United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Everett, WA, Employer
__________________________________________

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

Docket No. 07-2398
Issued: April 15, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 24, 2007 appellant filed a timely appeal of a July 2, 2007 merit decision of
the Office of Workers’ Compensation Programs, finding that he did not sustain an emotional
condition in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that he sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On August 24, 2006 appellant, then a 51-year-old air traffic controller, filed an
occupational disease claim. On April 7, 2005 he first realized that his generalized anxiety
disorder was caused by his federal employment. Appellant stated that he had a highly
demanding stressful occupation and that he worked in a stressful environment for over 30 years.

His stress and anxiety levels caused his health to deteriorate to the point that he could no longer
work in his position.
In an April 7, 2005 medical report, Timothy M. Reisenauer, Ph.D., a licensed clinical
psychologist, reviewed a history that on September 8, 2001 appellant was involved in a near
“loss of separation” incident and thereafter requested a transfer. He witnessed an aircraft crash
on December 18, 2004 and believed that the pilot had died but later found out he had survived.
Dr. Reisenauer noted that appellant’s emotional and physical symptoms related to the stated
incidents and his family and social background. He reported findings on physical and mental
examination. Dr. Reisenauer stated that appellant sustained generalized anxiety disorder, acute
stress disorder due to involvement in a plane crash that was largely resolved and adjustment
disorder with anxious mood. He opined that appellant’s generalized anxiety disorder and acute
stress disorder were either caused or aggravated by his employment as an air traffic controller.
By letter dated October 12, 2006, the Office advised appellant that the medical evidence
submitted was insufficient to establish his claim. It addressed additional factual and medical
evidence he needed to submit. The Office also requested that the employing establishment
respond to appellant’s allegations and provide a description of his position.
In an undated narrative statement, appellant described his emotional condition and
employment. On September 8, 2001, since there was no loss of separation, he was not required
to report the incident but it greatly affected his stress and anxiety levels. Appellant experienced
difficulty sleeping over the next few nights. On September 11, 2001 his work environment
became very stressful following the terrorist acts. In mid-October 2001, Bob Strong, an
instructor, became demanding and overly aggressive towards appellant during training in a radar
simulator class which caused him to leave the room. Later that day, Mr. Strong had an emotional
explosion and stormed into a manager’s office demanding that appellant be fired. After
appellant heard about this, his request for a transfer to Paine Field was granted by the employing
establishment.
Appellant stated that in August 2004 Don Korzep, a coworker, accused him of failing to
properly prepare a watch schedule and told him that he better start wearing a flak jacket. He
contended that Mr. Korzep was very unstable and was known to be a collector of guns.
Appellant took the threat seriously and reported it to Sheri Kasen, his manager. He was on edge
for several weeks with worry for the safety of himself, his family and coworkers. Appellant
related that Mr. Korzep never showed up for work after he filed the complaint. Mr. Korzep went
on extended sick leave and retired.
Regarding the December 18, 2004 crash, appellant stated that the aircraft had just
departed and was approximately 200 feet in the air, swerved towards the control tower and then
crashed nose first into the pavement. He experienced stress and anxiety during this incident and
later on while watching a news broadcast of the crash.
On December 22, 2004 appellant sought medical treatment for his emotional symptoms.
On May 17, 2005 Dr. Christopher S. Taylor, an employing establishment flight surgeon,
reviewed Dr. Reisenauer’s findings and temporarily revoked appellant’s medical certificate
which allowed him to perform his air traffic control duties. Appellant was assigned to

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administrative duties. In August 2005, a mid-air collision between two aircraft resulted in two
fatalities and, in October 2005, an aircraft crashed at the airport resulting in three fatalities. He
alleged that these incidents greatly affected him. On October 11, 2005 Dr. Taylor permanently
revoked appellant’s medical certificate. Appellant’s request for disability retirement was
approved on October 28, 2005. He stated that prior to the above-noted incidents he had never
suffered a similar emotional condition. Appellant had no other sources of stress in his personal
life and no outside employment. He enjoyed many hobbies.
Appellant submitted Dr. Taylor’s October 11, 2005 memorandum which advised him that
he was medically disqualified from his air traffic control position. He stated that his generalized
anxiety disorder and chronic use of disqualifying medication precluded him from safe
performance of his air traffic control duties under any condition that reasonably could be
perceived based on his review of his medical information. In an October 18, 2005 report,
Dr. Reisenauer reiterated his prior diagnoses. He also diagnosed recurrent primary insomnia that
was related to anxiety. Dr. Reisenauer opined that appellant was unable to return to his job as an
air traffic controller because he would never completely recover from his generalized anxiety
condition. He stated that appellant’s condition was largely static and the prognosis was poor that
he would return to a level of pre-morbid functioning which allowed a return to his high pressure
job.
In a December 4, 2006 letter, the employing establishment stated that appellant filed a
traumatic injury claim assigned number 142036112 regarding the December 18, 2004 airplane
crash which was accepted by the Office for acute stress reaction on November 7, 2005.
Regarding the September 8, 2001 incident, the employing establishment explained the meaning
of a loss of separation situation and stated that no such incident occurred. It stated that, if this
incident had occurred, appellant’s work performance would have been rigorously scrutinized and
he would have likely been required to undergo additional training. The employing establishment
contended that his reaction to a possible loss of separation was self-generated. It related that
appellant was not at work on September 11, 2001. Appellant was on annual leave from
September 9 through 17, 2001 and returned to work on September 20, 2001.
The employing establishment stated that appellant did not provide specific details
regarding the mid-October 2001 training incident. It noted the findings of its investigation of the
August 2004 threat by Mr. Korzep. Both appellant and Mr. Korzep reported that they initially
were joking. Mr. Korzep apologized to appellant for making the comment about wearing a
bullet proof vest. Appellant’s comment to Mr. Korzep that he would be lucky to make it past
retirement could have been considered threatening and provocative. He waited 12 days after
Mr. Korzep made the comment before reporting it to management. Mr. Korzep was on extended
medical leave and it was not known if he would be returning to work and there was no imminent
danger based on interviews management documented and consultation with the supervisor.
The employing establishment contended that appellant’s reaction to the news report of
the December 18, 2004 incident was self-generated. It stated that a November 27, 2005 report of
Dr. Larry S. Bornstein, a Board-certified psychiatrist, found that his acute stress reaction had
resolved. The employing establishment also stated that appellant did not witness the August and
October 2005 airplane crashes because he was assigned administrative duties unrelated to air
traffic control duties.

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By letter dated April 13, 2007, the Office requested that the employing establishment
submit a statement from Mr. Strong regarding appellant’s allegation of harassment.
In a May 15, 2007 narrative statement, Mr. Strong related that he greeted appellant at the
training session and encouraged him to relax and have fun working with aircraft in a simulator.
He noted that, while appellant was working on a problem, he made an error in vectoring two
aircraft together. Mr. Strong asked the other trainers to stop the problem so that appellant could
see his error. He quietly and calmly told him how he could have avoided the error. Appellant
responded “If you want them separated then do it yourself!” Mr. Strong stated that appellant
walked out of the room saying that he was going on break. He commented that in his 30 years as
a trainer, he had never seen a trainee respond like appellant. Mike Xaviar, a coworker, asked
Mr. Strong what he did to appellant. Mr. Strong explained what happened and Mr. Xaviar stated
that appellant wanted to return to Paine Field control tower. Mr. Xaviar accused Mr. Strong of
wanting to fire appellant which he denied. Mr. Strong advised appellant that, if he was not going
to try to perform better, he should return to Paine Field control tower.
By decision dated July 2, 2007, the Office denied appellant’s claim, finding that he did
not sustain an emotional condition in the performance of duty. It found that the September 11,
2001, October 2001 and August 2004 incidents did not constitute compensable factors of his
employment. The Office further found that appellant’s transfer following the October 2001
incident and the withdrawal of his medical certificate constituted administrative matters and he
failed to establish error or abuse. Appellant also failed to establish that the September 8, 2001
incident occurred as alleged.
LEGAL PRECEDENT
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by factors of his federal employment.1 To establish that he sustained an
emotional condition in the performance of duty, a claimant must submit: (1) factual evidence
identifying employment factors or incidents alleged to have caused or contributed to his
condition; (2) medical evidence establishing that he has an emotional or psychiatric disorder; and
(3) rationalized medical opinion evidence establishing that the identified compensable
employment factors are causally related to his emotional condition.2
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,3 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.4
There are situations where an injury or an illness has some connection with the employment but
1

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

2

See Donna Faye Cardwell, 41 ECAB 730 (1990).

3

28 ECAB 125 (1976).

4

5 U.S.C. §§ 8101-8193.

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nevertheless does not come within the concept or coverage under the Act.5 When an employee
experiences emotional stress in carrying out his employment duties and the medical evidence
establishes that the disability resulted from his emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from his emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of his work.6
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
Where the disability results from an employee’s emotional reaction to his or her regular
or specially assigned duties or to a requirement imposed by the employment, the disability comes
within the coverage of the Act. On the other hand, the disability is not covered where it results
from such factors as an employee’s fear of a reduction-in-force or his frustration from not being
permitted to work in a particular environment or to hold a particular position.9 Generally,
actions of the employing establishment in administrative or personnel matters, unrelated to the
employee’s regular or specially assigned work duties, do not fall within coverage of the Act.10
However, an administrative or personnel matter will be considered to be an employment factor
where the evidence discloses error or abuse on the part of the employing establishment.11
ANALYSIS
Appellant attributed his emotional condition to a near loss of separation incident on
September 8, 2001 between two aircraft under his control. He did not report this incident and he
did not submit any witness statements. The employing establishment stated that this incident did
5

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

6

Lillian Cutler, supra note 3.

7

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

8

Id.

9

Lillian Cutler, supra note 3.

10

Michael L. Malone, 46 ECAB 957 (1995).

11

Charles D. Edwards, 55 ECAB 258 (2004).

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not occur because appellant’s work performance would have been rigorously scrutinized and he
would have likely been required to receive additional training. Appellant’s unsupported
allegation alone is insufficient to establish a factual basis for this incident.12 As he failed to
establish a factual basis for the September 8, 2001 incident, he did not establish that it occurred
as alleged. The Board finds that appellant has not established a compensable factor of
employment under the Act with respect to this allegation.
Appellant also attributed his emotional condition to the September 11, 2001 terrorist
attacks. He stated that his work environment became very stressful following this incident.
Appellant further attributed his emotional condition to an August 2005 mid-air collision between
two aircraft and an October 2005 aircraft crash which resulted in several fatalities. The
employing establishment stated that he did not witness any of these incidents. It related that
appellant was not at work on September 11, 2001. Appellant was on annual leave from
September 9 through 17, 2001 and he returned to work on September 20, 2001. The employing
establishment further stated that at the time of the August and October 2005 crashes appellant
was assigned administrative duties unrelated to air traffic control duties. The Board finds that
appellant’s reaction to the September 11, 2001 terrorist attacks and August and October 2005
aircraft crashes involves a fear of future injury which is not compensable under the Act.13
Appellant alleged that his emotional condition was caused by unwarranted harassment by
Mr. Strong. He stated that Mr. Strong was demanding and overly aggressive towards him during
a radar simulator training class which caused him to leave the room. Appellant further stated
that he heard that Mr. Strong exploded as he asked a manager to fire him. The Board has held
that actions of an employer which the employee characterized as harassment may constitute a
factor of employment giving rise to coverage under the Act, but there must be some evidence
that the harassment did in fact occur.14 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation.15 Appellant did not submit any
witness statements in support of his allegation of harassment by Mr. Strong. Mr. Strong stated
that he greeted appellant at the training class and encouraged him to relax and have fun. He
quietly and calmly explained to appellant how he could have avoided an error he was making
while working on aircraft during the training class. Mr. Strong stated that appellant responded
that Mr. Strong should perform the task himself and walked out of the room. He denied
Mr. Xaviar’s accusation that he was trying to have appellant fired following this incident.
Appellant failed to provide any probative evidence that harassment occurred as alleged and
based on Mr. Strong’s statement, the Board finds that he did not establish a compensable
employment factor with respect to harassment.
Regarding appellant’s allegation that he was threatened by Mr. Korzep with bodily harm,
the Board has recognized the compensability of physical threats or verbal abuse in certain
circumstances. This does not imply, however, that every statement uttered in the workplace will
12

See Charles E. McAndrews, 55 ECAB 711 (2004).

13

Virginia Dorsett, 50 ECAB 478, 482 (1999).

14

James E. Norris, 52 ECAB 93 (2000).

15

Reco Roncoglione, 52 ECAB 454, 456 (2001).

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give rise to coverage under the Act.16 The employing establishment’s investigation of the
alleged threat by Mr. Korzep revealed that both he and appellant reported that they were initially
joking. Mr. Korzep apologized to appellant for making the comment about wearing a bullet
proof vest. The employing establishment stated that appellant’s comment to Mr. Korzep that he
would be lucky to make it past retirement could have been considered threatening and
provocative. It found, however, that appellant waited 12 days after Mr. Korzep made the threat
before reporting it to management. The employing establishment stated that Mr. Korzep was on
extended medical leave and it was not known if he would be returning to work and there was no
imminent danger based on interviews management documented and consultation with the
supervisor. The Board finds that there is no probative evidence that appellant was ever
threatened by Mr. Korzep. Therefore, he has failed to establish a compensable employment
factor.
The employing establishment’s investigation17 and removal of appellant from his air
traffic control duties18 relate to administrative and personnel matters that may constitute
compensable employment factors only if error or abuse is established. Dr. Taylor initially
revoked appellant’s medical certificate for a temporary time period based on Dr. Reisenauer’s
findings that his emotional conditions were caused or aggravated by his work duties. He later
permanently revoked appellant’s medical certificate because his emotional condition and use of
disqualifying medication precluded him from performing the duties of his air traffic controller
position. Appellant has not substantiated that the employing establishment erred or acted
abusively with regard to his removal from his air traffic control position. Thus, the Board finds
that he did not establish a compensable factor of employment.19
The Board finds that appellant has not established that his claimed emotional condition is
causally related to a compensable employment factor.
CONCLUSION
The Board finds that appellant has failed to establish that he sustained an emotional
condition in the performance of duty.

16

Charles D. Edwards, supra note 11.

17

Jimmy B. Copeland, 43 ECAB 339 (1991).

18

See Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006); Artice Dotson, 41 ECAB
754 (1990).
19

As to the December 18, 2004 aircraft crash, the Board notes this was subject of a traumatic injury claim
accepted by the Office as claim No. 142036112.

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ORDER
IT IS HEREBY ORDERED THAT the July 2, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 15, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION ACADEMY,
Quantico, VA, Employer
__________________________________________

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

Docket No. 21-1236
Issued: February 2, 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 August 12, 2021 appellant filed a timely appeal from May 11 and June 30, 2021 merit
decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted February 14, 2019 employment incident.
FACTUAL HISTORY
On February 22, 2019 appellant, then a 32-year-old new agent trainee, filed a traumatic
injury claim (Form CA-1) alleging that on February 14, 2019 he sustained a contusion to the
1

5 U.S.C. § 8101 et seq.

cartilage and muscles of his lower left rib during a physical training course while in the
performance of duty. He explained that the incident resulted from grappling exercises during
defensive tactics training and that it caused him to have difficulty with mobility, sitting, bending,
and laying down. Appellant did not stop work.
In an authorization for examination form and/or treatment (Form CA-16) dated
February 14, 2019, the employing establishment authorized treatment at the emergency room of a
hospital. E.C., the authorizing official, noted a February 14, 2019 date of injury and described
appellant’s alleged injury as a contusion and pain in the left chest and rib region.
On February 14, 2019 Dr. James Sprinkle, a Board-certified radiologist, performed an
x-ray of the left side of appellant’s chest and ribs and found no evidence of rib fracture, lung
contusion, or pneumothorax. He noted that the pain appellant was experiencing was “most likely”
due to muscular strain In medical notes of even date, Dr. Scott Ottolini, Board-certified in
emergency medicine, also recounted the history of injury and also noted that there was no evidence
of fracture, lung contusion or pneumothorax, or any acute abnormalities. In a separate medical
report of even date, he related that appellant was experiencing pain in the left anterior side of the
ribcage after he was involved in combat training at the employing establishment. Dr. Ottolini
noted that appellant’s pain increased when he attempted to change positions or touched the injury
site.
In a development letter dated April 5, 2021, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of factual and medical evidence necessary to establish his
claim and provided a questionnaire for his completion. It afforded him 30 days to submit the
necessary evidence.
In progress notes dated February 14 through March 12, 2019, Amanda Odonnall and
Joyceann Bilefernich, nurse practitioners with the employing establishment, examined appellant
and noted a bulge and contusion of the left ribcage. Ms. Odonnall related that on February 14,
2019 appellant experienced significant pain alongside his ribcage resulting in difficulty breathing.
In subsequent progress notes, he reported that following weeks of pain medication and physical
therapy, he experienced decreased pain alongside the ribcage and denied breathing issues.
On April 28, 2021 appellant submitted a response to OWCP’s development questionnaire.
He explained that on February 14, 2019 he injured his left rib cage during a grappling exercise.
Appellant reported that his symptoms consisted of severe pain to the lower left rib cage and
difficulty walking, running, bending down, and moving his torso. He asserted that he sought
emergency medical attention immediately after the nurses noted a protrusion, bulge, and swelling
on the left lower rib cage. Appellant noted that he underwent x-rays of his left rib region while at
the emergency room.
By decision dated May 11, 2021, OWCP denied appellant’s traumatic injury claim, finding
that “pain” is not a valid medical diagnosis and that the medical evidence of record was insufficient
to establish a left rib condition causally related to the accepted February 14, 2019 employment
incident. It concluded, therefore, that the requirements had not been met to establish an injury as
defined by FECA.

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On June 22, 2021 appellant requested reconsideration and attached additional medical
evidence in support thereof.
In a February 14, 2019 after visit summary, Dr. Ottolini diagnosed myalgia and
pleurodynia, a viral infection, as a result of appellant’s left rib condition. He further noted that
appellant was experiencing slight swelling and tenderness at the injury site. Dr. Ottolini prescribed
pain medication and recommended follow up with a primary care physician. OWCP also received
previously submitted hospital notes by Dr. Ottolini and hospital staff.
By decision dated June 30, 2021, OWCP denied modification its May 11, 2021 decision.
LEGAL PRECEDENT
A claimant 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 employee 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 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 and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury. 6
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence.7 Rationalized medical opinion evidence is medical evidence, which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
2

Supra note 1.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued December 13, 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).
6

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).
7

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).

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one of reasonable medical certainty, and must be supported by medical rationale exp laining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the claimant.8
Pursuant to OWCP’s procedures, no development of a claim is necessary when the
condition reported is a minor one, which can be identified on visual inspection by a lay person
(e.g., burn, laceration, insect sting, or animal bite). 9
ANALYSIS
The Board finds that appellant has met his burden of proof to establish a bulge and
contusion causally related to the accepted February 14, 2019 employment incident.
Ms. Odonnall and Ms. Bilefernich, nurse practitioners with the employing establishment,
examined appellant on the date of injury and noted a bulge and contusion of the left ribcage. In a
February 14, 2019 after visit summary, Dr. Ottolini noted that appellant was experiencing slight
swelling and tenderness at the injury site.
As the evidence of record establishes that appellant’s employment incident resulted in a
visible injury, the Board finds that appellant has met his burden of proof to establish a left ribcage
bulge and contusion causally related to the accepted February 14, 2019 employment incident. 10
The Board will, therefore, reverse in part the May 11, 2021 decision and remand the case for
payment of medical costs and wage-loss compensation for disability, if any. 11
The Board further finds, however, that the case is not in posture for decision with regard
to whether appellant has established additional medical conditions as causally re lated to the
accepted February 14, 2019 employment injury.
Dr. Ottolini, in his February 14, 2019 after visit summary, diagnosed pleurodynia, a viral
infection. As the medical evidence demonstrates that appellant was diagnosed with pleurodynia,
the case must be remanded for consideration of the medical evidence with regard to the issue of
causal relationship. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.

8

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).
9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.6(a)
(June 2011). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c)
(January 2013). R.H., Docket No. 20-1684 (issued August 27, 2021); M.B., Docket No. 15-0287 (issued August 20,
2015); Pearlene Morton, 52 ECAB 493 (2001).
10

Id.

11

See W.R. Docket No. 20-1101 (issued January 26, 2021); A.J., Docket No. 20-0484 (issued September 2, 2020).

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CONCLUSION
The Board finds that appellant has met his burden of proof to establish a left ribcage bulge
and contusion causally related to the to the accepted February 14, 2019 employment incident. The
Board further finds, however, that the case is not in posture for decision with regard to whether
appellant has established additional medical conditions as causally related to the accepted
February 14, 2019 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the May 11 and June 30, 2021 decisions of the Office
of Workers’ Compensation Programs are reversed in part and set aside in part and the case is
remanded for further proceedings consistent with this decision of the Board. 12
Issued: February 2, 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

12

A completed Form CA-16 authorization may constitute a contract for payment of medical expenses to a medical
facility or physician, when properly executed. The form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action t aken on the claim. See
20 C.F.R. § 10.300(c); S.P., Docket No. 19-1904 (issued September 2, 2020); J.G., Docket No. 17-1062 (issued
February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 13-285
Issued: May 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 19, 2012 appellant filed a timely appeal of an August 2, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant sustained more than an additional 26 percent permanent
impairment of the right leg, for which he received a schedule award.
FACTUAL HISTORY
On August 6, 1991 appellant, then a 39-year-old woodworker, injured his right knee
while in the performance of duty. OWCP accepted his traumatic injury claim for right knee
contusion. By decision dated November 24, 1992, it granted a schedule award for seven percent
1

5 U.S.C. § 8101 et seq.

permanent impairment of the right leg due to lost range of knee motion for the period May 26 to
October 14, 1992. OWCP later expanded the claim to include right medial meniscus tear. On
January 7, 1997 appellant filed a claim for recurrence of disability arising on August 13, 1996.
OWCP accepted the claim for acceleration of right knee degenerative joint disease resulting from
partial removal of the medial meniscus on April 7, 1992.2 Appellant retired in 1999. He
subsequently filed a claim for an additional schedule award on April 22, 2009.3
Multiple right knee x-rays obtained by Dr. Jon H. Swenson, a Board-certified orthopedic
surgeon, on January 24, April 3 and May 24, 2012 exhibited tibial femoral joint space narrowing
measuring one to two millimeters medially and four millimeters laterally as well as
patellofemoral joint space narrowing measuring three millimeters.
OWCP referred appellant to Dr. David E. Lannik, a Board-certified orthopedic surgeon,
for a second opinion examination. In a June 28, 2012 report, Dr. Lannik reviewed the April 17,
2012 statement of accepted facts and medical file, pointing out that the radiographs objectively
confirmed articular surface and medial knee joint loss. On examination, he observed limited
range of motion and elicited posterior knee pain during extension maneuvers and medial joint
line pain during varus and valgus stress tests. Dr. Lannik also noted varus deformity in the
upright position. He diagnosed post-traumatic right knee arthritis secondary to torn medial
meniscus. Dr. Lannik opined that appellant’s joint space narrowing was due to the medial
meniscus tear and chondromalacia patellae. Applying Table 16-3 (Knee Regional Grid -- Lower
Extremity Impairments) of the American Medical Association, Guides to the Evaluation of
Permanent Impairment4 (hereinafter A.M.A., Guides), he assigned an impairment class (CDX)
of three with an adjusted grade of A, amounting to 26 percent permanent impairment of the right
leg on account of primary knee joint arthritis with a one-millimeter cartilage interval.5
Dr. Lannik remarked that appellant had not yet reached maximum medical improvement (MMI)
because his condition could be further stabilized by total knee replacement surgery.
On June 30, 2012 Dr. Lawrence A. Manning, an OWCP medical adviser and orthopedic
surgeon, reviewed Dr. Lannik’s June 28, 2012 report and concurred with the 26 percent
impairment rating for arthritis.6 He noted that appellant underwent arthroscopy and partial
medial meniscectomy on March 3, 1997 and identified March 3, 1998 as the date of MMI.7

2

This information was incorporated into statements of accepted fact dated November 26, 1991; February 26,
1997; September 27, 2010 and April 17, 2012.
3

OWCP originally denied this claim by decision dated March 2, 2011. This decision, however, was vacated on
December 14, 2011.
4

A.M.A., Guides (6th ed. 2008).

5

Id. at 511.

6

The medical adviser noted that appellant previously received a 7 percent right leg schedule award attributable to
the knee and indicated that this award should be subtracted from the 26 percent if the prior award was for arthritis.
7

The case record substantiates that appellant underwent surgery on March 3, 1997.

2

By decision dated July 30, 2012, OWCP accepted the following right knee injuries:
contusion, torn medial meniscus, chondromalacia patellae and post-traumatic arthritis.
By decision dated August 2, 2012, OWCP granted an additional schedule award for 26
percent permanent impairment of the right lower extremity for the period March 3, 1998 to
August 9, 1999. The award was based on his pay rate as of August 13, 1996.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.8 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are directed to
provide reasons for their impairment rating choices, including the choices of diagnoses from
regional grids and calculations of modifier scores.10
ANALYSIS
OWCP accepted that appellant sustained right knee contusion, torn medial meniscus,
chondromalacia patellae and post-traumatic arthritis while in the performance of duty and
granted a schedule award for seven percent permanent impairment of the right lower extremity
for the period May 26 to October 14, 1992. Appellant filed a claim for an additional schedule
award. In a June 28, 2012 second opinion examination report, Dr. Lannik reviewed the April 17,
2012 statement of accepted facts and medical file, conducted a physical examination, and
determined that appellant sustained an additional 26 percent permanent impairment of the right
lower extremity. Applying Table 16-3 of the A.M.A., Guides, he assigned a CDX of three with
an adjusted grade of A for primary knee joint arthritis with a one-millimeter cartilage interval,
amounting to 26 percent permanent impairment. Dr. Manning, a medical adviser, reviewed the
report and agreed with Dr. Lannik’s rating. The case record does not contain any other medical
8

5 U.S.C. § 8107; 20 C.F.R. § 10.404. No schedule award is payable for a member, function or organ of the
body not specified under FECA or the implementing regulations. J.Q., 59 ECAB 366 (2008).
9

K.H., Docket No. 09-341 (issued December 30, 2011).

10

R.V., Docket No. 10-1827 (issued April 1, 2011).

3

evidence that supports a greater percentage of impairment in conformance with the A.M.A.,
Guides. The Board finds that OWCP properly determined that appellant has no more than 26
percent additional permanent impairment, or 33 percent total right leg impairment, due to his
right knee condition.
According to OWCP procedures, before a schedule award may be made, it must be
medically determined that no further improvement can be anticipated and that the impairment
reached a fixed and permanent state.11 In particular, the file must contain competent medical
evidence that shows that the impairment has reached MMI and indicates the date on which this
occurred.12 The period of a schedule award commences on the date of MMI, which is usually
considered to be the date of the evaluation by the attending physician that is accepted as
definitive by OWCP.13 The Board has noted a reluctance to find a date of MMI that is
retroactive to the award, which often results in payment of less compensation benefits, and
requires persuasive evidence of MMI for selection of a retroactive date.14
In the instant case, the medical evidence does not sufficiently support OWCP’s finding
that the date of MMI was reached on March 3, 1998. Dr. Lannik specified that appellant had not
yet reached MMI because his right knee condition could be further stabilized by total knee
replacement surgery. On the other hand, Dr. Manning opined that appellant reached MMI more
than 14 years earlier on March 3, 1998, or exactly one year following right knee arthroscopy and
partial medial meniscectomy. This fact does not constitute the persuasive evidence necessary to
support his selection of a retroactive date of MMI. Therefore, the Board finds that the period of
appellant’s additional schedule award should have commenced on June 28, 2012, the date of
Dr. Lannik’s evaluation that was accepted as definitive by OWCP. The case will be remanded
for OWCP to determine whether this change in date modifies the pay rate applicable to the
award.15
CONCLUSION
The Board finds that appellant sustained no more than an additional 26 percent
permanent impairment of the right lower extremity.

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (January 2010).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(b)(1) (February 2013). See also R.I., Docket No. 09-1559 (issued August 23, 2010) (the
determination of whether MMI has been reached is based on probative medical evidence).
13

Mark A. Holloway, 55 ECAB 321 (2004).

14

D.R., 57 ECAB 720 (2006).

15

See id. Appellant also asks for an explanation regarding the use of his pay rate effective August 13, 1996 as the
basis of the additional schedule award. OWCP should clarify this outstanding matter on remand.

4

ORDER
IT IS HEREBY ORDERED THAT the August 2, 2012 decision of the Office of
Workers’ Compensation Programs be affirmed in part and set aside in part. The case shall be
remanded for further action consistent with this decision of the Board.
Issued: May 10, 2013
Washington, DC

Patricia Howard Fitzgerald, 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
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Kansas City, MO,
Employer
__________________________________________

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

Docket No. 15-36
Issued: February 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 6, 2014 appellant filed a timely appeal of a July 22, 2014 merit decision and
a September 19, 2014 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUES
The issues are: (1) whether appellant has met his burden of proof in establishing his
occupational disease claim; and (2) whether the Branch of Hearings and Review properly denied
his request for review of the written record as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 10, 2010 appellant, then a 47-year-old supervisor of distribution operations,
filed an occupational disease claim alleging that he developed a right knee chondromalacia
patella due to his employment. During his daily duties there were days where more walking was
required, causing swelling, tightness, and pain in his right knee. Appellant first became aware of
his condition on July 3, 2010 and first realized that this condition was related to his employment
that same date. He attributed his condition to walking in the performance of his job duties.
In a letter dated June 3, 2014, OWCP requested additional factual and medical
information from appellant in support of his claim. It also requested that the employing
establishment respond to his allegations.
Dr. Chris Maeda, a Board-certified orthopedic surgeon, examined appellant on
September 30, 2013 and diagnosed bilateral knee pain. He indicated that appellant first
developed right knee pain in 2004 and left knee pain in 1994. Appellant reported a recent
exacerbation of his symptoms on September 30, 2013 and had not worked since July 18, 2013.
He stated that his knee pain prevented him from walking one block and that his symptoms were
exacerbated by stair climbing and weight bearing. Appellant reported a left knee arthroscopy in
1999. Dr. Maeda diagnosed right knee pain and osteoarthritis.
On January 15, 2014 Dr. Maeda stated that appellant developed bilateral knee pain
without any known injury. He listed appellant’s symptoms of knee pain and difficulty bearing
weight greater in the left knee than the right. Dr. Maeda stated that appellant’s knee symptoms
began 10 years previously and that appellant was currently unable to walk more than one block.
He diagnosed osteoarthritis of the knees and noted that after being informed of the risks and
benefits appellant wished to proceed with a total knee replacement.
Dr. Maeda examined appellant on March 13 and 31, April 14, May 5 and 28, 2014. He
stated that appellant underwent a left total knee replacement on March 18, 2014 and a right total
knee replacement on January 21, 2014. Dr. Maeda stated that appellant was able to work with
restrictions beginning on May 26, 2014.
The employing establishment responded to OWCP’s questions on June 26, 2014 and
stated that appellant had reported knee problems since 2008, but had never mentioned that his
knee conditions were caused by walking at work. It stated that appellant was the only supervisor
with a desk on the workroom floor so he could sit down when needed.
By decision dated July 22, 2014, OWCP denied appellant’s occupational disease claim on
the grounds that he had not submitted the necessary factual information to establish how much
he walked in the performance of his federal job duties. It further noted that he had not provided
any medical evidence establishing that his diagnosed conditions were causally related to his
employment.
Appellant requested a review of the written record from the Branch of Hearings and
Review in a form dated by him on August 22, 2014 and received by the Branch of Hearings and

2

Review on September 2, 2014. The postmark of the accompanying envelope appears is not
legible.
By decision dated September 19, 2014, the Branch of Hearings and Review denied
appellant’s request for review of the written record as untimely, as it was not made within 30
days of OWCP’s July 22, 2014 decision. The Branch of Hearings and Review stated that his
request was postmarked on August 22, 2014 more than 30 days after the July 22, 2014 decision.
The Branch of Hearings and Review exercised its discretionary review and found that it could be
equally well addressed through the reconsideration process.
LEGAL PRECEDENT -- ISSUE 1
OWCP regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
submit the following: (1) medical evidence establishing the presence or existence of the disease
or condition for which compensation is claimed; (2) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; and (3) medical evidence establishing that the employment factors identified by the
claimant were the proximate cause of the condition for which compensation is claimed or, stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the claimant. The evidence required to establish causal
relationship is rationalized medical opinion evidence, based upon a complete factual and medical
background, showing a causal relationship between the claimed condition and identified factors.
The belief of a claimant that a condition was caused or aggravated by employment is not
sufficient to establish causal relation.3
ANALYSIS -- ISSUE 1
Appellant completed an occupational disease claim and attributed his right knee
condition to walking in the performance of his duties. He did not provide any details regarding
the amount of walking his work required or the distances that he was required to cover.
Appellant also submitted a series of medical reports from Dr. Maeda supporting a diagnosis of
bilateral knee arthritis and bilateral total knee replacements. Dr. Maeda did not address any
causal relationship between appellant’s diagnosed bilateral knee conditions and his employment
duties.
The Board finds that appellant has not met his burden of proof in establishing an
occupational disease claim. Appellant has provided medical evidence of the presence or
existence of the disease or condition for which compensation is claimed, but has provided only a
limited factual statement identifying employment factors alleged to have caused or contributed to
his diagnosed condition, walking in the performance of duty. Finally, he has provided no
medical evidence establishing a causal connection between his diagnosed bilateral knee arthritis
2

20 C.F.R. § 10.5(q).

3

Lourdes Harris, 45 ECAB 545, 547 (1994).

3

with resulting total knee replacements and his implicated employment duty of walking. Due to
these deficiencies, appellant has not established that he developed an occupational disease as the
result of his federal job duties.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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA,5 concerning a claimant’s entitlement to a hearing before an
OWCP representative, states: “Before review under section 8128(a) of this title, a claimant ...
not satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after
the date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”6
Pursuant to 20 C.F.R. § 10.615, a claimant may choose between an oral hearing and a
review of the written record. The request must be sent within 30 days (as determined by the
postmark or other carrier’s date marking) of the date of OWCP’s decision.7 If the request for
review of the written record is not made within 30 days, appellant is not entitled to a review of
the written record as a matter of right. Although not entitled to a review of the written record as
a matter of right, OWCP has discretionary authority to grant the request and must exercise this
discretionary authority.8
ANALYSIS -- ISSUE 2
The Board finds that the Branch of Hearings and Review properly determined appellant’s
August 22, 2014 request for review of the written record was not timely as it was made more
than 30 days after the issuance of OWCP’s July 22, 2014 decision. Although the postmark was
illegible, the appeal form was dated by appellant on August 22, 2014, 31 days after OWCP’s
July 22, 2014 decision and not received by OWCP until September 2, 2014. OWCP therefore,
properly denied appellant’s untimely request for a review of the written record as a matter of
right.
The Branch of Hearings and Review then proceeded to exercise its discretion, in
accordance with Board precedent, to determine whether to grant a review of the written record in
this case. The Branch of Hearings and Review determined that a review of the written record
4

Following OWCP’s July 22, 2014 initial denial of his claim and on appeal to the Board, appellant has submitted
additional medical evidence. As it did not review this evidence in reaching a final decision, the Board may not
consider this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).
5

5 U.S.C. §§ 8101-8193.

6

Id. at § 8124(b)(1).

7

20 C.F.R. § 10.615.

8

D.E., Docket No. 14-1686 (issued December 12, 2014).

4

was not necessary as the issue in the case could be resolved through the submission of evidence
in the reconsideration process. Therefore, the Branch of Hearings and Review properly denied
appellant’s request for a review of the written record as untimely and properly exercised its
discretion in determining to deny appellant’s request as he had other review options available.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof in establishing an
occupational disease causally related to his employment. The Board further finds that the
Branch of Hearings and Review properly denied appellant’s request for a review of the written
record as untimely.
ORDER
IT IS HEREBY ORDERED THAT September 19 and July 22, 2014 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 13, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE TREASURY,
BUREAU OF PRINTING & ENGRAVING,
Fort Worth, TX, Employer
__________________________________________
Appearances:
Ditty S. Bhatti, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 14-749
Issued: October 21, 2014

Case Submitted on the Record

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

The Board issued a decision and order in the above-entitled matter on August 6, 2014.
By that decision, the Board affirmed an August 23, 2013 decision of the Office of Workers’
Compensation Programs (OWCP), finding that appellant had not established his occupational
disease claim. However, the Clerk of the Board inadvertently misaddressed the August 6, 2014
decision, with respect to appellant’s authorized attorney, and mailed it to an incorrect address.
The copy of the decision sent to appellant’s authorized attorney’s address of record was returned
to the Board by the U.S. Postal Service as “unclaimed unable to forward.”
Board regulations provide that it will send its decisions and orders to appellant and his
representative at the time of issuance.1 In Bertha Keeble,2 the Board, citing to Ralph W. Moody,3
noted that a decision of the Board is issued when it is filed and mailed, and that the presumption
will be that this was accomplished on the date the decision is dated.4 The Board found in Keeble
1

20 C.F.R. § 501.6(f).

2

45 ECAB 355 (1994).

3

44 ECAB 375 (1993).

4

See supra note 2 at 356. See also B.B., Docket No. 14-799 (issued September 12, 2014).

that, as the decision in that case had been mailed to an incorrect address, the decision was not
properly issued. Consequently, the Board ordered that the decision be correctly issued.
Similarly, in the instant case, the Board inadvertently addressed and mailed the August 6,
2014 decision to an incorrect address for appellant’s authorized attorney. As in Keeble, since the
Board mailed the August 6, 2014 decision to an incorrect address, the Board concludes that such
decision was not properly issued and must be correctly issued in accordance with the Board’s
regulations.5
IT IS HEREBY ORDERED that the Board’s August 6, 2014 decision is reissued.
Issued: October 21, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

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

5

With respect to the copy of the decision sent to appellant, there is no presumption of receipt under the “mailbox
rule” since there is evidence of nondelivery. See L.D., Docket No. 14-468 (issued July 1, 2014); E.C., Docket No.
11-510 (issued September 8, 2011).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
SMITHSONIAN INSTITUTION, NATIONAL
ZOO, Washington, DC, Employer
__________________________________________

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

Docket No. 11-1874
Issued: April 17, 2012

Case Submitted on the Record

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

JURISDICTION
On August 7, 20111 appellant filed a timely appeal from a February 8, 2011 decision of
the Office of Workers’ Compensation Programs (OWCP) adjusting her compensation based on a
wage-earning capacity determination. 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

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s decision
was issued on February 8, 2011, the 180-day computation begins February 9, 2011. One hundred eighty days from
February 9, 2011 was August 8, 2011. Since using August 12, 2011, the date the appeal was received by the Clerk
of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The
date of the U.S. Postal Service postmark is August 7, 2011, which renders the appeal timely filed. See 20 C.F.R.
§ 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective July 3,
2011 based on her capacity to earn wages in the constructed position of file clerk.
On appeal, appellant contends that OWCP erred in issuing a loss of wage-earning
capacity decision as she had elected to receive retirement benefits instead of FECA benefits.
FACTUAL HISTORY
On October 18, 2007 appellant, then a 55-year-old animal keeper, filed a traumatic injury
claim alleging that on that day she sustained a deep bite wound in her right wrist and forearm
when she was bit by a howler monkey. OWCP accepted the claim for right wrist laceration with
tendon involvement, which was expanded to include right wrist and hand tenosynovitis and right
median nerve lesions. Appellant returned to light-duty full-time work on March 17, 2008. On
May 28, 2009 OWCP placed her on the periodic rolls for temporary total disability as the
employing establishment could no longer accommodate her light-duty restrictions.
In a September 22, 2008 report, Dr. Sunjay Berdia, a second opinion Board-certified
orthopedic surgeon with a subspecialty certification in hand surgery, concluded that appellant
was disabled from performing her date-of-injury position, but was capable of working with
restrictions. In a September 24, 2008 work capacity evaluation form, he provided restrictions on
repetitive movement and recommended that a functional capacity evaluation (FCE) be performed
to determine lifting restrictions.
An October 27, 2008 FCE indicated that appellant was capable of performing work
requiring light physical demands. Lifting restrictions were up to 45 pounds from the ground to
the waist and 55 pounds from the knees to the waist. In a November 13, 2008 addendum,
Dr. Berdia agreed with the October 27, 2008 FCE and concluded that appellant was capable of
performing light-duty jobs. Restrictions noted by him on a September 24, 2008 work capacity
evaluation include: reaching; reaching above the shoulder; operating a motor vehicle at work;
operating a motor vehicle to and from work; repetitive wrist movements; pushing up to 15
pounds; pulling up to 25 pounds; lifting up to 10 pounds and climbing. On September 18, 2009
OWCP referred appellant for vocational rehabilitation.
On January 9, 2010 the vocational rehabilitation counselor completed a Form CA-66 and
identified the positions of file clerk, Department of Labor, Dictionary of Occupational Titles
(DOT) (206.387-034) with a weekly salary of $330.00 and mail clerk, DOT No. 209.687-026
with a weekly salary of $340.00. The physical demands of both positions included frequent
reaching, fingering and handling. The file clerk duties included filing, reading material and
keeping records of materials. The physical demands for the mail clerk position included frequent
reaching, fingering and handling. Duties of the position included sorting mail, examining
outgoing mail, readdressing undeliverable mail and stamping mail by hand or with a machine.
The vocational rehabilitation counselor noted that these positions were within appellant’s
physical restrictions as the jobs were classified as light and required no prolonged pushing,
pulling, standing, walking, bending, crawling, climbing or stooping and no lifting more than
20 pounds.

2

On January 19, 2010 the vocational rehabilitation specialist reviewed the January 9, 2010
report from the vocational rehabilitation counselor and found that the positions of file clerk or
mail clerk with a full-time annual salary of between $17,160.00 and $17,680.00 was within
appellant’s work restrictions and reasonably available in sufficient numbers in her commuting
area.
On April 20, 2010 appellant was approved by the Office of Personnel Management
(OPM) for disability retirement. On April 25, 2010 a Notification of Personnel Action (SF50)
noted transfer from FECA benefits to OPM.
On July 9, 2010 the vocational rehabilitation specialist closed appellant’s rehabilitation
file as she elected to accept retirement benefits from OPM.
On August 6, 2010 OWCP proposed to reduce appellant’s compensation for wage loss,
noting that the medical and factual evidence established that she was no longer totally disabled
but had the capacity to earn wages as a file clerk with a weekly salary of $330.00. It allotted her
30 days within which to submit additional evidence.
In a letter dated August 16, 2010, appellant disagreed with the proposal to reduce her
wage-loss compensation as the position of file clerk was not appropriate based on educational
background and work experience. Moreover, she elected to receive benefits from OPM instead
of FECA. Appellant also argued that the vocational rehabilitation counselor erred in rejecting
her request for rehabilitation training services to work as an interpreter.
On September 13, 2010 appellant completed an election form in which she requested to
receive benefits from OPM instead of receiving FECA benefits effective April 24, 2010.
By decision dated September 21, 2010, OWCP adjusted appellant’s compensation
benefits effective September 26, 2010 based upon its determination that the position of file clerk
represented her wage-earning capacity. It noted that her weekly pay rate when injured was
$1,027.21 and that the current pay rate for the job and step when injured was $1,124.57. OWCP
found that appellant was capable of earning $330.00 a week, that the adjusted wage-earning
capacity per week was $297.89, that the percentage of the new wage-earning capacity was 29
percent, that the loss in wage-earning capacity amount a per week was $729.32, leaving her with
a compensation rate of $546.99. It calculated that this resulted in a new compensation rate every
four weeks of $2,262.00 beginning on September 26, 2010.
On October 21, 2010 appellant requested a review of the written record by an OWCP
hearing representative.
By decision dated February 8, 2011, an OWCP hearing representative affirmed the
September 21, 2010 decision reducing appellant’s wage-loss compensation.

3

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.4
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent the employee’s wageearning capacity or if the employee has no actual wages, the wage-earning capacity is
determined with due regard to the nature of the injury, the degree of physical impairment, the
employee’s usual employment, age, qualifications for other employment, the availability of
suitable employment and other factors and circumstances which may affect her wage-earning
capacity in her disabled condition.5
OWCP must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects her vocational wage-earning capacity. The
Board has stated that the medical evidence upon which OWCP relies must provide a detailed
description of appellant’s condition.6 Additionally, the Board has held that a wage-earning
capacity determination must be based on a reasonably current medical evaluation.7
ANALYSIS
OWCP accepted appellant’s claim for right wrist laceration with tendon involvement,
which was expanded to include right wrist and hand tenosynovitis and right median nerve lesions
and placed her on the periodic rolls for temporary total disability. It reduced her compensation
effective September 26, 2010 based on its finding that she had the capacity to earn wages in the
selected position of file clerk.
The Board finds that OWCP failed to establish that appellant was capable of performing
the duties of the selected full-time position. On September 22, 2008 Dr. Berdia, a second
opinion Board-certified orthopedic surgeon with a subspecialty certification in hand surgery,
concluded that appellant was capable of working an eight-hour day with restrictions on repetitive
wrist work, reaching and reaching above the shoulder. The vocational rehabilitation expert
found that the position of file clerk was suitable to appellant’s medical restrictions as it classified
3

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).
4

20 C.F.R. §§ 10.402 and 10.403.

5

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).
6

See William H. Woods, 51 ECAB 619 (2000).

7

Carl C. Green, Jr., 47 ECAB 737 (1996).

4

as light and required no prolonged pushing, pulling, standing, walking bending, crawling,
climbing or stooping and no lifting more than 20 pounds. According to the Department of
Labor, Dictionary of Occupational Titles the physical requirements for the position of file clerk,
includes frequent reaching, handling and fingering. The Department of Labor, DOT provides
that an activity is frequent if it is performed from one-third to two-thirds of the time. Dr. Berdia’s
restrictions on the September 24, 2008 work capacity evaluation form included restrictions on
repetitive wrist movement and no lifting more than 10 pounds. The restrictions set by the
physician do not conform to the physical requirements of the selected position. The record does
not adequately define whether the activities of frequent handling, reaching and fingering
complies with the work restriction of no repetitive wrist motion. OWCP’s procedures state that,
unless the medical evidence is clear and unequivocal that the selected position is medically
suitable, it should send a job description to an appropriate physician for an opinion regarding
whether the claimant can perform the position.8 The medical evidence of record does not clearly
and unequivocally establish that appellant can perform the duties of the selected position. The
Board finds that OWCP did not meet its burden of proof to reduce her compensation.
CONCLUSION
The Board finds that OWCP did not meet its burden of proof in reducing appellant’s
wage-loss compensation benefits effective July 3, 2011.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(d) (October 2009); see also John D. Jackson, 55 ECAB 465 (2004); William H. Woods, 51 ECAB
619 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 8, 2011 is reversed.
Issued: April 17, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
DATA OPERATIONS CENTER,
Wilkes-Barre, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1340
Issued: January 6, 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 April 2, 2008 appellant filed a timely appeal of a December 31, 2007 overpayment
decision 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 the case.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$4,094.07 overpayment of compensation; and (2) whether the Office properly found that
appellant was at fault in the creation of the overpayment, thus precluding waiver of the
overpayment.
FACTUAL HISTORY
On November 12, 2004 appellant, then a 47-year-old records processing specialist,
sustained a right knee sprain and strain when he slipped on a wet floor and fell. He returned to
work on January 12, 2005. On August 17, 2006 the Office accepted a recurrence of disability
from January 13 to March 12, 2005.

A February 24, 2005 disability certificate from Dr. Peter A. Cognetti indicated that
appellant was disabled from January 13 to February 28, 2005. He received sick leave pay for
January 13 to 26, 2005, annual leave pay for January 27 to February 25, 2005 and administrative
leave pay for February 28, 2005. The record shows that appellant received $4,094.07 in wageloss compensation from the Office for the same time period.
On January 29, 2007 the Office advised appellant of its preliminary determination that
there was an overpayment of compensation in the amount of $4,094.07 because he used leave for
January 13 to February 28, 2005 and also received wage-loss compensation benefits from the
Office for the same period. It made a preliminary determination that he was at fault in the
creation of the overpayment because he accepted a payment which he knew or should have
known to be incorrect. The Office stated that appellant was not entitled to receive leave pay
concurrently with disability compensation for lost wages. Appellant was advised to submit
evidence or argument if he disagreed with the fact or amount of the overpayment or if he wished
to contest the preliminary finding of fault and request a waiver of recovery of the overpayment.
Appellant requested a prerecoupment hearing on the issues of fact and amount of the
overpayment and fault. A telephonic hearing was held on October 10, 2007. He testified that in
September 2006 he took the Office compensation check to a personnel specialist at the
employing establishment. Appellant asked that the check be applied towards leave buyback and
asked what he should do with the check. The personnel specialist that he consulted had not
received instructions concerning the compensation check and told him to hold onto it until she
contacted him. Appellant testified that no one from the employing establishment ever contacted
him about what to do with the compensation check and he cashed it. He stated that it was always
his intent to buyback the leave used from January 13 to February 28, 2005.
On November 2, 2007 appellant submitted a copy of a January 27, 2005 application for
leave buyback for January 13 to February 15, 2005 and a November 2, 2007 claim for leave
buyback for January 13 to February 28, 2005. He asserted that he was not at fault in the creation
of the overpayment because he had initiated the process for leave buyback in 2005 before he
received wage-loss compensation from the Office.
By decision dated December 31, 2007, the Office hearing representative finalized the
determination that appellant received an overpayment of $4,094.07 between January 13 and
February 28, 2005 because he received wage-loss compensation from the Office at the same time
that he received sick and annual leave pay from the employing establishment. The Office
determined that appellant was at fault in the creation of the overpayment, thus precluding waiver
of the overpayment.

2

LEGAL PRECEDENT -- ISSUE 1
An employee may claim compensation for periods of annual and sick leave which are
restorable in accordance with the rules of the employing establishment. Forms CA-7a and
CA-7b are used for this purpose.1
ANALYSIS -- ISSUE 1
The Board finds that the Office correctly determined that appellant received a $4,094.07
overpayment from January 13 to February 28, 2005. The record shows that appellant received
wage-loss compensation from the Office during that period and also received leave pay from the
employing establishment. An employee is not entitled to receive wage-loss compensation and
leave pay for the same period of time. Section 8116(a) of the Act states that while an employee
is receiving workers’ compensation benefits, he or she “may not receive salary, pay or
remuneration of any type from the United States, except … in return for service actually
performed” or for certain payments related to service in the Armed Forces unless such benefits
are payable for the same injury or the same death being compensated for under the Act.2 In a
leave buyback case, an injured employee uses sick or annual leave to prevent wage loss after an
employment injury. If a claim is accepted and the work absences would otherwise be
compensable under the Federal Employees’ Compensation Act, the employee may wish to
buyback this leave from the employing establishment. An employee may decide to take sick
and/or annual leave in order to avoid possible interruption of income. If such employee does so
decide and his or her claim for compensation is subsequently approved, such employee may
arrange with his or her employing establishment to buyback the leave used and have it reinstated
to such employee’s account. The compensation, to which the employee is entitled, may be used
to pay a part of the back cost and the employee shall be obligated to pay the balance. No
compensation payments shall be paid, however, while the employee is still in leave status.
Arrangements to buyback leave shall be made with the employing establishment.3 While
appellant may claim compensation for periods of restorable leave, appellant is not entitled to
receive both compensation and leave pay. Thus, appellant received a $4,094.07 overpayment of
compensation from January 13 to February 28, 2005.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulations, an overpayment must
be recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.4 Section 10.433 of the implementing regulations specifically provides that the
Office may consider waiving an overpayment if the individual to whom it was made was not at
1

20 C.F.R. § 10.425.

2

5 U.S.C. § 8116(a).

3

James R. Rowell, 39 ECAB 869 (1988); see also Louis H. Campbell, Docket No. 01-587 (issued
December 26, 2001).
4

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10. 437.

3

fault in accepting or creating the overpayment.5 The regulation further provides that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.6 Under the regulations, a recipient
will be found to be at fault with respect to creating an overpayment if he or she “[a]ccepted a
payment which he or she knew or should have known to be incorrect.”7 Whether or not the
Office determines that an individual was at fault with respect to the creation of an overpayment
depends on the circumstances surrounding the overpayment.8
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in the creation of the overpayment based on
the third criterion above, that he accepted payments which he knew, or should have known, to be
incorrect. In order for the Office to establish that appellant was at fault in creating the
overpayment, it must show that, at the time he received the compensation checks in question, he
knew or should have known that the payment was incorrect.9 With respect to whether an
individual is with fault, section 10.433(b) of the Office’s regulations provides that whether or not
the Office determines that an individual was with fault with respect to the creation of an
overpayment depends on the circumstances surrounding the overpayment. The degree of care
expected may vary with the complexity of those circumstances and the individual’s capacity to
realize that he or she is being overpaid.10
The Board finds that appellant was at fault in creating the $4,094.07 overpayment from
January 13 to February 28, 2005. Appellant acknowledged, and the record establishes, that he
received compensation checks for the period January 13 to February 28, 2005 for the same
period that he received leave pay from the employing establishment. He testified that in
September 2006 he took the compensation check for the period January 13 to February 28, 2005
to a personnel specialist at the employing establishment and asked what he should do with the
check. Appellant was told to hold onto the check until the employing establishment contacted
him. No one from the employing establishment contacted him about the compensation check
and he cashed it. On November 2, 2007 appellant submitted a copy of a January 27, 2005
application for leave buyback for January 13 to February 15, 2005 and a November 2, 2007
claim for leave buyback for January 13 to February 28, 2005. However, until the employing
establishment converts sick and annual leave to leave without pay, the employee remains in
leave status, even if leave buyback has been requested.11 Although appellant filed a claim for
leave buyback on January 27, 2005 and November 2, 2007, the employing establishment did not
5

20 C.F.R. § 10.433(a).

6

Id.

7

20 C.F.R. § 10.433(a)(3).

8

20 C.F.R. § 10.433(b).

9

See Otha J. Brown, 56 ECAB 228 (2004); Karen K. Dixon, 56 ECAB 145 (2004).

10

20 C.F.R. § 10.433(b).

11

See James R. Rowell, 39 ECAB 869, 874 (1988).

4

process his claim and did not convert his sick and annual leave to leave without pay. Therefore,
he remained in leave status and was not entitled to accept compensation from the Office.
Appellant was aware or reasonably should have been aware that he was not entitled to receive
both wage-loss compensation and leave pay for the same period of time, i.e., that he was not
entitled to be paid twice for the same period of time. The Board finds that appellant is at fault in
the creation of the overpayment from January 13 to February 28, 2005 because he accepted
payments that he knew or should have known to be incorrect. That the Office may have been
negligent in issuing the compensation check to appellant does not mitigate this finding.12 Even if
an overpayment resulted from negligence by the Office, this does not excuse the employee from
accepting payment which the employee knew or should have been expected to know he was not
entitled to receive.13 The Office’s finding that appellant was at fault in the creation of the
overpayment is proper under the facts and the circumstances of this case, as he knew or should
have known that he was not entitled to accept a wage-loss compensation check for the period
January 13 to February 28, 2005 for the same period that he received leave pay from the
employing establishment and had not filed a claim for leave buyback. As appellant is at fault in
the creation of the overpayment from January 13 to February 28, 2005, he is not eligible for
waiver.14
CONCLUSION
The Board finds that the Office properly determined that appellant received a $4,094.07
overpayment from January 13 to February 28, 2005. The Board further finds that the Office
properly found that appellant was at fault in the creation of the overpayment and was therefore
not eligible for waiver of recovery of the overpayment.

12

See 20 C.F.R. § 10.435(a); William E. McCarty, 54 ECAB 525 (2003).

13

See Diana L. Booth, 52 ECAB 370 (2001).

14

20 C.F.R. § 10.441(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 31, 2007 is affirmed.
Issued: January 6, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Baltimore, MD, Employer
)
___________________________________________ )
M.L., Appellant

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

Docket No. 11-880
Issued: November 23, 2011

Case submitted on the record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 22, 2011 appellant filed a timely appeal from the January 20, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) which denied her claim for
a recurrence of disability. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of partial
disability beginning November 29, 2010 causally related to her July 15, 2008 employment
injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 15, 2008 appellant then a 41-year-old letter carrier, filed a traumatic injury claim
alleging that, on that date, she was holding a tray of mail and wrenched her left shoulder trying to
avert a fall. She stopped work on July 15, 2008. On September 15, 2008 OWCP accepted a torn
rotator cuff of the left shoulder. Appellant returned to limited duty on September 19, 2008. She
underwent left shoulder arthroscopy and repair, distal clavicle resection, subacromial
decompression and insertion of pain pump on November 3, 2008. Appellant returned to
modified work on February 10, 2009.2 On September 22, 2010 OWCP accepted cervical
radiculitis.3
In developing the claim, OWCP referred appellant for a second opinion examination with
Dr. Kevin Hanley, a Board-certified orthopedic surgeon. In a September 1, 2010 report,
Dr. Hanley noted examining appellant and found that she could work with permanent restrictions
which included a pushing, pulling and lifting restriction of no more than 20 pounds.
A November 22, 2010 magnetic resonance arthrogram of the left shoulder read by
Dr. Krista McFarren, a Board-certified diagnostic radiologist, found a subtle, partial articular
surface tear at the insertion of the infraspinatus that involved less than 50 percent of the tendon’s
thickness. There was no other abnormality of the rotator cuff region.
In a November 29, 2010 reports, from Dr. Gayatri Sonti, an osteopath, diagnosed a
herniated disc at C6-7 mild, cervical pain and cervical radiculopathy. He advised that appellant
should not work from November 29 to December 10, 2010. Dr. Sonti attached a November 13,
2010 cervical spine magnetic resonance imaging (MRI) scan report that found a stable moderate
left lateral disc herniation at C6-7 and stable mild degenerative changes. On November 30, 2010
an OWCP field nurse advised that appellant stopped work effective November 29, 2010.
In a letter dated November 30, 2010, OWCP notified appellant that it had learned that she
had a new period of total disability starting on or about November 29, 2010. It asked that she
clarify whether she was filing for a new injury or a recurrence of disability and submit the
appropriate form and documentation.
In a December 2, 2010 report, Dr. Jason M. Scopp, a treating orthopedic surgeon,
diagnosed left shoulder biceps tendinopathy recalcitrant status post “S/P November 3, 2008 slap
repair” (superior labrum anterior to posterior). In a December 2, 2010 disability certificate,
Dr. Scopp noted that appellant could return to restricted work on December 13, 2010. He
provided permanent restrictions which included no overhead work, no repetitive tasks and no
lifting over 10 pounds.
2

On February 1, 2010 OWCP granted appellant a schedule award for 12 percent permanent impairment of the left
upper extremity.
3

Appellant claimed a recurrence of disability on January 12, 2010. She stopped work for two days before
returning to modified work. OWCP accepted that appellant sustained a recurrence and requested that she claim
compensation for any lost time from work. Appellant claimed wage-loss compensation for August 18 and
September 21, 2010. OWCP paid wage-loss compensation for September 21, 2010 and she was in receipt of
schedule award compensation for August 18, 2010.

2

A December 8, 2010 electromyography scan from Dr. Giovanni P. David, an internist,
revealed left distal median neuropathy, carpal tunnel syndrome with evidence of both motor and
sensory fiber involvement and no evidence of significant left ulnar neuropathy or cervical
radiculopathy.
In a December 6, 2010 attending physician’s report, Dr. Sonti placed appellant off work
from November 29 to December 10, 2010. He diagnosed a central and left herniated disc at
C6-7. Dr. Sonti checked the box “no” in response to whether he believed the condition was
caused or aggravated by an employment activity. In a disability certificate also dated
December 10, 2010, he indicated that appellant could return to full duty on December 15, 2010
with no lifting over 10 pounds and no repetitive movement.
On December 10, 2010 appellant filed a (Form CA-2a), recurrence of disability notice.
She alleged that on November 29, 2010 she sustained disability and “continuous pain since
returning to work, weakness in my arm and pain in my left arm, shoulder and neck. I have three
sets of needles in my c-spine and 2 — in shoulder.” Appellant further noted that her
November 2010 MRI scans revealed a herniated disc at C6-7 and a shoulder tear and thinning of
her biceps tendon.4
In a December 14, 2010 surgical report, Dr. Conworth Dayton-Jones, a Board-certified
anesthesiologist, diagnosed chronic pain recurrent left neck and shoulder pain greater than right.
He performed cervical epidural steroid injections.
In a December 20, 2010 attending physician’s report, Dr. Scopp diagnosed shoulder
biceps tendinopathy, recalcitrant “S/P 11/08 slap repair.” He placed appellant off work from
November 29 to December 14, 2010. Dr. Scopp advised permanent restrictions of no overhead
work, no repetitive tasks, no lifting over 10 pounds.
By decision dated January 20, 2011, OWCP denied appellant’s claim for compensation
for a recurrence of disability beginning on November 29, 2010.
LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. The term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.5

4

Appellant returned to limited-duty work on December 15, 2010.

5

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

3

When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.6
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.7 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.8 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.9
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.
ANALYSIS
Appellant’s claim was accepted for torn rotator cuff left shoulder, left shoulder
arthroscopy and repair, distal clavicle resection, subacromial decompression and cervical
radiculitis.
Appellant subsequently alleged a recurrence of partial disability on November 29, 2010.
On November 30, 2010 OWCP advised her of the medical and factual evidence needed to
establish her claim for a recurrence of disability.
Appellant has not alleged a change in the nature and extent of her light-duty job
requirements. She must thus provide medical evidence establishing that she was disabled due to
a worsening of her accepted work-related conditions.10
The Board notes that Dr. Sonti provided a December 6, 2010 attending physician’s
report, in which he placed appellant off work from November 29 to December 10, 2010.
Dr. Sonti diagnosed a central and left herniated disc at C6-7 and checked the box “no” in
6

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

7

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

8

Duane B. Harris, 49 ECAB 170, 173 (1997).

9

Gary L. Fowler, 45 ECAB 365, 371 (1994).

10

Jackie D. West, 54 ECAB 158 (2002); Hedman, supra note 6 at 222 (1986).

4

response to whether he believed the condition was caused or aggravated by an employment
activity. The Board notes that a herniated disc is not an accepted condition and this report
supports that the condition is not work related. Other reports from Dr. Sonti note appellant’s
diagnoses and disability but do not support that her disability is due to her accepted conditions.
Appellant provided reports from Dr. Scopp. In a December 2, 2010 disability certificate,
Dr. Scopp advised that she could return to work on December 13, 2010. However, he did not
offer any opinion as to the cause of any disability commencing on November 29, 2010. The
December 20, 2010 attending physician’s report contained a diagnoses which included shoulder
biceps tendinopathy, recalcitrant “S/P 11/08 slap repair” and noted that appellant was disabled
from November 29 to December 14, 2010. Again, Dr. Scopp did not offer any opinion to
support that her disability beginning November 29, 2010 was due to a worsening of her accepted
work-related conditions. Other reports from him also do not address the accepted conditions are
the cause of appellant’s disability during the period at issue. Thus, these reports are of limited
probative value.11
Likewise other medical reports, including reports of diagnostic testing and disability
certificates, are insufficient to establish appellant’s claimed recurrence of disability beginning
November 29, 2010 because these reports do not specifically address whether her disability
during the period at issue is due to the accepted conditions. Thus, these reports do not support a
recurrence of disability on November 29, 2010.
As appellant has not submitted medical evidence showing that her disability beginning
November 29, 2010 was due to a spontaneous change in her accepted conditions, she has not met
her burden of proof in establishing that she sustained a recurrence of disability.
On appeal, appellant asserts that her recurrence includes a herniated disc and is work
related. OWCP adjudicated whether she had a recurrence of disability beginning November 29,
2010 due to her accepted conditions. As noted, appellant did not meet her burden of proof to
establish a recurrence of disability due to insufficient medical evidence.12
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability beginning November 29, 2010 causally related to her July 15, 2008 employment
injury.
11

S.E., Docket No. 08-2214 (issued May 6, 2009) (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).
12

If appellant is seeking an expansion of accepted conditions in her claim, she should contact OWCP regarding
this matter. As OWCP did not adjudicate claim expansion in its January 20, 2011 decision, the Board does not have
jurisdiction over this matter. See 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 23, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6