United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
U.S. POSTAL SERVICE, GRAND SHELBY
STATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 15-1803
Issued: February 23, 2016

Case Submitted on the Record

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

JURISDICTION
On August 31, 2015 appellant filed a timely appeal from an April 15, 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 more than two percent
impairment of the left upper extremity for which he received a schedule award.
On appeal appellant asserts that he has established permanent impairment of his left
elbow condition.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In a claim adjudicated by OWCP under file number xxxxxx516, on May 6, 2006
appellant, then a 50-year-old city left carrier, filed a Form CA-1, traumatic injury claim, alleging
that he injured his left elbow moving a large container. In a file adjudicated by OWCP under file
number xxxxxx888, on April 24, 2007 he filed a Form CA-2, occupational disease claim,
alleging that repeated stress caused shoulder and wrist problems.
On July 16, 2007 OWCP accepted bilateral carpal tunnel syndrome under file number
xxxxxx888. On February 20, 2008 it accepted left elbow medial epicondylitis under file number
xxxxxx516. Appellant filed schedule award claims under each file number.
In a decision dated October 9, 2008, OWCP denied appellant’s schedule award claim
under file number xxxxxx888.
In a claim adjudicated by OWCP under file number xxxxxx123, on December 27, 2010
appellant filed an occupational disease claim alleging that employment factors caused shoulder,
neck, and hand pain.
On December 27, 2010 appellant submitted an additional schedule award claim under file
number xxxxxx888. By letter dated January 13, 2011, OWCP informed him that it had received
no additional medical evidence since the October 9, 2008 decision and concluded that the
schedule award remained denied.
Appellant thereafter submitted an August 8, 2012
electrodiagnostic study that revealed bilateral carpal tunnel syndrome, and treatment notes from
Dr. Jeffrey M. Hall, Board-certified in surgery and hand surgery, dated July 16, 2012 to
February 18, 2013. Dr. Hall, who began treating appellant in 2007, diagnosed chronic mild
bilateral carpal tunnel syndrome and advised that appellant could work without restrictions. On
February 18, 2013 he indicated that appellant planned to retire. Dr. Hall did not provide an
impairment evaluation.
Under file number xxxxxx123, following an initial denial of appellant’s claim on April 4,
2011, on September 12, 2011 OWCP set aside the April 4, 2011 decision and accepted bilateral
shoulder bursitis.
On June 6, 2013 appellant filed schedule award claims under file numbers xxxxxx516
and xxxxxx123.
Under file number xxxxxx123, on September 13, 2013 OWCP referred appellant to
Dr. Emmanuel N. Obianwu, a Board-certified orthopedic surgeon, for a second-opinion
evaluation regarding whether appellant was entitled to a schedule award for the accepted
bilateral shoulder bursitis. The statement of accepted facts (SOAF) and questions provided
Dr. Obianwu referenced file number xxxxxx123 and that bilateral shoulder bursitis was accepted.
In an October 4, 2013 report, Dr. Obianwu described appellant’s job duties and his
review of the SOAF and medical record provided. He indicated that appellant had right shoulder
pain and negligible symptoms regarding the left shoulder. Dr. Obianwu reported examination
findings for the shoulders, which demonstrated full range of motion of both shoulders with pain
and tenderness on the right. He diagnosed chronic bursitis and old rotator cuff tear of the right
2

shoulder and a normal left shoulder. Dr. Obianwu advised that appellant had reached maximum
medical improvement on December 31, 2012. He provided an impairment analysis for the right
shoulder in accordance with Table 15-5, Shoulder Regional Grid, of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
A.M.A., Guides).2 Dr. Obianwu found a class 1 impairment, applied the net adjustment formula,
and concluded that appellant had six percent right upper extremity impairment, based on a
diagnosis of rotator cuff tear. He found no impairment on the left.
On October 31, 2013 Dr. Morley Slutsky, an OWCP medical adviser Board-certified in
occupational medicine, reviewed the xxxxxx123 record, including Dr. Obianwu’s report. He
agreed with Dr. Obianwu’s conclusions regarding the date of maximum medical improvement
and his right upper extremity impairment finding.
Under file number xxxxxx888, in November 2013 OWCP referred appellant to
Dr. Allen L. Babcock, Board-certified in orthopedic surgery, for a second-opinion impairment
evaluation regarding the accepted conditions of bilateral carpal tunnel syndrome. The SOAF and
questions provided by Dr. Babcock referenced file number xxxxxx888 and that bilateral carpal
tunnel syndrome was the accepted condition.
In a January 28, 2014 report, Dr. Babcock noted that appellant had retired in July 2013
and had a continued complaint of numbness and tingling that occurred mainly at night. He
described his review of the medical record, including the August 8, 2012 electrodiagnostic study.
Physical examination demonstrated full range of motion of the cervical spine and both upper
extremities, including both hands, and no sign of atrophy. Tinel’s was mildly positive at the
right wrist and elbow. Dr. Babcock diagnosed stable bilateral carpal tunnel syndrome. He
opined that appellant had reached maximum medical improvement and provided an impairment
rating in accordance with Table 15-23, Entrapment/Compression Neuropathy, of the A.M.A.,
Guides. Dr. Babcock found a functional history modifier of one for mild symptoms, a physical
examination modifier of two for decreased sensation, and a clinical studies modifier of one based
on mild motor and sensory delays. Dr. Babcock averaged these values and found that appellant
had two percent impairment of each arm due to carpal tunnel syndrome.
On March 18, 2014 Dr. Slutsky, the OWCP medical adviser, indicated that he reviewed
all records, for file numbers xxxxxx123, xxxxxx888, and xxxxxx516.3 He advised that appellant
had a combined right upper extremity impairment of eight percent, based on Dr. Obianwu’s
finding of six percent for the right shoulder, and Dr. Babcock’s assessment of two percent for
right carpal tunnel syndrome. Dr. Slutsky further found that appellant had two percent left upper
extremity impairment for carpal tunnel syndrome, based on Dr. Babcock’s assessment. He
advised that maximum medical improvement regarding the right shoulder was reached on
October 4, 2013, and that maximum medical improvement for carpal tunnel syndrome and left
elbow epicondylitis was reached on January 28, 2014. Dr. Slutsky agreed with Dr. Babcock’s
impairment rating of two percent for each arm based on a diagnosis of carpal tunnel syndrome.
2

A.M.A., Guides (6th ed. 2nd prtg. 2009).

3

OWCP combined file numbers xxxxxx888 and xxxxxx123 on May 16, 2014, with file number xxxxxx888 the
master file. On April 16, 2015 file number xxxxxx516 was combined into file number xxxxxx888.

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Regarding left elbow epicondylitis, he advised that the medical records did not provide a basis
for rating impairment for this condition.
On December 4, 2014 appellant was granted a schedule award for a six percent right
upper extremity (shoulder) impairment, for a total of 18.72 weeks, to run from October 4, 2013
to February 12, 2014. OWCP found the weight of the evidence rested with the opinion of
Dr. Obianwu, as reviewed by the OWCP medical adviser. Appellant was issued a second
schedule award that day, for two percent impairment of each upper extremity due to carpal
tunnel syndrome. The award was for 12.48 weeks of compensation, to run from January 28 to
April 25, 2014.
On January 21, 2015 appellant requested reconsideration of each December 4, 2014
schedule award. He alleged that Dr. Babcock’s report was not complete. Appellant submitted a
January 13, 2015 report in which Dr. Stephanie Muh, a Board-certified orthopedic surgeon,
noted that appellant was seen for evaluation of his left elbow. Dr. Muh reported that appellant
complained of left elbow pain, especially with resting the elbow on a hard surface and had
noticed prominence over the posterior aspect of the elbow. On elbow examination she found a
bony prominence (osteophyte) over the posterior olecranon that was slightly painful to palpation,
and full elbow range of motion. Dr. Muh advised that she could not determine if appellant’s
elbow condition was caused by employment injuries as she had no records to review, but that it
could have resulted from trauma.
In a merit decision dated April 15, 2015, OWCP denied modification of the prior
schedule award decisions. It found that, as Dr. Muh had not related appellant’s current condition
to employment injuries, causal relationship was not established, and there was no indication for
an increased impairment rating.
LEGAL PRECEDENT
The schedule award provision of FECA, and its implementing federal regulation,4 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.5 For decisions issued
after May 1, 2009, the sixth edition will be used.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).

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and Health (ICF).7 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment for the Class of Diagnosis (CDX) condition, which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).8 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).9
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text in
section 15.4f of the A.M.A., Guides.10 In Table 15-23, grade modifier levels (ranging from 0 to
4) are described for the categories test findings, history, and physical findings. The grade
modifier levels are averaged to arrive at the appropriate overall grade modifier level and to
identify a default rating value. The default rating value may be modified up or down by one
percent based on functional scale, an assessment of impact on daily living activities.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
On appeal appellant is not contesting his right upper extremity schedule award. Rather,
he asserts that he is entitled to additional left upper extremity impairment due to an accepted
elbow condition. OWCP accepted left elbow medial epicondylitis on February 20, 2008. The
Board finds this case is not in posture for decision regarding whether appellant has established
permanent impairment for the accepted left elbow epicondylitis.

7

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
8

Id. at 385-419.

9

Id. at 411.

10

Id. at 433-50.

11

Id. at 448-50.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

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On December 4, 2014 appellant was granted two schedule awards, the first six percent
impairment for his right shoulder. The second December 4, 2014 schedule award was for two
percent impairment of each upper extremity due to carpal tunnel syndrome.13
As noted by Dr. Slutsky in his March 18, 2014 report, the medical records do not provide
a basis for an impairment rating for this condition. OWCP did not inform either Dr. Obianwu or
Dr. Babcock that appellant had an accepted left elbow condition in the questions or the SOAF
that it had provided the physicians. Dr. Obianwu restricted his examination to the shoulders
only. Dr. Babcock was referred to evaluate impairment for bilateral carpal tunnel syndrome.
While Dr. Muh provided left elbow examination findings, she was not advised that appellant had
an accepted left elbow medical epicondylitis.
Section 15.8 of the A.M.A., Guides provides guidance for evaluation of multiple upper
extremity impairments.14 The evaluator is to determine the diagnoses for each region and those
to be rated, then determine the diagnosis-based impairments for each ratable diagnosis using the
regional grids and applying the net adjustment formula. The diagnosis-based impairment ratings
for the multiple diagnoses are to be combined, as shown in Figure 15-31,15 with any additional
impairments as identified in Figure 15-31, also combined to determine a total upper extremity
impairment.
It is well established that proceedings under FECA are not adversarial in nature, and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 Once OWCP undertakes development of the
record, it must do a complete job in procuring medical evidence that will resolve the relevant
issues of the case.17 In this case, OWCP accepted left elbow medial epicondylitis. The Board
finds that because no OWCP referral physician was asked to address appellant’s accepted left
elbow condition, the case is not in posture for decision and must be remanded to OWCP. On
remand, OWCP should obtain an impairment rating regarding whether appellant has a ratable
impairment due to the accepted left elbow epicondylitis. After this and such further development

13

Although appellant did not specifically challenge the left upper extremity schedule award for carpal tunnel
syndrome in his appeal to the Board, a review of Dr. Babcock’s January 28, 2014 report shows that he properly
provided an impairment rating in accordance with Table 15-23, Entrapment/Compression Neuropathy, of the
A.M.A., Guides. Dr. Babcock found a functional history modifier of one for mild symptoms, a physical
examination modifier of two for decreased sensation, and a clinical studies modifier of one based on mild motor and
sensory delays. He properly averaged these values and found that appellant had two percent bilateral upper
extremity impairment due to carpal tunnel syndrome. Dr. Slutsky, the OWCP medical adviser, reviewed
Dr. Babcock’s report and agreed with his conclusion that appellant had two percent left upper extremity impairment
due to carpal tunnel syndrome. There is no medical evidence in accordance with the A.M.A., Guides to support that
appellant is entitled to an additional award for left carpal tunnel syndrome.
14

A.M.A., Guides, supra note 2 at 478-81.

15

Id. at 480.

16

See Jimmy A. Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

17

Richard F. Williams, 55 ECAB 343 (2004).

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deemed necessary, OWCP shall issue an appropriate merit decision on the issue of appellant’s
entitlement to an additional left upper extremity schedule award for this accepted condition.18
CONCLUSION
The Board finds this case is not in posture for decision regarding whether appellant is
entitled to an additional schedule award for an accepted left elbow epicondylitis.
ORDER
IT IS HEREBY ORDERED THAT the April 15, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: February 23, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See M.D., Docket No. 13-503 (issued September 19, 2013).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Monterey Park, CA, Employer
__________________________________________
Appearances:
Stephen Millard, for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0620
Issued: November 18, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On January 27, 2020 appellant, through his representative, filed a timely appeal from a
January 15, 2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards docketed the appeal as No. 20-0620.2
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.

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

Appellant also filed a timely request for oral argument pursuant to section 501.5(b) of the Board’s Rules of
Procedure. 20 C.F.R. § 501.5(b). Due to the disposition of this case, oral argument is rendered moot.
3

Docket No. 17-0540 (issued July 26, 2017); Docket No. 18-0667 (issued August 1, 2019).

On December 10, 2002 appellant, then a 46-year-old letter carrier, ﬁled an occupational
disease claim (Form CA-2) alleging that he sustained a bilateral Achilles tendon condition as a
result of his federal employment duties, which included delivering mail to business offices and
private homes. He noted that he first became aware of his claimed condition on August 1, 2002
and its relationship to his federal employment on December 4, 2002. OWCP accepted the claim
for bilateral calcaneus spurs and authorized resection of the fractured bone and multiple bone
fragments posterior of the left calcaneus, repair of Achilles tendon of the left ankle, resection of
the bone posterior right calcaneus, and repair of Achilles tendon of the right ankle with removal
of a calciﬁed bone. The procedures were performed on July 16, 2003 and March 3, 2004.
OWCP subsequently expanded the acceptance of appellant’s claim to include bilateral
Achilles tendinitis, crushing injury of the ankle and foot, multiple and unspeciﬁed open wound of
the leg without complications, and bilateral shoulder, upper arm, and rotator cuff sprain and
bilateral shoulder impingement syndrome. Appellant underwent authorized right and left shoulder
open subacromial decompression with open rotator cuff repair on March 24, 2009 and October 26,
2010, respectively.
On March 25, 2013 appellant returned to modiﬁed-duty work as a customer care agent. He
stopped work on July 18, 2013 and ﬁled a notice of recurrence (Form CA-2a) alleging that he
sustained right knee, left hip, and lower back injuries on that day due to his accepted work-related
injuries.4
OWCP, by decision dated January 17, 2014, denied appellant’s claim for a recurrence of
disability commencing July 18, 2013. On February 12, 2014 appellant requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received additional medical evidence.
Following an August 8, 2014 telephonic hearing, appellant submitted additional medical
evidence.
An OWCP hearing representative, by decision dated October 24, 2014, affirmed the
January 17, 2014 recurrence decision, finding that the medical evidence submitted was insufficient
to establish that appellant was disabled from work commencing July 2013 due to a material
worsening of his accepted work-related conditions.
On July 6, 2015 appellant, through his representative, requested reconsideration and
submitted additional medical evidence.

4

In an October 8, 2015 decision, OWCP again denied expansion of appellant’s claim to include right knee, lower
back, and left hip conditions. By decision dated December 16, 2016, it denied his request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a). The Board, by decision dated July 26, 2017, affirmed the
December 16, 2016 decision. In a November 13, 2017 decision, OWCP denied appellant’s request for reconsideration
of the denial of his request to expand the acceptance of his claim as it was untimely filed and failed to demonstrate
clear evidence of error. The Board, by decision dated August 1, 2019, affirmed the November 13, 2017 decision.
Docket No. 17-0540 (issued July 26, 2017); Docket No. 18-0667 (issued August 1, 2019).

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By decision dated October 20, 2015, OWCP denied modification of the October 24, 2014
decision, finding that the medical evidence submitted was insufficient to establish appellant’s
claim for recurrence of disability.
On October 21, 2019 appellant, through his representative, requested reconsideration of
the October 24, 2014 recurrence decision. In a June 26, 2015 statement, the representative
contended that appellant was unable to work from July 2013 to January 2014 because the
employing establishment failed to accommodate his medical restriction, which required a rest bar
to elevate his feet, and resulted in the worsening of his accepted bilateral foot conditions.
In support of his request for reconsideration, appellant submitted medical evidence,
including an October 18, 2019 primary treating physician’s progress report from Dr. Goldman.
Dr. Goldman diagnosed bilateral Achilles tendinitis, right ankle spur, and bilateral shoulder rotator
cuff tear. He advised that appellant was unable to work.
Appellant also submitted an August 29, 2019 order from the Equal Employment
Opportunity Commission (EEOC) dismissing his request for a hearing with prejudice in light of a
July 9, 2019 settlement agreement regarding his complaint against the employing establishment
for failing to accommodate his medical requirement of a rest bar for his feet.
By decision dated January 15, 2020, OWCP denied appellant’s October 21, 2019 request
for reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of
error. It noted his submission of the August 29, 2019 EEOC order. OWCP, found, however, that
appellant did not identify any errors in its October 20, 2015 decision.
The Board, having duly considered the matter, notes that in denying appellant’s
October 21, 2019 reconsideration request, OWCP provided no discussion of the new medical
evidence submitted in support of the reconsideration request by appellant, which addressed his
bilateral lower extremity and bilateral shoulder conditions, and disability from work.
Because Board decisions are final with regard to the subject matter appealed,5 it is crucial
that OWCP address all relevant evidence received prior to the issuance of its final decision.6 As
OWCP did not review the medical evidence, which was of record prior to OWCP’s January 15,
2020 decision, the Board finds that this case is not in posture for decision.7 On remand OWCP
shall review all submitted evidence of record at the time of the January 15, 2020 decision and,
following any further development of the medical evidence deemed necessary, it shall issue an
appropriate decision.

5

20 C.F.R. § 501.6(d).

6

See B.C., Docket No. 15-1222 (issued October 20, 2015); William A. Couch, 41 ECAB 548, 553 (1990).

7
See M.N., Docket No. 20-0110 (issued July 7, 2020); Y.B., Docket No. 20-0205 (issued July 7, 2020); H.H.,
Docket No. 14-1985 (issued June 26, 2015).

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IT IS HEREBY ORDERED THAT the January 15, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: November 18, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bakersfield, CA, Employer
__________________________________________
Appearances:
Richard Kulick, for the appellant
Office of Solicitor, for the Director

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Docket No. 14-478
Issued: June 18, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On December 30, 2013 appellant’s representative filed an application requesting review
of an August 23, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) in
claim number xxxxxx148. By that decision, OWCP denied modification of its December 19,
2012 decision denying her occupational disease claim for bilateral knee osteoarthritis and knee
replacements. The appeal was docketed as 14-478.
The Board has duly considered the matter and notes that appellant has prior accepted
bilateral knee conditions from a 2009 motor vehicle accident, file number xxxxxx303. As
assembled, the case record now before the Board does not contain file number xxxxxx303.
Pursuant to its procedures, OWCP has determined that cases should be combined where correct
adjudication depends on cross-referencing between files. In the instant appeal, it appears that,
for a full and fair adjudication, OWCP claims pertaining to appellant’s knee conditions should be
combined pursuant to OWCP procedures.1 This will allow OWCP to consider all relevant claim
files in developing appellant’s claim. Moreover, to consider appellant’s appeal at this stage
would involve a piecemeal adjudication of the issues in this case and raise the possibility of

1

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

inconsistent results. It is the Board’s policy to avoid such an outcome.2 The case must be
remanded to OWCP for reconstruction of the record and an appropriate merit decision issued on
appellant’s claim in order to preserve her right to appeal to the Board.
IT IS HEREBY ORDERED THAT the August 23, 2013 the Office of Workers’
Compensation Programs’ decision be set aside and the case remanded to OWCP for further
proceedings consistent with this order of the Board.
Issued: June 18, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

2

See William T. McCracken, 33 ECAB 1197 (1982).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Seattle, WA, Employer
__________________________________________

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Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-626
Issued: July 16, 2007

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 January 3, 2007 appellant, through his attorney, filed a timely appeal from the June 5,
2006 decision of the Office of Workers’ Compensation Programs denying waiver of an
overpayment. 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 the Office properly denied waiver of an overpayment. On appeal,
appellant contends that notice of the preliminary determination of overpayment was not properly
sent because it was not mailed to his attorney.
FACTUAL HISTORY
On January 29, 1997 appellant, then a 58-year-old mechanical engineer, filed a traumatic
injury claim alleging that he injured his back and right shoulder that day when he slipped on
black ice. On June 19, 1997 the Office accepted his claim for lumbar sprain, aggravation of
degenerative disc disease and impingement of right sciatic nerve. On October 27, 1997 appellant

authorized Attorney John Goodwin to represent him in his claim before the Office. The Office
recognized Mr. Goodwin as appellant’s representative and sent him copies of correspondence
and documents related to appellant’s claim. On October 22, 2002 the Office accepted his claim
of depression.
On June 29, 2005 the Office made a preliminary determination that appellant had been
overpaid by the amount of $1,641.43 because health insurance premiums had not been deducted
from his compensation from September 1, 2004 to March 19, 2005. The Office informed
appellant that he was not at fault in the creation of the overpayment and was, therefore, eligible
to receive a waiver of recovery of the overpayment. It explained the options for seeking a
waiver, including a prerecoupment hearing. The Office sent an identical determination to
appellant on December 2, 2005. Neither determination was sent to his representative.
By decision dated April 29, 2006, the Office notified appellant that the overpayment
would not be waived. It proposed that the overpayment be repaid by deducting $100.00 from his
continuing compensation every 28 days from June 11, 2006 to September 1, 2007.
On May 25, 2006 Mr. Goodwin contacted the Office to inquire why a preliminary
determination of overpayment had not been sent to him. He requested a copy of the letter and
the opportunity to participate in a prerecoupment hearing. On May 30, 2006 the Office sent
Mr. Goodwin a copy of the December 2, 2005 preliminary determination.
On June 5, 2006 the Office issued a second decision denying waiver of the overpayment.
Though it stated that, the reason for the decision was explained in an enclosed memorandum, the
record does not contain any memorandum. The Office again proposed that the overpayment be
repaid by deducting $100.00 from appellant’s compensation every 28 days from June 11, 2006 to
September 1, 2007. On July 25, 2006 the Office informed appellant that if he did not indicate
whether he would cooperate in the repayment within 30 days, interest and administrative charges
would be added to his debt. On September 3, 2006 the Office began deducting $250.00 each
28 days to recover the overpayment.
LEGAL PRECEDENT
Office regulations provide that a properly appointed representative who is recognized by
the Office may make a request or give direction to the Office regarding the claims process,
including a hearing. This authority includes presenting or eliciting evidence, making arguments
on the facts or the law and obtaining information from the case file, to the same extent as the
claimant.1 Any notice requirement contained in the regulations or the Federal Employees’
Compensation Act2 is fully satisfied if served on the representative and has the same force and
effect as if sent to the claimant.3 The Board has held that decisions under the Act are not deemed

1

20 C.F.R. § 10.700(c).

2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.700 (c); see also Sara K. Pearce, 51 ECAB 517, 518 (2000).

2

to have been properly issued unless both appellant and the authorized representative have been
sent copies of the decision.4
Office procedures note that the Act is social legislation intended to benefit entitled
employees and that every effort should be made to accommodate the claimant’s best interests
and to ensure that all due process actions are completed in a timely and fair manner when
specific collection actions must be enforced.5 To ensure due process, the Office is required to
issue a preliminary decision in all overpayment cases.6 Pursuant to Califano v. Yamasaki, 422
U.S. 682 (1979), the Office has established procedures for handling overpayment cases under
5 U.S.C. § 8129 that include the opportunity for a prerecoupment hearing.7 Office procedures
state:
“If the claimant is determined to be without fault, [the Office must send a letter
advising] the claimant of the fact and amount of the overpayment and of the
preliminary finding that the claimant is without fault in the creation of the
overpayment. [The letter must inform] the claimant of the right to submit
additional evidence and argument, if the claimant disagrees with the fact or
amount of the overpayment and if the claimant feels the overpayment should be
waived. Additional evidence and arguments must be submitted by the claimant
within 30 days of the date of the letter.”8
ANALYSIS
On October 27, 1997 appellant notified the Office that he had authorized Mr. Goodwin to
act as his representative. Thereafter, the Office mailed the designated representative copies of
relevant correspondence. The record establishes, however, that the Office did not send
4

See Travis L. Chambers, 55 ECAB 138 (2003) (holding that 20 C.F.R. § 10.127 requires that a copy of an
Office decision be sent to the authorized representative and that any other interpretation of the language of the
regulation would be inconsistent with the clear language of its initial provisions). See also Federal (FECA)
Procedure Manual, Part 2 -- Claims, Communications, Chapter 2.300.4e (February 2000) (“where the employee has
an attorney or other legal representative, the original of any letter to the claimant should be sent to that person, with
a copy to the claimant. Similarly, where the claimant is sent a copy of a letter, the attorney or other representative
should receive a copy as well”); Part 2 -- Claims, Development of Claims, Chapter 2.800.3c(1) (April 1993) (“the
[Office] must provide information about procedures involved in establishing a claim, including detailed instructions
for developing the required evidence to all interested parties the claimant, the employing establishment and the
representative, if any”); Sara K. Pearce, supra note 3 at 518-19 (holding that failure to notify appellant’s authorized
representative “effectively denied appellant the opportunity to have [the representative] assist her in remedying the
deficiencies of her claim and the full opportunity to exercise her appeal rights in a timely fashion”); and Thomas H.
Harris, 39 ECAB 899, 899-900 (1988).
5

Federal (FECA) Procedure Manual, Chapter 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.1 (May 2004).
6

Billie C. Rae, 44 ECAB 604, 611 (1993).

7

Earl D. Long, 50 ECAB 464, 469 (1999); Federal (FECA) Procedure Manual, Chapter 6 -- Debt Management,
Overpayment Overview, Chapter 6.100.3k (May 2004).
8

Federal (FECA) Procedure Manual, Chapter 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.4a(2) (May 2004).

3

appellant’s representative a copy of either the June 29 or December 2, 2005 preliminary
overpayment determinations, which explained the processes for seeking a waiver. On April 29,
2006 the Office issued a final overpayment determination. The Office sent the final decision to
appellant’s representative. Following receipt of this decision, appellant’s representative
requested a copy of the preliminary determination and the opportunity for a prerecoupment
hearing. The Office did not respond to this request. On June 5, 2006 it reissued its final
determination that the overpayment should not be waived.
The Board finds that the Office did not properly serve the June 29 and December 2, 2005
preliminary overpayment determinations because it did not mail them to appellant’s
representative. Similar to decisions issued pursuant to 20 C.F.R. § 10.127, preliminary
overpayment determinations carry time-limited hearing rights.9
Because appellant’s
representative did not receive a copy of these determinations, he was unable to make a timely
request for a prerecoupment hearing or present evidence as to whether recovery of the
overpayment should be waived.10
The Board finds that Office’s failure to timely provide the June 29 and December 2, 2005
preliminary determinations to the authorized representative interfered with appellant’s due
process rights to a prerecoupment hearing. As proper notice of the overpayment and the right to
a prerecoupment hearing were not given, the final decisions denying waiver, dated April 29 and
June 5, 2006 were not properly issued.11 Therefore, the Board finds that the case must be
remanded to the Office so that the preliminary overpayment determination may be properly
issued.
CONCLUSION
The Board finds that the Office did not properly determine that appellant’s overpayment
should not be waived.

9

See 20 C.F.R. § 10.431(d).

10

See Thomas H. Harris, supra note 4 at 899 (the Board noting in a case involving 20 C.F.R. § 10.127 that
appellant’s representative was unable to timely request a hearing before Office hearing representative because he
was not notified of the decision denying reconsideration).
11

See Billie C. Rae, supra note 6 at 611 (holding that the Office was required to issue a preliminary decision
“explaining the grounds on which an overpayment was found, to which appellant could respond prior to issuance of
a final decision”).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 5, 2006 is set aside and the case is remanded for further
action consistent with this decision.
Issued: July 16, 2007
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minneapolis, MN, Employer
__________________________________________

)
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)
)
)
)
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)

Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0928
Issued: January 26, 2022

Case Submitted on the Record

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

JURISDICTION
On June 2, 2021 appellant filed a timely appeal from an April 2, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On December 9, 2019 appellant, then a 57-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that on November 22, 2019 she strained her right upper back while in
the performance of duty. She stopped work on November 26, 2019.
In a December 9, 2019 development letter, OWCP informed appellant that it had received
no evidence in support of her claim. It advised her of the type of factual and medical evidence
necessary and provided a questionnaire for her completion. OWCP afforded appellant 30 days to
respond.
OWCP thereafter received various notes by Dr. Farzana Quraishi, a Board-certified family
medicine specialist, recommending that appellant remain off work from November 26, 2019
through January 27, 2020. Dr. Quraishi provided diagnoses of cervical radiculopathy and thoracic
pain.
In a December 27, 2019 response to OWCP’s development questionnaire, appellant noted
that for the past few years she had been handling an increased load of heavier packages. She
related that on November 22, 2019 she pulled and lifted large, heavy packages out of her delivery
vehicle. The next day, appellant woke up with pain between her shoulder blades, radiating up to
her head, across her shoulder blade, and down her right arm with numbness and tingling in her
right hand. She noted that her job duties included lifting, pulling, and carrying large heavy
packages, and that she had not engaged in any activity at home which would have otherwise caused
her injury. Appellant clarified that the claimed condition was an occupational disease and not a
traumatic injury.
By decision dated January 10, 2020, OWCP accepted that the employment factors had
occurred as alleged, but denied the claim, finding that the evidence of record failed to establish
that appellant’s diagnosed conditions were causally related to the accepted factors of her federal
employment.
OWCP continued to receive evidence, including a note by an unknown healthcare provider
recommending that appellant remain off work until April 1, 2020.
On June 24, 2020 appellant, through counsel, requested reconsideration of OWCP’s
January 10, 2020 decision. In support of the request, she submitted various medical records
including a December 20, 2019 report by Dr. John A. Cragg, a Board-certified orthopedic surgeon,
who noted that she related a history of lifting at work for the past 20 years followed by development
of sudden pain in her shoulder blades, the right side of her arm, and tingling into her right arm.
Dr. Cragg performed a physical examination and documented right intrascapular pain at T2-3,
posterior trapezial pain, positive Spurling’s sign, and pain with axial compression. He also
reviewed x-rays and diagnosed cervical and thoracic pain suggestive of cervical disc and facet

2

injury, possible right C6 or C7 radiculopathy, and mild thoracic outlet-type symptoms. Dr. Cragg
recommended that appellant undergo magnetic resonance imaging (MRI) scan studies, and opined
that the conditions he diagnosed appeared to be caused by heavy lifting, pushing, pulling, and
reaching activities at work.
A report of cervical MRI scan dated January 2, 2020 revealed a disc protrusion at C7-T1
on the right, which was causing severe right foraminal stenosis.
In a follow-up report of even date, Dr. Cragg recommended that appellant consider an
epidural steroid injection at C7-T1, which she declined. He opined that she was unable to return
to full-duty work and that turning her neck continually and reaching in the back seat of her postal
vehicle for packages with her right arm caused a C7-T1 right-sided disc herniation with nerve root
compression.
In a follow-up report dated January 21, 2020, Dr. Cragg noted that appellant continued to
have a positive Spurling’s sign on the right with intrinsic weakness and right-sided posterior
scapular pain. He diagnosed right C7-T1 disc herniation with right arm nerve root compression
and indicated that the condition appeared to be work related by history. Dr. Cragg recommended
that she remain off work through March 2, 2020 and noted that she may require surgery. In
subsequent notes dated February 27 and March 30, 2020, he continued to recommend that
appellant remain off work.
In a May 18, 2020 narrative letter to appellant’s counsel, Dr. Cragg reiterated appellant’s
history of repetitive reaching and lifting at work for the past 20 years, and that her workload had
increased over the last three years. He diagnosed C7-T1 lateral recess stenosis with disc protrusion
and indicated that she had no history of a preexisting injury or any outside activity, which would
have aggravated her neck. On that basis, Dr. Cragg opined that her diagnosed medical conditions
were caused by driving, pushing, pulling, and lifting heavy packages at work for the past 20 years.
In a May 19, 2020 medical report, Dr. Corey Cronrath, a Board-certified occupational and
aerospace medicine specialist, noted that appellant indicated that her job duties included sorting
mail, loading her vehicle for two hours per day, lifting up to 70 pounds, and driving and delivering
mail for six hours per day over a route that covers 115 miles. He also noted that she owned a bar.
Dr. Cronrath performed a physical examination and diagnosed appellant with work-related
cervical radiculopathy. He indicated that he relied upon medical literature, which suggested that
manual material handling and sedentary work are associated with increased neck pain and cervical
disc herniation, work involving sitting for more than 85 percent of the workday significantly
increased the risk for neck pain, and that the main factor for cervical disc herniation was age, not
physical activity. Dr. Cronrath explained that appellant was at increased risk for a cervical disc
herniation due to her age and gender, but opined that her work duties for the past 20 years including
reaching, lifting, pushing, pulling, prolonged sitting, frequent cervical flexion and repetitive
motion of the arms also contributed to her cervical radiculopathy.
In a follow-up medical report dated May 26, 2020, Dr. Cragg again noted appellant’s
history of carrying and reaching to perform her work duties for the past 20 years. He recommended
that she remain off work until July 15, 2020, and opined that she would likely not be able to return

3

to work in her previous job. Dr. Cragg diagnosed C7-T1 disc herniation with right-sided radicular
pain with headaches, which he opined was work related.
By decision dated September 22, 2020, OWCP denied modification of its January 10, 2020
decision.
OWCP continued to receive evidence. Reports of x-rays of the cervical spine dated
November 26, 2019 revealed mild lower cervical and upper thoracic spine disc degeneration.
In follow-up visit reports dated July 13 and September 15, 2020, Dr. Cragg diagnosed C7T1 disc herniation, which he opined was work related. He continued to recommend that appellant
remain off work.
On February 9, 2021 appellant, through counsel, requested reconsideration of the
September 22, 2020 decision. In support of her request, she attached a statement indicating that
she owns 40 acres of wild land that does not require any maintenance, and that she is the co-owner
of a bar, but does not engage in any associated work other than making decisions, writing checks,
and socializing with customers.
In further support of her request, appellant submitted a December 22, 2020 narrative letter
by Dr. Cragg who reiterated that age and gender are nonwork-related risk factors for appellant’s
diagnosed conditions, but that driving, manual material handling, frequent flexion of the cervical
spine, and frequent use of the hands and upper extremities are also risk factors for her diagnosed
medical conditions. Dr. Cragg opined that the work-related factors accelerated the onset of the
cervical disc herniation with radiculopathy and cited to the medical literature mentioned in his
May 19, 2020 report.
By decision dated April 2, 2021, OWCP denied modification of its September 22, 2020
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA, 4 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

3

Id.

4

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

employment injury. 5 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. 6
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence o f the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
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. 7
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 8 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.9 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors. 10
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.
The Board preliminarily notes that appellant originally alleged that she sustained a
traumatic injury to her right upper back while in the performance of duty on November 22, 2019.
As noted above, in response to OWCP’s questionnaire, appellant clarified that she was claiming
an occupational disease due to various repetitive job duties. Therefore, OWCP properly
adjudicated appellant’s claim as one for an occupational disease rather than a traumatic injury.11

5

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).
6

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).
7

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
8

A.K., Docket No. 21-0278 (issued July 12, 2021); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
9

M.V., Docket No. 18-0884 (issued December 28, 2018).

10

Id.; Victor Woodhams, supra note 7.

Section 10.5(q) of OWCP’s regulations provides, “Occupational disease or illness means a condition produced
by the work environment over a period longer than a single workday or shift.” (Emphasis in the original.) 20 C.F.R.
§ 10.5(q).
11

5

In his December 20, 2019 and January 21, and May 18 and 26, 2020 reports, Dr. Cragg
opined that driving, pushing, pulling, and lifting heavy packages while in the performance of duty
caused a C7-T1 disc herniation with right-sided nerve root compression. In his January 2, 2020
report, he opined that the condition was caused by her turning her neck continually and reaching
in the back seat of her postal vehicle for packages with her right arm. While his reports supported
causal relationship, Dr. Cragg did not provide a pathophysiological explanation of how the
accepted factors of appellant’s federal employment were competent to cause her diagnosed
conditions. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical condition was
related to accepted employment factors. 12 Consequently, the opinions of Dr. Cragg are insufficient
to meet appellant’s burden of proof to establish her claim.
Dr. Cronrath, in his May 19 and December 22, 2020 reports, likewise provided a
conclusory opinion that appellant’s work duties for the past 20 years including reaching, lifting,
pushing, pulling, prolonged sitting, frequent cervical flexion and repetitive motion of the arms
contributed to her cervical radiculopathy. He indicated that he relied on medical literature to form
his opinion, which he indicated suggested a correlation between age, gender, sedentary work and
material handling with cervical disc herniation. However, Dr. Cronrath did not provide medical
rationale explaining how the accepted factors of appellant’s employment caused the diagnosed
medical conditions. 13 Therefore, Dr. Cronrath’s reports are also insufficient to meet her burden of
proof to establish her claim.
In her various work notes, Dr. Quraishi provided a diagnosis of cervical radiculopathy, but
did not provide an opinion on causation. The Board has held that medical evidence that does not
offer an opinion regarding the cause of an employee’s condition is of no probative value on the
issue of causal relationship. 14 Therefore, Dr. Quraishi’s notes are also insufficient to establish
appellant’s claim.
The remaining evidence of record consists of various diagnostic study reports. The Board
has held that diagnostic studies, standing alone, lack probative value as they do not address whether
the employment factors caused any of the diagnosed conditions. 15 As such, this evidence is
insufficient to establish appellant’s claim.
As the medical evidence of record is insufficient to establish causal relationship between
appellant’s diagnosed medical conditions and the accepted factors of her federal employment, the
Board finds that appellant has not met her burden of proof.

12

J.W., Docket No. 18-0678 (issued March 3, 2020); G.R., Docket No. 19-0940 (issued December 20, 2019); D.L.,
Docket No. 19-0900 (issued October 28, 2019); see also V.T., Docket No. 18-0881 (issued November 19, 2018); Y.D.,
Docket No. 16-1896 (issued February 10, 2017); T.M., Docket No. 08-975 (issued February 6, 2009); S.E., Docket
No. 08-2214 (issued May 6, 2009).
13

Id.; see also S.M., Docket No. 21-0149 (issued June 21, 2021).

14

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

15

V.L., Docket No. 20-0884 (issued February 12, 2021); R.C., Docket No. 19-0376 (issued July 15, 2019).

6

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 April 2, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: January 26, 2022
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
CHICAGO REGION, Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0183
Issued: May 20, 2020

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 October 24, 2019 appellant filed a timely appeal from a May 16, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $30,521.73 for the period from October 28, 2017
through December 8, 2018 because she continued to receive FECA wage-loss compensation after
1
The Board notes that, following the May 16, 2019 decision and on appeal, appellant submitted additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the
evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will
not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.
2

5 U.S.C. § 8101 et seq.

the effective date of her election of Office of Personnel Management (OPM) retirement benefits;
and (2) whether it properly found that appellant was at fault in the creation of the overpayment
and, therefore, not entitled to waiver of recovery of the overpayment.
FACTUAL HISTORY
On October 15, 2010 appellant, then a 46-year-old secretary, filed an occupational disease
claim (Form CA-2) alleging that on September 28, 2010 she realized that she had developed acute
right carpal tunnel syndrome due to prolonged typing in the course of her federal employment.
She stopped work on February 27, 2010. On February 4, 2011 OWCP accepted her claim for right
carpal tunnel syndrome and de Quervain’s disease.
In a July 14, 2011 letter, OWCP informed appellant that it was placing her on the periodic
rolls effective May 21, 2011. It explained that she would receive regular payments beginning
July 3, 2011 and every 28 days thereafter. OWCP’s July 14, 2011 letter also informed appellant
that she must report any retirement income, disability income, or compensation benefits from any
federal agency as a recipient of compensation benefits under FECA was not permitted to receive
benefits under other federal programs including the Civil Service retirement program.
In a form dated December 20, 2017, appellant elected to receive Civil Service Retirement
System/Federal Employees Retirement System (CSRS/FERS) benefits from OPM in preference
to benefits to which she may be entitled under FECA. The effective date of her election was
October 28, 2017. The case record reflects that OWCP received this form on December 26, 2017.
Notwithstanding her election of OPM benefits, effective October 28, 2017, OWCP continued to
pay appellant wage-loss compensation for temporary total disability through December 8, 2018.
By a memorandum of telephone call (Form CA-110) dated January 31, 2018, OWCP
reported that it had contacted appellant by telephone to verify that she had indeed elected to receive
retirement benefits through OPM as opposed to compensation benefits under FECA. Appellant
confirmed that she had opted to receive retirement benefits, but indicated that she had not yet
received any monetary benefits from OPM as of that date.
In a March 28, 2018 letter, OWCP informed appellant that, for the period March 4 to 31,
2018, she was entitled to weekly wage-loss compensation in the amount of $744.79 and monthly
wage-loss compensation in the amount of $2,445.00. It further informed her that annuity benefits
paid by OPM and benefits for wage loss paid by OWCP were not payable for the same period of
time. OWCP requested that appellant complete a Form CA-1105 and verify her election of OPM
benefits.
In a form dated April 3, 2018, a representative of OPM’s Retirement Services Program
indicated that appellant had not been paid through its program. Subsequently, on June 11, 2018
OWCP received a June 7, 2018 form signed by another representative of OPM’s Retirement

2

Services Program indicating that OPM had received appellant’s application for OPM benefits and
provided a claim number.3
On October 10, 2018 OWCP again requested that appellant complete a Form CA-1105 and
return it within 30 days. On October 17, 2018 appellant completed the Form CA-1105 and elected
to receive OPM retirement benefits effective October 28, 2017.
In a letter dated January 7, 2019, OWCP informed OPM that appellant had elected to
receive OPM benefits, effective October 28, 2017, in lieu of FECA compensation benefits,
requested reimbursement in the amount of $36,085.61 for the period from October 28, 2017 to
December 8, 2018, and requested that OPM commence annuity payments retroactive to that date.
In a Form CA-110, memoranda of telephone calls, dated January 7, 9, 17, and 21, 2019,
OWCP recorded that appellant had not heard back from OPM relative to her benefits.
On January 10, 2019 OWCP made a preliminary overpayment determination that appellant
received an overpayment of compensation in the amount of $30,521.73 for the period October 28,
2017 through December 8, 2018. It explained that the overpayment was the result of her receiving
OWCP compensation benefits through December 8, 2018 after electing receipt of OPM benefits,
effective October 28, 2017. OWCP provided a calculation of the overpayment, and found that
appellant was at fault in the creation of the overpayment because she accepted a payment that she
knew or reasonably should have known to be incorrect. It requested that she complete an
overpayment recovery questionnaire (Form OWCP-20) and submit supporting financial
documentation. OWCP notified appellant that, within 30 days of the date of the letter, she could
request a final decision based on the written evidence or a prerecoupment hearing. No response
was received.
By decision dated May 16, 2019, OWCP finalized the preliminary overpayment
determination, finding an overpayment of compensation in the amount of $30,521.73 for the period
October 28, 2017 through December 8, 2018 for which appellant was at fault. It explained that
the overpayment occurred because she received both FECA compensation and OPM retirement
benefits between October 28, 2017 and December 8, 2018.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 Section 8116 of FECA defines the limitations on the right to receive
compensation benefits.5 Section 8116(a) states that, while an employee is receiving workers’
Although the OPM representative had checked “No” in response to whether an application for OPM benefits had
been received from appellant, the fact that OPM assigned a claim number indicates that it had received the application
and that the check mark “No” was mistaken.
3

4

5 U.S.C. § 8102(a).

5

Id. at § 8116.

3

compensation benefits, he or she may not receive salary, pay, or remuneration of any type from
the United States, except in return for services actually performed or for certain payments related
to service in the Armed Forces, including benefits administered by the Department of Veterans
Affairs, unless such benefits are payable for the same injury or the same death being compensated
for under FECA.6 Section 10.421(a) of OWCP’s implementing regulations provides that a
beneficiary may not receive wage-loss compensation concurrently with a federal retirement or
survivor annuity.7 The beneficiary must elect the benefit that he or she wishes to receive.8
OWCP’s procedures also explain that the employee must make an election between FECA benefits
and OPM benefits. The employee has the right to elect the monetary benefit which is the more
advantageous. This policy also applies to reemployed annuitants.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $30,521.73 for the period from October 28, 2017
through December 8, 2018.
On December 20, 2017 appellant elected OPM retirement benefits effective
October 28, 2017. OWCP, however, continued to pay appellant compensation on the periodic rolls
through December 8, 2018. It calculated that an overpayment of $30,521.73 was, therefore,
created.
On May 16, 2019 OWCP finalized its preliminary overpayment determination, finding an
overpayment of compensation in the amount of $30,521.73, for which appellant was at fault.
A FECA beneficiary may not receive wage-loss compensation concurrently with a federal
retirement or survivor annuity.10 The clear language of section 8116(a) of FECA, section
10.421(a) of OWCP’s implementing regulations, and OWCP’s procedures prohibit the concurrent
receipt of FECA wage-loss benefits and a federal annuity.11
However, there is no evidence of record which establishes that appellant actually received
OPM benefits for the period October 28, 2017 through December 8, 2018.12 It was not until
January 7, 2018 that OWCP informed OPM that appellant had elected to receive retirement annuity
6

Id. at § 8116(a).

7

20 C.F.R. § 10.421(a).

8

Id.

9
Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4.a (January 1997); C.P.,
Docket No. 19-0732 (issued September 5, 2019); J.A., Docket No. 18-0259 (issued August 5, 2019); R.S., Docket No.
11-0428 (issued September 27, 2011); Harold Weisman, Docket No. 93-1335 (issued March 30, 1994).
10

Supra note 6.

11

Supra note 6; supra note 7; Federal (FECA) Procedure Manual, supra note 9.

12

J.M., Docket No. 15-1604 (issued May 23, 2016).

4

benefits, effective October 28, 2017, in lieu of FECA compensation and requested that OPM
commence annuity payments effective retroactively to that date. On April 3, 2018 a representative
of OPM’s Retirement Services Program informed OWCP that appellant had not yet been paid
through its program.
OWCP based its overpayment findings on its determination that appellant had received
prohibited dual OPM and FECA benefits for the period October 28, 2017 through
December 8, 2018. The Board has previously held that the mere fact that a claimant received
FECA benefits after the effective date of an OPM election will not establish receipt of a prohibited
dual benefit.13 While the record reflects that appellant received FECA benefits for this period, the
Board finds that OWCP had not established that she also received OPM benefits for that same
period.14
Therefore, the Board finds that OWCP has not met its burden of proof to establish that the
overpayment occurred.15
CONCLUSION
The Board finds that OWCP improperly determined that appellant received an
overpayment of compensation in the amount of $30,521.73 for the period from October 28, 2017
through December 8, 2018 as it has not been established that she actually received a dual payment
after the effective date of her election of OPM retirement benefits.16

13

C.P. and J.A., supra note 9; B.H., Docket No. 13-1955 (issued January 29, 2014).

14

R.R., Docket No. 18-0032 (issued May 3, 2018). The election form signed by appellant on October 17, 2018 is
insufficient to show that she actually began receiving OPM benefits at any time. E.R., Docket No. 18-0084 (issued
July 27, 2018).
15

C.P. and J.A., supra note 9.

16

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

5

ORDER
IT IS HEREBY ORDERED THAT the May 16, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: May 20, 2020
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

6


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

)
)
)
)
)
)
)
)

Appearances:
Anita Lewallen, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0498
Issued: August 27, 2020

Case Submitted on the Record

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

JURISDICTION
On January 3, 2020 appellant, through his representative, filed a timely appeal from a
December 12, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a medical condition
causally related to the accepted January 5, 2017 employment incident.
FACTUAL HISTORY
On January 5, 2017 appellant, then a 46-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he experienced back pain when the back door of a long life vehicle
(LLV) fell and struck him while in the performance of duty. He stopped work on January 5, 2017
and returned to work on January 8, 2017.
On January 5, 2017 appellant was treated in the emergency room by Dr. Robert Sherwin,
Board-certified in emergency medicine, for lumbar contusion, and lumbago with sciatica of the
left side. He placed appellant off work from January 5 to 8, 2017. A January 5, 2017 computerized
tomography scan of the lumbar spine revealed no fracture or other acute abnormality, L4-5 broadbased left paracentral disc protrusion causing effacement of the central canal, L5-S1 moderate disc
space narrowing, mild spondylosis, and diffuse disc bulging. Patrick MacKnick, a certified
physician assistant working in the emergency room, also treated appellant on January 5, 2017 for
back and neck injuries which appellant indicated occurred when a heavy door fell on his lower
back. He diagnosed lumbar contusion.
In a January 5, 2017 authorization for examination and/or treatment (Form CA-16), the
employing establishment authorized appellant to seek medical care. In Part B of the Form CA-16,
attending physician’s report, dated January 9, 2017, Kristin A. Smith, a physician assistant,
reported that he was struck by a mail truck door at work and injured his lower back. She diagnosed
trauma to lumbar spine and associated pain. Ms. Smith checked a box marked “Yes” indicating
that the diagnosed conditions were caused or aggravated by the described employment activity.
She opined that appellant was totally disabled from work beginning January 5, 2017. In a duty
status report (Form CA-17) of even date, Ms. Smith diagnosed left spine pain and trauma and
advised that he was disabled from work.
On February 10, 2017 Dr. Mark J. Krinock, a Board-certified neurologist, treated appellant
for acute low back pain due to trauma. Appellant reported that, on January 5, 2017 while at work,
the rear door of his vehicle fell onto his lower back. Dr. Krinock noted a history of low back
surgery approximately 20 years ago and diagnosed acute back pain due to trauma, chronic low
back pain, degenerative disc disease of the lumbar spine, left leg pain, and lumbar spondylosis. In
a duty status report (Form CA-17) dated February 10, 2017, he diagnosed back and leg pain and
noted that appellant continued to be disabled. Dr. Krinock prepared a certification of healthcare
provider on February 22, 2017 and noted that appellant experienced back pain radiating into the
left lower extremity. He continued to find appellant disabled from work.
OWCP received a February 24, 2017 x-ray of the lumbar spine, which revealed very mild
degenerative disc changes at L5-S1. A magnetic resonance imaging scan of the lumbar spine of
even date revealed previous left laminectomy discectomy at L4-5, granulation tissue within the
epidural space, possible left central extruded disc material, small right central disc protrusion

2

partially mineralized at L5-S1 abutting and mildly displacing the right S1 nerve root, and
additional mild degenerative changes.
In a March 16, 2017 development letter, OWCP advised that, when appellant’s claim was
received, it appeared to be a minor injury that resulted in minimal or no lost time from work.
Therefore, payment of a limited amount of medical expenses was administratively approved
without formal consideration of the merits of his claim. OWCP reopened appellant’s claim for
consideration of the merits. It advised him of the deficiencies of his claim and requested additional
factual and medical evidence from him. OWCP afforded appellant 30 days to respond.
Appellant attended physical therapy treatment on March 1, 2017.
Dr. Krinock treated appellant on March 6 and April 3, 2017 in follow-up and diagnosed
acute back pain, acute back pain due to trauma, chronic low back pain, lumbar degenerative disc
disease, herniated nucleus pulposus at L4-5, left lumbar radiculopathy, lumbar spondylosis, and
recurrent herniation of lumbar disc. He recommended an epidural steroid injection. In a letter
dated March 21, 2017, Dr. Krinock advised that appellant did well following his back surgery in
the 1990’s and it was not until January 5, 2017, when appellant bent over and the door of his
vehicle fell onto his back that he experienced severe low back pain radiating into the left lower
extremity. He noted that the x-ray reports demonstrated a recurrent disc herniation at the L4-5
level, which correlated with appellant’s back and left leg pain. Dr. Krinock continued to
recommended an epidural steroid injection. In a duty status report (Form CA-17) dated March 9
and April 3, 2017, he diagnosed disc herniation and lumbar radiculopathy and noted that appellant
remained disabled.
On March 16, 2017 Dr. Kevin Drew, a Board-certified anesthesiologist, treated appellant
for low back and left leg pain, which began after appellant was struck by a truck door on
January 5, 2017. His history was significant for prior lumbar surgery. Dr. Drew diagnosed
subacute low back and left leg pain, left S1 radiculopathy, history of previous L4-5 laminectomy,
possible internal disc disruption, and lumbar zygapophyseal joint pain. He recommended an
epidural steroid injection.
By decision dated April 28, 2017, OWCP denied appellant’s traumatic injury claim finding
that the medical evidence submitted was insufficient to establish causal relationship between his
diagnosed condition and the accepted January 5, 2017 employment incident.
On August 15, 2017 appellant requested reconsideration. He submitted a July 14, 2017
letter from Dr. Krinock, who described appellant’s injury which occurred when the weight of a
vehicle door fell on his back causing pain. Dr. Krinock opined that “this truly represents a causeand-effect” and a traumatic aggravation of appellant’s condition. In a Form CA-17 dated June 15,
2017, he diagnosed disc herniation and returned appellant to part-time work four hours per day.
In a July 10, 2017 Form CA-17, Dr. Krinock diagnosed disc herniation and returned appellant to
work six hours a day with restrictions.
By decision dated October 23, 2017, OWCP denied modification of the decision dated
April 28, 2017.

3

On March 20, 2018 appellant requested reconsideration. He submitted a February 28, 2018
report from Dr. Krinock, who noted a history of appellant’s back surgery and the subsequent
January 5, 2017 work injury. Dr. Krinock opined that the new onset of symptoms following a
trauma had resulted in a recurrent disc herniation at the L4-5 level and unequivocally accelerated
any potential decline in function.
By decision dated June 14, 2018, OWCP denied modification of the decision dated
October 23, 2017.
On April 18, 2019 appellant requested reconsideration. He submitted a March 6, 2019
report from Dr. Jerry Powell, a Board-certified family practitioner, who noted a history of injury
and medical treatment. Dr. Powell diagnosed other intervertebral disc displacement lumbosacral
region, disc disorder/lumbar spine radiculopathy, and other intervertebral disc degeneration in the
lumbar spine. On January 5, 2017 he noted that appellant was leaning into the back of his LLV to
get mail and the back door cable and spring broke causing the 100-pound door to come crashing
down on appellant’s lumbar spine trapping him. Dr. Powell opined that as the door impacted
appellant’s lumbar spine it caused the previously surgically repaired disc at L4-5 to herniate and
caused a moderate diffuse disc bulging at L5-S1. He noted that the jelly like nucleus disc, which
moved within the outer annulus according to the pressures of the spine, was displaced causing the
protrusion and bulging. Dr. Powell indicated that the 100-pound weighted doors impact to the
lumbar spine was in excess of a tolerable force and caused the L4-5 and L5-S1 discs to protrude
and bulge causing a decreased amount of space for the nerve to exit, causing nerve impingement
and radiculopathy. He opined that appellant sustained a herniation of his lumbar disc at L4-5, the
protrusion of L5-S1 of the central disc displacing the right S1 nerve root, acceleration of the
degenerative changes at L5-S1, and permanent aggravation of lumbosacral osteoarthritis as a direct
result of the 100-pound door falling on his back while performing his work duties.
By decision dated July 15, 2019, OWCP denied modification of the decision dated
June 14, 2018.
On September 13, 2019 appellant through his representative, requested reconsideration.
He submitted an amended report from Dr. Powell dated September 12, 2019 and corrected the date
of thoracic and lumber spine x-rays from September 12, 2019 to May 16, 2013. Dr. Powell
explained that the disc herniation at L4-5, L5-S1 disc space narrowing vacuum disc phenomena,
and moderate disc bulging with mild spondylosis was due to the new trauma that occurred on
January 5, 2017, which also aggravated and exacerbated the degenerative osteoarthritic condition
that was previously asymptomatic.
By decision dated December 12, 2019, OWCP denied modification of the July 15, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
3

Id.

4

States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,4 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.5 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.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.7
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.8 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 specific employment factors
identified by the employee.9
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.10
Pursuant to OWCP’s procedures, no development of a claim is necessary where the
condition reported is a minor one which can be identified on visual inspection by a lay person (e.g.,

4

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).
5

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).
6
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).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
9

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22,
2020); Victor J. Woodhams, 41 ECAB 345, 352 (1989).
10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

5

burn, laceration, insect sting or animal bite).11 No medical report is required to establish a minor
condition such as a laceration.12
ANALYSIS
The Board finds that appellant has met his burden of proof to establish a lumbar contusion
causally related to the accepted January 5, 2017 employment incident.
On January 5, 2017 the date of the accepted employment incident, appellant received
treatment in the emergency room by Dr. Sherwin and Mr. MacKnick for, among other things, a
lumbar contusion as a result of a heavy door falling on appellant’s back while in the performance
of duty. The diagnosis of lumbar contusion was visible on inspection and consistent with the locus
and mechanism of injury. As such, the Board finds that this evidence is sufficient to establish that
appellant sustained a lumbar contusion causally related to the accepted February 21, 2019
employment incident.13 Upon return of the case record OWCP shall make payment and/or
reimbursement of medical expenses and wage-loss compensation, if any, with regard to the
accepted lumbar contusion.
The Board further finds that the case is not in posture for decision regarding whether the
diagnosed conditions of other intervertebral disc displacement lumbosacral region, disc
disorder/lumbar spine radiculopathy, and other intervertebral disc degeneration in the lumbar spine
were causally related to or aggravated by the accepted January 5, 2017 employment incident.
Dr. Powell provided a proper factual and medical history of injury. In his reports dated
March 6 and September 12, 2019, he opined that the impact of the 100-pound work vehicle door
on appellant’s back on January 5, 2017 caused the acceleration of degenerative changes at L5-S1
and permanent exacerbation and aggravation of osteoarthritis in his lumbar spine. Dr. Powell
opined that as the door impacted appellant’s lumbar spine it caused the previously surgically
repaired disc at L4-5 to herniate and caused a moderate diffuse disc bulging at L5-S1. He further
explained that the jelly like nucleus disc, which moved within the outer annulus according to the
pressures of the spine, was displaced during the impact causing the protrusion and bulging.
Dr. Powell indicated that the impact of the 100-pound door on appellant’s lumbar spine was in
excess of a tolerable force which caused the L4-5 and L5-S1 discs to protrude and bulge, causing
a decreased amount of space for the nerve to exit and causing nerve impingement and
radiculopathy. He concluded that appellant sustained a lumbar disc herniation at L4-5, protrusion
of L5-S1 of the central disc displacing the right S1 nerve root, acceleration of degenerative changes
at L5-S1, and permanent aggravation of lumbosacral osteoarthritis as a direct result of the workrelated injury when the back door cable spring broke and the 100-pound door fell on appellant’s
back while performing his work duties.

11

See id. at Chapter 2.800.6(a) (June 2011).

12

Id.; see S.H., Docket No. 20-0113 (issued June 24, 2020) (the Board accepted a contusion as causally related to
the accepted employment incident).
13

Supra notes 11 and 12.

6

The Board finds that the reports from Dr. Powell are sufficient to require further
development of the medical evidence. Dr. Powell is a Board-certified physician who is qualified
in his field of medicine to render rationalized opinions on the issue of causal relationship and he
provided a comprehensive understanding of the medical record and case history. His report
suggests a pathophysiological explanation as to how a 100-pound LLV door, which fell on
appellant’s back while at work resulted in a diagnosis of other intervertebral disc displacement of
the lumbosacral region, disc disorder/lumbar spine radiculopathy, and other intervertebral disc
degeneration in the lumbar spine. The Board has long held that it is unnecessary that the evidence
of record in a case be so conclusive as to suggest causal connection beyond all possible doubt.
Rather, the evidence required is only that necessary to convince the adjudicator that the conclusion
drawn is rational, sound, and logical.14 Accordingly, Dr. Powell’s March 6 and September 12,
2019 medical opinion is well-rationalized and is therefore sufficient to require further development
of appellant’s claim.15
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17
On remand OWCP shall refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician shall provide a well-rationalized
opinion as to whether his diagnosed conditions of other intervertebral disc displacement
lumbosacral region, disc disorder/lumbar spine radiculopathy, and other intervertebral disc
degeneration in the lumbar spine were causally related to or aggravated by the accepted January 5,
2017 employment incident. After such further development of the case record as OWCP deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28,
2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein.
15

J.H., supra note 5; D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12,
2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983).
16

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
17
See B.C., Docket No. 15-1853 (issued January 19, 2016); E.J., Docket No. 09-1481 (issued February 19,
2010); John J. Carlone, 41 ECAB 354 (1989).

7

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2019 decision of the Office of
Workers’ Compensation Programs is reversed in part and set aside in part. The case is remanded
for further proceedings consistent with this decision of the Board.
Issued: August 27, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8