work. On March 20, 2014 Dr. Novik reiterated
her history and noted findings. He assessed cervical radiculopathy and cervical facet syndrome.
Dr. Novik opined that appellant sustained an aggravation of her cervical complaints, thoracic
herniated discs, and cervical and thoracic subluxation as a result of the November 1, 2010 work
injury. He also submitted attending physician’s reports supporting continuing work-related
conditions. The Board finds that the submitted reports are of diminished probative value and do
not overcome the weight of Dr. Lakin’s report, nor do they create a conflict in the medical
record.7 Although he attributed appellant’s current conditions to the work incident, Dr. Novik
does not provide medical rationale to support his opinion.8 This is especially important where he
diagnosed conditions that were not accepted by OWCP as employment related.9 Dr. Novik does
not explain the reasons why appellant’s current conditions are related to the accepted conditions
of brachial neuritis or radiculitis and other affections of the shoulder region. He also did not
provide any medical reasoning to support that the accepted conditions continued.
The Board finds that the weight of medical opinion is represented by the report of
Dr. Lakin whose report was based on a full and accurate history, a review of the medical records,
and provided a rationalized medical opinion addressing the basis for his conclusion that appellant
was no longer disabled from work and that her diagnosed conditions were resolved. In contrast,
the reports by Dr. Novik do not provide medical rationale to explain why the accepted conditions
continued or how they caused appellant’s current diagnosed conditions.
On appeal, counsel asserted that there was a conflict in the medical evidence; however, a
conflict only occurs when there are two reports of virtually equal weight and rationale that reach

7

See 5 U.S.C. § 8123(a) (if there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination).
8

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).
9

See Jaja K. Asaramo, 55 ECAB 200 (2004) (where an employee claims that a condition not accepted or
approved by OWCP was due to an employment injury, he or she bears the burden of proof to establish that the
condition is causally related to the employment injury).

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opposing conclusions.10
reasons explained.

Here, Dr. Novik’s report is of diminished probative value for the

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits effective February 12, 2014.
ORDER
IT IS HEREBY ORDERED THAT the September 24, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 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

10

See James P. Roberts, 31 ECAB 1010 (1980). See John D. Jackson, 55 ECAB 465 (2004) (a simple
disagreement between two physicians does not, of itself, establish a conflict; to constitute a conflict of medical
opinion, the opposing physicians’ reports must be of virtually equal weight and rationale).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
U.S. POSTAL SERVICE, AIR MAIL CENTER,
San Francisco, CA, Employer
__________________________________________

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

Docket No. 06-1873
Issued: May 4, 2007

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 August 9, 2006 appellant filed a timely appeal of the June 29, 2006 merit decision of
the Office of Workers’ Compensation Programs, which denied waiver of recovery of an
overpayment. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether the Office properly denied waiver of recovery of the $1,502.49
overpayment appellant received.
FACTUAL HISTORY
This case was previously before the Board.1 In a decision dated March 16, 2005, the
Board affirmed the Office’s November 3, 2003 finding that appellant received a $1,502.49

1

Docket No. 04-839 (issued March 16, 2005).

overpayment of benefits for the period March 10 to April 19, 2003.2 However, the Board
disagreed that appellant was at fault in creating the overpayment. Accordingly, the Board
reversed the Office’s finding of fault and remanded the case for consideration of whether
appellant was entitled to waiver of recovery of the overpayment. The Board also set aside the
Office’s decision to recover the overpayment by deducting $150.00 every 28 days from
appellant’s ongoing compensation payments.
On remand, the Office asked appellant to submit an overpayment recovery questionnaire
detailing her current monthly expenses and income. Appellant had previously submitted an
October 20, 2003 questionnaire that listed available cash and savings of $66.04 and liabilities
totaling $19,523.05. At that time, she had three dependents and monthly expenditures of
$2,760.00.3 Appellant’s reported monthly income was $2,769.58. In a July 6, 2005
overpayment recovery questionnaire, she identified her daughters, ages 12 and 22, as dependents.
Appellant reported a monthly income of $2,530.98 and monthly expenses of $2,530.00. Her
itemized monthly expenses included $800.00 for rent, $580.00 for food, $100.00 for clothing,
$500.00 for utilities and other expenses of $550.00. She listed her total assets at $53.00.
The Office sought clarification regarding appellant’s “other expenses” totaling $550.00
and her claimed utilities of $500.00 per month. Appellant later submitted monthly billing
statements for cable service ($102.61), gas and electric ($85.54), cellular telephone service
($239.87) and automobile insurance ($171.66).4 In a September 7, 2005 letter, she provided the
following additional itemized expenses: fuel -- $200.00; miscellaneous household expenses -$150.00 (household cleaning materials); automobile expenses -- $70.00 (minor maintenance);
and personal necessities -- $150.00 (toiletries). Appellant’s adjusted monthly income totaled
$2,741.89 and her claimed monthly expenses were $2,649.68, which represented a monthly cash
surplus of $92.21.5
In a decision dated September 23, 2005, the Office denied waiver of recovery of the
overpayment. Appellant’s monthly expenses for cable and cellular telephone services were
found to be excessive.6 The Office allowed only $50.00 for each. By disallowing certain
expenses, appellant’s monthly income exceeded her expenses by more than $300.00.

2

The overpayment arose when appellant returned to work part time on March 10, 2003 and the Office continued
to pay her for eight hours of wage-loss compensation per day through April 19, 2003.
3

Appellant’s itemized monthly expenditures included $1,100.00 for rent, $400.00 for food, $250.00 for utilities
and $80.00 for other miscellaneous expenses. She also paid $930.00 a month toward her accumulated debt of
$19,523.05.
4

Appellant submitted billing statements covering at least two months and in some instances three months. The
above-noted figures represent the average monthly cost based on the billing statements provided.
5

The Office adjusted appellant’s 28-day compensation payment of $2,530.98 to reflect what she would receive
on a monthly basis ($2,530.98 x 13 weeks ÷ 12 months = $2,741.89).
6

Appellant claimed that her monthly expense for the two services was $367.00; however, the billing statements
reflect an average monthly billing of only $342.48.

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Appellant requested reconsideration on April 3, 2006.7 She filed for bankruptcy
protection on January 4, 2006 and provided the Office with a copy of the Bankruptcy Court
notice of filing. The notice included a list of creditors to whom appellant owed a total of
$18,597.34. She also submitted invoices from October and November 2005 for her daughter’s
college tuition.8 Appellant had agreed to pay $2,000.00 in tuition in monthly installments of
$250.00. According to the November 5, 2005 billing statement, appellant had an outstanding
balance of $1,250.00 and she had already paid $750.00.
By decision dated June 29, 2006, the Office denied modification of the September 23,
2005 decision denying waiver of recovery.
LEGAL PRECEDENT
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of the Federal Employees’ Compensation Act or would be against equity and good conscience.9
Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom the
Office seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses and the
beneficiary’s assets do not exceed a specified amount as determined by the Office.10
Additionally, recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt or when any individual, in reliance on such payment or on notice
that such payments would be made, gives up a valuable right or changes his or her position for
the worse.11
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office. This information is needed to
determine whether or not recovery of an overpayment would defeat the purpose of the Act or be

7

Appellant initially filed an appeal with the Board. However, she later withdrew her appeal in order to pursue
reconsideration before the Office. The Board issued a March 21, 2006 order dismissing the appeal (Docket No. 06506).
8

Appellant indicated that she had paid tuition for her daughter, Jacqueline Chavez, to attend Notre Dame de
Namur University in Belmont, CA.
9

5 U.S.C. § 8129(b) (2000); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437 (2006).

10

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (October 2004).
11

20 C.F.R. § 10.437(a)(b).

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against equity and good conscience.
repayment schedule, if necessary.12

This information will also be used to determine the
ANALYSIS

Appellant takes issue with the Office’s decision to substantially reduce her documented
cable and telephone expenses. She also challenges the Office’s decision to disallow her $250.00
monthly college tuition expense for her daughter. An individual is deemed to need substantially
all her income to meet current ordinary and necessary living expenses if monthly income does
not exceed monthly expenses by more than $50.00.13 If fully credited, appellant’s disallowed
monthly expenses would eliminate the income surplus found by the Office.
An individual’s ordinary and necessary living expenses include fixed living expenses,
such as food and clothing, furniture, household and personal hygiene supplies, rent, mortgage
payments, utilities, maintenance, insurance (automobile, life and health), taxes, automobile
expenses and commuting expenses.14 Additional allowable expenses include nonreimbursed
medical and hospitalization expenses, church and charitable contributions made on a regular
basis and miscellaneous expenses, such as newspapers and haircuts, not to exceed $50.00 per
month.15 An individual may also claim expenses for the support of others for whom the
individual is responsible, such as dependent child daycare, child support or alimony.16
A finding that a type of expense is ordinary and necessary does not mean that the amount
is ordinary and necessary.17 The burden is on the claimant to show that the expenses are
reasonable and needed for a legitimate purpose.18 If the Office determines that the amount of a
particular expense is not ordinary and necessary, the Office must state in writing the reason for
the finding.19 Furthermore, the finding must be supported by rationale, which may include
reference to recognized research data that would show that the claimant’s expenses exceed the
average or range of expenses for the general population relevant to the claimant’s
circumstances.20

12

Id. at § 10.438(a).

13

Desiderio Martinez, 55 ECAB 245, 250 (2004).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(3) (May 2004).
15

Id.

16

Id.

17

Id.

18

Id.

19

Id.

20

Id.

4

Appellant’s monthly bill for Comcast cable service averaged $102.61, but the Office
allowed only $50.00. The Office explained: “Basic cable varies in the Bay Area and is more
expensive in San Francisco in comparison to outlying areas. [Appellant] lives in South San
Francisco; therefore, a monthly cable bill of $50.00 would be considered very reasonable.”
Although the Office’s rationale is ostensibly reasonable, the record is devoid of evidence
indicating the prevailing rates for Comcast cable service in the San Francisco metropolitan area.
On reconsideration, appellant stated that her monthly Comcast bill included Internet service,
which was necessary for her daughters’ education.21 The June 29, 2006 decision denying
modification indicated that ordinary and necessary expenses may include “miscellaneous
expenses,” such as “[I]nternet access,” not to exceed $50.00 per month.
The Board finds that the Office erroneously disallowed a portion of appellant’s monthly
payment to Comcast. First, the Office did not provide any support for its finding that a monthly
cable bill of $50.00 would be considered reasonable for the South San Francisco area where
appellant resided. Other than the bills appellant submitted, the record is devoid of evidence
regarding prevailing cable service rates in the San Francisco Bay area. The claims examiner’s
personal knowledge is not an adequate substitute. Second, the June 29, 2006 decision indicated
that a miscellaneous expense of up to $50.00 for Internet access was considered an ordinary and
necessary expense. Given the Office’s stated position, appellant’s monthly expense associated
with providing Internet access for her daughters’ education may be allowed.
The Office also failed to substantiate its reason for disallowing approximately 80 percent
of appellant’s monthly cellular telephone expense. The record indicates that appellant’s average
monthly cellular telephone bill from T-Mobile was $239.87. She explained that her cellular bill
covered two cellular telephones that she and her daughters shared. Appellant further indicated
that she did not have a land line at her residence and thus, the two cellular telephones were her
family’s primary means of communicating. The Office disallowed all but $50.00 of appellant’s
documented monthly cellular service fees. The initial claims examiner explained as follows:
“Cell[ular] [tele]phones can be less expensive than standard [tele]phones,
especially with the appropriate [tele]phone plan. Even so, a [tele]phone bill
averaging over $200.00 would be considered excessive by this Office. An
allowable $50.00 per month for a cell[ular] [tele]phone would be considered more
of a basic cost and moreover, very possible with the appropriate [tele]phone
plan.”
Once again, the Office failed to explain its finding that a $50.00 per month cellular
telephone bill was more appropriate under the circumstances. The Office did not provide any
documentation on comparative plans and costs. The rationale provided amounts to no more than
an opinion on what is excessive. The Office must base its findings on available facts and not
merely conjecture. The necessity of appropriately documented rationale is clearly set forth in the
Office’s procedure manual.22

21

The Comcast billing information appellant submitted does not include an itemization of services provided.

22

See supra note 14.

5

The last item in dispute is appellant’s monthly tuition payments on behalf of her eldest
daughter, Jacqueline Chavez. The record indicates that appellant was responsible for paying
$2,000.00 of her daughter’s college tuition. She entered an installment agreement whereby she
would remit $250.00 per month. As of November 5, 2005, appellant had paid $750.00 and she
had an outstanding balance of $1,250.00. However, the information regarding her monthly
tuition payments was not made available to the Office when it initially denied waiver of recovery
on September 23, 2005.
In disallowing the expense on reconsideration, the Office stated that “[appellant]
indicated that paying for her daughter’s tuition was necessary, but [she] did not provide an entire
record of such tuition at the time of the [September 23, 2005] decision and why such cost was a
necessary expense.” It appears that appellant is being penalized in part for not having provided
the tuition payment information sooner. If this is the case, such an approach would be clearly
inconsistent with the regulations defining the parameters for obtaining merit review.23
Reconsideration is premised in part on presenting relevant and pertinent new evidence not
previously considered by the Office.24 There is no requirement that the “new” evidence must
have previously been unavailable. Moreover, section 10.438, which describes the overpayment
recipient’s responsibility to submit financial information, does not preclude further consideration
of wavier based on subsequently submitted evidence.25
As to the nature of the expense, the procedure manual is not particularly instructive on
the question of whether a parent’s agreement to defray a portion of a dependent’s college
educational expenses is to be considered ordinary and necessary. Certain expenses such as
dependent child daycare, child support or alimony are specifically identified, but college tuition
is not mentioned.26 Despite this silence, it is counterintuitive to allow for augmented
compensation for a dependent college student under the Act, but then disallow tuition expenses
for lack of evidence that such payments are necessary.27 The Office’s explanation for
disallowing appellant’s documented $250.00 monthly tuition expense is neither rational nor
clearly supported by law.
Fully restoring appellant’s previously disallowed cellular telephone ($239.87) and
cable/Internet expenses ($102.61) and allowing her monthly educational expense ($250.00),
appellant’s current ordinary and necessary monthly expenses would total $2,899.68. When
compared to her adjusted monthly income of $2,741.89, appellant would have a monthly deficit
of $157.79. On her July 6, 2005 overpayment questionnaire, appellant reported assets of $53.00
and her January 4, 2006 notice of bankruptcy filing identified $18,597.34 in unpaid debts.

23

See 20 C.F.R. § 10.606(b)(2).

24

Id.

25

20 C.F.R. § 10.438(b).

26

See supra note 14.

27

See 20 C.F.R. § 10.405(a).

6

Based on the evidence of record, appellant would meet both prongs of the test for
determining whether recovery of the overpayment would defeat the purpose of the Act. She
would require substantially all of her current income, including compensation benefits, to meet
current ordinary and necessary living expenses, and her assets do not exceed the applicable
resource base of at least $8,000.00.28
CONCLUSION
The case is not in posture for decision. On remand the Office shall evaluate appellant’s
claimed expenses and provide proper reasoning for any reductions or disallowances.
ORDER
IT IS HEREBY ORDERED THAT the June 29, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: May 4, 2007
Washington, DC

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

28

Id. at § 10.436(a), (b); see Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment
Actions, Chapter 6.200.6a(1)(b) (October 2004).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Antonio, TX, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 16-0180
Issued: June 7, 2016

Case Submitted on the Record

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

On November 10, 2015 appellant filed an application for review of a decision of the
Office of Workers’ Compensation Programs (OWCP) dated October 20, 2015 reducing her
wage-loss compensation to zero as she did not cooperate with the early stages of vocational
rehabilitation.
OWCP accepted that on or before April 15, 2003 appellant, then a 39-year-old clerk,
sustained bilateral rotator cuff sprains. She underwent a right rotator cuff repair on
June 19, 2003. Appellant retired from the employing establishment effective July 28, 2004. She
received total disability compensation. On July 16, 2014 OWCP referred appellant for
vocational rehabilitation after the medical evidence demonstrated that she could perform lightduty work. Appellant advised OWCP on September 30, 2014 that she would not cooperate with
vocational rehabilitation as she believed she was totally disabled. Following additional
development, OWCP issued a November 25, 2014 decision reducing her wage-loss
compensation to zero, based on her failure to cooperate with the preliminary stages of vocational
rehabilitation. Following a telephonic hearing, appellant submitted additional medical evidence.
In the decision dated and finalized October 20, 2015, the OWCP hearing representative
affirmed the November 25, 2014 decision, finding in part that the medical evidence, including
new reports from Dr. Richard E. Duey, an attending Board-certified orthopedic surgeon, dated

March 17 and September 4, 2015 and a new report from Dr. Ellen Duncan, an attending Boardcertified anesthesiologist, did not establish good cause for refusal. However, the record as
transmitted to the Board does not contain the new medical reports.
The Board finds that the case is not in posture for a decision as the record is incomplete
and the case must be remanded for reconstruction of the record.
In order to perform a fully informed adjudication of the issues, the Board must be able to
review the complete evidentiary basis for OWCP’s October 20, 2015 decision finding that
appellant had not submitted sufficient evidence to establish good cause for her failure to
cooperate with vocational rehabilitation. The hearing representative relied on relevant medical
evidence that is not included in the electronic case record now before the Board. Therefore, the
case must be remanded to OWCP for reconstruction of the record, including associating
Dr. Duey’s March 17 and September 14, 2015 reports and Dr. Duncan’s September 11, 2015
report with the case record. Following this and all other development deemed necessary, OWCP
shall issue an appropriate decision in the case.
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 20, 2015 be set aside and the case remanded for further
action consistent with this order.
Issued: June 7, 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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Albany, NY, Employer
__________________________________________

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Appearances:
David W. Covino, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0516
Issued: June 24, 2016

Case Submitted on the Record

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

JURISDICTION
On January 27, 2016 appellant, through counsel, filed a timely appeal from a
November 2, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a cervical condition
causally related to an accepted January 10, 2014 employment incident.
FACTUAL HISTORY
On January 10, 2014 appellant, a 52-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging an injury on that day as a result of slipping on snow-covered ice while
crossing a lawn. He stated that he felt extreme pain on the left side of his body, including
1

5 U.S.C. § 8101 et seq.

numbness, and tingling in the left arm traveling into the left leg. An accident report from the
employing establishment indicated that appellant was crossing a lawn on January 10, 2014 when
he slipped on snow-covered ice and caught himself prior to falling to the ground, injuring his left
arm. Appellant stopped work on January 11, 2014.
In a January 10, 2014 duty status report (Form CA-17), a physician assistant diagnosed
pain and paresthesias in the left upper and lower extremities and advised that appellant was not
allowed to participate in work-related activity until after his next visit on January 29, 2014.
By letter dated February 14, 2014, OWCP indicated that when appellant’s claim was
received it had been administratively approved as it appeared to be a minor injury resulting in
minimal or no lost time from work and the employing establishment had not controverted
continuation of pay (COP) or challenged the claim.2 It stated that it had reopened the claim
because appellant had not returned to full-time work. OWCP requested that he submit medical
evidence from a physician addressing causal relationship.
In response, appellant submitted a January 10, 2014 report from a physician assistant who
diagnosed low back, neck, and limb pain, and paresthesia. He found appellant status post L5-S1
injury on March 9, 2012 and was doing well until he slipped while at work that day. The
physician assistant stated that appellant did not fall down, but instantly felt paresthesias in his
neck, left upper extremity, and right lower extremity.
A January 27, 2014 magnetic resonance imaging (MRI) scan of the cervical spine showed
multilevel degenerative disc disease, uncovertebral and facet arthropathy, most pronounced at
C5-6 with moderate-to-severe central spinal canal stenosis and severe bilateral neuroforaminal
narrowing (left greater than right). No abnormal cervical spinal cord signal was seen.
On January 29, 2014 Dr. Ross Moquin, a Board certified neurosurgeon, diagnosed
cervical stenosis and disc displacement with myelopathy. He found tenderness at the cervical
and lumbar spine and severely reduced range of motion. Dr. Moquin asserted that appellant was
status post lumbar decompression and fusion surgery and had increased pain in his neck, back,
and left arm after a fall on January 10, 2014 in the course of his federal duties. Appellant was
not symptomatic prior to the employment incident. Dr. Moquin opined that appellant’s cervical
conditions were undoubtedly related to the work-related incident and recommended surgery.
By decision dated March 21, 2014, OWCP denied appellant’s claim because the medical
evidence was insufficient to establish causal relationship between his diagnosed conditions and
the accepted January 10, 2014 employment incident.
On April 21, 2014 appellant requested an oral hearing before the Branch of Hearings and
Review. He submitted a March 9, 2012 operative report from Dr. Moquin who performed an
L5-S1 lumbar interbody fusion.
2

On February 10, 2014 the employing establishment advised appellant that the last day of his COP was
February 24, 2014 and enclosed a (Form CA-7) to claim compensation for loss of wages beyond the COP period,
noting that OWCP would not pay compensation until it had accepted his claim. Appellant subsequently submitted
two claims for wage-loss compensation, Form CA-7, for the period February 22 to March 7, 2014 and March 8
to 21, 2014.

2

In an April 18, 2014 report, Dr. Moquin diagnosed cervical spondylytic myelopathy and
opined that it occurred and was made worse by factors of appellant’s federal employment,
including repetitive actions of carrying mail. He found objective evidence of compression on the
spinal cord with cord signal changes consistent with a spinal cord injury, particularly marked T2
signal changes found on an MRI scan. Dr. Moquin explained that appellant’s myelopathy was
evident in his weakness, atrophy, and hyperreflexia. Appellant had a preoperative visit on
June 3, 2014. On June 12, 2014 Dr. Moquin performed a C3-7 anterior arthrodesis.
On November 2, 2014 Dr. Moquin reviewed appellant’s medical records and asserted that
on January 10, 2014 appellant slipped on ice and felt an immediate onset of cervical pain and
radiating left arm pain and numbness. He reviewed the January 27, 2014 MRI scan of the
cervical spine, which demonstrated significant spinal stenosis with spinal cord compression at
multiple levels. Dr. Moquin opined that this level of stenosis was at a critical degree causing
myelopathy and his January 29, 2014 examination revealed severe cervical pain radiating into
the arms. He had treated appellant for a previous lumbar injury and he did not have any of these
signs, symptoms, or complaints before the January 10, 2014 slip and fall. Dr. Moquin opined
that appellant had preexisting spinal stenosis from degenerative changes, but this spinal stenosis
was asymptomatic and not disabling prior to his January 10, 2014 slip and fall at work. He
concluded that appellant’s spinal stenosis was severely aggravated and became symptomatic and
disabling as a result of the slip and fall. Dr. Moquin explained that spinal stenosis occurs as we
age when degenerative changes such as bone spurs cause a narrowing of the spinal canal. This
condition is typically asymptomatic until trauma or further degeneration narrows the spinal canal
until the spinal cord, which runs through the spinal canal, is compressed. When the spinal cord
is compressed, it becomes symptomatic.
Dr. Moquin opined that, because appellant had an onset of severe neck and radiating arm
pain immediately after the January 10, 2014 incident, his preexisting spinal stenosis became
symptomatic and caused spinal cord compression because of the slip and fall. He further opined
that the January 27, 2014 MRI scan supported his opinion that appellant aggravated or activated
preexisting spinal stenosis because it documented for the first time the spinal cord compression
at multiple cervical levels. Dr. Moquin asserted that his examinations of appellant shortly after
the incident revealed significant triceps and biceps weakness, which were objective signs of
spinal cord compression. He stated that it was important to note that appellant did not have any
history of cervical injury, pain, or disability before his January 10, 2014 slip and fall on ice.
Dr. Moquin asserted that this was strong evidence that the slip on ice caused the spinal cord
compression documented on the cervical MRI scan, which was performed only 17 days after the
injury without any intervening trauma. He noted that spinal cord compression was a medical
emergency and, unless the cord was promptly decompressed paralysis could result. Dr. Moquin
performed cervical surgery on June 12, 2014 to treat appellant’s injury. He opined that appellant
was not capable of performing his regular duties and could perform some limited sedentary or
light-duty work if available.
A telephonic hearing was held before an OWCP hearing representative on
November 12, 2014. Appellant’s counsel submitted a December 13, 2014 brief contending that
appellant’s preexisting spinal stenosis condition was a compensable injury if it was aggravated,
activated, accelerated, or precipitated by his job duties. Counsel argued that Dr. Moquin’s
opinion was rationalized and established causal relationship. On December 5, 2014 the

3

employing establishment forwarded to OWCP a letter after receiving the hearing transcript
arguing that the claim should be denied.
By decision dated January 29, 2015, the hearing representative affirmed the prior
decision.
On July 20, 2015 appellant’s counsel requested reconsideration. Appellant submitted
CA-17 forms dated March 18, April 29, and June 9, 2015 from Dr. Moquin.
In a March 18, 2015 report, Dr. Moquin diagnosed neck pain, herniated cervical disc with
myelopathy, muscle weakness, and numbness. He found that appellant had bilateral/lateral neck,
bilateral/posterior neck, left shoulder, and left arm pain. Aggravating factors included bending,
exertion, flexion, pushing, rotation, stress, turning head, walking, and working. Associated
symptoms included decreased mobility, difficulty sleeping, numbness, tingling, and weakness.
Dr. Moquin opined that appellant had reached a plateau in his recovery and was not capable of
returning to his regular duties. He did not recommend any further surgery.
On April 29, 2015 Dr. Moquin reiterated that appellant was clearly not myelopathic
before the injury, but then became myelopathic afterwards and had no significant issues prior to
this slip and fall in the course of his duties. He further opined that appellant was not doing well
because there was a delay to get the surgery authorized. In a June 9, 2015 progress report,
Dr. Moquin found that appellant was feeling somewhat better, but continued to have significant
issues with neck, arm, and leg pain, and was not able to return to work.
On June 18, 2015 Dr. Moquin clarified that what he meant by a “slip and fall” was that
appellant actually fell, but was able to catch himself before his torso hit the ground. He
explained that, when the neck is forcefully hyperflexed, the spinal cord will quickly rub across
the anterior vertebrae in the spinal canal. Dr. Moquin noted that in patients such as appellant,
with preexisting spinal stenosis narrowed by osteophytes (or bone spurs) in the spinal canal,
when the neck is forcefully hyperflexed the spinal cord is pinched or squeezed between the
anterior bone spurs, which he likened to a very rough washboard, and the posterior ligamentum
flavum. This typically causes edema (swelling), hemorrhage (bleeding), or ischemia of the
central portion of the spinal cord in patients with the spinal canal bone spurs, which Dr. Moquin
opined that the slip at work was the mechanism of appellant’s cervical spinal cord compression.
He reported that appellant consistently stated and demonstrated that he forcefully hyperflexed his
neck in the slip and fall and immediately developed extensive radiating pain and motor weakness
in his arms and lesser symptoms in his legs. Dr. Moquin asserted that this was convincing proof
that appellant’s slip and fall caused the cervical cord compression, not because his torso hit the
ground, but because of the forceful hyperflexion of the neck during the slip (with or without a
fall). He noted that males over 50-years-old who had preexisting spinal stenosis were most at
risk for this type of injury and appellant fit into that category. Dr. Moquin also explained that
appellant’s carrying a mailbag for many years was a likely cause of the preexisting spinal
stenosis.
By decision dated November 2, 2015, OWCP denied modification of its prior decision.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury3 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
A fact of injury determination is based on two elements. First, the employee must submit
sufficient evidence to establish that he actually experienced the employment incident at the time,
place, and in the manner alleged. Second, the employee must submit sufficient evidence,
generally only in the form of medical evidence, to establish that the employment incident caused
a personal injury. An employee may establish that the employment incident occurred as alleged,
but fail to show that his or her condition relates to the employment incident.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.6
ANALYSIS
On appeal, appellant’s counsel argues that the medical evidence of record is sufficient to
establish causal relationship, specifically noting the opinion of Dr. Moquin who defined a “fall”
as going from a higher place to a lower place without the necessity of striking one’s torso on the
ground. Counsel contends that nowhere in the record did appellant state that his torso struck the
ground when he slipped and fell on January 10, 2014.
On his claim form, appellant alleged that he sustained an injury on January 10, 2014 as a
result of slipping on snow-covered ice while crossing a lawn. An accident report from the
employing establishment confirmed that he was crossing a lawn on January 10, 2014 when he
slipped on snow-covered ice and caught himself prior to falling to the ground. The Board finds
3

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

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

5

Id.

6

Id.

5

that while the record establishes a consistent factual history of the injury, i.e. appellant slipped on
ice on January 10, 2014 and caught himself before hitting the ground, he did not meet his burden
of proof to establish a causal relationship between the conditions for which compensation is
claimed and the employment incident.
In his reports, Dr. Moquin diagnosed cervical stenosis, disc displacement with
myelopathy, and cervical spondylytic myelopathy and performed cervical spine surgery on
June 12, 2014. He opined that appellant had preexisting spinal stenosis from degenerative
changes and his condition became symptomatic and caused spinal cord compression because of
the slip and fall. Dr. Moquin further opined that the January 27, 2014 MRI scan supported his
opinion that appellant aggravated and activated preexisting spinal stenosis because it
documented for the first time the spinal cord compression at multiple cervical levels. He
asserted that his examinations of appellant shortly after the incident revealed significant triceps
and biceps weakness, which were objective signs of spinal cord compression. Dr. Moquin stated
that it was important to note that appellant did not have any history of cervical injury, pain, or
disability prior to his January 10, 2014 slip and fall on ice. He asserted that this was strong
evidence that the slip on ice caused the spinal cord compression documented on the cervical MRI
scan, which was performed only 17 days after the date of injury without any intervening trauma.
On June 18, 2015 Dr. Moquin clarified that what he meant by a “slip and fall” was that appellant
actually fell, but was able to catch himself before his torso hit the ground. He explained that
when the neck is forcefully hyperflexed in patients such as appellant who have preexisting spinal
stenosis, the spinal cord is pinched or squeezed between anterior bone spurs and the posterior
ligamentum flavum. Dr. Moquin opined that appellant’s slip and fall caused the cervical cord
compression, not because his torso hit the ground, but because of the forceful hyperflexion of the
neck during the slip (with or without a fall).
The Board finds that Dr. Moquin failed to provide sufficient medical rationale explaining
how slipping and falling on January 10, 2014 caused appellant’s cervical conditions.
Dr. Moquin indicated that his conditions occurred at work, but such generalized statements do
not establish causal relationship because they merely repeat appellant’s allegations and are
unsupported by adequate medical rationale explaining how his physical activity at work actually
caused or aggravated the diagnosed conditions.7 The Board finds that he failed to sufficiently
explain the mechanism of how slipping and catching himself before falling to the ground caused
a hyperflexion of appellant’s neck. Dr. Moquin’s opinion was based, in part, on temporal
correlation. However, the Board has held that neither the mere fact that a disease or condition
manifests itself during a period of employment nor the belief that the disease or condition was
caused or aggravated by employment factors or incidents is sufficient to establish a causal
relationship.8 Dr. Moquin did not otherwise sufficiently explain the reasons how diagnostic
testing and examination findings led him to conclude that the January 10, 2014 incident at work
caused or contributed to the diagnosed conditions. Thus, the Board finds that the reports from
him are insufficient to establish that appellant sustained an employment-related injury.

7

See K.W., Docket No. 10-98 (issued September 10, 2010).

8

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6

Appellant also submitted evidence from a physician assistant. These documents do not
constitute competent medical evidence because a physician assistant is not a “physician” as
defined under FECA.9 As such, this evidence is also insufficient to meet his burden of proof.
Other medical evidence of record, including diagnostic test reports such as the
January 27, 2014 MRI scan of the cervical spine, is of limited probative value and insufficient to
establish the claim as it does not specifically address whether appellant’s diagnosed conditions
are causally related to the January 10, 2014 work incident.10
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to a January 10, 2014 employment incident.

9

5 U.S.C. § 8101(2); Sean O’Connell, 56 ECAB 195 (2004) (reports by nurse practitioners and physician
assistants are not considered medical evidence as these persons are not considered physicians under FECA). See
also Gloria J. McPherson, 51 ECAB 441 (2000); Charley V.B. Harley, 2 ECAB 208, 211 (1949) (a medical issue
such as causal relationship can only be resolved through the submission of probative medical evidence from a
physician).
10

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997) (medical
evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship).

7

ORDER
IT IS HEREBY ORDERED THAT the November 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 24, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, MOUNT
WASHINGTON POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 21-1416
Issued: March 1, 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 September 26, 2021 appellant filed a timely appeal from an August 18, 2021 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 17, 2021 appellant, then a 47-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed tarsal tunnel syndrome due to factors of her federal
employment. She indicated that her ankle would hurt while she worked, but did not hurt if she
1

5 U.S.C. § 8101 et seq.

avoided walking, standing, or ascending and descending stairs. Appellant noted that she first
became aware of her condition on February 1, 2021 and realized its relationship to her federal
employment on March 16, 2021. She stopped work on March 12, 2021.
In a progress note dated March 18, 2021, Dr. Pardeep Paul Singh Dhanoa, a Board-certified
family medicine specialist, noted that appellant complained of right plantar foot pain for the past
three months, followed by left foot pain which she attributed to overcompensation. He noted that
she asserted that the pain was the worst at the end of the day and for the past few weeks it had
spread to her heels. Dr. Dhanoa diagnosed bilateral foot pain and bilateral bunion and
recommended rest, ice, stretching, a referral to podiatry, and that appellant remain off work until
March 20, 2021.
In a medical note dated April 16, 2021, Dr David A. Wood, a podiatrist, recounted
appellant’s complaints of chronic foot pain, right worse than left, which was constant and
worsened with weight bearing. He noted that his physical examination was remarkable for a
positive Tinel’s sign with tibial nerve percussion, and that her x-rays revealed inferior heel spur,
bunion deformity, and hammertoes. Dr. Wood suspected tarsal tunnel syndrome and
recommended that appellant undergo a magnetic resonance imaging (MRI) scan and a nerve
conduction velocity (NCV) study.
In an after visit summary dated May 6, 2021, Dr. Syed A. Salahuddin, a Board-certified
neurologist, examined appellant and diagnosed tarsal tunnel syndrome.
In a note of even date, Dr. Wood advised appellant that the NCV study had confirmed tarsal
tunnel syndrome. He again recommended an MRI scan to determine the specific cause of the
condition.
In a May 14, 2021 note, Dr. Wood noted that he had reviewed an MRI scan and observed
varicosities distal to the port pedis, which he opined that were likely contributing to tarsal tunnel
syndrome. He recommended surgical release of the tarsal tunnel and porta pedis and ligation of
varicose veins. Dr. Wood explained that tarsal tunnel syndrome was a loose diagnosis without a
definitive mass and that chronic swelling was a potential complication. In a separate note of even
date, he indicated that appellant was unable to work, and that she would be undergoing surgery for
her diagnosed conditions.
In an attending physician’s report (Form CA-20) dated May 25, 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicose veins. He checked a box marked “Yes” indicating that
the conditions were caused or aggravated by an employment activity, which he described as
“overuse of extremities.” Dr. Wood noted that appellant continued to be disabled from working.
In a June 28, 2021 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment, including comments from a
knowledgeable supervisor on the accuracy of appellant’s statements. It afforded both parties 30
days to submit the necessary evidence.

2

OWCP thereafter received a form report by Dr. Wood dated April 12, 2021, which noted
chronic foot pain with an onset of March 18, 2021.
Appellant submitted a completed response to OWCP’s development questionnaire dated
July 2, 2021. She attributed her claimed conditions to repetitive walking, bending, stooping,
lifting, and climbing stairs while carrying mail between 8 to 12 hours per day for the past 18 years.
In a letter dated July 21, 2021, Dr. Wood noted that appellant was unable to work due to
her inability to stand or walk for any length of time secondary to tarsal tunnel syndrome.
In a narrative report dated July 27, 2021, Dr. Wood outlined his visits with appellant and
the results of the NCV study and MRI scan. He diagnosed right tarsal tunnel syndrome and
varicosities and indicated that conservative treatments and time off from work had failed to resolve
her conditions. Dr. Wood noted that appellant would be undergoing surgery to include release of
the tarsal tunnel and ligation of varicosities. When asked to describe her specific employment
duties/activities, he indicated that she was unable to stand or walk for any substantial time. When
asked to provide a medical explanation for how appellant’s federal employment duties caused,
contributed to or aggravated her medical condition, Dr. Wood responded that she was unable to
work at that time.
By decision dated August 18, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed medical conditions and the accepted employment factors. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emplo yee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

alleged to have caused or contributed to the presence or occurrence of the disease o r condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 The opinion of the physician must be based upon a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In his July 27, 2021 narrative report, Dr. Wood diagnosed right tarsal tunnel syndrome and
varicosities and discussed appellant’s upcoming surgery. He did not, however, provide an opinion
on causal relationship between her diagnosed conditions and the accepted factors of federal
employment. The Board has held that a medical report lacking an opinion on causal relationship
is of no probative value. 9 Therefore, the Board finds that Dr. Wood’s January 27, 2021 report is
insufficient to establish appellant’s burden of proof.
In his additional reports and notes dated April, May, and July 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicosities, but did not provide an opinion on causal relationship.
Similarly, in his March 18, 2021 note, Dr. Dhanoa diagnosed bilateral foot pain and bunions, but
did not provide an opinion on causal relationship. As noted, the Board has held that a medical
report lacking an opinion on causal relationship is of no probative value. 10 Therefore, these reports
are also insufficient to establish appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted employment factors, the Board finds that she
has not met her burden of proof.

6

P.L., Docket No. 19-1750 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Dolores C. Ellyett, id.
7

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

9

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

10

Id.

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2519
Issued: August 6, 2009

Case Submitted on the Record

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

JURISDICTION
On September 24, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated April 23 and 30 and September 5, 2008 and a
December 17, 2007 denying his claim for intermittent wage-loss compensation. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he was totally disabled for intermittent
periods from June 11, 2007 to March 5, 2008 causally related to his accepted right shoulder
tendinitis.
FACTUAL HISTORY
On May 2, 2007 appellant, then a 60-year-old manual distribution clerk, filed an
occupational disease claim alleging that repetitive motion of casing mail caused a right shoulder
condition. He was first aware of his shoulder condition on July 24, 2001. Appellant first
received medical treatment for his shoulder condition on April 12, 2007. He did not stop work.

The Office accepted the claim for right shoulder tendinitis. Appellant retired on disability as of
March 7, 2008.
On July 7 and August 4, 2007 appellant filed Form CA-7 claims for compensation for
wage loss from June 14 through 20, 2007 and July 10 through 14, 2007. He worked a 40-hour
work schedule with off days of Monday and Tuesday. A copy of a July 7, 2007 work analysis
sheet noted that appellant worked 8 hours on Wednesday, June 13, 2007 and worked 3.18 hours
on Thursday, June 14, 2007. Appellant used 4.82 hours leave without pay (LWOP). On Friday,
June 15 through Sunday, June 17, 2007, appellant used 24 hours LWOP. He was off his
regularly scheduled days of Monday and Tuesday, June 18 and 19, 2007. On Wednesday,
June 20, 2007, appellant used eight hours LWOP. On Thursday June 21 and Friday, June 22,
2007 he used 16 hours annual leave. An August 4, 2007 leave analysis sheet indicated that
appellant used 40 hours LWOP from Wednesday, July 11 through Sunday, July 15, 2007.
Appellant submitted attending physician reports from Dr. Francisco J. Marasigan, a
family practitioner, dated June 14 and July 27, 2007. Dr. Marasigan diagnosed right shoulder
impingement secondary to degenerative arthritis of the acromioclavicular (AC) joint. He treated
appellant on June 6 and 14, 2007 and stated that he was temporarily totally disabled June 13
through 21, 2007. On July 27, 2007 Dr. Marasigan noted treating appellant on October 2 and 5,
2006 and July 16, 2007. He stated that appellant was temporarily totally disabled July 10
through 14, 2007. An undated report from Dr. Marasigan noted treating appellant since June 6,
2007 for chronic right shoulder tendinitis that was aggravated by his work.
In an August 28, 2007 letter, the Office advised appellant that the medical evidence was
insufficient to support his claim for temporary total disability. It contacted Dr. Marasigan’s
office, which advised that the July 27, 2007 report was prepared in error as appellant was last
seen on June 22, 2007. Appellant was allowed 30 days to submit additional medical evidence
explaining how his accepted condition caused or contributed to disability for the periods claimed.
In a September 4, 2007 medical certificate, Dr. Marasigan advised that appellant was
seen on June 14 and 21, 2007 for right shoulder pain and stiffness. He stated that appellant was
disabled from June 13, 2007 and released to work on June 22, 2007.
By decision dated December 17, 2007, the Office denied wage-loss compensation from
June 14 through 20, 2007 and July 10 through 14, 2007.
On January 20, 2008 appellant requested reconsideration. He submitted a January 16,
2008 magnetic resonance imaging (MRI) scan report of the right shoulder.
In a February 27, 2008 report, Dr. Steven J. Barad, a Board-certified orthopedic surgeon,
provided an impression of impingement phenomenon with probable rotator cuff strain/tear and
acromioclavicular joint disease. He recommended a diagnostic arthroscopy of the right shoulder,
subacromial decompression and acromioclavicular joint resection with possible repair of the
rotator cuff. Dr. Barad released appellant to return to work on February 27, 2008 with
restrictions. In a March 5, 2008 report, he stated that appellant’s examination remained
unchanged. Dr. Barad took appellant off work from February 26 through 29, 2008 and March 4
through 5, 2008. He noted that appellant was scheduled for surgery on April 8, 2008.

2

In a March 10, 2008 report, Dr. Marasigan noted the results of the January 16, 2008 MRI
scan and appellant’s current condition. He advised that appellant was totally disabled from
June 11 through 13, 2007; June 23 through 24, 2007 and August 24 through 25, 2007.
Dr. Marasigan stated that appellant could return to light duty on June 22, 2007. He treated
appellant on January 15, July 16 and October 2, 2006 and April 27 and May 28, 2007.
On March 12, 2008 appellant claimed intermittent disability for the period June 11, 2007
through March 5, 2008. A leave analysis sheet indicated that appellant used 16 hours of LWOP
on June 11 and 12, 2007, 5 hours of LWOP on June 13, 2007, 8 hours of annual leave on
June 23, 2007, 8 hours of LWOP on June 24, 2007, 16 hours of LWOP on August 24 and 25,
2007, 32 hours of LWOP from February 26 through 29, 2008 and 16 hours of LWOP on March 4
and 5, 2008.
By decision dated April 23, 2008, the Office denied modification of the December 17,
2007 decision.
In an April 21, 2008 attending physician’s report, Dr. Marasigan listed periods of total
disability as June 11 through 13, 2007, June 14 through 16, 2007, June 20 through 21, 2007,
June 24, 2007, July 11 through 14, 2007, and August 24 through 25, 2007. He advised that
appellant worked for three hours on June 13, 2007 but went home due to severe pain.
Dr. Marasigan noted that appellant was advised to sit on a regular chair when casing mail and not
to lift more than 10 pounds. Appellant was also treated on October 2, 2006 and April 27 and
May 28, 2007.
In an April 30, 2008 decision, the Office denied appellant’s claim for intermittent
disability compensation from June 11, 2007 through March 5, 2008.
On June 9, 2008 appellant requested reconsideration and submitted a May 27, 2008
surgical report from Methodist Hospital of Sacramento and physical therapy notes.
On June 9, 2008 Dr. Barad noted that appellant called in sick due to intolerable right
shoulder pain from June 12 to 16, 2007, June 20 to 21, 2007, June 24, 2007, July 10 to 14, 2007,
August 24 to 25, 2007, February 26 to 28, 2008 and March 4 to 5, 2008. He noted that appellant
believed that he would not be able to perform necessary tasks on those days. Dr. Barad stated
that his March 5, 2007 report was in error and should have read temporary total disability from
February 26 to 29 through March 24 to 25, 2008.
By decision dated September 5, 2008, the Office denied modification of its April 30,
2008 decision.
LEGAL PRECEDENT
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled for work as a result of the accepted employment injury.1 As used in the Federal
Employees’ Compensation Act, the term “disability” means incapacity, because of an
1

William A. Archer, 55 ECAB 674 (2004).

3

employment injury, to earn the wages that the employee was receiving at the time of injury.2
Disability is thus, not synonymous with physical impairment, which may or may not result in an
incapacity to earn wages.3 Whether a particular injury causes an employee to be disabled for
employment, and the duration of that disability, are medical issues, which must be proved by a
preponderance of the reliable, probative and substantial medical evidence.4 The Board will not
require the Office to pay compensation in the absence of medical evidence directly addressing
the particular period of disability for which compensation is sought. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.5
The Board has held that, under section 8103, payment of expenses incidental to the
securing of medical services encompasses payment for loss of wages incurred while obtaining
medical services. 6 An employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury.7
ANALYSIS
Appellant has an accepted injury for right shoulder tendinitis. He claimed compensation
for intermittent disability from June 11, 2007 to March 5, 2008. Appellant bears the burden to
establish through probative medical evidence that he was disabled during this period causally
related to his accepted injury.
The Board finds that the evidence establishes that appellant attended doctor’s
appointments for treatment of his work-related injury on June 6, 14 and 21, 2007.8 Appellant
used 4.82 hours LWOP on June 14, 2007 and 8 hours annual leave on June 21, 2007 but there is
no record for time lost from work on June 6 or June 21.9 As the medical evidence supports that
appellant received treatment for his accepted condition on these dates, he should be granted
appropriate compensation for any wage-loss incidental to such treatment on these dates.10
2

Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.5(f).

3

See Fred Foster, 1 ECAB 21 (1947).

4

Fereidoon Kharabi, 52 ECAB 291 (2001); see also Edward H. Horton, 41 ECAB 301 (1989).

5

Sandra D. Pruitt, 57 ECAB 126 (2005); William A. Archer, 55 ECAB 674 (2004).

6

5 U.S.C. § 8103.

7

Daniel Hollars, 51 ECAB 355 (2000); Antonio Mestres, 48 ECAB 139 (1996); Henry Hunt Searles, III, 46
ECAB 192 (1994); Myrtle B. Carlson, 17 ECAB 644 (1966); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Computing Compensation, Chapter 2.901.16(a) (December 1995).
8

While the record indicates that appellant also attended doctor’s appointments for treatment of his work-related
injury on May 28 and July 16, 2007, the Board notes that those dates are appellant’s scheduled off days.
9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998) (provides that, in general, no more than four hours of compensation or continuation of pay should
be allowed for routine medical appointments).
10

See Daniel Hollars, 51 ECAB 355 (2000) (an employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury).

4

The remainder of the reports from Dr. Marasigan do not support disability from June 11
through August 25, 2007. In June 14 and September 3, 2007 reports, he listed the period of
totally disability as June 13 through 21, 2007, in his July 27, 2007 report, he listed the period of
total disability as July 10 through 14, 2007. Dr. Marasigan’s March 10, 2008 report lists the
period of total disability as June 11 through 13, 2007, June 23 through 24, 2007, and August 24
through 25, 2007. On April 21, 2008 he listed the period of total disability as June 11
through 13, 2007, June 14 through 16, 2007, June 20 through 21, 2007, June 24, 2007, July 11
through 14, 2007, and August 24 through 25, 2007. However, Dr. Marasigan did not provide
any medical rationale explaining the basis for finding disability to the accepted employment
injury. As noted, the Board will not require the Office to pay compensation for disability in the
absence of probative medical evidence directly addressing the specific dates of disability for
which compensation is claimed. The treatment records of Dr. Marasigan noted only right
shoulder pain and stiffness. Dr. Marasigan did not present finding on examination or provide
medical rationale to explain how the accepted right shoulder tendinitis prevented appellant from
performing modified duty during the period claimed. On April 21, 2008 he noted that appellant
went home due to severe pain on June 13, 2007 after working for three hours; however, he relied
on appellant’s statement that he was unable to work the remainder of the day June 13, 2007 as no
examination had been performed. 11 Moreover, on June 21, 2007 Dr. Marasigan released
appellant to modified duties effective June 22, 2007. He did not adequately address his
subsequent finding at intermittent disability in view of his reports lack objective medical findings
in addition to not providing medical rationale on causal relationship to support the disability
claimed. Accordingly, Dr. Marasigan’s reports are insufficient to meet appellant’s burden of
proof.
Appellant also submitted reports from Dr. Barad which found appellant temporarily
totally disabled for the requested periods. Dr. Barad’s February 27, 2008 report returns appellant
to work on February 27, 2008, but fails to specifically indicate when temporary total disability
due to the accepted work condition began.12 Instead he noted treating appellant for conditions,
such as shoulder impingement and a probable rotator cuff tear, that were not accepted as being
employment related.13 In his March 5, 2008 report, Dr. Barad states that appellant was totally
disabled from February 26 through 29, 2008 and March 4 through 5, 2008; however, he fails to
provide any medical rationale regarding causal relationship between the two periods of
temporary disability and the accepted right shoulder tendinitis, and he did not provide any
objective medical evidence. In Dr. Barad’s June 9, 2008 report, he indicated that appellant
11

See G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008) (when a physician’s statements regarding
an employee’s ability to work consist only of repetition of the employee’s complaints that she hurt too much to
work, without objective findings of disability being shown, the physician has not presented a medical opinion on the
issue of disability or a basis for payment of compensation).
12

See 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).
13

Id. (where an employee claims that a condition not accepted or approved by the Office was due to an
employment injury, he or she bears the burden of proof to establish that the condition is causally related to the
employment injury).

5

called in sick due to intolerable right shoulder pain on June 12 through 15, 2007, June 20 through
21, 2007, June 24, 2007, July 10 through 14, 2007, August 24 through 25, 2007, February 26
through 28, 2008, and March 4 through 5, 2008. However, his reliance on appellant’s statement
regarding his ability to work, without any objective evidence of disability, is insufficient to
establish appellant’s claim.14 Thus these reports do not establish compensable disability during
the claimed period.
Other medical evidence of record does not specifically address whether appellant had
employment-related disability during the claimed period. Without reasoned medical evidence
supporting that appellant had employment-related disability during the period in question,
appellant has not met his burden of proof to establish his claim for intermittent wage-loss
compensation during the period June 11, 2007 through March 5, 2008.
CONCLUSION
The Board finds that appellant is entitled to appropriate compensation for wage loss
incident to medical treatment, as indicated, but has not otherwise met his burden of proof for the
other claimed dates during the period June 11, 2007 to March 5, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 5, April 30 and 23, 2008 and December 17, 2007 are
affirmed, as modified.
Issued: August 6, 2009
Washington, DC

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

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

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

14

See G.T., supra note 8.

6