United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 20-1527
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On August 20, 2020 appellant, through counsel, filed a timely appeal from a March 24,
2020 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case. 3
1

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

5 U.S.C. § 8101 et seq.

3
The Board notes that appellant submitted additional evidence to OWCP following the March 24, 2020 decision.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish expansion of the
acceptance of his claim to include bilateral carpal tunnel syndrome, bilateral knee arthritis, and
internal derangement of the right knee.
FACTUAL HISTORY
On November 9, 2010 appellant, then a 53-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on November 3, 2010 he sustained low back and right knee
injuries when loading a postal container onto a truck while in the performance of duty. He
explained that the truck pulled away without warning, causing the container to roll backward.
Appellant stopped work on November 3, 2010. On November 4, 2010 he received treatment in a
hospital emergency department.
In a November 13, 2010 report, Dr. F. Kennedy Gordon, Board-certified in internal and
sports medicine, provided a history of injury and treatment. He noted that appellant under went
arthroscopic right meniscal repair in January 2010. Dr. Gordon diagnosed right-sided cervical
strain, right superior trapezius strain, paralumbar sprain/strain, lower right abdominal strain, right
groin strain, right medial collateral ligament sprain, and history of right meniscal tear. 4
On November 23, 2010 OWCP accepted the claim for lumbar, thoracic, and cervical spine
sprains, sprain of the right lateral collateral ligament, and a groin sprain. 5 It paid appellant wageloss compensation on the supplemental rolls commencing December 26, 2010 and on the periodic
rolls commencing September 25, 2011.6
On July 1, 2011 OWCP referred appellant for a second opinion evaluation and report from
Dr. Jeffrey F. Lakin, a Board-certified orthopedic surgeon. In a July 22, 2011 report, Dr. Lakin
opined that the accepted right knee injury remained active. He recommended right knee
arthroscopy.
On July 7, 2013 appellant returned to modified duty as a mail handler for two hours a day.
OWCP paid appellant wage-loss compensation for the remaining hours on the supplemental rolls
commencing July 7, 2013.
In an August 1, 2013 report, Dr. Mark A.P. Filippone, a Board-certified physiatrist,
reviewed a history of injury and treatment. He noted a January 2010 right knee arthroscopy prior
to the accepted injury and a 2003 nonoccupational left knee arthroscopy. On examination,
Dr. Filippone noted: bilaterally-positive Tinel’s and Phalen’s signs over the median nerve at the
wrists; diminished pinprick sensation in the right thumb, index, and middle fingers; decreased
4

Dr. Gordon provided periodic reports dated from December 6, 2010 through May 31, 2013 noting continued right
medial collateral ligament pain and a right meniscal tear requiring surgical repair. A December 30, 2010 magnetic
resonance imaging (MRI) scan of the right knee demonstrated prior meniscal surgery, tear or retear of the posterior
horn, joint effusion, chondromalacia of the patella, diffuse thickening of the patellar tendon, spurring of the p atellar
poles, and a posterior popliteal cyst.
5

Appellant underwent right inguinal hernia repair in February 2016.

6

From June 23, 2011 through February 14, 2013, appellant underwent a series of OWCP-authorized cervical and
lumbar injections, and stereotactic radiofrequency neurotomy of the right L3, L4, L5, S1, S2, and S3 nerve roots.

2

pinprick sensation over the distal volar aspect of all five left fingers and hypothenar eminence;
limited range of motion throughout the spine; right knee swelling; an equivocally-positive drawer
sign in the right knee; and crepitation over the right medial meniscus. He diagnosed cervical and
thoracic radiculitis, right inguinal hernia. and internal derangement of the right knee. Dr. Filippone
opined that all of these diagnoses “need to be accepted by [OWCP].”7
In a September 12, 2013 report, Dr. David Deramo, a Board-certified orthopedic surgeon,
provided a history of January 2010 right knee surgery and the accepted November 3, 2010
employment injury. He diagnosed right knee pain, acute right medial meniscus tear, internal
derangement of the right knee, and patellar chondromalacia.
In a September 13, 2013 report, Dr. Filippone opined that electromyography/nerve
conduction velocity (EMG/NCV) studies of the bilateral upper extremities demonstrated bilateral
carpal tunnel syndrome. 8
Appellant stopped work on March 7, 2014 and did not return.
On June 17, 2014 Dr. Marc S. Arginteanu, a Board-certified neurosurgeon, performed
OWCP-authorized partial L5 laminectomy, partial S1 laminectomy, and L5-S1 discectomy.
By decision dated June 25, 2014, OWCP accepted a recurrence of disability and a need for
medical treatment commencing March 7, 2014. It expanded the acceptance of the claim to include
lumbosacral spondylosis without myelopathy.
By decision dated July 9, 2014, OWCP accepted another recurrence of disability effective
June 17, 2014. It authorized payment of wage-loss compensation for partial disability from
May 31 through June 16, 2014. OWCP placed appellant on the periodic compensation rolls
retroactive to June 29, 2014.
Dr. Filippone provided periodic reports dated from September 5, 2014 through June 30,
2015 diagnosing cervical, 9 thoracic, and lumbar radiculopathy; bilateral carpal tunnel syndrome
with positive Tinel’s and Phalen’s signs; and internal derangement of the right knee. He opined
that these conditions were causally related to the accepted November 3, 2010 employment injury.10
7

An August 19, 2013 MRI scan of the right knee demonstrated mild tricompartmental osteoarthritis, chronic
thickening of the medial collateral ligament and patellar tendon, persistent tear of the posterior horn of the medial
meniscus, persistent radial tear of the lateral meniscus, chondromalacia, and a popliteal cyst and a focal area of
inflammation in the superolateral aspect of Hoffa’s fat pad. August 21, 2013 MRI scans of the cervical and thoracic
spine demonstrated disc bulges at C5-6, C6-7, and C7-T1, thoracic kyphosis and spondylosis deformans, and multiple
Shmorl’s nodes in the lower thoracic region.
8

In November and December 2013 appellant underwent a series of OWCP-authorized lumbar and lumbosacral
injections.
9

A January 13, 2015 MRI scan of the cervical spine demonstrated a C4-5 broad-based posterior disc bulge, C5-6
broad-based midline disc herniation with mild spinal stenosis, board-based posterior disc bulge at C6-7, and C7-T1
asymmetric disc bulge to the right. A May 20, 2015 MRI scan of the right knee demonstrated postoperative changes
from prior partial medial meniscectomy, increased cartilage loss, and patellar tracking disorder.
10

Appellant underwent a series of OWCP-authorized epidural steroid injections from March 26 through
August 13, 2015.

3

In a June 8, 2015 report, Dr. Yaser El-Gazzar, an orthopedic surgeon, noted the onset of
right knee pain after the November 3, 2010 employment injury. On examination, he observed
crepitance of both knees. Dr. El-Gazzar diagnosed patellofemoral syndrome, a right meniscal tear,
acquired genu varum deformity, and synovitis status postemployment injury. He administered a
series of cortisone injections and prescribed a knee brace.
Thereafter, OWCP referred appellant to a second opinion physician. In a July 2, 2015
report, Dr. Timothy Henderson, a Board-certified orthopedic surgeon, reviewed a statement of
accepted facts (SOAF) and the medical record and noted findings on examination. He opined that
the accepted cervical spine injury caused “double crush” bilateral carpal tunnel syndrome due to
compression of cervical nerve roots superimposed on mild compression of the median nerve at the
wrists.
Dr. Filippone submitted reports dated July 31, 2015 through September 26, 2017 finding
appellant totally disabled from work due to cervical, 11 thoracic, and lumbar radiculopathy, bilateral
carpal tunnel syndrome, and internal derangement of the right knee. He op ined that these
conditions were caused by the accepted November 3, 2010 employment injury.
Thereafter, OWCP referred appellant for a second opinion report to Dr. Stanley Askin, a
Board-certified orthopedic surgeon. In an October 6, 2017 report, Dr. Askin reviewed a SOAF
and the medical records. On examination, he observed bilaterally-positive Tinel’s sign at the wrist,
and limited active range of motion throughout the spine. Dr. Askin opined that the accepted
employment conditions had resolved without residuals. He attributed appellant’s spinal and
musculoskeletal complaints to obesity “and not consequential to the fact that he fell on
November 3, 2010.” Dr. Askin concluded that the acceptance of appellant’s claim “should not be
expanded to include any other conditions for the November 3, 2010, incident.”
In reports dated November 20, 2017, Dr. Filippone noted bilateral hand numbness
secondary to the use of a cane. 12 In reports dated December 19, 2017, he noted that both knees
were tender and effused. Dr. Filippone opined that appellant urgently required right knee
arthroscopy.
In a January 26, 2018 letter, appellant, through counsel, requested that OWCP expand the
acceptance of the claim to include bilateral carpal tunnel syndrome, based on Dr. Henderson’s
July 2, 2015 opinion.
In a February 14, 2018 report, Dr. Paul M. Brisson, a Board-certified orthopedic surgeon,
related appellant’s complaints of increased numbness and weakness in both hands. He opined that
appellant had sustained cervical and lumbar spine injuries in the November 3, 2010 employment
incident. In a March 14, 2018 report, Dr. Brisson diagnosed bilateral radiculopathy at C5, C6, C7,
and L5-S1.

11

In an October 20, 2015 report, Dr. Filippone noted that a May 6, 2015 EMG/NCV study of the bilateral upper
extremities demonstrated right C5, C6, and C7 cervical radiculopathy and left C5-6 cervical radiculopathy.
12

A November 29, 2017 MRI scan of the right knee demonstrated status post partial lateral meniscectomy,
“[r]ecurrent tear within the posterior horn of the lateral meniscus, “[n]ew vertical tear within the body and posterior
horn” of the medial meniscus, and a small ganglion cyst.

4

OWCP found a conflict of medical opinion between Dr. Filippone, for appellant, and
Dr. Askin, for the government, regarding whether acceptance of the claim should be expanded to
include additional spinal conditions, bilateral carpal tunnel syndrome, and derangement of the right
knee, and whether appellant had continuing work-related disability or required further medical
treatment. It referred appellant, an updated statement of accepted facts (SOAF), and the medical
record to Dr. Dean Carlson, a Board-certified orthopedic surgeon, to resolve the conflict of opinion
as the impartial medical examiner (IME).
In a February 15, 2018 report, Dr. Carlson diagnosed resolved cervical, thoracic, and
lumbar sprains, status post lumbar discectomy, a resolved L5-S1 disc herniation, resolved right
lateral collateral ligament sprain, nonoccupational bilateral carpal tunnel syndrome, and
nonoccupational osteoarthritis of both knees.
In a June 4, 2018 report, Dr. Imran Ashraf, a Board-certified orthopedic surgeon,
diagnosed a work-related right knee injury and post-traumatic osteoarthritis. He recommended
right knee surgery.
By notice dated July 18, 2018, OWCP proposed to terminate appellant’s wage-loss
compensation and medical benefits as the accepted employment conditions had ceased. It afforded
him 30 days to submit additional evidence or argument.
Appellant, through counsel, contended in an August 13, 2018 statement that Dr. Carlson
provided insufficient medical rationale. He submitted reports from Dr. Filippone dated from
July 18 through August 16, 2018 reiterating previous diagnoses.
By decision dated August 29, 2018, OWCP denied expansion of the acceptance of
appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement of the right
knee, bilateral knee arthritis, right inguinal hernia, herniated/bulging discs of the cervical and
lumbar spine, and cervical and lumbar degenerative disc disease, based on Dr. Carlson’s opinion
as the special weight of the medical evidence.
By decision dated September 7, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, based on Dr. Carlson’s opinion as the
special weight of the medical evidence.
Appellant, through counsel timely requested a hearing before a representative of OWCP’s
Branch of Hearings and Review with regard to both the expansion and termination decisions.
During the hearing, held on February 21, 2019, counsel contended that OWCP should have
accepted bilateral carpal tunnel syndrome/double crush syndrome based on Dr. Henderson’s
July 2, 2015 opinion instead of posing the same question to Dr. Askin. He submitted additional
reports from Dr. Filippone dated September 13, 2018 through April 25, 2019, which reiterated that
the November 3, 2010 employment injuries caused bilateral carpal tunnel syndrome and internal
derangement of the right knee.
By decision dated May 8, 2019, OWCP’s hearing representative reversed the September 7,
2018 termination decision, set aside the August 29, 2018 expansion decision, and remanded the
case for additional development.

5

On remand, OWCP referred appellant, an updated SOAF, and the medical record to
Dr. Howard M. Pecker, Board-certified in orthopedic surgery and sports medicine, for an impartial
medical opinion. In an August 6, 2019 report, Dr. Pecker reviewed the medical record and SOAF.
On examination of appellant, he observed triggering of the index and long fingers of the right hand,
and a palpable medial osteophyte of the right knee. Dr. Pecker noted that there was no evidence
of carpal tunnel syndrome. He diagnosed degenerative cervical and lumbar disc disease, and
osteoarthritis of both knees. Dr. Pecker opined that all conditions present on examination were
age-related, without contribution by physical trauma. He returned appellant to full-time medium
duty.
By decision dated September 5, 2019, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day based on Dr. Pecker’s August 6, 2019 report
as the special weight of the medical evidence.
By separate decision also dated September 5, 2019, OWCP denied expansion of the
acceptance of appellant’s claim to include bilateral carpal tunnel syndrome, internal derangement
of the right knee, bilateral knee arthritis, herniated/bulging cervical and lumbar discs, cervical and
lumbar degenerative disc disease, and inguinal hernia based on Dr. Pecker’s opinion as the special
weight of the medical evidence.
On September 12, 2019 appellant, through counsel, requested a hearing before a
representative of OWCP’s Branch of Hearings and Review with regard to both September 5, 2019
decisions. The hearing was held on January 17, 2020.
OWCP subsequently received a July 24, 2019 report, wherein Dr. Serge Menkin, Boardcertified in physiatry and pain medicine, provided a history of injury and treatment. On
examination, he noted positive cervical, thoracic, and lumbar facet loading maneuvers, positive
Apley’s maneuver and McMurray’s sign in the right knee, and a positive right patellofemoral grind
test. He diagnosed lumbar radiculopathy, lumbar facet pain, cervicalgia, thoracic pain, and right
knee pain. Dr. Menkin reiterated these diagnoses in reports through December 18, 2019.
By decision dated March 24, 2020, OWCP’s hearing representative reversed the
September 5, 2019 termination decision. He remanded the case to obtain a supplemental report
from Dr. Pecker on whether the accepted November 3, 2010 employment injury had caused or
contributed to herniated/bulging cervical and lumbar discs, cervical and lumbar degenerative disc
disease, and right inguinal hernia. The hearing representative affirmed the September 5, 2019
denial of expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome, internal derangement of the right knee, and bilateral knee arthritis, based on
Dr. Pecker’s report as the special weight of the medical evidence.
LEGAL PRECEDENT
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.13
13

D.B., Docket No. 20-1280 (issued March 2, 2021); R.R., Docket No. 19-0086 (issued February 10, 2021); K.T.,
Docket No. 19-1718 (issued April 7, 2020); Jaja K. Asaramo, 55 ECAB 200 (2004).

6

Causal relationship is a medical question that requires medical opinion evidence to resolve
the issue.14 The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the accepted
employment injury.15
To establish causal relationship between the condition as well as any attendant disability
claimed and the employment injury, an employee must submit rationalized medical evid ence.16
The opinion of the physician 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. 17 The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.18
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, the question is whether compensability should be extended to a
subsequent injury or aggravation related in some way to the primary injury. The rules that come
into play are essentially based upon the concepts of direct and natural results and of the claimant’s
own conduct as an independent intervening cause. The basic rule is that a subsequent injury,
whether an aggravation of the original injury or a new and distinct injury, is compensable if it is
the direct and natural result of a compensable primary injury.19
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.20
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, OWCP
shall appoint a third physician (known as a referee physician or IME) who shall make an
examination. 21 This is called a referee examination and OWCP will select a physician who is
14

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

15

Id.

16

T.K., Docket No. 18-1239 (issued May 29, 2019); M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB
465 (2004).
17

D.S., Docket No. 18-0353 (issued February 18, 2020); T.K., id.; I.J., 59 ECAB 408 (2008); Victor J. Woodhams,
41 ECAB 345 (1989).
18

See P.M., Docket No. 18-0287 (issued October 11, 2018).

19

D.B., supra note 14; see V.K., Docket No. 19-0422 (issued June 10, 2020).

20

B.P., Docket No. 19-1376 (issued January 4, 2021); M.O., Docket No. 18-0229 (issued September 23, 2019);
J.F., Docket No. 19-0456 (issued July 12, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3e (January 2013).
21

5 U.S.C. § 8123(a); L.S., Docket No. 19-1730 (issued August 26, 2020); M.S., 58 ECAB 328 (2007).

7

qualified in the appropriate specialty and who has no prior connection with the case.22 When there
exist opposing medical reports of virtually equal weight and rationale and the case is referred to
an IME for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight. 23
ANALYSIS
The Board finds that this case is not in posture for a decision.
Dr. Pecker, the IME, opined in his August 6, 2019 report that appellant’s bilateral knee
conditions were age-related with no contribution from physical trauma. However, he did not
identify the conditions that necessitated the prior bilateral knee surgeries, or explain whether the
accepted right medial collateral ligament sprain would have had any effect on those degenerative
processes or caused an acute meniscal tear. Additionally, in contrast to appellant’s treating
physicians, Dr. Pecker opined that there were no objective findings of carpal tunnel syndrome. He
did not address the reports of Dr. Filippone or Dr. Henderson, which documented the presence of
bilateral carpal tunnel syndrome and supported causal relationship. As Dr. Pecker did not provide
medical rationale, his opinion requires clarification.24
In a situation where OWCP secures an opinion from an IME for the purpose of resolving
a conflict in the medical evidence and the opinion from such examiner requires clarification and/or
elaboration, OWCP has the responsibility to secure a supplemental report from the exa miner for
the purpose of correcting the defect in the original opinion. 25
For the above-described reasons, the opinion of Dr. Pecker requires clarification.
Therefore, in order to address the unresolved conflict in the medical opinion evidence, the Board
will remand the case to OWCP for a supplemental opinion regarding whether OWCP should
expand its acceptance of the claim to include bilateral carpal tunnel syndrome , internal
derangement of the right knee, and bilateral knee osteoarthritis. If Dr. Pecker is unable to clarify
his opinion or if his requested supplemental report is also lacking rationale, OWCP shall refer
appellant to a new IME for the purpose of obtaining a rationalized medical opinion on the issue. 26
After this and other such further development as deemed necessary, OWCP shall issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

22

20 C.F.R. § 10.321; P.B., Docket No. 20-0984 (issued November 25, 2020); R.C., 58 ECAB 238 (2006).

23

R.R., supra note 14; see Y.I., Docket No. 20-0263 (issued November 30, 2020); Darlene R. Kennedy, 57 ECAB
414 (2006).
24

B.P., supra note 21.

25

T.C., Docket No. 20-1170 (issued January 29, 2021); S.R., Docket No. 17-1118 (issued April 5, 2018); Nancy
Lackner (Jack D. Lackner), 40 ECAB 232 (1988).
26

M.D., Docket No. 19-0510 (issued August 6, 2019); Harold Travis, 30 ECAB 1071 (1979).

8

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2020 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 29, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dodge City, KS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-99
Issued: May 16, 2012

Case Submitted on the Record

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

JURISDICTION
On October 24, 2011 appellant filed a timely appeal from an August 23, 2011 merit
decision of an Office of Workers’ Compensation Programs’ (OWCP) hearing representative that
affirmed a schedule award. 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 schedule award
decision.
ISSUE
The issue is whether appellant met her burden of proof to establish more than a 13
percent impairment of the right lower extremity for which she received a schedule award.
On appeal, appellant asserts that she is entitled to a schedule award for the accepted
herniated disc at L4-5 and that an April 25, 1997 loss of wage-earning capacity decision was in
error.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 22, 1996 OWCP accepted that appellant, then a 43-year-old distribution
clerk, sustained an employment-related herniated disc at L4-5 and authorized a lumbar
laminectomy performed by Dr. Guillermo Garcia, an orthopedic surgeon, on July 17, 1996. She
returned to modified duty on September 19, 1996. By decision dated April 25, 1997, OWCP
found that appellant’s actual wages as a postal clerk fairly and reasonably represented her wageearning capacity with zero loss. By decisions dated September 14, 2009 and January 15, 2010, it
denied modification of the April 25, 1997 wage-earning capacity decision.
On June 16, 2010 appellant filed a schedule award claim. In a July 13, 2010 letter,
OWCP informed her that the most recent medical evidence of record was a January 19, 2007
report from Dr. Garcia. It asked that appellant provide an impairment evaluation in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).2 Appellant submitted a June 24, 2010 report, in which
Sally Greger, a nurse practitioner, provided physical findings regarding appellant’s neck and
upper extremities and diagnosed a disc protrusion at C5-6.
She retired effective
August 27, 2010.3
OWCP referred appellant to Dr. Michael J. Johnson, a Board-certified orthopedic
surgeon, for a second-opinion evaluation. In a December 15, 2010 report, Dr. Johnson reviewed
the medical record and statement of accepted facts. He listed appellant’s complaint of low back
pain radiating into her right thigh with occasional numbness. On physical examination of the
lumbar spine there was no evidence of spasm, swelling, mass or tenderness to palpation and no
evidence of lower extremity atrophy. Straight-leg raising was positive on the right. Dr. Johnson
diagnosed L4-5 herniated disc with discectomy/laminectomy on July 17, 1996 and advised that,
under Table 17-4 of the A.M.A., Guides, appellant had a five percent lower extremity
impairment. In an addendum report, he advised that her date of maximum medical improvement
was September 19, 1996 when she was released to return to work with restrictions. Regarding
appellant’s impairment rating, Dr. Johnson found that, under Table 16-12, she was class 1 with a
default grade of C. He then applied the net adjustment formula, finding a grade of E.
Dr. Johnson concluded that appellant had a mild motor weakness and loss of reflexes for a 9
percent lower extremity impairment of the tibial nerve and 13 percent impairment of the sciatic
nerve which, when combined, yielded a 21 percent lower extremity impairment.
On January 27, 2011 Dr. Daniel D. Zimmerman, an OWCP medical adviser, reviewed
Dr. Johnson’s rating. He advised that Dr. Johnson’s date of maximum medical improvement
could not be accepted because he did not reference the relevant history or examination findings
from that period. Dr. Zimmerman further advised that Dr. Johnson erred by not following
2

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

3

On August 24, 2010 appellant filed a recurrence claim, asserting that she sustained a recurrence of disability on
June 6, 2009 based on the national reassessment process. By letter dated September 14, 2010, OWCP informed her
to follow the appeal rights found in the September 14, 2009 and January 15, 2010 decisions. On September 20,
2010 appellant asked that her wage-earning capacity decision be modified, asserting that the position on which it
was based was odd-lot and make-shift, designed for her particular medical needs and not available in the general
labor market. Matters regarding her wage-earning capacity are not before the Board on the present appeal.

2

instructions found on page 496 of the A.M.A., Guides which state that, if multiple diagnoses are
being rated, the examiner should consider the relative contribution of each and only the limb
impairment with the highest rating should be considered. The medical adviser noted that the
only neurologic abnormality reported in the right lower extremity was decreased knee and ankle
reflexes. He agreed with Dr. Johnson’s findings regarding the sciatic nerve, concluding that,
under Table 16-12, appellant had a motor deficit of 9 percent and a sensory deficit of 4 percent,
for a total right lower extremity impairment of 13 percent. In a February 4, 2011 report, he
advised that the date of maximum medical improvement was December 15, 2010, the date of
Dr. Johnson’s report.
By decision dated February 18, 2011, appellant was granted a schedule award for 13
percent of the right leg or a total of 37.44 weeks, to run from December 15, 2010 to
September 3, 2011.
Appellant timely requested a hearing, that was held on June 28, 2011. At the hearing she
asserted that she did not agree with the amount or period of the schedule award. The hearing
representative explained the schedule award process and advised appellant that she could file for
a new schedule award based on medical evidence showing increased impairment.
In an August 23, 2011 decision, the hearing representative affirmed the February 18,
2011 decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However, it
does not specify the manner in which the percentage of loss shall be determined. For consistent
results and to ensure equal justice under the law for all claimants, OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition is to be used.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

Pamela J. Darling, 49 ECAB 286 (1998).

3

permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.11 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures.12 Specifically, it will address lower extremity impairments
originating in the spine through Table 16-1113 and upper extremity impairments originating in
the spine through Table 15-14.14
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).15 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).16
ANALYSIS
The Board finds that appellant has 13 percent impairment of the right leg. OWCP
accepted that she sustained an employment-related herniated disc at L4-5. The weight of the
medical evidence regarding appellant’s right lower extremity impairment rests with the opinions
of Dr. Johnson, an OWCP referral physician, and Dr. Zimmerman, an OWCP medical adviser.
They are the only impairment evaluations of record that comport with the sixth edition of the
A.M.A., Guides.17
In December 15, 2010 addendum report, Dr. Johnson advised that, under Table 16-12,
peripheral nerve impairment, appellant had a class 1 impairment which had a default grade of C
which, after applying the net adjustment formula, yielded a grade of E which, for the sciatic
10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

Rozella L. Skinner, 37 ECAB 398 (1986).

12

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 7.

13

A.M.A., Guides, supra note 2 at 533.

14

Id. at 425.

15

Id. at 533.

16

Id. at 521.

17

See I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted
by OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value
in determining the extent of permanent impairment).

4

nerve yielded a 13 percent impairment and for the tibial nerve yielded a 9 percent impairment.18
Dr. Zimmerman reviewed Dr. Johnson’s report and agreed with his conclusion that appellant had
a 13 percent right lower extremity impairment based on the sciatic nerve. The medical adviser
also properly noted that the A.M.A., Guides provide that, if multiple diagnoses are being rated,
the examiner should consider the relative contribution of each and the limb impairment with the
highest rating should be considered.19 Dr. Johnson rated the sciatic nerve at 13 percent and the
tibial nerve at 9 percent.
The medical evidence of record thus supports that appellant has a 13 percent impairment
of the right lower extremity. There is no rationalized medical evidence to support that she has
greater impairment under the protocols of the A.M.A., Guides.
Regarding appellant’s arguments on appeal, a schedule award is not payable under FECA
for an injury to the spine.20 As the schedule award provisions of FECA include the extremities,
as in this case, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originated in the spine.21 Such is the award
appellant received in this case. With regard to her assertion that, the April 25, 1997 wageearning capacity determination should be modified, OWCP has not issued a final decision of her
September 20, 2010 request for modification of the April 25, 1997 decision.22 The Board’s
jurisdiction is limited to reviewing final decisions of OWCP.23 It is not an issue presently on
appeal.
Appellant may request an increased schedule award based on evidence of a new exposure
or medical evidence showing progression of her employment-related condition resulting in
increased impairment.
CONCLUSION
The Board finds that appellant did not establish that she has more than a 13 percent
impairment of the right lower extremity.

18

A.M.A., Guides, supra note 2 at 534-36.

19

Id. at 496.

20

Pamela J. Darling, supra note 9.

21

Thomas J. Engelhart, supra note 10.

22

Supra note 3.

23

20 C.F.R. § 501.2(c); J.B., Docket No. 09-2191 (issued May 14, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the August 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 2012
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-747
Issued: December 3, 2010

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 January 25, 2010 appellant filed a timely appeal from a July 21, 2009 merit decision
of the Office of Workers’ Compensation Programs finding that he received an overpayment of
compensation and a July 23, 2009 merit decision setting forth the rate of recovery of the
overpayment.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
overpayment decisions.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received a
$10,958.14 overpayment of compensation because it did not deduct health benefit premiums
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 the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decisions were issued July 21 and 23, 2009, the 180 day computation begins on July 22 and 24, 2009, respectively.
Since using January 25, 2010, 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 January 12, 2010, which renders the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

from his compensation for the period December 26, 2004 through June 8, 2008; (2) whether he
was at fault in creating the overpayment; and (3) whether the Office properly found that it would
recover the overpayment by deducting $207.69 from appellant’s continuing compensation.
FACTUAL HISTORY
The Office accepted that on August 15, 1990 appellant, then a 32-year-old nuclear
inspector, sustained a herniated disc at L5-S1 in the performance of duty.2 The employing
establishment removed him from employment as of November 22, 2004 due to his inability to
perform his assigned duties due to his medical condition. The Office paid appellant
compensation for disability beginning November 23, 2004.
On December 20, 2004 appellant informed the Office that his health insurance company
was terminating his benefits on December 28, 2004 as he was no longer in federal employment.
The Office claims examiner advised him that health benefits would be transferred to the Office.
By letter dated December 22, 2004, appellant thanked the Office for assisting him with his health
insurance.
The record contains benefits statements from the Office to appellant for the periods
December 20, 2003 to April 1, 2004 and October 5 to 30, 2004. The statements indicated that
deductions for health insurance premiums were not applicable.
In a Form CA-1049 letter dated February 3, 2005, the Office advised appellant that it was
placing him on the periodic rolls effective January 23, 2005. It indicated in its letter that
deductions for health benefits were “n/a” (not applicable). The form provided, “If you have
optional life insurance and/or health benefits coverage, but no deduction for it is shown above,
contact this office immediately. You are still responsible for these premiums.”
On May 29, 2008 the Office noted that appellant’s insurance carrier had not been
receiving premiums. Beginning June 8, 2008, it adjusted appellant’s compensation to reflect
deductions for health benefit premiums. In a June 30, 2008 memorandum, the Office indicated
that it had transferred in health benefits beginning December 26, 2004 but that the premiums
were not deducted until June 7, 2008.
On July 21, 2008 the Office advised appellant of its preliminary determination that he
received an overpayment of $10,958.14 because it failed to deduct health benefit premiums from
December 26, 2004 to June 8, 2008. It attached a worksheet calculating the amount of the
overpayment created by its failure to deduct health benefit premiums using the applicable
Code 542. The Office further informed appellant of its preliminary determination that he was
without fault in the creation of the overpayment.
On July 28, 2008 appellant requested a prerecoupment hearing. Following a preliminary
review, on October 6, 2008 the hearing representative found that the case was not in posture for

2

By decision dated October 23, 2002, the Office reduced his compensation based on its finding that his actual
earnings as a timekeeper effective June 15, 2001 fairly and reasonably represented his wage-earning capacity.

2

decision. She noted that the Office failed to inform appellant of his right to inspect and copy
government records relevant to the overpayment.
On October 8, 2008 the Office reissued its preliminary determination of overpayment.
Appellant requested a prerecoupment hearing. On December 15, 2008 following a preliminary
review the hearing representative found that the case was not in posture for a hearing based on
her determination that appellant was at fault in the creation of the overpayment. The hearing
representative noted that the Office had sent him a benefits statement for the period
December 20, 2003 to January 24, 2004 showing no deductions for health insurance premiums.
She also determined that the February 3, 2005 letter from the Office placing appellant on the
periodic rolls gave him notice that it was not deducting health benefit premiums. The hearing
representative instructed the Office to change its preliminary determination that he was without
fault.
On January 5, 2009 the Office advised appellant of its preliminary determination that he
was at fault in the creation of the overpayment of $10,958.14 due to its failure to deduct health
benefit premiums for the period December 26, 2004 through June 7, 2008. It requested that he
complete the enclosed overpayment recovery questionnaire and submit supporting financial
documents. Additionally, the Office notified appellant that, within 30 days of the date of the
letter, he could request a telephone conference, a final decision based on the written evidence or
a prerecoupment hearing.
On January 27, 2009 appellant requested a prerecoupment hearing on the fact of
overpayment, the amount and the fault finding. At the hearing, held on May 13, 2009, he noted
that he was confused by Office paperwork and consequently hired an attorney. Appellant did not
know that there was a problem with his compensation as he did not look at the checks.
By letter dated May 15, 2009, appellant’s attorney cited Ian Manson Graham,3 for the
proposition that a blank space next to deductions for health benefits on a Form CA-1049 was
insufficient to place a claimant on notice that the Office was not deducting health benefit
premiums.
Appellant submitted a completed overpayment recovery questionnaire on June 16, 2009.
He listed his monthly expenses as $3,816.50 and his monthly income as $2,597.00.
By decision dated July 21, 2009, the hearing representative finalized the determination
that appellant received an overpayment of $10,958.14 because the Office did not deduct
premiums for health insurance from December 26, 2004 to June 7, 2008. He further determined
that appellant was at fault in the creation of the overpayment as he should have known that
premiums were not being deducted for health benefits based on the February 3, 2005 letter from
the Office. The hearing representative noted that his monthly expenses exceeded his monthly
income by approximately $1,000.00 and that evaluating whether the expenses were ordinary and
necessary would not lower the amount to the point where income exceeded expenses. He
completed a worksheet to determine the amount that would need to be repaid each month to
prevent compromise of the debt. The hearing representative concluded that, based on the
3

40 ECAB 1103 (1989).

3

worksheet, the Office should recover the overpayment by deducting $207.69 from continuing
compensation payments.
In a decision dated July 23, 2009, the Office informed appellant that it would recover the
overpayment by deducting $207.69 per month from his continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employee Health Benefits (FEHB) program. The regulations of the Office of
Personnel Management (OPM), which administers the FEHB program, provides guidelines for
the registration, enrollment and continuation of enrollment for federal employees. In this
connection, 5 C.F.R. § 890.502(a)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct
premium payments are not made but during which the enrollment of an employee
or annuitant continues, he or she incurs an indebtedness to the United States in the
amount of the proper employee withholding required for that pay period.”4
In addition, 5 C.F.R. § 890.502(c) provides:
“An agency that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions and any applicable agency
contributions required under section 8906 of the title, 5 United States Code, to
OPM for deposit in the Employees Health Benefits Fund.”5
Under applicable OPM regulations, the employee or annuitant is responsible for payment
of the employee’s share of the cost of enrollment.6 An agency that withholds less than the proper
health benefits contribution must submit an amount equal to the sum of the uncollected
deductions.7 The Board has recognized that, when an under withholding of health insurance
premiums is discovered, the entire amount is deemed an overpayment of compensation because
the Office must pay the full premium to OPM when the error is discovered.8

4

5 C.F.R. § 890.502(a)(1).

5

Id. at § 890.502(c).

6

Id. at § 890.502(b)(1).

7

Id. at § 890.502(d).

8

James Lloyd Otte, 48 ECAB 334 (1997).

4

ANALYSIS -- ISSUE 1
The Office paid appellant compensation for total disability beginning
November 23, 2004. It transferred his health benefits insurance enrollment to the Office
effective December 26, 2004. The Office, however, failed to deduct premiums from his
compensation payments from December 26, 2004 through June 8, 2008. Consequently, he
received an overpayment of compensation. The Office calculated the amount that it should have
deducted for health benefits premiums using Code 452 as $10,958.14. Appellant is responsible
for the entire amount of health benefit premiums not deducted from his compensation benefits.9
The Office properly determined that he received an overpayment of $10,958.14 for the period
December 26, 2004 through June 8, 2008.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Act10 provides that “[a]djustment or recovery by the United States
may not be made when incorrect payment has been made to an individual who is without fault
and when adjustment or recovery would defeat the purpose of this subchapter or would be
against equity and good conscience.” Section 10.433 of the Office’s implementing regulations11
provide that in determining whether a claimant is at fault, the Office will consider all pertinent
circumstances. An individual is with fault in the creation of an overpayment who:
“(1) Made an incorrect statement as to a material fact which he or she knew or
should have known to be incorrect; or
“(2) Failed to provide information which he or she knew or should have known to
be material; or
“(3) Accepted a payment which he or she knew or should have known to be incorrect.”
Section 10.433(b) of the Office’s regulations provide in relevant part:
“Whether of 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. 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.”12

9

Id. See also Marie D. Sinnett, 40 ECAB 1009 (1989) (when an under withholding of health insurance premiums
is discovered, the entire amount is deemed an overpayment of compensation because the Office must pay the full
premium to OPM when the error is discovered).
10

5 U.S.C. § 8129(b).

11

20 C.F.R. § 10.433.

12

Id. at § 10.433(b).

5

ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in the
creation of the overpayment. It must thus establish that, at the time he received the
compensation in question, he knew or should have known that the payment was incorrect.13
With respect to the overpayment created from December 26, 2004 through February 3, 2005, the
Board finds that the Office has not established that appellant accepted a payment that he knew or
should have known was incorrect. In finding that he was at fault, the Office discussed his
knowledge that it had transferred his health benefits to the Office in December 2004. It further
mentioned his receipt of benefit statements; however, these statements predated the period of the
overpayment. The Office has not sufficiently explained what evidence put appellant on notice
that he was accepting an incorrect payment of compensation from December 26, 2004 to
February 3, 2005. The Board finds that, under the circumstances, the evidence is insufficient to
establish that he knew or should have known that he received an incorrect payment for the period
December 26, 2004 through February 3, 2005. Consequently, the case will be remanded to the
Office to consider whether the overpayment created for this period should be waived.
The Board finds that appellant was at fault for the portion of the overpayment that arose
from February 3, 2005 through June 8, 2008. He knew that the Office had transferred his health
benefits as evidenced by his December 22, 2004 letter. By letter dated February 3, 2005, the
Office advised appellant that it was placing him on the periodic rolls effective January 23, 2005.
The form provided that the deductions for health benefits were “n/a.” It also advised appellant to
contact the Office immediately if he had health benefits but no deductions were shown on the
form and indicated that he would still be responsible for the premiums. In determining fault the
Office applies a reasonable person test.14 It was not reasonable for appellant to believe that his
health benefits had been transferred to the Office when it was not making any deductions for
health benefit premiums. The Board notes that appellant’s attorney, citing Graham,15 contended
that a blank space next to deductions for health benefits on a Form CA-1049 was insufficient to
put a claimant on notice that the Office was not deducting health benefit premiums. In this case,
however, the February 3, 2005 letter indicated that deductions for health benefits were not
applicable rather than leaving the amount blank. Further, the letter further clearly stated that if
the form did not provide deductions for health benefits and appellant had coverage, he must
notify the Office immediately. The Board, consequently, finds that he knew or should have
known that the Office improperly failed to deduct premiums for health benefits from his
compensation checks from February 3, 2005 to June 8, 2008. Therefore, appellant was at fault in
creating this portion of the overpayment and is not eligible for waiver.

13

See A.L., 61 ECAB ___ (Docket No. 09-1529, issued January 13, 2010); Tammy Craven, 57 ECAB 689 (2006);
Robin O. Porter, 40 ECAB 421 (1989).
14

See Tammy Craven, supra note 13.

15

Supra note 3.

6

CONCLUSION
The Board finds that the Office properly determined that appellant received a $10,958.14
overpayment of compensation because it did not deduct health benefit premiums from his
compensation for the period December 26, 2004 through June 8, 2008. The Board further finds
that he was not at fault for the overpayment that occurred from December 26, 2004 through
February 3, 2005 and that, consequently, the case must be remanded to the Office to consider
waiver of this portion of the overpayment. The Board finds that appellant was at fault for the
creation of the overpayment from February 3, 2005 through June 8, 2008.16
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 23, 2009 is set aside. The decision dated July 21, 2009 is
affirmed in part and set aside in part and remanded for further proceedings consistent with this
opinion of the Board.
Issued: December 3, 2010
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

16

In view of the Board’s finding that the case must be remanded for the Office to consider waiver of a portion of
the overpayment, it is premature to address recovery of the overpayment.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1568
Issued: March 16, 2011

Case Submitted on the Record

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

JURISDICTION
On May 25, 2010 appellant filed a timely appeal from the April 27, 2010 merit decision
of the Office of Workers’ Compensation Programs denying her traumatic injury claim. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a back injury while in the performance of duty
on September 16, 1999.
FACTUAL HISTORY
On September 24, 1999 appellant, then a 36-year-old aircraft sheet metal mechanic, filed
a traumatic injury claim alleging that she injured her low back on September 16, 1999 when she
fell while working on a sloping panel.1 In a September 16, 1999 record of injury/illness, an

1

Appellant’s July 31, 2000 traumatic injury claim was accepted for wrist sprain (File No. xxxxxx259).

employing establishment physician reported that she fell that date while working on a sloping
panel. Appellant informed him that her back hurt and she was having spasms.
On November 1, 2009 appellant filed a recurrence for medical treatment. She stated that
after her September 1, 1999 injury, she never took time off from work, but that she was placed
on light duty. Appellant noted that her back had always given her problems and was getting
worse with time. She indicated that she sustained two other work-related back injuries in
September 1996 and August 1998.
In a letter dated February 1, 2010, the Office informed appellant that as her September 1,
1999 injury was minor, with no time lost, it paid a limited amount of medical expenses without
fully developing her claim. Based upon her current claim, it informed her that it would
adjudicate whether she experienced a work-related injury on the date in question. The Office
advised appellant that the information submitted was insufficient to establish her claim and
requested additional information, including a detailed account of the alleged injury and a
physician’s report, with a diagnosis and a rationalized opinion as to how the diagnosed condition
was caused or aggravated by the claimed incident.
Appellant submitted progress notes for the period September 25, 2001 through January 9,
2007 from Dr. Khalid K. Al-Sharif, a Board-certified internist, who treated her for chronic
conditions, including chronic obstructive pulmonary disease (COPD), migraines and back pain.
On September 25, 2001 Dr. Al-Sharif diagnosed muscular pain, COPD, right shoulder bursitis
and migraines. On November 27, 2001 he diagnosed muscular neck and back spasms, migraine,
fatigue and gastroesophageal reflux disease (GERD). On January 24, 2002 Dr. Al-Sharif
diagnosed lumbar strain, which he stated was improving, and noted appellant’s complaints of
continued back pain. On February 18, 2002 he diagnosed chronic lower back pain which he
stated had increased. On March 1, 2002 Dr. Al-Sharif diagnosed chronic lower back pain and
sinusitis. On March 19, 2002 he diagnosed chronic lower back pain and lumbar strain and
recommended ruling out radiculitis.
On September 7, 2002 Dr. Al-Sharif provided a history of appellant’s back condition. He
noted that in November 2001 she fractured her tail bone at T7. In 1996 appellant slipped and
again fell on her tail bone. Also in 1996 she was hit by a solid metal aircraft stand which pushed
against her back.2 Since 1996 appellant “has been down with chronic back pain.” Dr. Al-Sharif
stated that her back pain had worsened since August 7, 2002 due to standing and working long
hours on a concrete floor. He reported the results of an electromyogram (EMG) of the lower
extremities, which he indicated was compatible with postganglionic sciatic nerve irritation.
Dr. Al-Sharif noted a slight demyelination process and substantial axonal degeneration of the
sciatic nerve bilaterally and centrally at L4-5. On October 15, 2002 he again diagnosed chronic
lower back pain.
On April 15, 2003 Dr. Al-Sharif stated that appellant had experienced lower back pain on
the previous Sunday morning. Appellant bent over and “when she stood up she felt pain.”
Dr. Al-Sharif again diagnosed lower back pain. On May 2 and 30, 2003 he again diagnosed
chronic lower back pain. On June 30, 2003 Dr. Al-Sharif added the diagnosis of sciatica. Notes
2

The record does not reflect that appellant filed claims with the Office for these alleged incidents.

2

dated March 26, 2004 reflect a diagnosis of lumbar radiculopathy, lower back pain and GERD.
On May 21, 2004 Dr. Al-Sharif diagnosed lower back pain, sinusitis and bronchitis.
On January 26, 2006 Dr. Al-Sharif noted appellant’s complaints of pain down both legs.
He diagnosed lower back pain and recommended ruling out a herniated disc. Notes dated
January 9, 2007 repeated the diagnosis of lumbar strain and contusion. Dr. Al-Sharif stated that
appellant’s back spasms began on January 3, 2002.
The record contains August 23, 2008 and April 7, 2009 reports of a magnetic resonance
imaging (MRI) scan of the lower spine.
In a statement dated February 22, 2010, appellant indicated that she had never sustained
an injury to her back outside of her federal employment. The only back injury she sustained
since the September 16, 1999 incident occurred on November 3, 1999.
In a February 24, 2010 report, Dr. Jeffrey Rymuza, a Board-certified internist, indicated
that he had treated appellant since January 30, 2006 for back pain resulting from injuries suffered
at the employing establishment “to include date of injury September 16, 1999.” He ordered an
MRI scan to determine the cause of her pain on August 23, 2008. Dr. Rymuza stated that the
“injury sustained September 16, 1999 cannot be ruled out as [a] contributing factor in findings
from [the] MRI [scan].”
By decision dated April 27, 2010, the Office denied appellant’s claim. It accepted that
the September 16, 1999 work incident occurred as alleged, but found that the medical evidence
was insufficient to relate appellant’s back condition to the incident of September 16, 1999. The
Office also denied her recurrence claim.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws, namely,
arising out of and in the course of employment.4
An employee seeking benefits under the Act has the burden of proof to establish the
essential elements of her claim, including the fact that the individual is an employee of the
United States within the meaning of the Act, that the claim was timely filed within the applicable
time limitation period of the Act, that an injury was sustained in the performance of duty as
alleged, and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.5 When an employee claims that she sustained a
3

5 U.S.C. § 8102(a).

4

This construction makes the statute effective in those situations generally recognized as properly within the
scope of workers compensation law. Charles E. McAndrews, 55 ECAB 711 (2004); see also Bernard D. Blum, 1
ECAB 1 (1947).
5

Robert Broome, 55 ECAB 339 (2004).

3

traumatic injury in the performance of duty, she must establish the fact of injury, consisting of
two components, which must be considered in conjunction with one another. The first is
whether the employee actually experienced the incident that is alleged to have occurred at the
time, place and in the manner alleged. The second is whether the employment incident caused a
personal injury and generally this can be established only by medical evidence.6
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.7 An award of
compensation may not be based on appellant’s belief of causal relationship.8 Neither the mere
fact that a disease or condition manifests itself during a period of employment nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish a causal relationship.9 Simple exposure to a workplace hazard does not
constitute a work-related injury entitling an employee to medical treatment under the Act.10
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The 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 established incident or factor of employment.11
ANALYSIS
The Office accepted that appellant was a federal employee, that she timely filed her claim
for compensation benefits and that the September 16, 1999 incident occurred as alleged. The
issue is whether appellant submitted sufficient medical evidence to establish that the employment
incident caused an injury. The medical evidence presented does not provide a rationalized
medical opinion addressing how the work-related incident caused or aggravated her low back
condition or disability. Therefore, appellant failed to satisfy her burden of proof.
The medical evidence submitted by appellant includes progress notes from Dr. Al-Sharif
from September 25, 2001 through January 9, 2007. Although these notes listed appellant’s
6

Deborah L. Beatty, 54 ECAB 340 (2003). See also Tracey P. Spillane, 54 ECAB 608 (2003); Betty J. Smith, 54
ECAB 174 (2002). The term injury as defined by the Act, refers to a disease proximately caused by the
employment. 5 U.S.C. § 8101 (5). See 20 C.F.R. § 10.5(q)(ee).
7

Katherine J. Friday, 47 ECAB 591, 594 (1996).

8

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

9

Id.

10

20 C.F.R. § 10.303(a).

11

John W. Montoya, 54 ECAB 306 (2003).

4

treatment during this period of time, Dr. Al-Sharif did not provide findings on examination or
adequate opinion as to the cause of her diagnosed conditions. Medical evidence which does not
offer any opinion regarding the cause of an employee’s condition is of limited probative value.12
The Board notes that on September 7, 2002 Dr. Al-Sharif provided a history of appellant’s back
condition, noting that she injured her tail bone in November 2001 and again in 1996, and that she
was hit in the back by a solid metal aircraft stand in 1996. Dr. Al-Sharif also noted that her
chronic back pain had worsened since August 7, 2002 due to standing and working long hours on
a concrete floor. His reports did not include a history of the September 16, 1999 incident, or
identify it as a possible cause for appellant’s back condition. Rather, Dr. Al-Sharif did not
attribute her back condition to the accepted incident but to other incidents as noted.
Dr. Al-Sharif failed to provide a firm medical connection to the accepted 1999 incident.
His primary diagnosis was chronic lower back pain. The Board has held that pain is a general
symptom, rather than a firm medical diagnosis.13 Dr. Al-Sharif noted that appellant’s pain was
accompanied by spasms, which would also constitute a symptom, rather than a diagnosis. In
2002, he added the diagnosis of lumbar strain and reported the results of an EMG of the lower
extremities, which he stated was compatible with postganglionic sciatic nerve irritation.
Dr. Al-Sharif did not provide a medical narrative report based on a complete history of injury
and medical treatment or adequate findings on examination to support his lumbar strain
diagnosis or explain how the events of September 16, 1999 were competent to cause a lumbar
strain or postganglionic sciatic nerve irritation. On January 9, 2007 he diagnosed lumbar strain
and contusion and stated that appellant’s back spasms began on January 3, 2002. Absent
sufficient findings on examination or narrative explanation relating these conditions to the 1999
incident, Dr. Al-Sharif’s reports are of limited probative value and are insufficient to establish
her claim.
On February 24, 2010 Dr. Rymuza stated that he had treated appellant since January 30,
2006 for back pain resulting from injuries suffered at the employing establishment “to include
date of injury September 16, 1999.” He ordered an MRI scan on August 23, 2008 and stated that
the “injury sustained September 16, 1999 cannot be ruled out as [a] contributing factor in
findings from [the] MRI [scan].” Dr. Rymuza’s report is deficient on several counts. It does not
contain a full or complete history of injury, findings on examination or a definitive diagnosis.
Although it refers to an MRI scan report, the record does not contain such a diagnostic study and
Dr. Rymuza did not discuss any findings. Dr. Rymuza’s report does not contain a definitive
opinion as to the cause of appellant’s condition. His statement to the effect that the
September 16, 1999 incident “cannot be ruled out as [a] contributing factor in findings from [the]
MRI [scan]” is speculative at best. As Dr. Rymuza did not provide a complete factual
background or explain the nature of the relationship between appellant’s back condition and the
established incident, his report is of limited probative value, particularly in light of her multiple
back injuries.14

12

Michael E. Smith, 50 ECAB 313 (1999).

13

See C.F., Docket No. 08-1102 (issued October 10, 2008). See also Robert Broome, 55 ECAB 339, 342 (2004).

14

John W. Montoya, 54 ECAB 306 (2003).

5

The remaining medical evidence of record includes EMG and MRI scan reports. As
these reports do not contain an opinion as to the cause of appellant’s condition, they are of
limited probative value and are insufficient to establish her claim.
Appellant expressed her belief that her back condition resulted from the September 16,
1999 employment incident. The Board has held that the mere fact that a condition manifests
itself during a period of employment does not raise an inference that there is a causal relationship
between the two.15 Therefore, appellant’s belief that her condition was caused by the
work-related incident is not determinative.
The Office advised appellant that it was her responsibility to provide a comprehensive
medical report which described her symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of her condition. Appellant failed to submit
appropriate medical evidence addressing how her claimed back condition was caused or
aggravated by her employment. She has not met her burden of proof to establish that she
sustained an injury in the performance of duty on September 16, 1999. The Board finds that the
Office correctly determined that her recurrence claim was inappropriate, as her claimed injury
was not accepted by the Office.16
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish that she
sustained a traumatic injury to her back in the performance of duty on September 16, 1999.

15

See Joe T. Williams, 44 ECAB 518, 521 (1993).

16

See Paul E. Thams, 56 ECAB 503 (2005). See also 20 C.F.R. § 10.5(y).

6

ORDER
IT IS HEREBY ORDERED THAT the April 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-1155
Issued: September 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 21, 2014 appellant filed a timely appeal from an April 10, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of a medical condition due to the
accepted May 22, 2002 injury.
FACTUAL HISTORY
On May 22, 2002 appellant, then a 46-year-old police officer, sustained a right knee
injury when he stepped from a curb and twisted his knee. On August 16, 2002 OWCP accepted
1

5 U.S.C. § 8101 et seq.

his claim for knee strain. Appellant did not claim wage loss as a result of his condition and
received authorization for medical procedures, including x-rays, magnetic resonance imaging
(MRI) scan, arthroscopy, braces/splints, a myelogram and orthopedic/neurological referral. He
returned to work on July 2, 2002 at regular duty.
On July 1, 2002 Dr. Harold G. Weems, Jr., a Board-certified orthopedist, examined a
MRI scan of appellant’s right knee. He found that appellant’s medial and lateral menisci,
anterior and posterior cruciate ligaments and medial and lateral collateral ligaments to be intact.
The bone signal of the distal femur, proximal tibia and patella were also within normal limits, as
was the surrounding soft tissue. Dr. Weems stated his impression that appellant had a normal
MRI scan of the right knee. In a report dated July 3, 2002, he noted that appellant’s MRI scan
was essentially negative and believed that the majority of pain was coming from “a bit of
tendinitis on his patellar tendon.” Dr. Weems stated that he would see appellant on an as needed
basis.
In a report dated February 16, 2005, Dr. William F. King, a Board-certified radiologist,
examined the results of x-rays of appellant’s knees and compared them to a previous study of
appellant’s right knee dated May 23, 2002. There was no acute or recent healing or unhealed
fractures or dislocations of either knee. In the right knee, Dr. King observed smooth and wellmaintained articular surfaces of the femoral condyles and tibial plateaus without significant
arthritis. There was a small spur on the superior pole of the right patella and two small
calcifications nearby in the insertion of the quadriceps tendon to the patella. Dr. King noted
another small spur on the inferior pole of the right patella, which was slightly larger than it was
on the May 23, 2002 study. He observed no focal areas of bone erosion or destruction and
normal and equal medial and lateral knee joint cartilage spaces. In the left knee, Dr. King noted
smooth and well-maintained articular surfaces without significant arthritis, normal joint cartilage
spaces and no focal areas of bony erosion or destruction. He found a small spur on the superior
pole of the left patella.
On the same date, Dr. Oleg I. Zhukovskiy, a Board-certified internist, noted that appellant
had degenerative changes of the shoulder and lower back, along with bilateral knee pain.
On January 8, 2014 appellant filed a notice of recurrence seeking medical treatment
related to the May 22, 2002 employment injury. He did not claim wage-loss compensation and
listed the date of recurrence as July 4, 2002. Appellant stated that he had been seen by his
physician every six months for his knee and that his pain and restricted movements had existed
since the 2002 injury.
By letter dated January 15, 2014, OWCP requested additional medical evidence from
appellant to support his claim for a recurrence of his medical condition. It noted that the
evidence of record was insufficient to support his claim as there was no bridging medical
evidence to establish ongoing medical complications as a result of the accepted injury. OWCP
stated that the MRI scan of appellant’s right knee dated July 1, 2002 was normal and that the
medical records revealed that he was released from medical care for his work-related condition
on July 3, 2002.

2

On July 30, 2010 Dr. Zhukovskiy diagnosed appellant with degenerative joint disease and
increased his prescription for Lortab.
On July 18, 2013 Dr. Gina C. Sims, a Board-certified radiologist, examined the results of
x-rays of appellant’s knees. In the right knee, she found osteopenia with mild tricompartmental
degenerative changes, with a prominent enthesophyte along the extensor mechanism. Dr. Sims
noted no large right knee effusion, no acute displaced fracture or dislocation and no significant
patellar tilt or subluxation. She observed, “Regions of heterotopic ossification along the
proximal patellar tendon could be related to old injury were degenerative changes.” In the left
knee, Dr. Sims found osteopenia with mild tricompartmental degenerative changes and small
patellar enthesophytes.
She stated her impression of bilateral mild tricompartmental
degenerative changes with no acute osseous abnormality.
Appellant responded to OWCP’s inquiries on February 22, 2014. He stated that his knee
hurt since after the 2002 injury and continued to cause the same problems. Appellant noted that
additional medical care was required because he had received care after the injury. The injury
caused him to miss work and, while the injury was to his right knee, his left knee was now also
in pain. Appellant stated that his medical records would bridge the gap between his date of
discharge in 2002 from medical care through the present because he received medical care for
his knee after the injury. He also submitted several unsigned and incomplete medical reports.
By decision dated April 10, 2014, OWCP denied appellant’s recurrence claim of a
medical condition. It found that the medical evidence was insufficient to establish that his
current right knee condition was causally related to the May 22, 2002 employment-related injury.
LEGAL PRECEDENT
Appellant has the burden of establishing that he sustained a recurrence of a medical
condition that is causally related to his accepted employment injury. To meet his burden, he
must furnish medical evidence from a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the condition is causally related to the employment
injury and supports that conclusion with sound medical rationale.2 Where no such rationale is
present, the medical evidence is of diminished probative value.3
OWCP regulations define a recurrence of medical condition as the documented need for
further medical treatment after release from treatment of the accepted condition when there is no
work stoppage. Continued treatment for the original condition is not considered a renewed need
for medical care, nor is examination without treatment.4
OWCP’s procedure manual provides that, after 90 days of release from medical care
(based on the physician’s statement or instruction to return as needed or computed by the claims
examiner from the date of last examination), a claimant is responsible for submitting an
2

Ronald A. Eldridge, 53 ECAB 218, 220 (2001).

3

Mary A. Ceglia, 55 ECAB 626, 629 (2004); Albert C. Brown, 52 ECAB 152, 155 (2000).

4

20 C.F.R. § 10.5(y).

3

attending physician’s report which contains a description of the objective findings and supports
causal relationship between the claimant’s current condition and the previously accepted work
injury.5
ANALYSIS
The Board finds that appellant has not established that he sustained a recurrence of a
medical condition. OWCP accepted his traumatic injury claim for right knee strain on
August 16, 2002. In 2014, appellant claimed entitlement to compensation for medical treatment
of his condition. The Board finds that there is insufficient medical evidence to establish that he
required further medical treatment for a continuing employment-related condition.
In a report dated July 3, 2002, Dr. Weems noted that appellant’s right knee MRI scan was
essentially negative and determined that the majority of his pain was coming from “a bit of
tendinitis on his patellar tendon.” He released appellant from treatment on an as needed basis.
This latter statement from Dr. Weems constituted a release from medical care under OWCP’s
procedures.6 Appellant submitted no further medical evidence until January 8, 2014, when he
filed his recurrence claim. His visits with physicians related to his right knee, beginning with
Dr. King’s report of February 16, 2005, were more than 90 days after Dr. Weems’ release from
medical care. Therefore, appellant must submit an attending physician’s report that provides a
full and accurate medical history, a description of the objective findings and supports a causal
relationship between his current right knee condition and the previously accepted right knee
strain.7 He has the burden of submitting sufficient medical evidence to document the need for
further medical treatment.8 Appellant did not submit such evidence and failed to establish a need
for continuing medical care.
Dr. King’s February 16, 2005 radiological report is insufficient to establish appellant’s
claim. In the right knee, Dr. King observed smooth and well-maintained articular surfaces of the
femoral condyles and tibial plateaus without significant arthritis. There was a small spur on the
superior pole of the right patella and two small calcifications nearby in the insertion of the
quadriceps tendon to the patella. Dr. King noted another small spur on the inferior pole of the
right patella. This report merely provides an interpretation of appellant’s right knee x-ray
without an opinion addressing the causal relationship between any findings to his accepted injury
of right knee strain. Dr. Zhukovskiy’s reports of February 16, 2005 diagnosed degenerative
changes of the shoulders and lower back, with bilateral knee pain. His progress notes of July 30,
2010, diagnosed appellant with degenerative joint disease, but did not offer any opinion on the
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013). The
procedure manual provides, with certain exceptions, that, within 90 days of release from medical care (as stated by
the physician or computed from the date of last examination or the physician’s instruction to return PRN), a claims
examiner may accept the attending physician’s statement supporting causal relationship between appellant’s current
condition and the accepted condition, even if the statement contains no rationale. Id., Chapter 2.1500.4(a).
6

See id.

7

Id.

8

Supra note 2.

4

cause of the right knee condition or need for treatment. Medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.9
On July 18, 2013, Dr. Sims, a Board-certified radiologist, examined the results of x-rays
of appellant’s knees. In the right knee, she found osteopenia with mild tricompartmental
degenerative changes, with a prominent enthesophyte along the extensor mechanism. Dr. Sims
found no large right knee effusion, no acute displaced fracture or dislocation and no significant
patellar tilt or subluxation. She observed, “Regions of heterotopic ossification along the
proximal patellar tendon could be related to old injury were degenerative changes.” This
statement referencing causal relationship to an “old injury,” is unclear on the issue of etiology.
Dr. Sims did not address the work-related injury of May 22, 2002 or other injury to the right
knee. She is equivocal, noting that the condition “could be” related to an “old injury.” The
Board has held that medical opinions which are speculative or equivocal are of diminished
probative value.10 Dr. Sims did not provide adequate medical rationale in addressing the
relationship between appellant’s current knee condition and need for treatment to the 2002 right
knee strain. There are no further medical reports of record addressing his right knee condition.11
Appellant submitted several incomplete medical reports, containing no signature, such
that their authors cannot readily be identified. The Board has found that reports lacking proper
identification, such as unsigned notes, do not constitute probative medical evidence.12 These
reports are also not sufficient to establish a recurrence of his medical condition.
Appellant must submit a rationalized medical opinion addressing the causal relationship
between his right knee condition in 2014 to his accepted condition of right knee strain in 2002.
An award of compensation may not be based on surmise, conjecture, speculation or upon his
own belief that there was a causal relationship between his condition and his employment.13
Appellant has not submitted a rationalized medical opinion addressing causal relationship. The
Board finds that OWCP properly denied his claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

Michael E. Smith, 50 ECAB 313, 316 (1999).

10

See S.E., Docket No. 08-2214 (issued May 6, 2009) (finding that opinions such as the condition is probably
related, most likely related or could be related are speculative and diminish the probative value of the medical
opinion); Cecilia M. Corley, 56 ECAB 662, 669 (2005) (finding that medical opinions which are speculative or
equivocal are of diminished probative value).
11

Appellant submitted several medical reports detailing shoulder and back conditions, but as these reports did not
address his accepted right knee condition, they were of no probative value to his claim for recurrence.
12

R.M., 59 ECAB 690, 693 (2008).

13

Patricia J. Glenn, 53 ECAB 159, 160 (2001).

5

CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a recurrence of a medical condition causally related to his accepted injury.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1292
Issued: August 20, 2015

Case Submitted on the Record

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

JURISDICTION
On May 20, 2015 appellant, through her representative, filed a timely appeal from a
May 12, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Because more than 180 days has elapsed between the last merit decision dated May 8, 2014 and
the filing of this appeal on May 20, 2015, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
under 5 U.S.C. § 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 17, 2012 appellant, then a 51-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging that she developed a bilateral arm condition as a result of her
repetitive employment duties which involved heavy lifting. She stated that for years her arms
hurt when lifting and she experienced sharp pains moving up and down her arms. Appellant
noted that she was required to push heavy postcons, pull and lift heavy buckets, and carry heavy
books and magazines which caused her pain and the need for treatment on August 6, 2012.
In reports dated July 14 and August 2, 2012, Dr. Mary Chaglassian, a treating physician,
diagnosed elbow tendinitis.
In a medical report dated August 6, 2012, Dr. Lubov Sychikov, Board-certified in
internal medicine, reported that appellant worked for the employing establishment and carried
heavy objects which started to affect her right elbow, arm, and hand. He diagnosed lateral
epicondylitis of the right elbow and left medial epicondylitis.
By letter dated September 19, 2012, OWCP informed appellant that the evidence of
record was insufficient to support her claim. Appellant was advised of the medical and factual
evidence needed and asked that she respond to the provided requests within 30 days.
In a June 28, 2012 medical report, Dr. Salil Gupta, a Board-certified orthopedic surgeon,
reported that appellant complained of significant pain in her bilateral elbows for several years
which she felt was exacerbated by her employment, right worse than left. Upon physical
examination, he diagnosed right lateral epicondylitis and left medial epicondylitis.
By decision dated November 21, 2012, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the occupational exposure occurred as alleged.
On November 1, 2013 appellant requested reconsideration of OWCP’s decision and
provided a detailed statement describing her federal employment duties.
In support of her claim, appellant submitted a number of prescription and treatment notes
pertaining to the right and left elbow, a November 19, 2012 magnetic resonance imaging (MRI)
scan of the left elbow, and a December 4, 2005 electromyography study of the upper extremity.
OWCP also received medical reports dated November 14, 2012 and February13, 2013
from Dr. Gupta who reported that appellant complained of increased elbow pain which she had a
history of for the last 15 years from her repetitive employment duties. Dr. Gupta noted review of
diagnostic testing and opined that appellant’s repetitive use and occupational disease over years
lead to a chronic and persistent lateral epicondylitis.
In medical reports dated June 26 to September 20, 2013, Dr. Young Kwon, a Boardcertified orthopedic surgeon, reported that he was treating appellant for left elbow pain.
Appellant underwent left elbow athroscopic synovectomy and debridement on August 5, 2013
and was restricted from working until November 1, 2013.

2

By decision dated May 8, 2014, OWCP affirmed the November 21, 2012 decision, as
modified, finding that the evidence of record established that the occupational exposure occurred
as alleged and also established a firm medical diagnosis. It denied the claim, however, finding
that the medical evidence did not demonstrate that the diagnosed conditions were causally
related to the established work-related factors.
On May 7, 2015 appellant requested reconsideration of OWCP’s decision. Her
representative stated that January 12 and April 20, 2015 medical reports from Dr. Joseph Bosco,
a Board-certified orthopedic surgeon, and a February 4, 2015 MRI scan established her
occupational disease claim.
In a January 12, 2015 medical report, Dr. Bosco reported that appellant had an insidious
atraumatic onset of right shoulder pain. He stated that she worked for the employing
establishment and was also noted to have left elbow pain, having undergone elbow surgery for
lateral epicondylitis. Dr. Bosco recommended an MRI scan of the right shoulder to rule out right
rotator cuff tear.
Dr. Renata La Rocca Vieira, a Board-certified diagnostic radiologist, reported on
February 4, 2015 that an MRI scan of the right shoulder revealed a high grade partial thickness
tear of the insertional fibers of the supraspinatus tendon accompanied by grade 1 muscle atrophy.
In an April 20, 2015 follow-up note, Dr. Bosco diagnosed right rotator cuff tear and
recommended surgery.
By decision dated May 12, 2015, OWCP denied appellant’s request for reconsideration
finding that she neither raised substantive legal questions nor included new and relevant
evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP regulations provide
that when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration
without reopening the case for a review on the merits.3
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for further consideration
of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).
2

D.K., 59 ECAB 141 (2007).

3

K.H., 59 ECAB 495 (2008).

3

The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of the claim.
In her May 7, 2015 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. She did not advance a new and
relevant legal argument. Appellant’s argument was that her condition was work related. The
decisive issue in this case was whether her bilateral elbow condition was causally related to her
repetitive employment activities. That is a medical issue which must be addressed by relevant
medical evidence.4 Appellant, however, failed to submit new and relevant medical evidence in
support of her claim.5
Appellant argues that Dr. Bosco’s reports and the February 4, 2015 MRI diagnostic scan
constitute new and relevant evidence warranting merit review of her case. The February 4, 2015
MRI scan of the right shoulder simply interpreted imaging studies and provided no opinion that
appellant’s condition was caused by her repetitive employment activities. Moreover, the MRI
scan and the reports of Dr. Bosco pertained to the right shoulder. Appellant filed this
occupational disease claim alleging injury to her arms and submitted numerous medical reports
in support of a bilateral elbow injury. Her prior medical reports make no mention of a right
shoulder injury or complaints pertaining to the right shoulder. Not only are the newly submitted
reports not relevant to appellant’s occupational disease claim for a bilateral elbow condition, but
the reports also provide no opinion regarding the cause of appellant’s injury.6
Appellant failed to provide detailed medical rationale from a physician to explain and
support the medical opinion that her diagnosed bilateral elbow condition was caused by her
occupational employment duties.7 The Board has held that the submission of evidence which
does not address the particular issue involved does not constitute a basis for reopening a case.8
Claimant may obtain a merit review of an OWCP decision by submitting new and relevant
evidence. In this case, while appellant submitted new evidence, it was not relevant in addressing
causal relationship pertaining to her bilateral elbow injury.9
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

4

C.B., Docket No. 08-1583 (issued December 9, 2008).

5

See Bobbie F. Cowart, 55 ECAB 746 (2004).

6

L.J., Docket No. 14-523 (issued August 7, 2014).

7

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (Where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
8

Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).

9

M.H., Docket No. 13-2051 (issued February 21, 2014); M.C., Docket No. 14-21 (issued March 11, 2014).

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
without a merit review.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated May 12, 2015 is affirmed.
Issued: August 20, 2015
Washington, DC

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

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

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

5